IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                              January  8,  2002  Session

                  STATE  OF  TENNESSEE  v.  KATHRYN  LEE  ADLER


                    Direct  Appeal  from  the  Circuit  Court  for  Fayette  County
                         No.  4945  Jon  Kerry  Blackwood,  Judge



                    No.  W2001-00951-CCA-R3-CD  -  Filed  February  19,  2002



         The  Fayette  County  Grand  Jury  returned  an  indictment  against  the  defendant  alleging  one  count  of
         aggravated  child  neglect  and  a  second  count  of  aggravated  child  abuse. A  jury  convicted  the
         defendant  of  the  indicted  charge  of  aggravated  child  neglect  and  the  lesser-included  offense  of  felony
         child  abuse.  The  trial  court  sentenced  the  defendant  to  concurrent  sentences  of  twenty  years  and  two
         years,  respectively.  In  this  appeal,  the  defendant  alleges  (1)  the  evidence  is  insufficient  to  support
         the  conviction  for  aggravated  child  neglect;  (2)  the  applicable  child  abuse/neglect  statutes  are
         unconstitutionally  vague  and  overbroad;  (3)  the  trial  court  erred  by  refusing  to  charge  reckless
         endangerment  as  a  lesser-included  offense  of  aggravated  child  neglect;  and  (4)  the  defendant's
         sentence  is  excessive.  After  a  thorough  review  of  the  record,  we  find  no  reversible  error  and  affirm
         the  judgment  of  the  trial  court.


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


         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ALAN
         E.  GLENN,  JJ.,  joined.

         Anthony  Helm,  Bartlett,  Tennessee  (at  trial  and  on  appeal),  and  Mike  Roberts,  Memphis,  Tennessee
         (at  trial),  for  the  appellant,  Kathryn  Lee  Adler.

         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kim  R.  Helper,  Assistant  Attorney  General;
         Elizabeth  T.  Rice,  District  Attorney  General;  and  Colin  A.  Campbell,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee. 



                                   OPINION

                                 BACKGROUND


             While  the  defendant  was  administering  a  bath  to  her  two-year-old  stepson,  victim  Cody
         Oneal  Adler,  Cody  was  severely  burned.  After  discussing  the  injury  with  her  husband,  Larry  Adler,
         they  decided  not  to  seek  medical  attention  for  the  victim.  Approximately  72  hours  after  infliction



                           1  Larry  Adler  was  tried  separately  and  convicted  of  misdemeanor  reckless  endangerment. See  State  v.  Alan
                  Lawrence  Adler,  No.  W2001-00178-CCA-R3-CD,  2001  WL  1011461,  at  *1  (Tenn.  Crim.  App.  Aug.  29,  2001,  at
                  Jackson),  perm.  to  app.  pending.

                                                                          -2- of  the  injuries,  Larry  Adler  was  home  caring  for  the  victim  when  the  victim  experienced  a  seizure.
                  Larry Adler phoned 911, and the victim was transported by helicopter to LeBonheur Hospital.
                  Physicians treated  the victim's burns and alerted social services.  This trial followed, with the
                  defendant  being  convicted  by  a  jury  of  one  count  of  aggravated  child  neglect  and  one  count  of  felony
                  child  abuse.1 



                                                              TRIAL  TESTIMONY


                           Lisa  McDowell,  an  EMT,  testified  she  was  dispatched  to  the  defendant's  residence  on  June
                  25,  2000,  where  she  saw  the  severely  burned  two-year-old  victim. The  paramedics  then  arrived  and
                  ordered that he be  transported to the  hospital by helicopter.  On cross-examination, McDowell
                  conceded  that  at  the  scene,  Larry  Adler  took  blame  for  the  incident. Additionally,  she  stated  that  she
                  checked  the  water  temperature  from  the  bathtub  faucet,  and  the  water  was  hot  although  the  control
                  device  was  in  the  Òneutral  position.Ó 

                           Jim Poe, an Oakland City Police Officer, arrived at the defendantÕs residence at
                  approximately  2:20  p.m.  on  June  25th. He  testified  that  Larry  Adler  told  him  the  defendant  had  run
                  the  bath  water,  whereas  the  defendant  said  Larry  Adler  turned  on  the  water  for  the  victimÕs  bath.
                  He  further  stated  they  gave  conflicting  dates  of  the  incident.

                           Mike  Coleman,  Larry  AdlerÕs  employer,  testified  that  Larry  Adler  received  a  phone  call  from
                  the  defendant  while  at  work  prior  to  lunch  on  Friday,  June  23rd.

                           Katie  Moore,  the  defendantÕs  thirteen-year-old  daughter,  testified  that  although  she  lived  with
                  her  father,  she  was  staying  at  her  motherÕs  residence  on  the  day  of  the  incident  through  the  weekend.
                  She  stated  that  while  she  was  washing  dishes,  she  heard  crying  coming  from  the  bathroom. Moore
                  then walked in the bathroom and saw the defendant holding the victim down while the victim
                  struggled  to  exit  the  tub. Moore  returned  to  the  kitchen. When  the  defendant  left  the  bathroom  to
                  play  a  movie  for  another  child,  Moore  reentered  the  bathroom  and  touched  the  bath  water,  which  felt
                  Òcold.Ó

                           While  finishing  the  dishes,  Moore  heard  crying,  went  back  in  the  bathroom,  and  saw  the
                  defendant  holding  the  victim  up  in  a  towel. Moore  placed  her  hand  in  the  water,  which  felt  Òhot.Ó
                  The  victimÕs  skin  was  red  and  was  Òpeeling  off.Ó The  defendant  called  Larry  Adler  and  when  Moore
                  was  placed  on  the  phone,  she  Òwas  crying,  and  [she]  told  him  that  [the  defendant]  had  done  it  on
                  purpose.Ó Moore  did  not  see  the  defendant  call  a  pharmacy. Moore  further  testified  the  victim
                  played  with  toys;  he  would  crawl  on  his  knees  and  unburned  hand;  he  was  fed;  his  burns  were  treated
                  everyday  with  Òsome  spray.Ó  When  MooreÕs  uncle  and  aunt  visited  on  the  following  Saturday  night,



                                                                -3- the  victim  remained  in  bed  the  entire  time. Moore  further  testified  that  the  victimÕs  skin  was
               ÒbrownÓ  on  Sunday,  and  the  victim  Òlay[ed]  around  and  moan[ed]  a  lot  that  weekend.Ó

                       Dr.  Karen  Laken,  a  pediatrician,  testified  she  observed  the  victim  at  LeBonheur  Hospital.
               Dr.  Laken  stated  the  victim  had  Òvery,  very  extremely  burned  areas  on  his  lower  extremities  .  .  .  feet
               .  .  .  left  hand  .  .  .  buttocks  .  .  .  and  the  bottom  part  of  his  scrotum.Ó She  stated  the  burns  were
               Òtextbook  examples  or  typical  examples  of  immersion  injuries  into  very  hot  liquidÓ  which  were
               Òclassic  burns  that  are  non-accidental  or  abusive.Ó Dr.  Laken  further  testified  that  these  types  of
               injuries are often a result of a caregiver becoming upset when children use the restroom on
               themselves  during  potty-training.  Dr.  Laken  opined  the  burns  were  non-accidental  because  both  feet
               were  placed  in  the  water  at  the  same  time;  there  were  no  Òsplash  burns;Ó  and  the  left  side  of  the
               victimÕs  buttocks  was  not  burned,  indicating  the  victim  was  restrained  in  the  tub  by  pressure  to  his
               shoulder, thus insulating his left buttocks against the tub.  Dr. Laken opined the burns were
               Òextremely painful,Ó and the failure to seek prompt medical attention placed the victim at a
               substantial  risk  of  serous  bodily  injury  or  death.

                       Dr.  Phillip  Carl  Smith,  an  ER  physician,  testified  for  the  defense.  He  examined  the  victimÕs
               medical  records  and  opined  the  injuries  were  consistent  with  child  abuse,  but  it  was  also  possible  that
               they  resulted  from  an  accident.  Dr.  Smith  conceded  the  burns  would  have  been  Òextremely  painful;Ó
               it  would  have  been  obvious  to  the  caregiver  that  there  was  something  wrong  with  the  victim;  and  the
               victim  should  have  been  taken  to  the  hospital  Òas  soon  as  possible.Ó Dr.  Smith  corroborated  Dr.
               LakenÕs  conclusion  that  the  injuries  were  consistent  with  a  person  being  held  down  in  hot  liquid.

                       Larry  Boone,  the  defendantÕs  father,  testified  he  went  to  the  residence  one  week  after  the
               injury  and  saw  that  the  Òjoystick-typeÓ  faucet  was  Òvery  loose.Ó  When  he  informed  the  landlord  that
               he  was  going  to  hire  a  plumber  to  check  the  diversion  rate  of  the  hot  and  cold  water  and  check  the
               hot  water  heaterÕs  controls,  he  was  denied  entry.

                       Dr.  Fred  Steinberg,  a  forensic  and  clinical  psychologist,  performed  tests  on  the  defendant  and
               opined  she  was  not  abusive  and  did  not  intentionally  abuse  nor  intentionally  neglect  the  victim.

                       Joe  Moore,  the  defendantÕs  former  husband,  stated  he  never  saw  an  indication  that the
               defendant  would  injure  a  child.

                       Kristy  Boone,  the  defendantÕs  sister-in-law,  testified  she  visited  the  defendantÕs  home  on  the
               weekend  of  the  injury,  and  the  victim  appeared  normal. She  stated  the  victim  was  quiet  while
               watching  TV,  and  he  was  covered  with  a  blanket  Ð  only  exposing  his  head  and  one  hand. Boone
               believed  the  victim  may  have  been  sick  because  he  was  in  a  blanket,  and  when  she  asked  if  the
               victim  felt  well,  the  defendant  replied  that  he  had  a  Òlittle  fever.Ó

                       The  defendant  testified  in  her  own  defense. She  stated  that  on  Thursday,  June  22nd,  not
               Friday,  June  23rd,  while  Larry  Adler  was  at  work,  she  was  feeding  the  victim  breakfast. While
               eating,  the  victim  urinated  in  his  pants,  so  she  went  to  the  bathroom,  turned  the  faucet  to  Òmedium,Ó
               checked  the  water  temperature,  and  plugged  the  drain.  After  the  victim  finished  eating  his  breakfast,



                           2  No pharmacist testified at trial.  The defendant testified she called ÒInformationÓ and asked for Òany
                  Walgreens  PharmacyÓ  and  Òpressed  oneÓ  for  an  automatic  connection. She  stated  she  did  not  know  which  Walgreens
                  location  she  called.

                                                                          -4- she took him to the bathroom, removed his clothing, placed him in  the tub, and left the water
                  running.  She then took his soiled clothing to the washroom, and she placed it in the washing
                  machine  which  had  its  temperature  control  set  on  Òcold.Ó When  she  heard  the  victim  crying  in  the
                  bathtub, she returned to the bathroom, and after  she gave  him a bath toy, he quit crying.  The
                  defendant  again left the toddler alone in the tub and  went to the bedroom.  There, she laid out
                  clothing  for  him  to  wear  and  placed  a  videotape  into  the  VCR  for  another  child. She  heard  the
                  victim  crying  again,  returned  to  the  bathroom,  and  saw  the  victim  standing  in  the  tub. She  then
                  grabbed  his  arms  and  Òsat  him  down  in  the  tub.Ó The  defendant  stated  she  struggled  with  the  victim,
                  which  was  normal,  and  she  was  unaware  of  the  waterÕs  extremely  hot  temperature  until  her  hand
                  touched  the  water. 

                           The defendant stated she was Òhysterical,Ó  immediately removed him from the tub,
                  examined  his  burns,  and  wrapped  him  in  a  towel. She  then  called  Larry  Adler  at  work  and  described
                  the  victimÕs  injuries. She  conceded  that  his  burns  appeared  ÒpinkÓ  in  color,  and  a  piece  of  Òskin  was
                  hanging off his feet.Ó  After they agreed that she should call a  pharmacy, she called directory
                  assistance  and  was  connected  to  a  pharmacist.2 She  testified  she  described  the  victimÕs  injuries,  and
                  the  pharmacist  instructed  her  to  administer  Solarcaine  or  Bactine,  A  &  D  ointment,  peroxide,  tepid
                  water,  and  Tylenol  for  pain. She  said  the  pharmacist  further  warned  her  if  the  victim  ran  a  fever,  it
                  was an indication of infection.  The defendant stated she applied the salves immediately after
                  concluding  her  conversation  with  the  pharmacist. 

                           When  asked  why  she  did  not  call  911,  the  defendant  stated:

                                    I  had  spoke  [sic]  with  my  husband,  and  we  discussed  it,  and  we  were  more
                           afraid  that  LarryÕs  ex-wife  would  take  the  boys  away  from  us  due  to  the  fact  that  I  ran
                           the  tub,  the  water,  and  we  were  scared  that  also  that  they  were  going  to  go  back  to  a
                           gang  member  life  being  in  an  unstable  home,  a  lot  of  drugs  around,  and  we  were  just
                           scared  for  them.

                           The  defendant  further  testified  she  followed  the  pharmacistÕs  instructions,  thought  there  was
                  no  need  to  phone  911,  and  believed  the  victimÕs  conditions  were  improving. On  Sunday,  June  25th,
                  she checked the condition of the victim and noticed he had a low-grade fever.  She said she
                  administered  Tylenol,  and  the  victimÕs  temperature  tested  ÒnormalÓ  forty-five  minutes  later. The
                  defendant  and  Katie  Moore  drove  to  Memphis  to  shop,  leaving  the  victim  with  Larry  Adler. While
                  shopping,  she  received  a  Ò911  beep  from  Larry.Ó She  then  called  home,  and  Larry  Adler  told  her
                  that  the  victim  was  going  to  be  airlifted  to  the  hospital. 

                           When  the  defendant  arrived  home,  the  police  were  present. The  defendant  conceded  she  told
                  officers  that  Larry  Adler  ran  the  bath  water,  and  explained  that  she  lied  because  she  feared  they
                  would  lose  custody. She  further  conceded  she  lied  when  she  informed  officers  that  ÒLarry  [Adler]



                                                                -5- stated  that  [the  victim]  had  jumped  in  the  tub.Ó She  further  stated  she  informed  the  pharmacist  that
               the  victim  had  been  burned  but  did  not  inform  the  pharmacist  of  the  specifics  of  his  injuries.

                       Robert  Hutton,  an  attorney  who  represented  Larry  Adler,  was  called  by  the  state  in  rebuttal
               to  Kristy BooneÕs testimony. Hutton testified he  interviewed Boone  during the  course of his
               representation  of  Larry  Adler,  and  Boone  stated  that  on  her  weekend  visit  she  observed  Òsomething
               wrong  with  the  [victimÕs]  hand,Ó  and  the  defendant  blamed  the  victimÕs  biological  mother. 



                                           I. SUFFICIENCY  OF  THE  EVIDENCE


                       The  defendant  contends  the  evidence  is  insufficient  to  sustain  her  conviction  for  aggravated
               child  neglect. We  respectfully  disagree.


               A. Standard  of  Review

                       When  an  accused  challenges  the  sufficiency  of  the  evidence,  this  court  must  review  the
               record  to  determine  if  the  evidence  adduced  during  the  trial  was  sufficient  "to  support  the  finding
               by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt." Tenn.  R.  App.  P.  13(e). This  rule  is
               applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
               combination  of  direct  and  circumstantial  evidence.  State  v.  Brewer,  932  S.W.2d  1,18  (Tenn.  Crim.
               App.  1996). 
                       This  court  does  not  reweigh  or  reevaluate  the  evidence,  State  v.  Cabbage,  571  S.W.2d  832,
               835  (Tenn.  1978),  nor  may  this  court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from
               circumstantial  evidence. Liakas  v.  State,  199  Tenn.  298,  305,  286  S.W.2d  856,  859  (1956). This
               court  is  required  to  afford  the  state  the  strongest  legitimate  view  of  the  evidence  contained  in  the
               record  as  well  as  all  reasonable  and  legitimate  inferences  which  may  be  drawn  from  the  evidence.
               State  v.  Tuttle,  914  S.W.2d  926,  932  (Tenn.  Crim.  App.  1995). 
                       The  trier  of  fact,  not  this  court,  resolves  questions  concerning  the  credibility  of  the  witnesses,
               the  weight  and  value  to  be  given  the  evidence  as  well  as  all  factual  issues  raised  by  the  evidence.

               Id. In  State  v.  Grace,  the  Tennessee  Supreme  Court  stated,  "[a]  guilty  verdict  by  the  jury,  approved
               by  the  trial  judge,  accredits  the  testimony  of  the  witnesses  for  the  State  and  resolves  all  conflicts  in
               favor  of  the  theory  of  the  State." 493  S.W.2d  474,  476  (Tenn.  1973). 

               B. Analysis


                       The jury concluded the defendant was guilty of aggravated child neglect pursuant to
               Tennessee  Code  Annotated  section  39-15-402  (Supp.  2000). Our  code  provides  that  Ò[a]ny  person
               who  knowingly,  other  than  by  accidental  means,  treats  a  child  .  .  .  in  such  a  manner  as  to  inflict
               injury  or  neglects  such  a  child  so  as  to  adversely  affect  the  child's  health  and  welfareÓ  is  guilty  of
               child  abuse  or  child  neglect. Tenn.  Code  Ann.  ¤  39-15-401(a)  (Supp. 2000). It  is  a  Class  A
               misdemeanor unless the child is age six or less, in which event it is a Class D felony.  Id.



                                                                -6- Furthermore,  the  code  provides  that  Ò[a]  person  commits  the  offense  of  aggravated  child  abuse  or
               aggravated child neglect who commits the offense of child abuse or neglect as defined in ¤
               39-15-401  and  .  .  .  [t]he  act  of  abuse  or  neglect  results  in  serious  bodily  injury  to  the  child.Ó Tenn.
               Code  Ann.  ¤  39-15-402(a)(1)  (Supp.  2000). This  offense  is  a  Class  B  felony  unless  the  child  is  age
               six  or  less,  in  which  event  the  offense  is  a  Class  A  felony. Id.  ¤  (b). ÒSerious  bodily  injuryÓ  is
               defined,  in  part,  as  Ò[a]  substantial  risk  of  deathÓ  or  Ò[e]xtreme  physical  pain.Ó Tenn.  Code  Ann.  ¤
               39-11-106(a)(34)(A),  (C).

                       The  defendant  testified  that  the  victim  was  burned  so  badly  he  had  skin  Òpeeling  off  his  feet.Ó
               She  further  testified  she  did  not  phone  911  because,  after  discussing  it  with  her  husband,  she  feared
               losing  custody  of  the  children. Viewing  the  evidence  in  a  light  most  favorable  to  the  state,  as  we
               must,  this  establishes  that  the  defendant  knowingly  decided  not  to  seek  medical  attention  because
               of  custody  considerations;  thus,  this  establishes  knowing  neglect. 

                       Furthermore,  Dr.  Laken  testified  that  the  defendantÕs  failure  to  take  the  victim  to  the  hospital
               placed  him  at  a  substantial  risk  of  serous  bodily  injury  or  death. Dr.  Laken  estimated  the  victim
               suffered  burns  on  15  percent  of  his  body,  and  Ò[a]ny  child  his  age  who  has  probably  greater  than  10
               percent  of  a  body  surface  area  that  is  burned  is  automatically  classified  in  the  critical  category.  .  .  .Ó
               Dr.  Laken  further  opined  that  the  victimÕs  injuries  were  Òextremely  painful,Ó  and  his  pain  could  have
               been  eased  by  medication  if  he  had  been  taken  to  the  hospital.  Dr.  Laken  further  testified  the  victim
               underwent  skin  grafts  which  left  permanent  scars  and  a  Òprotracted  disfigurement.Ó

                       Additionally,  Dr.  Smith,  a  defense  witness,  testified  the  victimÕs  injuries  were  Òextremely
               painful;Ó  the  victim  could  have  been  given  morphine  to  control  the  pain;  it  would  have  been  obvious
               to  the  defendant  that  there  was  something  wrong  with  the  victim;  and  the  victim  should  have  been
               taken  to  the  hospital  Òas  soon  as  possible.Ó

                       Although  the  testimony  of  Dr.  Laken  and  Dr.  Smith  does  not  establish  that  the  victimÕs
               Òprotracted  disfigurementÓ  was  a  result  of  the  convicted  offense  of  aggravated  child  neglect  rather
               than  child  abuse,  it  clearly  establishes  that  the  victim  was  subjected  to  Òa  substantial  risk  of  deathÓ
               and  Òextreme  physical  painÓ  due  to  the  defendantÕs  neglecting  to  seek  prompt  medical  attention.
               Thus,  the  element  of  Ò[s]erious  bodily  injuryÓ  was  established. See  Tenn.  Code  Ann.  ¤  39-11-106(
                    a)(34)(A),  (C). Furthermore,  it  is  undisputed  that  the  child  was  less  than  six  years  of  age. See

               Tenn.  Code  Ann.  ¤  39-15-402(b). Accordingly,  we  conclude  the  evidence  sufficiently  established
               that  the  defendant  knowingly  neglected  the  victim,  resulting  in  Òserious  bodily  injuryÓ  to  the  two-year-
                    old  toddler.  The  evidence  is  sufficient  to  support  the  guilty  verdict  for  aggravated  child  neglect.




                                         II. CHILD  ABUSE/NEGLECT  STATUTES


                       The defendant asserts Tennessee Code Annotated sections 39-15-101 and 102 are
               unconstitutionally  vague  and  overbroad  because  the  words  Òinjury,Ó  Òneglect,Ó  and  ÒwelfareÓ  are  not
               defined.  This  court  has  rejected  this  argument.  See  State  v.  Tyaneshia  Turner  and  Jonathan  Webster,



                                                                -7- No.  W1999-00530-CCA-R3-CD,  __  WL  __,  2000  Tenn.  Crim.  App.  LEXIS  487  (Tenn  Crim.  App.
               June  21,  2000,  at  Jackson),  perm.  to  app.  denied  (Tenn.  2001)  (holding  ÒneglectÓ  and  ÒinjuryÓ  are
               not  unconstitutionally  vague);  State  v.  Kena  Hodges,  No.  01C01-9804-CR-00170,  1999  WL  618861,
               at  *11-12  (Tenn.  Crim.  App.  Aug.  11,  1999,  at  Nashville),  perm.  to  app.  denied  (Tenn.  2000)
               (holding  Òinflict  injuryÓ  is  not  unconstitutionally  vague);  State  v.  Cynthia  Denise  Smith,  C.C.A.  No.
               1153,  1990  WL  134934,  at  *3  (Tenn.  Crim.  App.  Sept.  20,  1990,  at  Knoxville)  (holding  Òadversely
               affect  the  childÕs  health  and  welfareÓ  is  not  unconstitutionally  vague).  We  adhere  to  these  holdings.

                       In  support  of  the  defendantÕs  position,  she  argues  a  plethora  of  hypothetical  situations  where
               the  statute  might  be  vague  as  applied. However,  she  does  not  contest  the  applicability  of  the
               aggravated  child  abuse  statute  to  her  conduct. A  party  who  engages  in  conduct  clearly  proscribed
               by  the  statute  may  not  complain  of  its  vagueness  when  applied  to  others. State  v.  Burkhart,  58
               S.W.3d  694,  699  (Tenn.  2001). In  the  absense  of  facial  vagueness,  we  will  not  consider  all  possible
               contingencies  of  attempted  prosecution  under  a  criminal  statute. Id. We  conclude  the  defendantÕs
               conduct toward the victim involves no constitutionally protected activity, so her overbreadth
               challenge  fails.  Further,  the  statute  is  neither  unconstitutionally  vague  as  applied  to  her  conduct,  nor
               is  it  facially  vague. Accordingly,  this  issue  is  without  merit. 



                                            III. LESSER-INCLUDED  OFFENSE


                       The  defendant  contends  the  trial  court  erroneously  refused  to  charge  misdemeanor  reckless
               endangerment  as  a  lesser-included  offense  of  aggravated  child  neglect. We  conclude  the  failure  to
               charge  misdemeanor  reckless  endangerment  was  harmless  error. 


               A. Burns  Requirements


                       Our  supreme  court  has  recently  held  that  misdemeanor  reckless  endangerment  is  a  lesser-included 
                         offense  of  aggravated  child  abuse. See  State  v.  Honeycutt,  54  S.W.3d  762,  772  (Tenn.
               2001). In  its  brief  and  at  oral  argument,  the  state  conceded  that  the  reasoning  in  Honeycutt  would
               apply  in  the  case  sub  judice,  making  reckless  endangerment  a  lesser-included  offense  of  aggravated
               child  neglect. We  agree. 

                       However,  our  analysis  does  not  conclude  there.  As  recently  stated  by  the  Tennessee  Supreme
               Court  in  State  v.  Ely,  48  S.W.3d  710,  722  (Tenn.  2001),  the  charge  must  be  justified  by  the  evidence.

               See  State  v.  Burns,  6  S.W.3d  453,  467  (Tenn.  1999). This  step  requires  that  we  determine  (1)
               whether  there  is  evidence  that  Òreasonable  mindsÓ  could  accept  to  establish  the  lesser-included
               offense,  and  (2)  whether  the  evidence  is  Òlegally  sufficientÓ  to  support  a  conviction  for  the  lesser-included 
                         offense. Ely,  48  S.W.3d  at  722;  Burns,  6  S.W.3d  at  469. The  evidence  must  be  viewed
               liberally in a light favoring the existence of the lesser-included offense without making any
               judgments  as  to  credibility  of  the  evidence. Burns,  6  S.W.3d  at  469. 


               B. Basis  for  Charge



                                                                -8- Tennessee  Code  Annotated  section  39-13-103(a)  provides  that  Ò[a]  person  commits  [reckless
               endangerment]  who  recklessly  engages  in  conduct  which  places  or  may  place  another  person  in
               imminent  danger  of  death  or  serious  bodily  injury.Ó  Dr.  Laken  testified  the  delay  in  seeking  medical
               attention  placed  the  victim  at  a  Òsubstantial  risk  of  serious  bodily  injury  or  death.Ó We  conclude
               reasonable  minds  could  have  accepted  this  lesser-included  offense,  and  the  evidence  would  have
               been  sufficient  to  sustain  such  a  conviction. 


               C. Harmless  Error  Doctrine


                       The  trial  court's  failure  to  instruct  a  lesser-included  offense  is  harmless  when  the  jury  finds
               the  defendant  guilty  of  the  greater  offense  to  the  exclusion  of  the  immediately  lesser-included
               offense,  which  was  a  greater  offense  than  the  one  requested.  State  v.  Williams,  977  S.W.2d  101,  106
               (Tenn. 1998).  The sequential jury instructions charged aggravated child neglect, attempted
               aggravated  child  neglect,  felony  child  neglect,  and  attempted  felony  child  neglect. The  jury  found
               the  defendant  guilty  of  the  charged  offense  of  aggravated  child  neglect  to  the  exclusion  of  the  other
               charged  lesser-included  offenses. Any  error  in  declining  to  give  instructions on misdemeanor
               reckless  endangerment  was  harmless  beyond  a  reasonable  doubt. This  issue  is  without  merit. 



                                                      IV. SENTENCING


                       The  defendant  contends  the  trial  court  imposed  an  excessive  sentence. The  presumptive
               sentence  for  the  Class  A  felony  of  aggravated  child  neglect  is  the  midpoint  of  the  range,  and  the
               presumptive  sentence  for  the  Class  D  felony  of  child  abuse  is  the  minimum  within  the  range. See

               Tenn. Code Ann. ¤ 40-35-210(c).  For a Range I standard  offender, the sentencing range for
               aggravated  child  neglect  is  fifteen  to  twenty-five  years,  and  the  sentencing  range  for  felony  child
               abuse  is  two  to  four  years. See  Tenn.  Code  Ann.  ¤  40-35-112(a)(1),  (4). Following  a  sentencing
               hearing, the trial court sentenced the defendant to concurrent sentences of twenty years for
               aggravated  child  neglect  and  two  years  for  child  abuse,  the  presumptive  sentence  for  each  offense.
                       Although  the  defendant  claims  the  length  of  her  sentence  is  excessive,  she  has  neglected  to
               preserve  a  record  of  the  sentencing  hearing. It  is  the  duty  of  the  accused  to  provide  a  record  which
               conveys  a  fair,  accurate,  and  complete  account  of  what  transpired  with  regard  to  the  issues  which
               form  the  basis  of  the  appeal.  Tenn.  R.  App.  P.  24(b);  see  State  v.  Taylor,  992  S.W.2d  941,  944
               (Tenn.  1999). This  issue  is  waived. 


                                                        CONCLUSION


                       Based  on  the  foregoing,  we  affirm  the  judgment  of  the  trial  court. 



                                                                     ___________________________________ 



                                                                -9-  JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE 

                               July  24,  2002  Session

                 SHANNA  DEAN  ALDER  v.  STATE  OF  TENNESSEE 

                    Direct  Appeal  from  the  Criminal  Court  for  Knox  County
                         No.  64064  Mary  Beth  Leibowitz,  Judge


                             No.  E2002-00287-CCA-R3-PC
                                 August  28,  2002

         The  petitioner  appeals  the  denial  of  her  petition  for  habeas  corpus  relief.  She  contends  the  trial  court
         was  without  authority  to  revoke  her  judicial  diversion  after  her  diversionary  probation  expired,
         absent  the  issuance  of  a  revocation  warrant  prior  to  its  expiration.  She,  therefore,  argues  the  trial
         court  was  without  jurisdiction  when  it  revoked  judicial  diversion,  was  consequently  without
         jurisdiction  when  it  sentenced  her  to  additional  years  of  probation,  and  was  without  jurisdiction  when
         it  subsequently  issued  a  probation  revocation  warrant.  We  agree  and  reverse  the  denial  of  habeas
         corpus  relief. 

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

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  JERRY  L.  SMITH,
         JJ.,  joined.
         Herbert  S.  Moncier,  Knoxville,  Tennessee,  for  the  appellant,  Shanna  Dean  Alder.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kathy  D.  Aslinger,  Assistant  Attorney  General;
         Randall  E.  Nichols,  District  Attorney  General;  and  Patricia  A.  Cristil,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee. 


                                   OPINION

             On  September  29,  1997,  the  petitioner  pled  guilty  to  vehicular  homicide.  The  trial  court
         entered  an  order  placing  her  on  judicial  diversion  and  placed  her  on  three  years  of  supervised
         probation.  Thus,  the  petitionerÕs  diversionary  period  was  set  to  expire  September  29,  2000. 
             The  petitionerÕs  probation  officer  submitted  a  violation  report  directly  to  the  trial  judge  on
         October  5,  1999,  indicating  a  fee  arrearage. The  report  stated  no  revocation  warrant  was  being
         requested.  There  is  no  indication  the  petitioner  received  a  copy  of  the  report,  nor  was  it  filed  with
         the  court  clerk.  No  motion  was  filed  by  the  state  to  revoke  diversion.



                                                                -2- On  August  23,  2000,  the  probation  officer  submitted  another  violation  report  directly  to  the
               trial  judge  indicating  the  petitioner  had  positive  drug  screens  in  June  and  July,  2000,  and  other
               violations.  The report requested that diversion be revoked.  Again, there is no indication the
               petitioner  received  a  copy  of  the  report,  nor  was  it  filed  with  the  court  clerk. According  to  the  trial
               judge,  the  report  was  placed  in  the  trial  judgeÕs  personal  file.  No  revocation  warrant  was  issued,  and
               no  motion  was  filed  by  the  state  to  revoke  diversion.
                       Although  the  record  is  somewhat  unclear,  the  case  was  apparently  set  for  a  ÒcheckpointÓ  on
               September  15,  2000. By  letter  dated  September  7,  2000,  from  the  probation  officer,  the  petitioner
               was  notified  to  appear  on  September  15th. The  letter  did  not  state  that  any  violation  had  been  filed.
               The  trial  court's  minute  entry  for  September  15  th  simply  indicates  that  Ò[t]his  case  is  continued  to
               November  3,  2000.Ó The  trial  judge  stated  that  her  recollection  of  that  appearance  was  that  the
               parties  appeared  and  were  made  aware  of  possible  violations,  and  the  case  was  reset  to  November
               3,  2000,  to  allow  the  petitioner  to  secure  new  counsel  because  her  then-attorney  had  become  a  judge.
               However,  no  evidence  was  introduced  concerning  this  September  15  th  appearance  other  than  the
               minute  entry.  There  is  no  indication  in  the  record  before  this  court  that  the  petitioner  received  a  copy
               of  the  violation  report  at  this  appearance,  nor  is  there  competent  evidence  in  the  record  to  indicate
               petitionerÕs acknowledgment of being charged with a violation or the details of any alleged
               violations. Certainly,  there  is  no  indication  the  petitioner  waived  the  filing  of  a  revocation  warrant.
               Further,  it  is  undisputed  that  a  revocation  warrant  was  never  issued.
                       On  November  3,  2000,  the  trial  court  entered  a  judgment  of  conviction  revoking  judicial
               diversion  and  sentencing  the  petitioner  to  three  years  of  probation.  Neither  a  revocation  warrant  nor
               a  motion  by  the  state  to  revoke  diversion  was  ever  filed.  The  defendant  did  not  appeal  the  judgment.
                       On  March  1,  2001,  a  probation  violation  warrant  was  issued  alleging  a  positive  drug  screen
               and  failure  to  pay  probation  fees. On  March  21,  2001,  the  defendant,  with  different  counsel,  filed
               a  motion  to  dismiss  the  probation  revocation  warrant  in  which  she  alleged  the  November  2000
               judgment  of  conviction  against  her  was  void  because  it  was  entered  after  the  diversionary  period
               expired. The  motion  was  denied  by  the  trial  court. This  court  denied  the  petitionerÕs  request  for  an
               interlocutory  appeal  and  /or  extraordinary  appeal. See  State  v.  Shanna  Alder,  E2001-01425-CCA-R9-
                   CD  (Tenn.  Crim.  App.  July  28,  2001,  at  Knoxville),  perm.  to  app.  denied  (Tenn.  2001). 
                       The  petitioner  filed  the  instant  application  for  post-conviction  relief  and  for  habeas  corpus
               relief  on  September  10,  2001,  which  was  denied  by  the  trial  court  on  January  18,  2002. The  trial
               court  held  the  petitionerÕs  period  of  diversion  did  not  expire  automatically  at  the  end  of  the  three
               years  in  the  absence  of  an  order  of  discharge  from  diversion  and,  therefore,  it  retained  authority  to
               sentence the defendant when it entered judgment on November 3, 2000.  It further held the
               November  2000  sentence  did  not  violate  double  jeopardy. 



                                                                -3- I.  POST-CONVICTION  RELIEF  AND  HABEAS  CORPUS 

                       The  petitioner  seeks  post-conviction  and  habeas  corpus  relief. She  argues  the  November
               2000  judgment  of  conviction  and  resulting  sentence  are  void  due  to  the  trial  courtÕs  absence  of
               jurisdiction  after  the  diversionary  period  expired. We  must  agree. 
                       Grounds  for  post-conviction  relief  exist  when  a  conviction  or  sentence  is  void  or  voidable
               due  to  the  abridgment  of  a  constitutional  right. Tenn.  Code  Ann.  ¤  40-30-203  (1997);  State  v.
               Wilson,  31  S.W.3d  189,  194  (Tenn.  2000). A  writ  of  habeas  corpus  may  issue  only  where  it  is  plain
               from  the  record  the  court  lacked  jurisdiction  or  authority  to  sentence  a  defendant  or  the  sentence  has
               expired. Dixon  v.  Holland,  70  S.W.3d  33,  36  (Tenn.  2002). 
                       Appellate  review  of  the  trial  court's  findings  of  fact  in  a  post-conviction  proceeding  is  de
               novo  with a presumption  of  correctness,  while  review  of  questions  of  law  is  de  novo  with  no
               presumption  of  correctness. Miller  v.  State,  54  S.W.3d  743,  745  (Tenn.  2001). The  determination
               of  whether  habeas  corpus  relief  should  be  granted  is  a  question  of  law;  therefore,  appellate  review
               is  de  novo  with  no  presumption  of  correctness. McLaney  v.  Bell,  59  S.W.3d  90,  92  (Tenn.  2001).
               The  material  facts  before  this  court  are  undisputed,  and  our  review  is  limited  to  questions  of  law.
               Therefore,  we  review  the  trial  courtÕs  conclusions  de  novo  with  no  presumption  of  correctness. 


                                                  II.  JUDICIAL  DIVERSION

                       A  defendant  who  pleads  guilty  or  is  found  guilty  of  certain  offenses  may  be  allowed  judicial
               diversion,  a  statutory  process  by  which  the  trial  court  may  defer  further  proceedings  without  entering
               a  judgment  of  conviction. Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(A)  (Supp.  2001). The  defendant  is
               placed  on  probation  with  reasonable  conditions  for  a  specified  period  of  time  not  exceeding  the
               maximum  sentence  for  the  offense. Id. If  the  defendant  then  violates  the  terms  and  conditions  of
               the  diversionary  probation,  the  trial  court  may  enter  an  adjudication  of  guilt  and  proceed  to  sentence
               the  defendant. Id.  at  (a)(2). 
                       If  it  is  alleged  that  a  defendant  on  judicial  diversion  has  violated  the  terms  and  conditions  of
               diversionary  probation,  the  trial  court  should  follow  the  same  procedures  as  those  used  for  ordinary
               probation  revocations. State  v.  Johnson,  15  S.W.3d  515,  519  (Tenn.  Crim.  App.  1999). These
               procedures  are  set  forth  in  Tennessee  Code  Annotation  section  40-35-311  (Supp.  2001). Id. When
               a  trial  court  learns  a  defendant  has  allegedly  violated  his  or  her  probation,  the  trial  court  should  issue
               a  probation  revocation  warrant. Tenn.  Code  Ann.  ¤  40-35-311(a)  (Supp.  2001). If  the  trial  court,
               following  a  hearing,  determines  by  a  preponderance  of  the  evidence  that  the  defendant  has  indeed
               violated  the  conditions  of  probation,  the  trial  court  may  revoke  the  defendantÕs  probation.  Id.  at  (e).
                       Generally,  revocation  may  occur  only  within  the  probationary  period. State  v.  Shaffer,  45
               S.W.3d  553,  555  (Tenn.  2001);  see  Tenn.  Code  Ann.  ¤  40-35-310  (1997). However,  if  a  probation
               revocation  warrant  is  issued  within  the  term  of  probation,  it  tolls  the  limitation  of  time  in  which  the



                                                                -4- court  may  act  to  revoke  probation. Shaffer,  45  S.W.3d  at  555;  State  v.  Clark,  970  S.W.2d  516,  518
               (Tenn.  Crim.  App.  1998). The  filing  of  a  probation  violation  report  during  the  probation  term  is
               insufficient  to  toll  the  limitations  period. State  v.  Randall  Anthony,  No.  W2000-02234-CCA-R3-
               CD,  2001  WL  792609,  at  *4  (Tenn.  Crim.  App.  July  6,  2001,  at  Jackson). Thus,  it  is  the  filing  of
               a  revocation  warrant,  not  the  report,  that  tolls  the  limitations  period. See  generally,  Shaffer,  45
               S.W.3d  at  555. 
                       The  state  argues  that  the  trial  court  had  continuing  jurisdiction  until  such  time  as  it  entered
               an  order  terminating  the  petitionerÕs  judicial  diversion. If  this  were  correct,  the  trial  court  could
               retain  jurisdiction  indefinitely  and  revoke  diversion  years  after  the  expiration  period,  provided  the
               infraction  occurred  during  the  diversionary  period. However,  Tennessee  Code  Annotated  section
               40-35-313(a)(1)  provides  the  period  for  judicial  diversion  is  limited  to  a  specific  length  of  time  as
               set  by  the  trial  court. More  importantly,  the  trial  court  Òshall  discharge  [the  defendant]  and  dismiss
               the proceedingsÓ at the end of the period of diversion if there  are no violations of probation
               conditions. Tenn.  Code  Ann.  ¤  40-35-313(a)(2)  (Supp.  2001)  (emphasis  added). The  dismissal
               requirement  is  mandatory,  and  the  trial  court  is  without  any  discretion. In  our  view,  the  failure  of
               a defendant to file a formal request for discharge and dismissal does not give the trial court
               continuing  jurisdiction  ad  infinitum. 

                       In  summary,  we  conclude  that  the  revocation  of  judicial  diversion  based  upon  violations  of
               diversionary  probation  conditions  is  guided  by  the  same  requirements  as  those  for  the  revocation  of
               ordinary  probation. The  revocation  must  be  initiated  during  the  diversionary  period  by  the  filing  of
               a  revocation  warrant  or  by  the  proper  filing  of  the  state's  petition  to  revoke. 
                       In  the  instant  case,  the  probation  officer  relayed  the  probation  violation  reports  directly  to  the
               trial  judge;  however,  the  reports  were  not  filed  with  the  clerk  nor  served  on  the  petitioner. No
               revocation  warrant  nor  petition  to  revoke  was  filed  before  the  term  of  judicial  diversion  expired.
               Absent  such  a  filing,  the  trial  court  was  statutorily  required  to  discharge  the  petitioner  and  dismiss
               the  proceedings  at  the  end  of  the  period  of  diversion;  namely,  September  29,  2000. Therefore,  the
               trial  court  was  without  jurisdiction  to  revoke  the  petitionerÕs  diversion  or  sentence  her  when  it
               entered judgment on November 3, 2000.  Thus, we must conclude the  revocation of judicial
               diversion  and  the  resulting  sentence  are  void. The  petitioner  is  entitled  to  habeas  corpus  relief. 


                                                  III.  DOUBLE  JEOPARDY

                       The  petitioner  further  argues  the  sentence  entered  by  the  trial  court  on  November  3,  2000,
               violated double jeopardy  because  she had already  been punished under the conditions of her
               probation  for  judicial  diversion. We  disagree  with  this  contention. 
                       The  judicial  diversion  probationary  period  is  not  a  sentence  nor  is  it  punishment.  In  addition,
               there is no double jeopardy protection against revocation of probation and imposition of
               imprisonment;  a  defendant  does  not  have  "the  right  to  know  at  any  specific  moment  in  time  what  the



                                                                -5- exact  limit  of  his  [or  her]  punishment  will  turn  out  to  be." United  States  v.  DiFrancesco,  449  U.S.
               117,  137,  101  S.  Ct.  426,  437,  66  L.  Ed.  2d  328  (1980);  see  also  State  v.  Griffith,  787  S.W.2d  340,
               342  (Tenn.  1990)  (holding  that  resentencing  under  the  Community  Corrections  Act  to  a  sentence
               greater  than  the  original  sentence  is  no  double  jeopardy  violation). Furthermore,  judicial  diversion
               can  only  be  imposed  with  the  defendantÕs  consent. Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(A)  (Supp.
               2001). Where  a  defendant  consents  to  the  largess  and  conditions  of  judicial  diversion,  there  is  no
               double  jeopardy  violation  if  judicial  diversion  is  later  revoked  and  the  defendant  is  sentenced. 


                                                        CONCLUSION

                       We  find  the  petitioner  is  entitled  to  habeas  corpus  relief. We  reverse  the  trial  courtÕs  order
               and  remand  to  the  trial  court  for  the  entry  of  an  appropriate  order. 


                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



                           1 At  the  time  of  the  rapes,  the  petitioner  and  his  wife  were  separated  and  Mrs.  Aldridge  had  filed  for  divorce. IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                    Assigned  on  Briefs  May  21,  2002

                                GARY  EUGENE  ALDRIDGE  v.  STATE  OF  TENNESSEE

                                      Direct  Appeal  from  the  Circuit  Court  for  Hickman  County
                                               No.  00-5066C-II    Timothy  L.  Easter,  Judge


                                       No.  M2001-02452-CCA-R3-PC  -  Filed  November  19,  2002


                  The  petitioner,  Gary  Eugene  Aldridge,  was  convicted  by  a  jury  in  the  Circuit  Court  of  Hickman
                  County  of  one  count  of  aggravated  kidnapping,  two  counts  of  aggravated  rape,  one  count  of  rape,
                  and  two  counts  of  simple  assault. The  trial  court  sentenced  the  petitioner  to  an  effective  sentence
                  of  sixty  years  incarceration  in  the  Tennessee  Department  of  Correction,  followed  by  an  effective
                  consecutive  sentence  of  seventeen  months  and  twenty-nine  days  in  the  local  workhouse. After  an
                  unsuccessful  appeal  of  his  convictions,  the  petitioner  timely  filed  a  petition  for  post-conviction  relief,
                  alleging,  among  other  grounds,  ineffective  assistance  of  counsel. The  petitioner  now  brings  this
                  appeal  challenging  the  post-conviction  courtÕs  denial  of  his  petition. After  reviewing  the  record  and
                  the  partiesÕ  briefs,  we  affirm  the  judgment  of  the  post-conviction  court.

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

                  NORMA  MCGEE  OGLE,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and  JOHN
                  EVERETT  WILLIAMS,  JJ.,  joined.
                  Edward  S.  Ryan,  Nashville,  Tennessee,  for  the  appellant,  Gary  Eugene  Aldridge.
                  Paul  G.  Summers,  Attorney  General  and  Reporter;  David  H.  Findley,  Assistant  Attorney  General;
                  and  Ronald  L.  Davis,  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                                                      OPINION
                                                             I. Factual  Background

                                    On  May  9,  1997,  the  petitioner  was  convicted  by  a  jury  of  one  count  of  aggravated
                  kidnapping,  two  counts  of  aggravated  rape,  one  count  of  rape,  and  two  counts  of  simple  assault. The
                  convictions  stem  from  a  series  of  incidents  in  which  the  petitioner  beat  and  raped  his  wife,  Etta  Mae
                  Aldridge.1 The  trial  court  imposed  an  effective  sentence  of  sixty  years  confinement  in  the  Tennessee
                  Department  of  Correction,  followed  by  an  effective  consecutive  sentence  of  seventeen  months  and
                  twenty-nine  days  in  the  local  workhouse. On  direct  appeal,  this  court  affirmed  the  convictions  and



                                                                -2- sentences,  and  the  Tennessee  Supreme  Court  denied  permission  to  appeal. State  v.  Gary  Eugene
               Aldridge,  No.  01C01-9802-CC-00075,  1999  Tenn.  Crim.  App.  LEXIS  853  (Nashville,  Aug.  19,
               1999),  perm.  to  appeal  denied,  (Tenn.  2000).
                              The petitioner timely  filed a pro se petition for post-conviction relief, alleging
               nineteen grounds for relief.  On August 31, 2000, the post-conviction court entered an order
               appointing  counsel  and  denying  the  majority  of  the  petitionerÕs  claims  as  waived  for  failure  to
               present  the  claims  for  determination  on  direct  appeal.  However,  the  post-conviction  court  found  the
               petitionerÕs  claim  of  ineffective  assistance  of  counsel  to  be  a  colorable  claim  for  relief.  An  amended
               petition was subsequently filed and, on February 8, 2001, the post-conviction court held an
               evidentiary  hearing  at  which  the  petitioner  and  his  trial  counsel  testified. At  the  conclusion  of  the
               testimony,  the  post-conviction  court  took  the  matter  under  advisement  and  ordered  the  parties  to
               submit  briefs  before  the  court  rendered  a  decision.  In  his  final  argument  to  the  post-conviction  court,
               the  petitioner  asserted  only  two  grounds  in  support  of  his  claim  of  ineffective  assistance  of  counsel.
               First,  the  petitioner  argued  that  trial  counsel  denied  the  petitioner  his  right  to  testify  at  trial.  Second,
               the  petitioner  argued  that  trial  counsel  failed  to  adequately  investigate  the  petitionerÕs  case  and  failed
               to  interview  and  call  material  witnesses.
                              On  May  3,  2001,  the  post-conviction  court  entered  an  order  setting  forth  detailed
               findings  of  fact  and  conclusions  of  law,  denying  the  petition  for  post-conviction  relief.  Specifically,
               the post-conviction court found that the petitioner failed to establish by clear  and convincing
               evidence  that  trial  counsel  deprived  him  of  his  right  to  testify. The  post-conviction  court  further
               found  that  the  petitioner  failed  to  demonstrate  any  prejudice  resulting  from  trial  counselÕs  alleged
               failure  to  interview  or  call  witnesses. The  petitioner  appealed  the  denial  of  his  petition  for  post-conviction 
                           relief.

                                                           II. Analysis

                              In a post-conviction  proceeding, the  petitioner bears  the burden of proving the
               grounds  raised  in  the  petition  by  clear  and  convincing  evidence. Tenn.  Code  Ann.  ¤  40-30-210(f)
               (1997). ÒEvidence  is  clear  and  convincing  when  there  is  no  serious  or  substantial  doubt  about  the
               correctness  of  the  conclusions  drawn  from  the  evidence.Ó Hicks  v.  State,  983  S.W.2d  240,  245
               (Tenn.  Crim.  App.  1998). On  appeal,  a  claim  of  ineffective  assistance  of  counsel  presents  a  mixed
               question  of  law  and  fact  subject  to  de  novo  review.  State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999).
               As  such,  the  post-conviction  courtÕs  findings  of  fact  are  entitled  to  a  presumption  of  correctness
               unless  the  evidence  preponderates  against  those  findings.  Fields  v.  State,  40  S.W.3d  450,  458  (Tenn.
               2001). The  credibility  of  the  witnesses  and  the  weight  and  value  to  be  afforded  their  testimony  are
               questions  to  be  resolved  by  the  post-conviction  court  and,  on  appeal,  the  burden  is  on  the  petitioner
               to  prove  that  the  evidence  preponderates  against  the  post-conviction  courtÕs  findings. Henley  v.
               State,  960  S.W.2d  572,  579  (Tenn.  1997). However,  a  post-conviction  courtÕs  conclusions  of  law,
               such  as  whether  counselÕs  performance  was  deficient  or  whether  that  deficiency  was  prejudicial,  are
               subject  to  a  purely  de  novo  review  with  no  presumption  of  correctness. Fields,  40  S.W.3d  at  458.



                           2 In  the  record,  this  witness  is  also  referred  to  as  Dawn  Godner.

                                                                          -3- When  a  petitioner  seeks  post-conviction  relief  on  the  basis  of  ineffective  assistance
                  of  counsel,  Òthe  petitioner  bears  the  burden  of  proving  both  that  counselÕs  performance  was  deficient
                  and  that  the  deficiency  prejudiced  the  defense.Ó Goad  v.  State,  938  S.W.2d  363,  369  (Tenn.  1996)
                  (citing  Strickland  v.  Washington,  466  U.S.  668,  687,  104  S.  Ct.  2052,  2064  (1984)). To  establish
                  deficient  performance,  the  petitioner  must  show  that  counselÕs  performance  was  below  Òthe  range
                  of  competence  demanded  of  attorneys  in  criminal  cases.Ó Baxter  v.  Rose,  523  S.W.2d  930,  936
                  (Tenn.  1975).  To  establish  prejudice,  the  petitioner  must  show  that  Òthere  is  a  reasonable  probability
                  that,  but  for  counselÕs  unprofessional  errors,  the  result  of  the  proceeding  would  have  been  different.
                  A reasonable probability is a probability sufficient to undermine confidence in the outcome.Ó
                  Strickland,  466  U.S.  at  694,  104  S.  Ct.  at  2068. Moreover, 
                                    [b]ecause  a  petitioner  must  establish  both  prongs  of  the  test,  a  failure
                                    to  prove  either  deficiency  or  prejudice  provides  a  sufficient  basis  to
                                    deny  relief  on  the  ineffective  assistance  claim. Indeed,  a  court  need
                                    not  address  the  components  in  any  particular  order  or  even  address
                                    both if the [petitioner] makes an insufficient showing of one
                                    component.
                  Goad,  938  S.W.2d  at  370  (citing  Strickland,  466  U.S.  at  697,  104  S.  Ct.  at  2069).
                                                 A. Failure  to  Locate  and  Interview  Witnesses
                                    The  petitioner  first  alleged  that  trial  counsel  was  deficient  in  failing  to  locate  and
                  interview  essential  defense  witnesses. Specifically,  the  petitioner  argued  that  trial  counsel  failed  to
                  interview Gerald Freeland, Dawn Godwin,2 and Jerry Wayne Marrs, despite the fact that the
                  petitioner gave counsel their names and addresses.  However, at the evidentiary hearing, the
                  petitioner  testified  that  he  could  only  speculate  as  to  the  content  of  the  witnessesÕ  testimony  had  they
                  been  called  to  testify  at  trial.
                                    At  the  evidentiary  hearing,  trial  counsel  conceded  that  the  petitioner  gave  her  the
                  name  and  address  of  the  victimÕs  brother,  Gerald  Freeland,  who  allegedly  had  information  regarding
                  an  affair  the  victim  had  while  visiting  his  home  in  Arkansas  prior  to  the  commission  of  the  offenses.
                  Counsel  testified  that  she  made  several  attempts  to  contact  Freeland  with  no  success. Moreover,
                  counsel  testified  that  due  to  limited  resources,  the  public  defenderÕs  office  had  only  one  investigator,
                  and  counsel  did  not  ask  the  court  for  funds  to  hire  an  additional  investigator. However,  according
                  to  counsel,  FreelandÕs  testimony  was  neither  relevant  to  the  petitionerÕs  defense,  nor  likely  to  have
                  been  admissible  under  the  rape  shield  law.
                                    Counsel  also  conceded  that  she  did  not  interview  the  victimÕs  oldest  daughter,  Dawn
                  Godwin,  who  allegedly  failed  to  call  911  on  the  night  her  mother  was  kidnapped  and  raped. Counsel
                  testified  that  she  subpoenaed  Godwin,  but  Godwin  had  left  town  and  was  Ònot  to  be  found.Ó  Counsel
                  further  asserted  that,  even  if  Godwin  had  been  available  to  testify,  she  was  a  Òtwo-edged  swordÓ
                  because there was evidence that Godwin was having a sexual relationship with the petitioner.
                  Finally,  counsel  could  not  recall  interviewing  Jerry  Wayne  Marrs. However,  counsel  testified  that



                                                                -4- if  Marrs  had  relevant  information  in  support  of  the  petitionerÕs  defense,  she  would  have  called  him
               to  testify  at  trial.
                              The post-conviction court found that the petitioner Òfailed to demonstrate any
               prejudice  resulting  from  [trial  counselÕs]  alleged  failure  to  interview  or  call  the  witnesses.Ó We
               agree. ÒWhen  a  petitioner  contends  that  trial  counsel  failed to discover,  interview,  or  present
               witnesses  in  support  of  his  defense,  these  witnesses  should  be  presented  by  the  petitioner  at  the
               evidentiary  hearing.Ó Black  v.  State,  794  S.W.2d  752,  757  (Tenn.  Crim.  App.  1990). A  petitioner
               is  not  entitled  to  relief  on  this  ground  Òunless  he  can  produce  a  material  witness  who  (a)  could  have
               been  found  by  a  reasonable  investigation  and  (b)  would  have  testified  favorably  in  support  of  his
               defense  if  called.Ó Id.  at  758. Neither  the  post-conviction  court  nor  this  court  can  speculate  as  to
               what  a  witnessÕs  testimony  might  have  been  at  trial.  Id.  at  757. At  the  evidentiary  hearing,  only  the
               petitioner  and  his  trial  counsel  testified. The  petitioner  failed  to  present  the  favorable  testimony  of
               these  ÒmaterialÓ  witnesses. Moreover,  on  cross-examination,  the  petitioner  offered  no  proof  as  to
               what  the  witnessesÕ  testimony  would  have  been  if  they  had  been  called  to  testify. Therefore,  even
               assuming  that  counsel  was  deficient  in  failing  to  interview  and  call  these  potential  witnesses  to
               testify,  the  petitioner  has  failed  to  show  how  he  was  prejudiced  by  this  deficiency. This  issue  is
               without  merit.
                                          B. Denial  of  the  PetitionerÕs  Right  to  Testify
                              Next,  the  petitioner  contends  that  counsel  deprived  him  of  his  right  to  testify  in  his
               own  behalf. At  the  evidentiary  hearing,  the  petitioner  testified  that  when  he  asked  counsel  about
               testifying,  counsel  responded  that  she  was  not  going  to  call  him  to  testify  because  Òshe  didnÕt  have
               [his]  case  prepared  that  way.Ó According  to  the  petitioner,  he  wanted  to  testify  Òfrom  day  oneÓ  and
               at  no  time  did  he  knowingly  and  voluntarily  waive  his  right  to  testify. The  petitioner  testified  that
               he  did  not  sign  a  written  waiver,  nor  did  he  waive  his  right  on  the  record  before  the  trial  court.
                              Counsel  admitted  that  she  strongly  advised  the  petitioner  not  to  testify,  but  contended
               that  the  decision  was  ultimately  his  to  make. According  to  counsel,
                              I  think  he  did  want  to  testify,  and  most  of  my  clients  do  want  to
                              testify,  and  that  is  their  option,  I  canÕt  take  it  away  from  them. I
                              would  never,  never  did  and  never  would  tell  someone  that  they  could
                              not  testify. ThatÕs  not  my  role.  My  role  is  to  counsel  them  as  to  what
                              the impact of their testimony would be, and I did counsel [the
                              petitioner]  on  that.  .  .  .  I  counseled  [the  petitioner]  that  it  would  not
                              be  in  his  best  interest  to  testify.
               Counsel  testified  that,  while  the  petitioner  had  a  prior  conviction  for  a  crime  against  nature  involving
               his  oldest  daughter,  counselÕs  ultimate  reason  for  advising  the  petitioner  not  to  testify  was  the
               petitionerÕs  Ògeneral  personality  and  nature.Ó Counsel  testified  that  she  feared  the  petitioner  would
               be  perceived  by  the  jury  as  ÒarrogantÓ  and  that  his  testimony  would  hurt  the  credibility  of  the  other
               defense  witnesses. On  cross-examination,  counsel  denied  telling  the  petitioner  that  he  could  not
               testify  because  his  testimony  was  inconsistent  with  the  manner  in  which  counsel  had  prepared  the
               defense.



                                                                -5- Counsel  conceded  that  she  did  not  have  the  petitioner  sign  a  written  waiver  of  his
               right  to  testify,  nor  did  she  note  on  the  record  before  the  trial  court  that  her  client  was  waiving  his
               right  to  testify. As  to  the  written  waiver,  counsel  testified  that  it  is  Òvery  disconcerting  between  an
               attorney  and  client  when  youÕre  in  the  middle  of  a  trial  that  holds  his  life  in  his  hands  and  youÕre
               saying,  ÔHere,  sign  this,  you  know,  this  is  going  to  protect  me  later  whenever  you  come  back  and  say
               I  didnÕt  do  a  good  job.ÕÓ However,  counsel  testified  that  when  she  believed  a  clientÕs  waiver  of  his
               right  to  testify  was  really  an  issue,  she  would  so  advise  the  court  on  the  record. She  did  not  do  so
               in  the  petitionerÕs  case  because  the  petitioner  did  not  seem  Òparticularly  disturbed  about  it.Ó  Counsel
               testified  that  she  had  no  doubt  that  the  petitioner  knowingly  waived  his  right  to  testify.
                              The  post-conviction  court  accredited  the  testimony  of  trial  counsel  that,  although
               counsel advised the petitioner not to testify, the petitioner ultimately made that decision.  As
               previously  noted,  the  credibility  of  the  witnesses  and  the  weight  and  value  to  be  afforded  their
               testimony  are  questions  to  be  resolved  by  the  post-conviction  court. Henley,  960  S.W.2d  at  579.
               This court will not disturb the post-conviction courtÕs findings of fact unless the petitioner
               demonstrates  that  the  evidence  preponderates  against  those  findings. Id.  at  578. The  petitioner  has
               failed  to  do  so  in  this  case.
                              In  his  brief,  the  petitioner  urges  this  court  to  consider  Momon  v.  State,  18  S.W.3d  152
               (Tenn.  1999),  even  though  Momon  was  decided  after  the  petitionerÕs  trial.  In  Momon,  our  supreme
               court  held  that  Òthe  right  of  a  criminal  defendant  to  testify  in  his  or  her  own  behalf  is  a  fundamental
               constitutional  right  .  .  .  [that]  may  only  be  waived  personally  by  the  defendant.Ó Id.  at  161. To
               ensure  that  criminal  defense  attorneys  do  not  unilaterally  deprive  their  clients  of  this  fundamental
               right, the Momon court set forth procedural guidelines, requiring the defendantÕs knowing,
               voluntary,  and  intelligent  waiver  to  be  made  on  the  record. Id.  at  162,  174-75. However,  Momon
               has  no  retroactive  effect. Id.  at  162-63. Furthermore,  even  if  Momon  applied  retroactively,  Òthe
               mere  failure  to  follow  these  guidelines  will  not  in  and  of  itself  support  a  claim  for  deprivation  of  the
               constitutional  right  to  testify  if  there  is  evidence  in  the  record  to  establish  that  the  right  was  otherwise
               personally  waived  by  the  defendant.Ó Id.  at  163. Although  there  is  no  record  of  the  petitioner
               waiving  his  right to testify,  trial  counsel  testified  at  the  evidentiary  hearing  that  the  petitioner
               personally  and  knowingly  waived  this  right  upon  the  advice  of  counsel,  and  the  post-conviction  court
               accredited  counselÕs  testimony. This  issue  is  without  merit.

                                                        III. Conclusion

                              Based  upon  the  foregoing,  the  judgment  of  the  post-conviction  court  is  affirmed.





                                                                     ___________________________________ 
                                                                     NORMA  McGEE  OGLE,  JUDGE



                                                                -6-



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  December  18,  2001

               STATE  OF  TENNESSEE  v.  GREGORY  SCOTT  ALLISON

                      Appeal  from  the  Circuit  Court  for  Blount  County
                        No.  C-10277  D.  Kelly  Thomas,  Jr.,  Judge


                            No.  E2001-00248-CCA-R3-CD 
                                 March  25,  2002

         The  defendant,  Gregory  Scott  Allison,  appeals  from  the  Blount  County  Circuit  CourtÕs  revoking  his
         probation  that  was  ordered  for  his  sentences  for  burglary  and  theft.  The  defendant  contends  that
         although  the  trial  court  may  have  been  justified  in  finding  that  he  violated  the  terms  of  his  probation,
         it  erred  in  sentencing  him  to  confinement.  We  affirm  the  judgment  of  the  trial  court.

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

         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  THOMAS  T.  WOODALL  and
         ROBERT  W.  WEDEMEYER,  JJ.,  joined.
         Julie  A.  Rice,  Knoxville,  Tennessee  (on  appeal);  Raymond  M.  Garner,  District  Public  Defender;  and
         Shawn  G.  Graham,  Assistant  District  Public  Defender,  Maryville,  Tennessee  (at  trial),  for  the
         appellant,  Gregory  Scott  Allison.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kathy  D.  Aslinger,  Assistant  Attorney  General;
         Michael  L.  Flynn,  District  Attorney  General;  and  Kirk  E.  Andrews,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             Upon  his  guilty  pleas  to  burglary,  a  Class  D  felony,  and  misdemeanor  theft,  the  defendant
         was  sentenced  to  concurrent  sentences  of  three  years  and  eleven  months  and  twenty-nine  days.  Upon
         the  defendant  serving  thirty  days  in  jail,  the  remainder  of  his  sentences  were  to  be  served  on
         supervised  probation.  The  record  reflects  that  the  defendant  successfully  completed  his  thirty-day
         jail  sentence  on  May  17,  1998. 
             In  October  1998,  the  defendantÕs  probation  supervisor  filed  a  probation  violation  warrant,
         alleging  that  the  defendant  had  violated  several  terms  of  his  probation,  stating  that  he  had  been  cited
         with  driving  on  a  suspended  license,  had  been  charged  with  aggravated  burglary,  had  failed  to  obtain
         employment,  had  failed  to  report  to  his  probation  officer,  and  had  failed  to  pay  court  costs.  In  July



                                                                -2- 1999,  the  trial  court  ordered  that  the  defendant  serve  six  months  confinement  for  violating  probation.
               In  March  2000,  the  trial  court  placed  the  defendant  into  the  community  corrections  program,  but  in
               April  2000,  the  trial  court  ordered  that  the  defendant  serve  seven  consecutive  weekends  in  the  Blount
               County  Jail  for  his  failure  to  attend  treatment  sessions  at  the  Kress  Mental  Health  Center  as  required
               by  his  community  corrections  contract.  The  defendant  served  five  weekends  in  jail,  and  on  May  23,
               2000,  the  trial  court  agreed  to  waive  the  remaining  weekends  if  the  defendant  would  successfully
               complete  fifteen  months  in  the  Teen  Challenge  Program. The  defendant  left  the  program  after  only
               one  month,  and  on  October  31,  2000,  the  defendantÕs  community  corrections  supervisor  filed  a
               violation  of  community  corrections  affidavit,  alleging  that  the  defendant  had  tested  positive  for
               marijuana. 
                       At  the  revocation  hearing,  Pat  Ballard,  the  defendantÕs  community  corrections  supervisor,
               testified  that  the  defendant  had  physical,  mental,  and  chemical  dependency  problems.  She  said  that
               he  failed  to  pay  court  costs,  failed  to  perform  community  service  work,  failed  to  attend  treatment
               sessions  at  the  Kress  Mental  Health  Center,  and  failed  to  attend  her  group  therapy  sessions.  She  said
               that  the  defendant  did  not  attend  treatment  and  therapy  sessions  because  he  had  an  operation  on  one
               of  his  club  feet  and  because  he  was  sick  with  pneumonia  and  bronchitis.  She  said  that  although  the
               defendant  asked  to  go  into  the  Teen  Challenge  Program,  his  club  feet  physically  prevented  him  from
               completing  the  program.  She  said  that  the  defendant  could  not  benefit  from  community  corrections
               because  he  did  not  attend  treatment  and  therapy  sessions. 
                       Ms.  Ballard  testified  that  the  defendant  could  always  get  a  doctorÕs  excuse  for  missing  his
               appointments.  She  said  that  although  the  defendant  needed  to  attend  therapy  meetings  twice  a  week,
               his  mother  could  only  bring  him  once  a  week.  She  said  that  although  the  defendant  had  been
               providing  her  with  doctorÕs  excuses  for  his  missed  appointments,  he  stopped  giving  her  medical
               excuses  in  December  2000. She  said  that  after  the  defendantÕs  brother  died  in  the  fall  of  2000,  he
               tested  positive  for  marijuana.  She  said  that  the  defendant  told  her  that  he  used  marijuana  to  help  him
               cope  with  his  brotherÕs  death. She  said  that  the  defendant  was  mentally  depressed  and  suicidal  and
               that  she  did  not  know  how  to  supervise  him.  She  said  that  the  defendant  was  sick  all  of  the  time  and
               that  nothing  in  the  community  corrections  program  could  help  him. 
                       On  cross-examination,  Ms.  Ballard  testified  that  before  entering  the  Teen  Challenge  Program,
               the  defendant  would  attend  meetings  at  the  Kress  Center  when  he  did  not  have  a  medical  excuse.
               She  said  that  the  defendant  recently  had  been  hospitalized  at  Lakeshore  Mental  Health.  She  said  that
               the  defendant  needed  the  benefit  of  group  therapy,  which  he  was  not  getting. 
                       The  defendant  testified  that  at  the  time  of  the  hearing,  he  was  twenty-six  years  old,  single,
               and  unemployed. He  said  that  after  entering  the  community  corrections  program  in  1999, his
               physical  and  mental  conditions  got  worse. He  said  that  his  brother  and  grandmother  had  died
               recently  and  that  he  did  not  want  to  deal  with  life. He  said  that  he  missed  his  brother.
                       The  defendant  acknowledged  that  he  missed  some  meetings  at  the  Kress  Center  and  that  he
               was  ordered  to  serve  seven  weekends  in  jail  for  missing  those  meetings. He  said  that  he  served  five



                                                                -3- weekends  in  jail  before  entering  into  the  Teen  Challenge  Program. He  said  that  it  was  his  idea  to
               go  into  the  Teen  Challenge  Program  and  that  he  had  thought  the  program  would  help  him. He  said
               that  he  went  to  Bluefield,  Virginia  to  participate  in  the  program  but  that  he  could  not  complete  it
               because  he could not work in the mountains with his club feet.  He said that he asked to be
               transported  into  another  program  where  the  land  is  flat  but  that  the  Teen  Challenge  Program  workers
               in  Virginia  did  not  want  him  to  leave  their  program. 
                       The  defendant  testified  that  when  he  returned  to  Blount  County,  he  paid  his  $2,200  in  fines
               and  that  Pat  Ballard  told  him  that  he  had  to  start  attending  her  group  therapy  classes. He  said  that
               he  missed  some  of  the  classes  because  he  had  an  operation  on  one  of  his  feet  and  could  not  walk.
               He  said  that  he  also  missed  Ms.  BallardÕs  classes  because  of  his  brotherÕs  death  and  because  he  got
               sick. He  said  that  he  took  medication  for  panic  attacks  and  bipolar  disorder,  that  he  was  scared  to
               ride  in  a  car  or  be  in  groups,  and  that  he  did  not  go  to  the  grocery  store  or  go  out  with  friends. The
               defendant  acknowledged  failing  a  drug  test  in  October  2000  and  said  that  he  smoked  marijuana  eight
               days  before  the  revocation  hearing.  He  acknowledged  that  if  his  health  and  transportation  situations
               had  been  better,  he  would  have  been  in  a  better  position  to  keep  his  appointments  at  the  Kress  Center
               and  with  Ms.  Ballard.
                       On  cross-examination,  the  defendant  said  that  he  got  the  marijuana  from  a  high  school  friend,
               and  he  acknowledged  having  a  conviction  for  aggravated  burglary. He  said  that  he  did  not  graduate
               from  high  school  but  that  he  obtained  his  GED. He  said  that  despite  his  medical  problems,  he  was
               turned  down  for  federal  Social  Security  benefits.  He  said  that  his  mother  had  transportation  but  that
               it  was  not  always  reliable. He  said  that  he  had  no  excuse  for  smoking  marijuana  eight  days  before
               the  hearing  and  that  although  he  had  been  very  sick  with  bronchitis,  he  was  never  hospitalized. 
                       Carol  Noce,  the  defendantÕs  mother,  testified  that  the  defendant  had  lived  with  her  all  of  his
               life  and  that  he  was  born  with  club  feet. She  said  that  the  defendant  had  been  a  patient  at  Overlook
               Mental  Health  since  he  was  six  years  old  and  that  he  suffered  from  bipolar  disorder  and  panic
               syndrome.  She said that about three weeks before the revocation hearing, the defendant was
               hospitalized  for  seven  days  at  Lakeshore  Mental  Health.  She  said  that  the  defendant  started  missing
               his  meetings  with  Ms.  Ballard  in  September  2000,  when  his  brother  died. She  said  that  he  missed
               more  meetings  in  October,  November,  and  December  because  he  had  a  foot  operation  and  because
               he  was  sick  with  bronchitis  and  pneumonia. 
                       On  cross-examination,  Ms.  Noce  said  that  she  did  not  work  outside  the  home  and  that  she
               was  willing to take the defendant to therapy meetings more than once a week.  Said that the
               defendant  had  never  held  a  job  for  more  than  three  months.  She  said  that  the  defendant  liked  to  work
               outside  but  that  he  had  not  worked  in  three  years. She  said  that  he  used  to  work  for  men  who
               installed  swimming  pools  and  cut  down  trees.
                       The  trial  court  held  that  the  defendant  violated  the  terms  of  his  community  corrections  by
               failing a drug screen and failing to complete the Teen Challenge Program.  It noted that the
               defendant  had  a  Òlong  listÓ  of  criminal  convictions  and  that  he  had  used  marijuana  eight  days  before



                                                                -4- the  revocation  hearing. The  trial  court  agreed  that  the  defendant  had  physical,  emotional,  and
               chemical dependency problems and that he needed more supervision and treatment than the
               community  corrections  program  could  provide. It  also  stated  that  the  defendant  had  shown  that  he
               did  not  want  to  participate  in  the  community  corrections  program.  Finding  that  the  defendant  might
               be  able  to  benefit  from  the  Department  of  CorrectionÕs  Special  Needs  Unit,  the  trial  court  revoked
               the  defendantÕs  probation  and  ordered  that  he  serve  the  remainder  of  his  sentence  in  incarceration.
                       Although  the  defendant  admits  that  he  violated  the  terms  of  his  community  corrections
               program,  he  contends  that  the  trial  courtÕs  disposition  of  the  case  was  improper. He  argues  that  the
               trial  court  should  have  ordered  that  he  be  placed  into  a  therapeutic  halfway  house  or  serve  a  period
               of  split  confinement  followed  by  placement  into  an  inpatient  treatment  program  in  a  secured  facility.
               The  state  contends  that  because  the  community  corrections  program  could  not  meet  the  defendantÕs
               needs,  the  trial  court  did  not  err  in  revoking  his  probation. We  agree  with  the  state.
                       The  decision  to  revoke  probation  is  within  the  discretion  of  the  trial  court. State  v.  Grear,
               568  S.W.2d  285,  286  (Tenn.  1978). Upon  revoking  probation,  the  trial  court  has  the  discretion  to
               order  the  original  sentence  to  be  served. See  Tenn.  Code  Ann.  ¤  40-35-310,  -311(d). An  abuse  of
               discretion  may  be  found  only  if  the  record  contains  no  substantial  evidence  to  support  the  conclusion
               of  the  trial  court. See  State  v.  Harkins,  811  S.W.2d  79,  82  (Tenn.  1991).
                       The defendant admitted testing positive for marijuana in October 2000 and smoking
               marijuana  again  eight  days  before  the  revocation  hearing. The  record  reflects  a  consistent  failure  to
               comply  with  reasonable  requirements. The  defendant  has  not  demonstrated  that  the  trial  court
               abused  its  discretion  by  ordering  him  to  serve  the  remainder  of  his  sentence  in  incarceration.  To
               the  contrary,  his  admitted  drug  abuse  and  refusal  to  seek  treatment  for  it  support  the  trial  courtÕs
               decision.
                       Based  upon  the  foregoing  and  the  record  as  a  whole,  we  affirm  the  judgment  of  the  trial
               court.



                                                                     ___________________________________ 
                                                                     JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  October  1,  2002

                 IN  RE:  ALPHA  OMEGA  BAIL  BONDING  COMPANY

                      Appeal  from  the  Criminal  Court  for  Shelby  County
                              No.  P-25923 EN  BANC


                    No.  W2002-00021-CCA-R3-CD  -  Filed  December  6,  2002


         The  Appellant,  Alpha  Omega  Bail  Bonding  Company,  is  in  the  business  of  writing  bail  bonds.  The
         Appellant  was  obligated  on  bonds  with  AmWest  and  Far  West  insurance  companies  as  sureties.  Due
         to  the  insolvency  of  AmWest  and  Far  West,  the  Criminal  Court  for  Shelby  County  en  banc,  ordered
         the  Appellant,  among  others,  to  appear  before  the  court  and  present  proof  that  it  had  sufficient  assets
         to  cover  its  liabilities  on  the  bonds  that  were  insured  by  AmWest  and  Far  West.  After  a  hearing,  the
         trial  court  ordered  the  Appellant  to  cause  to  be  re-written  each  bond  that  it  had  written  that  was
         secured  by  AmWest  or  Far  West.  It  is  from  this  order  that  the  Appellant  appeals  as  of  right.  We
         affirm  the  judgment  of  the  trial  court.

             Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Trial  Judge  Affirmed

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  JAMES  CURWOOD  WITT,  JR.,  J.,
         joined.  ALAN  E.  GLENN,  J.,  not  participating.
         Charles  D.  Wright,  Memphis,  Tennessee,  for  the  appellant,  Alpha  Omega  Bail  Bond  Company.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  J.  Ross  Dyer,  Assistant  Attorney  General;
         William  L.  Gibbons,  District  Attorney  General;  and  Kenneth  R.  Roach,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION


             The  Appellant,  Alpha  Omega  Bail  Bonding  Company,  is  in  the  business  of  writing  bail
         bonds. AmWest  and  Far  West  insurance  companies  appeared  as  sureties  on  several  of  the
         AppellantÕs  bonds.  The  Criminal  Court  of  Shelby  County  learned  that  the  bail  bonds  written  through
         Far  West  and  AmWest  would  be  cancelled  due  to  the  insolvency  and  liquidation  of  the  two  insurance
         companies.  Therefore  the  court  ordered  each  of  the  bonding  companies  that  were  obligated  on  bonds
         on  which  AmWest  and  Far  West  appeared  as  sureties,  including  the  Appellant,  to  appear  before  the
         court  and  present  proof  that  they  had  sufficient  assets  to  cover  the  extent  of  their  liabilities  on  the



                                                                -2- bonds. After  a  hearing,  the  court,  sitting  en  banc,  ordered  the  Appellant  and  the  other  bonding
               companies  to  re-write  each  bond  that  was  secured  by  AmWest  or  Far  West  within  sixty  days. It  is
               from  this  order  that  the  Appellant  appeals  as  of  right.
                       In  its  brief,  Alpha  Omega  alleges  that  the  trial  court  exceeded  its  authority  by  ordering  it  to
               re-write  the  bail  bonds  that  were  secured  by  the  two  insolvent  and  subsequently  liquidated  insurance
               companies. We  note  at  the  outset  that  the  AppellantÕs  brief  is  inadequate.  The  brief  of  an  appellant
               shall  contain  Òcitations  to  the  authorities  and  appropriate  references  to  the  record.Ó Tenn.  R.  App.
               P.  27(a)(7). ÒIssues  which  are  not  supported  by  argument,  citation  to  authorities,  or  appropriate
               references  to  the  record  will  be  treated  as  waived  in  this  court.Ó Tenn.  R.  Crim.  App.  10(b). The
               Appellant  fails  to  cite  a  single  case,  statute,  rule  or  regulation  in  support  of  its  argument. Likewise,
               the  Appellant  neglects  to  refer  to  the  record  even  once  throughout  the  entire  brief. Because  the
               Appellant  cites  no  authority  to  support  its  argument,  we  assume  it  found  none.  However,  rather  than
               treat  the  issue  as  waived,  we  will  dispose  of  the  AppellantÕs  argument  on  its  merits.

                       ÒA  trial  court  has  full  authority  to  determine  who  should  be  allowed  to  make  bonds  in  its
               court.Ó Hull  v.  State,  543  S.W.2d  611,  612  (Tenn.  Crim.  App.  1976)  (citing  Gilbreath  v.  Ferguson,
               195  Tenn.  528,  260  S.W.2d  276  (1953));  see  also  Tenn.  Code  Ann.  ¤¤  40-11-305,  -306.  In  addition,
                       it  is  the  trial  courtÕs  function  to  regulate  the  professional  bondsmen  that  execute
                       bonds  in  its  court,  and  it  may  impose  reasonable  limitations  on  the  total  liability  of
                       such  bondsmenÕs  undertakings  in  that  court. Further,  a  trial  court  has  the  inherent
                       power  to  administer  its  affairs,  including  the  right  to  impose  reasonable  regulations
                       regarding  the  making  of  bonds.

                Hull  at  612  (citations  omitted).  The  fact  that  the  legislature  has  enacted  certain  statutes  concerning
               the  regulation of bail bondsmen does nothing to diminish the trial courtÕs inherent powers of
               regulation  to  act  in  addition  to  the  statutes. See  Taylor  v.  Waddey,  206  Tenn.  497,  504,  334  S.W.2d
               733, 736 (1960).  Therefore, Òthe trial  court is given wide  discretion in its regulation of bail
               bondsmen  and  its  actions  will  not  be  overturned  absent  a  showing  that  they  were  arbitrary,  capricious
               or  illegal.Ó In  re  International  Fid.  Ins.  Co.,  989  S.W.2d  726,  728  (Tenn.  Crim.  App.  1998).

                       In this case, the criminal court of Shelby County, sitting en banc, was well within its
               discretion  in  ordering  the  Appellant  to  re-write  the  bonds  on  which  Far  West  and  AmWest  were
               insurers. The  record  reflects  that  the  Appellant  has  almost  3.5  million  dollars  in  liability  in  Shelby
               County. Lodean  Glenn,  the  owner  of  the  Appellant  company,  admitted  to  the  trial  court  that  Alpha
               Omega  did  not  have  sufficient  assets  to  cover  its  exposure. Furthermore,  Mr.  Glenn  stated  that  he
               was  willing  to  have  his  bonds  re-written. The  record  contains  an  affidavit  from  the  executive  vice
               president  of  American  Safety  Casualty  Insurance  Company,  which  already  underwrites  bail  bonds
               for  the  Appellant. The  affidavit  expresses  American  SafetyÕs  willingness  to  re-write  bonds  for  the
               Appellant  that  had  previously  been  secured  by  AmWest  and  Far  West.  Based  on  our  review  of  the
               record,  we  conclude  that  the  trial  court  did  not  abuse  its  discretion  by  ordering  the  Appellant  to  have



                                                                -3- the  bonds  so  re-written. The  trial  court  has  a  duty  to  ensure  that  the  bail  bondsmen  who  appear
               before  it  are  able  to  cover  their  liabilities. By  ordering  the  bonds  to  be  re-written,  the  court  was
               fulfilling  its  duty.

                       The  judgment  of  the  Criminal  Court  of  Shelby  County  is  affirmed.


                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                              January  8,  2002  Session

                    STATE  OF  TENNESSEE  v.  LARRY  AMMONS

                  Direct  Appeal  from  the  Circuit  Court  for  Lauderdale  County
                        Nos.  5889,  6112  Joseph  H.  Walker,  Judge


                     No.  W2001-00834-CCA-R3-CD  -  Filed  March  18,  2002


         The  defendant  was  convicted  in  1993  of  three  counts  of  aggravated  burglary,  and  the  trial  court
         imposed  three  concurrent  three-year  sentences.  In  1995,  the  defendant  was  convicted  of  one  count
         of  burglary  and  five  counts  of  aggravated  burglary.  The  trial  court  imposed  a  four-year  sentence  for
         the  burglary  count  and  six-year  concurrent  sentences  for  each  of  the  aggravated  burglary  counts.  The
         defendantÕs  latter  sentences  were  to  be  served  consecutively  to  his  previous  three-year  sentence,  with
         probation  granted  as  to  all  sentences.  Subsequently,  a  petition  to  revoke  the  defendantÕs  probation
         was  filed,  alleging  that  the  defendant  had  failed  to  report  to  his  probation  officer  and  failed  to  pay
         restitution  as  ordered. Following  a  hearing,  the  court  revoked  the  probation,  and  the  defendant
         timely  appealed.  On  appeal,  the  defendant  claims  that  there  was  insufficient  evidence  to  revoke  his
         probation,  that  his  due  process  rights  were  violated,  and  that  he  received  ineffective  assistance  of
         counsel  during  his  probation  revocation  hearing.  After  a  thorough  review  of  the  record,  we  affirm
         the  judgment  of  the  trial  court  but  remand  for  entry  of  a  corrected  order  revoking  probation  only  as
         to  Docket  No.  6112.

           Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Circuit  Court  Affirmed  and
                         Remanded  for  Entry  of  Corrected  Order

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN  EVERETT
         WILLIAMS,  JJ.,  joined.
         Gregory  C.  Krog,  Jr.,  Memphis,  Tennessee  (on  appeal);  Gary  F.  Antrican,  District  Public  Defender;
         and  Julie  K.  Pillow,  Assistant  District  Public  Defender  (at  trial),  for  the  appellant,  Larry  Ammons.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  P.  Robin  Dixon,  Jr.,  Assistant  Attorney  General;
         and  Elizabeth  T.  Rice,  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             On  September  8,  1993,  the  defendant,  Larry  Ammons,  was  convicted  of  three  counts  of
         aggravated  burglary,  a  Class  C  felony,  under  Docket  No.  5889.  The  court  imposed  three  concurrent



                           1  Since  the  applicable  judgment  sheet  was  not  included  in  the  record,  we  are  unable  to  determine  whether  the
                  defendantÕs  conviction  for  burglary  under  Docket  No.  6112  was  a  Class  D  or  Class  E  felony. 

                           2  At  the  time  the  trial  court  issued  the  April  11,  1995,  order  allowing  the  defendant  to  serve  his  sentences  with
                  the  Synergy  Foundation  Program,  the  defendant  had  pending  charges  in  Dyer  County  and  Gibson  County. The  court
                  stated  that  its  order  would  be  contingent  on  Dyer  County  and  Gibson  County  allowing  the  defendant  to  serve  those
                  sentences  with  the  Synergy  Foundation  as  well. The  defendant  subsequently  completed  his  sentence  in  Gibson  County
                  and  was  granted  probation  for  his  sentence  in  Dyer  County. 

                                                                          -2- sentences  of  three  years  each. On  April  10,  1995,  the  defendant  was  convicted  of  one  count  of
                  burglary  1  and  five  counts  of  aggravated  burglary,  a  Class  C  felony,  under  Docket  No.  6112. The
                  court  imposed  a  four-year  sentence  for  the  burglary  count  and  six-year  concurrent  sentences  for  each
                  of  the  five  counts  of  aggravated  burglary. This  effective  six-year  sentence  was  to  run  consecutively
                  to  the  sentences  imposed  under  Docket  No.  5889. 
                           On  October  22,  1993,  the  defendant  was  granted  probation  for  the  balance  of  his  sentences
                  under  Docket  No.  5889. In  September  of  1994,  the  State  filed  a  petition  to  revoke  his  probation,  but
                  the  court  denied  it. In  February  1995,  the  State  filed  another  petition  to  revoke  the  defendantÕs
                  probation. On  April  11,  1995,  the  court  denied  this  second  petition  and  allowed  the  defendant  to
                  serve  his  sentences  under  Docket  Nos.  5889  and  6112  with  the  Synergy  Foundation  Program  instead
                  of  the  county  jail.2 The  court  later  allowed  the  defendant  to  transfer  the  balance  of  his  sentence  from
                  the  Synergy  Foundation  to  the  Serenity  House  Program.  In  December  of  1996,  the  State  filed  a
                  third  petition  for  revocation,  and  the  court  denied  the  petition. After  the  defendant  completed  the
                  Serenity  House  drug  treatment  program,  the  court  suspended  the  defendantÕs  sentences  and  placed
                  him  on  supervised  probation. On  February  27,  1997,  the  trial  court  issued  an  order  waiving  the
                  defendantÕs  probation  fees  and  imposing  a  minimum  payment  of  $50  per  month  toward  restitution.
                  In  this  order,  the  court  noted  that  the  defendant  was  still  under  probation  for  Docket  No.  6112  and
                  had  consented  to  a  two-year  extension  of  his  probation  for  Docket  No.  5889. On  October  12,  2000,
                  the  defendantÕs  probation  officer  filed  a  probation  violation  report,  citing  that  the  defendant  had  not
                  contacted  her  in  over  a  year  and  had  not  paid  the  restitution. The  State  then  filed  the  instant  petition
                  to  revoke  probation. On  January  22,  2001,  the  trial  court  revoked  the  defendantÕs  probation  after  a
                  hearing.
                           The  defendant  and  his  probation  officer  testified  at  the  revocation  hearing. The  probation
                  officer  testified  that  the  defendant  had  failed  to  report  to  her  in  over  a  year  and  had  failed  to  make
                  court-ordered  payments  of  $50  a  month  toward  restitution. The  defendant  testified  that  he  was
                  unable to make restitution payments because he had financial problems after starting his own
                  business. The  defendant  stated  that  he  did  not  make  restitution  payments  for  several  months  and
                  then  made  a  payment  of  $700  or  $800  for  the  Docket  No.  5889  sentence. He  also  testified  that  when
                  the  restitution  was  due  under  Docket  No.  6112,  he  was  unable  to  pay  it  and  had  suffered  a  back
                  injury.  The defendant admitted that he would not be at the hearing if he had reported to his
                  probation  officer  and  made  the  restitution  payments  as  ordered.  On  cross-examination,  the  defendant
                  admitted  that  he  was  being  sued  by  a  finance  company  over  a  loan  he  had  gotten  to  purchase  a  truck.



                                                                -3- After  hearing  the  evidence,  the  trial  court  noted  that  the  defendant  had  been  allowed  to
               participate  in  two  programs  that  enabled  him  to  avoid  incarceration. The  court  emphasized  that  the
               defendant  had  no  contact  with  his  probation  officer  for  a  period  exceeding  one  year  and  did  not
               regularly  pay  his  restitution. The  court  also  noted  that  while  the  defendant  was  able  to  pay  or  come
               up  with  a  $20,000  bond  for  his  probation  violation,  he  was  unable  to  pay  his  restitution  according
               to  schedule. Based  on  the  evidence,  the  trial  court  found  that  the  defendant  violated  his  probation
               and  determined  that  revocation  was  proper. 
                       The  defendant  filed  a  motion  for  an  evidentiary  hearing  and  a  motion  for  correction  and/or
               modification  of  sentence,  and  the  trial  court  denied  both  these  motions.  On  May  10,  2001,  this  court
               granted  the  defendant  a  delayed  filing  of  appeal. 

                                                           ANALYSIS
                              I. Sufficiency  of  the  Evidence  at  Probation  Revocation  Hearing

                       A  trial  court  is  granted  broad  authority  to  revoke  a  suspended  sentence  and  to  reinstate  the
               original  sentence  if  it  finds  by  the  preponderance  of  the  evidence  that  the  defendant  has  violated  the
               terms  of  his  or  her  probation  and  suspension  of  sentence.  Tenn.  Code  Ann.  ¤¤  40-35-310  and  40-35-
               311  (1997). The  revocation  of  probation  lies  within  the  sound  discretion  of  the  trial  court.  State  v.
               Harkins,  811  S.W.2d  79,  82  (Tenn.  1991);  State  v.  Stubblefield,  953  S.W.2d  223,  226  (Tenn.  Crim.
               App.  1997);  State  v.  Mitchell,  810  S.W.2d  733,  735  (Tenn.  Crim.  App.  1991). A  trial  courtÕs
               revocation of probation will not be reversed on appeal unless the court  abused its discretion.
               Harkins,  811  S.W.2d  at  82  (citing  State  v.  Williamson,  619  S.W.2d  145,  146  (Tenn.  Crim.  App.
               1981)).  To show an abuse of discretion in a probation revocation case, Òa defendant must
               demonstrate  Ôthat  the  record  contains  no  substantial  evidence  to  support  the  conclusion  of  the  trial
               judge  that  a  violation  of  the  conditions  of  probation  has  occurred.ÕÓ State  v.  Wall,  909  S.W.2d  8,
               10  (Tenn.  Crim.  App.  1994)  (quoting  State  v.  Delp,  614  S.W.2d  395,  398  (Tenn.  Crim.  App.  1980)).
               The  proof  of  a  probation  violation  need  not  be  established  beyond  a  reasonable  doubt,  but  it  is
               sufficient  if  it  allows  the  trial  court  to  make  a  conscientious  and  intelligent  judgment. Harkins,  811
               S.W.2d  at  82  (citing  State  v.  Milton,  673  S.W.2d  555,  557  (Tenn.  Crim.  App.  1984)). We  review
               this  issue,  therefore,  for  an  abuse  of  discretion. 
                       The  defendant  claims  the  State  offered  ÒconclusoryÓ  evidence  in  establishing  the  defendantÕs
               failure  to  report  and  failure  to  pay  his  court-ordered  restitution. The  defendant  argues  in  his  brief
               that he Òspecifically  testified that he contacted [his probation officer] on multiple occasions.Ó
               Actually,  his  explanation  on  direct  examination  as  to  meetings  with  his  probation  officer  is  lengthy
               but  unclear:
                                      [The  probation  officer]  knew  where  I  was  working  and  how
                              I  was  working  and  things. And  IÕd  contact  her,  and  she  had  told  me
                              to  report  in  every  three  months. We  had  moved  up  to  that  status.



                                                                -4- I  think  there  was  something  that  happened  with  the  probation
                              time  there,  back  during  that  domestic  violence  thing.  I  contacted  [the
                              probation  officer],  and  she  said  that  someone  else  had  gotten  the  case
                              or  whatever  and  said  that  they  were  going  to  transfer  me  back  to
                              Jackson.  I  told  her  that  I  really  didnÕt  want  to  transfer  to  Jackson,  that
                              I  wanted  to  stay  there,  that,  you  know,  if  need  be  I  would  just  move
                              back  to  Lauderdale  County  because  I  didnÕt  want  that  embarrassment
                              and  humiliation  to  keep  following  me  everywhere  I  went,  the  things
                              that  I  had  done,  you  know,  that  IÕm  not  proud  of.
                       On  cross-examination,  however,  he  responded  regarding  the  infrequency  of  reporting  to
               Bridget  Jump,  his  probation  officer:
                              Q.  Since  December  of  1999,  over  a  year,  you  have  not  met  with  her,
                              and  you  know  that  the  Court  ordered  you  to  meet  with  this  lady,  and
                              you  havenÕt  done  either  one,  have  you?
                              A.  Yes,  maÕam,  I  did  up  until  the  point  Ð 
                              Q.  Since  December  of  1999,  over  a  year,  you  have  not  met  with  her,
                              and  you  know  that  the  Court  ordered  you  to  do  it?
                              A.  Yes,  maÕam.
                       He  also  admitted  that,  as  to  Docket  No.  6112,  he  had  paid  no  restitution:
                              Q.  Okay. But  on  this  case  that  youÕre  being  revoked  on,  6112,  Ms.
                              Jump  said  you  havenÕt  paid  anything  on  this  case,  the  five  burglaries.
                              A.  Right.
                       We  conclude  that,  taking  the  record  as  a  whole,  there  was  Òsubstantial  evidence  to  support
               the  conclusion  of  the  trial  judge.Ó Wall,  909  S.W.2d  at  10. The  defendantÕs  probation  officer
               testified  that  he  had  not  reported  to  her  in  the  year  preceding  the  filing  of  the  petition  for  revocation
               of  probation;  and  he  admitted  that  he  had  not. Thus,  the  evidence  that  the  defendant  had  violated
               his  probation  was  not  just  ÒsubstantialÓ;  the  violation  was  admitted.  Therefore,  we  conclude  that  the
               trial  court  did  not  abuse  its  discretion  in  revoking  the  defendantÕs  probation.

                                              II. DefendantÕs  Due  Process  Rights

                       The  defendant  argues  that  the  trial  courtÕs  revocation  of  his  probation  is  without  evidentiary
               support  and  violates  his  due  process  rights.  In  Black  v.  Romano,  471  U.S.  606,  613,  105  S.  Ct.  2254,
               2258,  85  L.  Ed.  2d  636,  643-44  (1985),  the  United  States  Supreme  Court  reiterated  that  the  due



                                                                -5- process  rights  given  in  a  probation  revocation  proceeding  are  not as expansive  as  those  rights
               afforded  to defendants in criminal trials.  The Court stated, Ò[O]ur precedents have sought to
               preserve  the  flexible,  informal  nature  of  the  revocation  hearing,  which  does  not  require  the  full
               panoply  of  procedural  safeguards  associated  with  a  criminal  trial.Ó Id.  (citations  omitted). In
               Gagnon  v.  Scarpelli,  411  U.S.  778,  782,  93  S.  Ct.  1756,  1760,  36  L.  Ed.  2d  656,  662  (1973),  the
               Supreme  Court  set  out  the  Òminimum  requirements  of  due  processÓ  for  final  revocation  hearings:
                              Ò(a)  written  notice  of  the  claimed  violations  of  [probation  or]  parole;
                              (b)  disclosure  to  the  [probationer  or]  parolee  of  evidence  against  him;
                              (c)  opportunity  to  be  heard  in  person  and  to  present  witnesses  and
                              documentary  evidence;
                              (d)  the  right  to  confront  and  cross-examine  adverse  witnesses  (unless
                              the  hearing  officer  specifically  finds  a  good  cause  for  not  allowing
                              confrontation);
                              (e)  a  Ôneutral  and  detachedÕ  hearing  body  such  as  a  traditional  parole
                              board,  members  of  which  need  not  be  judicial  officers  or  lawyers;  and
                              (f)  a  written  statement  by  the  factfinders  as  to  the  evidence  relied  on
                              and  reasons  for  revoking  [probation  or]  parole.Ó
               Id.  at  786,  92  S.  Ct.  at  1761-62,  36  L.  Ed.  2d  at  664  (alterations  in  original)  (quoting  Morrissey  v.
               Brewer,  408  U.S.  471,  489,  92  S.  Ct.  2593,  2604,  33  L.  Ed.  2d  484,  499  (1972)).
                       The  defendant  argues  that  his  due  process  rights  were  violated  when  the  trial  court  did  not
               differentiate  between  his  expired  and  unexpired  probationary  terms  when  revoking  his  probation.
               At  the  time  the  trial  court  revoked  his  probation,  the  defendantÕs  sentence  under  Docket  No.  5889
               had  expired. We  therefore  remand  this  case  to  the  trial  court  for  entry  of  a  corrected  order  revoking
               probation  only  as  to  Docket  No.  6112. 
                       The  defendant  argues  also  that  his  due  process  rights  were  violated  when  the  trial  court
               revoked  his  probation  without  considering  his  ability  to  pay  the  restitution. In  Bearden  v.  Georgia,
               461  U.S.  660,  672,  103  S.  Ct.  2064,  2073,  76  L.  Ed.  221,  233  (1983),  the  United  States  Supreme
               Court  held  that  during  a  revocation  hearing  for  failure  to  pay  a  fine  or  restitution,  a  trial  court  must
               Òinquire  into  the  reasons  for  the  failure  to  pay.Ó 
                       In  view  of  the  defendantÕs  ability  to  post  a  $20,000  bond  and  purchase  a  new  truck  during
               the  period  that  he  made  no  restitution  payments  as  to  the  convictions  resulting  from  Docket  No.
               6112,  it  is  not  difficult  to  see  why  the  trial  court  concluded  that  the  defendant  decided  to  spend  his
               funds  on  himself  rather  than  the  victims  of  his  burglaries.  However,  because  the  court  had  sufficient



                                                                -6- reason to revoke the defendantÕs probation as a result of his admitted failure to  report to  his
               probation  officer,  it  is  unnecessary  for  us  to  resolve  the  claim  regarding  the  adequacy  of  the  proof
               as  to  his  ability  to  pay  restitution.

                                             III. Ineffective  Assistance  of  Counsel

                       In  Richard  Kiser  v.  State,  Nos.  01C01-9503-CC-00071,  01C01-9503-CC-00082,  1995  Tenn.
               Crim.  App.  LEXIS  953,  at  *11  (Tenn.  Crim.  App.  Dec.  6,  1995),  this  court  explained  how  an
               ineffective  assistance  of  counsel  claim  relates  to  a  revocation  hearing: 
                              [T]he  right  to  counsel  at  a  revocation  or  probation  hearing  is  not
                              guaranteed  by either  the Constitution of the United States or the
                              Constitution  of  the  State  of  Tennessee. Thus,  the  effectiveness  of
                              counsel  at  a  revocation  hearing  is  not  a  constitutional  issue,  except  in
                              those  cases  where  the  performance  of  counsel  is  so  defective  that
                              another  right  which  is  constitutionally  guaranteed  at  a  revocation
                              hearing  is  violated. 
               Id. 
                       As  for  his  claim  that  his  counsel  at  the  revocation  hearing  provided  ineffective  assistance,
               the  defendant  asserts  that  ÒcounselÕs  representation  was  so  inadequate  that  it  did  not  assist  Mr.
               Ammons  in  either  contesting  the  fact  of  violation  or  presenting  the  substantial  reasons  that  would
               have  excused  any  failure  on  his  part.Ó The  defendantÕs  options,  especially  with  regard  to  his  failure
               to  report  to  his  probation  officer,  were  very  circumscribed. His  probation  officer  testified  at  the
               revocation  hearing  held  on  January  22,  2001,  that  the  defendant  had  failed  to  report  to  her  since
               December  1999. The  defendant  admitted  that  this  was  true,  although,  apparently,  he  attempted  to
               explain  some  subsequent  agreement  with  the  probation  officer  regarding  the  reporting  requirement.
               As  to  the  failure  to  report  violation,  there  is  no  explanation  of  what  an  effective  counsel  would  have
               done  that  his  own  counsel  did  not. The  probation  officer  testified  that  he  had  not  reported  to  her  in
               a  year,  and  he  admitted  that  he  had  not. Accordingly,  we  conclude  that  this  claim  is  without  merit.

                                                        CONCLUSION

                       We  affirm  the  judgment  of  the  trial  court  revoking  the  defendantÕs  probation  but  remand  for
               entry  of  a  corrected  order  revoking  probation  only  as  to  Docket  No.  6112. 


                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



                           1  The  docket  numbers  used  herein  are  as  they  appear  on  the  trial  courtÕs  indictments. IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                    Assigned  on  Briefs  May  14,  2002

                                      STATE  OF  TENNESSEE  v.  JESS  R.  AMONETTE

                                         Appeal  from  the  Circuit  Court  for  Williamson  County
                                          Nos.  II-11-100  &  II-100-10    Timothy  Easter,  Judge


                                         No.  M2001-02952-CCA-R3-CD  -  Filed  August  29,  2002


                  Jess R. Amonette appeals from the Williamson County Circuit CourtÕs revocation of his
                  probationary  sentence. He  claims  that  the  lower  court  exceeded  its  discretion  in  revoking  probation
                  and  ordering  him  to  serve  his  sentence  in  confinement. In  case  number  II-100-10,  we  notice  as  a
                  matter  of  plain  error  that  the  sentence  expired  prior  to  initiation  of  revocation  proceedings. We
                  therefore  reverse the revocation  order and dismiss revocation proceedings  in that case.  In case
                  number II-11-100, the record does not reflect the lower courtÕs findings from which we can
                  determine  the  basis  for  its  ruling,  and  we  therefore  remand  for  further  consideration. 

                           Tenn.  R.  App.  P.  3;  Judgment  of  the  Circuit  Court  Reversed  and  Remanded.

                  JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
                  JOE  G.  RILEY,  JJ.,  joined.
                  Erik  R.  Herbert,  Nashville,  Tennessee,  for  the  Appellant,  Jess  R.  Amonette.
                  Paul  G.  Summers,  Attorney  General  &  Reporter;  Renee  W.  Turner,  Assistant  Attorney  General;
                  Ronald L. Davis, District Attorney General; and Mark K. Harvey, Assistant District Attorney
                  General,  for  the  Appellee,  State  of  Tennessee.

                                                                      OPINION

                                    In  case  number  II-100-10,  the  defendant  pleaded  guilty  to  second-offense  driving
                  under  the  influence,  three  counts  of  simple  possession  of  drugs,  and  one  count  of  possession  of  drug
                  paraphernalia. For  each  of  these  offenses,  he  received  a  sentence  of  eleven  months  and  twenty-nine
                  days, 60 days of which was to be served in confinement.  The sentences were to be served
                  concurrently.  In case number II-11-100,  1 the defendant pleaded guilty to one count of simple
                  possession  of  drugs  and  one  count  of  possession  of  drug  paraphernalia. For  the  drug  offense,  he  was
                  sentenced  to  eleven  months  and  twenty-nine  days,  60  days  of  which  was  to  be  served  in  confinement.



                           2  It  appears  from  the  somewhat  anomalous  wording  of  the  judgment  in  case  II-11-100  that  the  defendant  was
                  to  serve  a  total  of  60  days  confinement  for  both  sentences.

                                                                          -2- For  the  paraphernalia  offense,  he  was  sentenced  to  serve  eleven  months  and  29  days  on  probation.
                  These  sentences  were  imposed  concurrently  to  each  other  but  consecutively  to  the  sentences  in  case
                  number  II-100-10. Thus,  the  defendantÕs  effective  sentence  was  just  shy  of  two  years,  with  the  first
                  60  days  being  served  in  confinement.2


                                    The  defendant  came  before  the  court  to  face  allegations  of  probation  violations  in
                  both  cases  after  two  drug  screens  revealed  the  presence  of  narcotics  in  his  body. Amonette  admitted
                  the  violation;  thus,  the  only  issue  before  the  court  was  the  effect  of  the  violation  on  the  probationary
                  sentences  originally  imposed.
                                    The  evidence  presented  was  as  follows. The  defendant,  by  all  accounts,  fared  well
                  on  probation  from  the  time  of  his  sentencing  on  February  28,  2000,  until  he  failed  a  drug  screen  more
                  than  one  year  later  on  May  23,  2001. According  to  the  defendantÕs  testimony,  he  had  completed
                  drug  rehabilitation  treatment  during  the  earlier  portion  of  his  probationary  sentence  but  later  relapsed
                  when  he  was  no  longer  attending  follow-up  care. He  claimed  that  he  voluntarily  submitted  to  an
                  evaluation  after  the  positive  screen.  He  was  unable  to  afford  the  30-day  inpatient  treatment  program
                  recommended for him, so he attended some Narcotics Anonymous and Cocaine Anonymous
                  meetings  on  his  own. Nevertheless,  he  had  a  second  positive  drug  screen  on  July  18,  2001. He
                  testified  that he was not able to leave  his  family  business  for  inpatient  treatment  because  a  key
                  employee  had  a  stroke  in  July  2001. Additionally,  the  defendantÕs  grandfather  had  undergone  heart
                  bypass  surgery  the  previous  fall  and  was  unable  to  work  in  the  business  as  much  as  he  had  in  the
                  past. The  defendant  claimed  to  have  changed  the  friends  with  whom  he  associated  as  part  of  his
                  effort  to  remain  off  drugs,  but  he  had  been  at  a  party  when  someone  unexpectedly  had  drugs. He  was
                  enticed  to  use  drugs  and  thereafter  began  using  about  four  to  five  grams  of  cocaine  a  month. He
                  acknowledged  that  he  had  not  gone  to  his  probation  officer  or  his  grandfather  for  assistance  with  his
                  drug problem.  He claimed that he was too ashamed of his relapse to seek his grandfatherÕs
                  assistance.
                                    The  defendantÕs  grandfather  testified  that  the  defendant  was  a  valued  employee  of  the
                  family  business,  which  the  grandfather  owned. He  characterized  the  prospect  of  the  defendantÕs
                  absence  as  ÒdevastatingÓ  for  the  business. The  defendantÕs  grandfather  had  not  realized  earlier  that
                  his  grandson  had  a  drug  problem,  but  he  offered  to  pay  for  treatment  if  the  court  would  allow  the
                  defendant  another  chance.
                                    The  defendantÕs  probation  officer  testified  that  the  defendant  had  done  all  that  was
                  expected  of  him  save  passing  the  drug  screens. She  stated  that  she  believed  the  defendantÕs  sincerity
                  about  addressing  his  drug  problem,  and  she  advocated  that  the  defendant  be  offered  a  second  chance.
                                    Upon  receiving  the  evidence,  the  court  noted  the  difficulty  it  faces  in  dealing  with
                  drug-addicted  individuals. The  court  noted  further  that  two  individuals  who  were  present  in  the



                                                                -3- courtroom  that  day  would  be  the  subject  of  sentencing  hearings  later,  and  these  individuals  had  drug
               addictions. The  court  commented  that  if  it  extended  leniency  to  Amonette  for  violating  the  terms
               of  his  probation  by  using  drugs,  these  other  two  individuals  might  not  be  deterred  from  further  drug
               use  during  any  probationary  period  that  might  be  imposed  as  part  of  their  sentences. The  court
               further  commented  that  Amonette  had  given  his  word  to  the  court  at  sentencing  that  he  would  abide
               by  the  terms  of  probation,  and  he  had  been  warned  that  a  violation  would  result  in  revocation. The
               court  did  not,  however,  make  any  factual  findings  based  upon  the  evidence  presented.  For  example,
               the  court  did  not  make  any  determinations  relative  to  witness  credibility. The  court  ordered  the
               probationary  sentences  in  both  cases  revoked;  thus,  the  defendant  was  required  to  serve  his  sentences
               in  the  county  jail.

                                                                 I

                              Although  the  issue  has  not  been  raised  in  this  appeal,  we  note  that  the  defendantÕs
               sentence  in  case  II-100-10  expired  prior  to  initiation  of  revocation  proceedings. The  sentence  was
               imposed  on  February  28,  2000,  and  the  revocation  warrant  was  filed  on  June  18,  2001.  The  effective
               sentence  in  case  II-100-10  was  for  eleven  months  and  29  days,  which  time  expired  prior  to  June  18,
               2001. Thus,  the  lower  court  erred  in  allowing  the  state  to  pursue  revocation  in  that  case. See  Tenn.
               Code  Ann.  ¤  40-35-310  (1997)  (trial  court  may  revoke  suspension  of  sentence  Òat  any  time  within
               the  maximum  time  which  was  directed  and  ordered  by  the  court  for  such  suspensionÓ);  State  v.
               Schafer,  45  S.W.3d  553,  555  (Tenn.  2001)  (trial  court  generally  must  revoke  probation  within
               probationary  period,  although  issuance  of  revocation  warrant  within  probationary  period  will  toll
               passage  of  time  within  which  court  must  act);  State  v.  Larry  Ammons,  No.  W2001-00834-CCA-R3-
               CD,  slip  op.  at  5  (Tenn.  Crim.  App.,  Jackson,  Mar.  18,  2002)  (lower  court  erroneously  revoked
               probation  in case in which sentence had expired; case remanded for corrected order revoking
               probation  only  in  unexpired  case);  State  v.  Randall  Anthony,  No.  W2000-02234-CCA-R3-CD,  slip
               op.  at  3  (Tenn.  Crim.  App.,  Jackson,  July  6,  2001)  (probation  erroneously  revoked  in  first  of  two
               consecutive  sentences  because  defendant  had  completed  service  of  first  sentence  prior  to  issuance
               of  revocation  warrant).
                              At  the  revocation  hearing,  the  court  inquired  whether  the  sentence  in  case  II-100-10
               had  expired.  The  state  contended  that  it  had  not,  and  the  defense  essentially  conceded  that  it  had  not.
               The  state  indicated  that  the  judgment  forms  might  have  been  erroneously  prepared,  and  that  if  the
               court  believed  it  was  without  revocation  authority  in  case  II-100-10,  then  the  judgment  forms  might
               be  the  proper  subject  of  amendment  for  clerical  error. However,  no  such  correction  was  made.
               Furthermore,  all  of  the  defendantÕs  convictions  are  for  Class  A  misdemeanor  crimes,  the  sentence
               for  which  generally  is  not  greater  than  eleven  months  and  29  days. See  Tenn.  Code  Ann.  ¤  40-35-
               111(e)(1)  (1997). Thus,  unless  there  was  an  error  in  recording  the  correct  crimes  which  formed  the
               basis  of  the  defendantÕs  conviction,  the  defendant  was  not  eligible  for  a  sentence  longer  than  eleven
               months  and  29  days  in  case  II-100-10.
                              Accordingly,  we  reverse  the  lower  courtÕs  order  revoking  probation  in  case  II-100-10.



                           3  Thus,  we  distinguish  this  case  from  State  v.  Jerry  O.  Summers,  M2001-01358-CCA-R3-CD  (Tenn.  Crim.  App.,
                  Nashville,  July  19,  2002),  in  which  the  court  denied  the  defendantÕs  request  for  further  probation  following  revocation
                  based upon both Òthe conclusion that all others in the court will lose respect  for the probation programÓ and the
                  individual  facts  of  that  case,  including  the  defendantÕs  repeated  failures  at  past  rehabilitation.

                                                                          -4- II

                                    We  now  advance  to  the  issue  of  the  propriety  of  revocation  in  case  II-11-100. The
                  standard  of  review  upon  appeal  of  an  order  revoking  probation  is  the  abuse  of  discretion  standard.

                  State  v.  Harkins,  811  S.W.2d  79,  82  (Tenn.  1991). For  an  abuse  of  discretion  to  occur,  the  reviewing
                  court  must  find  that  the  record  contains  no  substantial  evidence  to  support  the  conclusion  of  the  trial
                  judge  that  a  violation  of  the  terms  of  probation  has  occurred. Id.  at  82;  State  v.  Delp,  614  S.W.2d
                  395,  398  (Tenn.  Crim.  App.  1980). The  trial  court  is  required  only  to  find  that  the violation  of
                  probation  occurred  by  a  preponderance  of  the  evidence. Tenn.  Code  Ann.  ¤  40-35-311(e)  (Supp.
                  2001). Upon finding  a  violation, the  trial court  is  vested  with  the statutory  authority  to  "revoke
                  probation  and  suspension  of  sentence  and  cause  the  defendant  to  commence  the  execution  of  the
                  judgment  as  originally  entered."  Id.  Furthermore,  when  probation  is  revoked,  "the  original  judgment
                  so  rendered  by  the  trial  judge  shall  be  in  full  force  and  effect  from  the  date  of  the  revocation  of  such
                  suspension." Id.  ¤  40-35-310  (1997).  The  trial  judge  retains  the  discretionary  authority  to  order  the
                  defendant  (1)  to  serve  his  sentence  in  incarceration;  (2)  to  serve  the  probationary  term,  beginning
                  anew;  or  (3)  to  serve  a  probationary  period  that  is  extended  for  up  to  an  additional  two  years. State
                  v.  Hunter,  1  S.W.3d  643  (Tenn.  1999). The  decision  of  the  proper  consequence  embodies  a  separate
                  exercise  of  discretion  from  the  initial  finding  that  a  violation  has  occurred. See  id.  at  647;  State  v.
                  Ricio  L.  Conner,  No.  02C01-9807-CR-00201  (Tenn.  Crim.  App.,  Jackson,  Oct.  31,  1999);  State  v.
                  Duke,  902  S.W.2d  424,  427  (Tenn.  1995).
                                    By  pleading  guilty  to  the  allegations  of  the  violation  warrants,  the  defendant  conceded
                  that  there  was  an  adequate  basis  for  a  finding  that  he  had  violated  the  terms  of  probation. See  State
                  v.  Michael  Emler,  No.  01C01-9512-CC-00424,  slip  op.  at  4  (Tenn.  Crim.  App.,  Nashville,  Nov.  27,
                  1996)  (where  the  defendant  admits  violation  of  the  terms  of  probation,  revocation  by  the  trial  court
                  is  not  arbitrary  or  capricious);  State  v.  Mitzi  Ann  Boyd,  No.  03C01-9508-CC-00246  (Tenn.  Crim.
                  App.,  Knoxville,  Nov.  1,  1996).  Thus,  the  only  question  we  must  answer  is  whether  the  court  abused
                  its  discretion  in  ordering  the  defendant  to  serve  the  remainder  of  his  sentence  in  the  county  jail.
                                    In  that  regard,  the  record  reflects  that  the  lower  court  was  concerned  with  the  need
                  to deter other defendants who might receive probation.  The record does not reflect, however,
                  whether  the  court  considered  any  facts  relative  to  the  defendant  AmonetteÕs  case,  such  as  the  courtÕs
                  perception  of  the  defendantÕs  amenability  to  rehabilitation,  sincerity,  and  the  like.  Without  any  such
                  findings  in  the  record,  we  are  unable  to  know  whether  the  courtÕs  decision  was  a  conscientious  and
                  intelligent  one  based  upon  the  facts  of  the  case.3 Cf.  State  v.  John  Earl  Turner,  E2001-01373-CCA-R3-
                      CD  (Tenn.  Crim.  App.,  Knoxville,  July  12,  2002)  (record  must  reflect  courtÕs  findings  relative
                  to  probation  revocation). This  is  particularly  the  case  where,  as  here,  the  testimony  is  essentially



                           4  Despite  the  use  of  a  video record  in  this  case,  we decline  to use  the  video  as  a  means  of  substituting  our
                  impressions  of  credibility  for  those  formed  by  the  trial  court.

                                                                          -5- undisputed,  and  the  only  question  for  the  court  is  the  credibility  and  sincerity  of  the  witnesses  who
                  offered  that  testimony  to  the  court. 
                                    This  case  is  one  in  which  the  evidence  in  the  appellate  record  presents  at  least  a  basis
                  for  extending  some  leniency  to  a  possibly  penitent  defendant  with  a  supportive  family  and  probation
                  officer. However,  this  court,  unlike  the  lower  court,  was  unable  to  conduct  a  first-hand  assessment
                  of  the  defendant,  his  grandfather,  and  his  probation  officer  at  the  time  of  their  testimony.4 As  such,
                  the  lower  court  is  the  proper  entity  to  make  appropriate  factual  findings  regarding  the  believability
                  and  reliability  of  the  witnessesÕ  testimony,  and  ultimately,  to  rule  upon  the  defendantÕs  bid  for  further
                  probation.
                                    Accordingly,  we  reverse  the  lower  courtÕs  order  revoking  the  defendantÕs  probation
                  in  case  II-11-100  and  remand  with  instructions  that  the  court  make  the  appropriate  factual  findings
                  and  enter  an  order  in  accordance  with  those  findings. Additionally,  for  the  reasons  stated  above  in
                  section  I,  we  reverse  the  lower  courtÕs  order  revoking  the  defendantÕs  probation  in  II-100-10.



                                                                                 ___________________________________ 
                                                                                 JAMES  CURWOOD  WITT,  JR.,  JUDGE



                           1  The  record  indicates  that  there  are  other  convictions,  as  well. However,  no  challenge  to  them  is  raised  in  this
                  action.   IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                                 AT  JACKSON

                                         Assigned  on  Briefs  October  30,  2001  at  Knoxville

                                  STATE  OF  TENNESSEE  v.  ALFONZO  E.  ANDERSON


                                           Appeal  from  the  Criminal  Court  for  Shelby  County
                                                       No.  P24737    Chris  Craft,  Judge



                                         No.  W2000-00737-CCA-R3-CO  -  Filed  January  9,  2002



                  Alfonzo  E.  Anderson  appeals  the  Shelby  County  Criminal  CourtÕs  denial  of  his  petition  for  the  writ
                  of  habeas  corpus. He  claims  that  the  indictment  charging  him  with  first  degree  felony  murder  is
                  insufficient  to  allege  the  offense  because  it  does  not  allege  a  factual  basis  for  the  underlying  felony,
                  attempted aggravated robbery.  Because we agree with the lower court that the indictment
                  sufficiently  alleges  the  crime  of  first  degree  felony  murder,  we  affirm.


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


                  JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and
                  JOHN  EVERETT  WILLIAMS,  JJ.,  joined.

                  Alfonzo  Anderson,  Pro  Se.

                  Paul  G.  Summers,  Attorney  General  &  Reporter;  Mark  E.  Davidson,  Assistant  Attorney  General;
                  William  L.  Gibbons,  District  Attorney  General;  and  Paul  Goodman,  Assistant District  Attorney
                  General,  for  the  Appellee,  State  of  Tennessee.


                                                                      OPINION


                                    Anderson  was  convicted  of  first  degree  felony  murder  1  for  the  May  19,  1992  killing
                  of  Sam  Ward  and  was  sentenced  to  imprisonment  for  life. In  this  petition  for  the  writ  of  habeas
                  corpus,  he  claims  that  his  conviction  is  void  because  the  indictment  is  insufficient  in  that  it  fails  to
                  allege  the  facts  and  circumstances  of  the  underlying  felony.

                                    The  state  calls  upon  us  to  affirm  the  lower  courtÕs  dismissal  of  this  action  based  upon
                  the  petitionerÕs  failure  to  file  it  in  the  county  in  which  he  is  incarcerated,  rather  than  the  one  in  which
                  he  was  convicted. Code  section  29-21-105  requires  as  much  absent  an  allegation  in  the  petition  of



                                                                -2- a  Òsufficient  reasonÓ  for  filing  outside  the  county  of  incarceration. Tenn.  Code  Ann.  ¤  29-21-105
               (2000).  The  petitioner  claims  his  reason  for  filing  in  Shelby  County,  rather  than  Lake  County,  is  that
               the  relevant  records  and  files  are  in  possession  of  the  Shelby  County  Criminal  Court. Repeatedly,
               we  have  held  that  this  is  not  a  sufficient  basis  for  filing  outside  the  county  of incarceration. See,
               e.g.,  Paul  Barnett,  No.  E1999-01583-CCA-R3-CD,  slip  op.  at  2  (Tenn.  Crim.  App.,  Knoxville,  June
               20,  2000);  Earl  Raines  v.  State,  No.  E1999-01340-CCA-R3-PC,  slip  op.  at  2  (Tenn.  Crim.  App.,
               Knoxville,  May  9,  2000),  perm.  app.  denied  (Tenn.  2000);  Jimmy  Wayne  Wilson  v.  State,  No.
               03C01-9806-CR-00206,  slip  op.  at  4-5  (Tenn.  Crim.  App.,  Knoxville,  June  24,  1999),  perm.  app.
               denied  (Tenn.  1999). But  cf.  Paul  Barnett,  concurring  slip  op.  at  1-2  (advocating  case-by-case
               determination  of  justification  based  upon  witness  and  document  location  for  filing  habeas  corpus

               petition  outside  county  of  incarceration). The  petitioner  has  presented  no  argument  which  has
               persuaded  us  to  depart  from  our  prior  course. Thus,  the  lower  courtÕs  dismissal  was  proper  for  this
               reason  alone.

                              Likewise,  the  petitioner  is  not  entitled  to  relief  on  the  merits  of  his  allegation.

                              In  that  regard,  it  is  well-settled  that  a  lawful  accusation  is  a  condition  precedent  to
               jurisdiction,  and  a  judgment  obtained  in  the  absence  of  an  indictment  alleging  each  essential  element
               of  the  offense  is  a  nullity. See  State  v.  Trusty,  919  S.W.2d  305,  309-10  (Tenn.  1996)  (citations
               omitted),  overruled  on  other  grounds  by  State  v.  Dominy,  6  S.W.3d  472,  473-74  (Tenn.  1999). A
               defendant  is  entitled  to  knowledge  of  "the  nature  and  cause  of  the  accusation." U.S.  Const.  amend.
               VI;  Tenn.  Const.  art.  I,  ¤  9. Tennessee  law  further  requires  that  an  indictment 

                       state  the  facts  constituting  the  offense  in  ordinary  and  concise  language,  without
                       prolixity or repetition, in such a manner as to enable a person of common
                       understanding  to  know  what  is  intended,  and  with  that  degree  of  certainty  which  will
                       enable  the  court,  on  conviction,  to  pronounce  the  proper  judgment.  .  .  . 

               Tenn.  Code  Ann.  ¤  40-13-202  (1997)  (emphasis  added). An  indictment  has  three  purposes.  It  must
               "provide  sufficient  information  (1)  to  enable  the  accused  to  know  the  accusation  to  which  answer
               is  required,  (2)  to  furnish  the  court  adequate  basis  for  the  entry  of  a  proper  judgment,  and  (3)  to
               protect  the  accused  from  double  jeopardy." State  v.  Hill,  954  S.W.2d  725,  727  (Tenn.  1997). 

                               In  fulfilling  its  obligations,  an  indictment  must  state  the  facts  and  circumstances
               constituting  a  crime,  rather  than  merely  alleging  a  legal  conclusion. State  v.  Clark,  2  S.W.3d  233,
               236  (Tenn.  Crim.  App.  1998). The  factual  allegations  must  pertain  to  the  essential  elements  of  the
               crime. Id.


                               At  the  time  of  AndersonÕs  offense,  first  degree  felony  murder  was  defined  as  Ò[a]
               reckless  killing  of  another  committed  in  the  perpetration  of,  or  attempt  to  perpetrate  any  first  degree
               murder,  arson,  rape,  robbery,  burglary,  theft,  kidnapping  or  aircraft  piracy.Ó  Tenn.  Code  Ann.  ¤  39-
               13-202(a)(2)  (1992)  (statute  amended  1993,  1994,  1995,  1998). The  indictment  which  forms  the
               basis  for  AndersonÕs  conviction  alleges  that  he  Òdid  unlawfully  and  recklessly  kill  Sam  Ward  during
               the  perpetration  of  attempt  [sic]  aggravated  robbery  .  .  .  .Ó



                                                                -3- This  court  has,  on  prior  occasions,  said  that  a  felony  murder  indictment  must  allege
               that  the  killing  was  committed  during  the  perpetration  of  a  felony,  but  specific  allegations  of  the
               elements  and  facts  of  the  underlying  felony  are  unnecessary. State  v.  Jimmy  Wayne  Baker,  No.
               W1998-00531-CCA-R3-CD,  slip  op.  at  11  (Tenn.  Crim.  App.,  Jackson,  Mar.  14,  2001),  perm.  app.
               denied  (Tenn.  2001);  Alan  D.  Lawhorne  v.  State,  No.  273  (Tenn.  Crim.  App.,  Knoxville,  May  31,
               1990),  perm.  app.  denied  (Tenn.  1990).  Although  the  petitioner  claims  that  State  v.  Clark,  2  S.W.3d
               233  (Tenn.  Crim.  App.  1998)  requires  that  the  indictment  allege  the  facts  and  circumstances  of  the
               crime of attempted aggravated robbery, that case involved an indictment charging attempted
               aggravated  robbery,  not  attempted  aggravated  robbery  as  the  underlying  felony  of  a  felony  murder
               indictment. For  that  reason,  Clark  is  distinguishable. We  see  no  reason  to  depart  from  the  logic
               employed  in  Jimmy  Wayne  Baker  and  Alan  D.  Lawhorne.


                              Accordingly,  the  lower  courtÕs  dismissal  of  the  petition  for  the  writ  of  habeas  corpus

               is  affirmed.




                                                                     ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                        Assigned  on  Briefs  December  12,  2001

                STATE  OF  TENNESSEE  v.  FREDERICK  G.  ANDERSON

                     Appeal  from  the  Criminal  Court  for  Davidson  County
                       No.  2000-B-1053  J.  Randall  Wyatt,  Jr.,  Judge


                     No.  M2001-00708-CCA-R3-CD  -  Filed  March  5,  2002 


         Frederick  G.  Anderson  appeals  his  convictions  of  two  counts  of  attempted  aggravated  rape,
         aggravated  kidnapping  and  aggravated  burglary.  He  received  his  convictions  at  the  conclusion  of
         a  jury  trial  in  the  Davidson  County  Criminal  Court. Presently  serving  an  effective  nine-year
         sentence  as  a  violent  offender,  he  challenges  the  sufficiency  of  the  convicting  evidence  in  this
         appeal.  Because  we  are  unpersuaded  by  the  defendantÕs  claims,  we  affirm.

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

         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         F.  Michie  Gibson,  Jr.,  Nashville,  Tennessee,  for  the  Appellant,  Frederick  G.  Anderson.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  J.  Ross  Dyer,  Assistant  Attorney  General;  Victor
         S.  Johnson,  III,  District  Attorney  General;  and  Kimberly  Cooper  and  Shelli  Neal,  Assistant  District
         Attorneys  General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                  In  the  light  most  favorable  to  the  state,  the  evidence  at  trial  demonstrated  that  the
         defendant  and  the  victim  became  romantically  involved  in  July,  1999. Their  relationship
         deteriorated  to  the  point  that  the  victim  ended  it  in  February,  2000. The  defendant  was  very
         possessive  of  the  victim,  and  although  they  were  no  longer  involved,  he  continued  to  call  and  visit
         the  victim  seeking  reconciliation.  He  inquired  of  the  victim  the  identity  of  individuals  with  whom
         she  associated  and  her  whereabouts  when  away  from  home.
                  During  the  evening  of  April  17,  2000,  the  victim  was  entertaining  a  male  friend  in
         her  apartment.  The  defendant  phoned  the  victimÕs  residence  on  several  occasions.  The  victimÕs
         male  friend  talked  to  the  defendant  during  one  of  these  phone  calls.  Shortly  thereafter,  the  defendant
         arrived  at  the  victimÕs  apartment.  He  began  banging  on  the  door,  demanding  to  speak  with  the



                           1  The victim denied that the defendant had ever resided with her, although she admitted that he was a
                  houseguest  on  occasion  during  their  relationship.

                                                                          -2- victim.  When  the  victim  did  not  open  the  door,  the  defendant  climbed  through  the  bedroom  window
                  of the victimÕs six-year-old daughter while the child slept nearby.  The victim came into the
                  bedroom,  and  the  defendant  took  a  telephone  out  of  her  hand. The  defendant  then  went  toward  the
                  victimÕs  male  friend,  who  was  by  the  front  door. The  victimÕs  male  friend,  who  was  scared  and
                  thought  the  defendant  might  have  a  weapon,  fled  the  apartment. 
                                    The  defendant  closed  and  locked  the  front  door,  and  he  took  the  victim  by  her  throat.
                  Angered,  he  demanded  to  know  why  she  was  doing  this  to  him  and  who  her  male  friend  was. He
                  hit  her  on  the  side  of  her  chin. He  demanded  to  know  if  the  victim  had  slept  with  her  male  friend.
                  He  then  grabbed  the  victim  by  her  hair  and  dragged  her  into  a  bedroom. He  threw  her  onto  the  bed,
                  took  off  her  pants,  then  got  on  top  of  her  after  she  fell  to  the  floor. He  covered  her  mouth  with  his
                  hand  so  that  she  could  not  breathe.  The  defendant  began  touching  the  victimÕs  vaginal  area,  insisting
                  that  she  was  making  him  do  this  and  he  never  wanted  it  to  be  that  way. The  defendant  attempted  to
                  penetrate  the  victim  with  his  penis,  but  he  could  not  get  an  erection. He  touched  her  vaginal  area
                  with  his  penis,  however.
                                    The  defendant  began  to  worry  that  the  police  were  on  their  way,  and  the  victim  was
                  able  to  put  her  pants  on  and  get  up  off  the  floor. The  defendant  took  the  victim  to  the  living  room,
                  and  he  continued  to  interrogate  her  about  personal  matters  and  whether  the  police  were  coming. The
                  victim  was  hesitant  to  attempt  an  escape  because  of  her  daughterÕs  presence  in  the  apartment. The
                  defendant  eventually  ran  outside  and  fled  the  area.
                                    The victimÕs male friend returned with police officers.  Thereafter, the victim
                  identified  the  defendant  as  the  perpetrator  of  the  crimes,  and  warrants  were  issued  for  his  arrest.
                                    To  counter  the  stateÕs  proof,  the  defendant  presented  evidence  that  he  and  the  victim
                  were  still  romantically  involved  in  April,  2000. He  conceded  that  the  relationship  was  a  troubled
                  one. He  claimed  that  they  were  engaged  to  be  married,  although  he  had  previously  moved  out  of  the
                  victimÕs apartment due to frequent disagreements with her.1  The defendant claimed to have
                  telephoned  the  victimÕs  apartment  on  April  17,  and  as  a  result  of  their  conversation,  he  believed  that
                  there  was  an  unwelcome  stranger  in  the  apartment  threatening  the  victimÕs  and  her  daughterÕs  safety.
                  He  therefore  went  to  the  apartment.
                                    The  defendant  claimed  that  through  a  window,  he  saw  the  victimÕs  daughter  sitting
                  on  her  bed  crying. The  girl  told  the  defendant  that  there  was  a  man  in  the  apartment,  and  she  opened
                  her window so that the defendant could come inside.  When the victimÕs male friend saw the
                  defendant,  he  left  the  apartment. The  defendant  claims  he  became  suspicious  that  the  man  was  not
                  a  stranger. When  he  inquired  about  this,  the  victim  began  to  cry. He  also  claimed  the  victim  became
                  amorous,  but  he  wanted  no  part  of  it. The  defendant  believed  the  victim  was  being  unfaithful  to  him,



                                                                -3- and  he  ended  their  relationship  on  the  spot. He  claimed  that  the  victim  pulled  on  his  jacket  in  an
               attempt  to  detain  him;  however,  he  left  the  apartment.
                              Although  the  transcript  of  the  evidence  does  not  contain  the  juryÕs  verdict,  it  is
               apparent  from  the  judgments  contained  in  the  record  that  the  jury  rejected  the  defendantÕs  version
               of  events  and  convicted  him  of  two  counts  of  attempted  aggravated  rape,  one  count  of  aggravated
               kidnapping,  and  one  count  of  aggravated  burglary.
                              The  only  question  before  us  is  that  of  the  sufficiency  of  the  evidence  supporting  each
               of  the  defendantÕs  four  convictions. When  an  accused  challenges  the  sufficiency  of  the  convicting
               evidence,  this  court  must  review  the  record  to  determine  if  the  evidence  adduced  at  trial  is  sufficient
               Òto  support  the  finding  by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt.Ó Tenn.  R.  App.  P.
               13(e).  This rule is applicable to findings of guilt based upon direct evidence, circumstantial
               evidence,  or  a  combination  of  direct  and  circumstantial  evidence. State  v.  Dykes,  803  S.W.2d  250,
               253  (Tenn.  Crim.  App.  1990),  overruled  on  other  grounds  by  State  v.  Hooper,  29  S.W.3d  1  (Tenn.
               2000).
                              In  determining  the  sufficiency  of  the  convicting  evidence,  this  court  does  not  re-weigh
               or  re-evaluate  the  evidence.  State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990).  Nor
               may  this  court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from  circumstantial
               evidence. Liakas  v.  State,  199  Tenn.  298,  305,  286  S.W.2d  856,  859  (1956). To  the  contrary,  this
               court  is  required  to  afford  the  state  the  strongest  legitimate  view  of  the  evidence  contained  in  the
               record  as  well  as  all  reasonable  and  legitimate  inferences  which  may  be  drawn  from  the  evidence.

               State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978).
                              Questions  concerning  the  credibility  of  the  witnesses,  the  weight  and  value  to  be
               given  the  evidence,  as  well  as  all  factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of
               fact,  not  this  court. Id.  at  835. In  State  v.  Grace,  493  S.W.2d  474,  476  (Tenn.  1973),  our  supreme
               court  said,  ÒA  guilty  verdict  by  the  jury,  approved  by  the  trial  judge,  accredits  the  testimony  of  the
               witnesses  for  the  State  and  resolves  all  conflicts  in  favor  of  the  theory  of  the  state.Ó
                              Because  a  verdict  of  guilt  removes  the  presumption  of  innocence  and  replaces  it  with
               a  presumption  of  guilt,  the  accused,  as  the  appellant,  has  the  burden  in  this  court  of  illustrating  why
               the  evidence  is  insufficient  to  support  the  verdict  returned  by  the  trier  of  fact. State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982). This  court  will  not  disturb  a  verdict  of  guilt  due  to  the  sufficiency
               of  the  evidence  unless  the  facts  contained  in  the  record  are  insufficient,  as  a  matter  of  law,  for  a
               rational  trier  of  fact  to  find  that  the  accused  is  guilty  beyond  a  reasonable  doubt. Id.  at  914.
                              The  defendant  at  bar  does  not  challenge  any  specific  component  of  the  stateÕs  proof.
               Rather,  he  makes  a  general  assault  upon  the  juryÕs  accreditation  of  the  stateÕs  evidence  over  his  own.
               Unfortunately  for  the  defendant,  such  was  the  juryÕs  fact-finding  prerogative. 



                           2  The  defendant  was  charged  with  both  the  ÒterrorÓ  and  the  Òbodily  injuryÓ  modes  of  aggravated  kidnapping,
                  and  court  minutes  reflect  that  the  jury  found  the  defendant  guilty  of  both  modes  of  the  offense.

                                                                          -4- In  the  light  most  favorable  to  the  state,  the  evidence  demonstrates  that  the  defendant
                  had  embarked  upon  a  campaign  of  unwelcome  attention,  if  not  outright  harassment,  of  the  victim
                  after  the  demise  of  their  romantic  relationship. On  the  night  of  April  17,  the  defendant  forced  his
                  way  into  the  victimÕs  home  through  a  window  after  discovering  that  another  man  was  inside  with
                  the  victim. The  defendant  approached  the  other  man. Frightened  and  concerned  that  the  defendant
                  might have a weapon, the other man fled.  The defendant forcibly detained the victim in the
                  apartment,  and  he  touched  her  vaginal  area  with  his  fingers  and  his  penis. The  victim  had  bruises
                  and  scratches  on  her  arms,  legs  and  chin  from  the  incident.
                                    The  crimes  of  which  the  defendant  was  convicted  are  defined,  in  pertinent  part,  as
                  follows:
                           Attempted  Aggravated  Rape
                           (Aggravated  Rape)
                           Aggravated  rape  is  unlawful  sexual  penetration  of  a  victim  by  the  defendant  or  the
                           defendant  by  a  victim  accompanied  by  any  of  the  following  circumstances:
                           .  .  .
                           (2)  The  defendant  causes  bodily  injury  to  the  victim  .  .  .  .
                           Tenn.  Code  Ann.  ¤  39-13-502(a)(2)  (1997).
                           (Criminal  Attempt)
                           A person commits criminal attempt who, acting with the kind of culpability
                           otherwise  required  for  the  offense: 
                           .  .  . 
                           (3) Acts with intent to complete a course of  action or  cause a  result that would
                           constitute  the  offense,  under  the  circumstances  surrounding  the  conduct  as  the  person
                           believes them to be, and the conduct constitutes a substantial step toward the
                           commission  of  the  offense. 
                           Tenn.  Code  Ann.  ¤  39-12-101(a)(3)  (1997).
                           Aggravated  Kidnapping  2


                           Aggravated  kidnapping  is  false  imprisonment,  [defined  as  knowingly  remov[ing]  or
                           confin[ing] another unlawfully so as to interfere substantially with the other's
                           liberty],  committed: 
                           .  .  . 
                           (3)  With  the  intent  to  inflict  serious  bodily  injury  on  or  to  terrorize  the  victim  or  another;  [or]



                                                                -5- (4)  Where  the  victim  suffers  bodily  injury  .  .  .  .
                       Tenn.  Code  Ann.  ¤  39-13-304(a)(3),  (4)  (1997);  see  Tenn.  Code  Ann.  ¤  39-13-302(a)  (1997)
                       (false  imprisonment).
                       Aggravated  Burglary
                       A  person  commits  [aggravated]  burglary  who,  without  the  effective  consent  of  the
                       property  owner: 
                       .  .  . 
                       (3)  Enters  a  [habitation]  and  commits  or  attempts  to  commit  a[n]  .  .  . assault  .  .  .  .
                       Tenn.  Code  Ann.  ¤¤  39-14-402,  -403  (1997).
                              Upon  consideration  of  the  evidence  in  the  light  most  favorable  to  the  state,  we  are
               persuaded  that  the  evidence  sufficiently  supports  each  of  the  defendantÕs  four  convictions. As
               outlined  in  our  factual  recitation  above,  the  state  made  its  case  for  each  of  these  crimes. Nothing  in
               the  defendantÕs  appellate  argument  convinces  us  otherwise.
                              Accordingly,  the  judgment  of  the  trial  court  is  affirmed.


                                                                     ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  August  6,  2002

                   LEE  O.  ANDERSON  v.  STATE  OF  TENNESSEE

                      Appeal  from  the  Circuit  Court  for  Fayette  County
                         No.  4786  Jon  Kerry  Blackwood,  Judge


                    No.  W2001-02951-CCA-R3-PC  -  Filed  September  5,  2002


         The  petitioner,  Lee  O.  Anderson,  appeals  the  Fayette  County  Circuit  CourtÕs  denial  of  his  petition
         for  post-conviction  relief  from  his  convictions  for  delivery  of  one-half  gram  of  cocaine  and  delivery
         of  less  than  one-half  gram  of  cocaine.  This  court  affirmed  the  judgments  of  conviction.  See  State
         v.  Lee  O.  Anderson,  No.  W2000-00671-CCA-R3-CD,  Fayette  County  (Tenn.  Crim.  App.  Feb.  9,
         2001),  app.  denied  (Tenn.  June  25,  2001).  The  petitioner  claims  that  he  received  the  ineffective
         assistance  of  counsel  because  his  trial  attorney  (1)  failed  to  present  evidence  of  the  petitionerÕs
         treatment  for  drug  addiction  in  order  to  support  a  casual  exchange  defense  and  (2)  failed  to  raise  an
         insufficiency  of  the  evidence  claim  on  appeal  of  his  convictions.  We  affirm  the  judgment  of  the  trial
         court.

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

         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  THOMAS  T.  WOODALL  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         Shana  McCoy-Johnson,  Somerville,  Tennessee,  and  Didi  Christie,  Brownsville,  Tennessee  for  the
         appellant,  Lee  O.  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Braden  H.  Boucek,  Assistant  Attorney  General;
         Elizabeth  T.  Rice,  District  Attorney  General;  and  Ryan  D.  Brown,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             This  courtÕs  opinion  in  the  petitionerÕs  appeal  of  his  convictions  recounts  the  following  facts:
                      On  November  21,  1998,  the  defendant  was  approached  by  an
                  undercover  police  officer  who  was  working  as  part  of  a  drug  sting
                  operation  that  was  being  conducted  by  law  enforcement  officials.
                  During  the  first  of  three  sales  the  defendant  made  to  the  undercover



                                                                -2- police  officer,  the  defendant  sold  $35  worth  of  crack  cocaine  to  the
                              undercover  officer,  which  was  later  tested  and  found  to  weigh  .1
                              grams.
                                      On  November  25,  1998,  the  same  undercover  officer  made
                              contact  with  the  defendant  a  second  time  and  asked  the  defendant  to
                              sell him $60 worth of crack cocaine.  The defendant told the
                              undercover officer to drive his car to the same area where the
                              defendant  had  sold  crack  cocaine  to  the  officer  four  days  earlier.
                              After  a  brief  wait,  the  defendant  met  the  officer  and  sold  the  officer
                              $60  worth  of  crack  cocaine. To  play  the  role  of  a  thankful  drug  user
                              who  appreciated  the  defendant  getting  the  crack  cocaine  for  him,  the
                              undercover  officer  gave  the  defendant  some  of  the  drugs. When  the
                              crack  cocaine  was  later  tested,  it  weighed  .3  grams.
                                      Finally,  on  November  28,  1998,  the  same  undercover  officer
                              was flagged down by the defendant.  On this third occasion, the
                              defendant  and  the  undercover  officer  returned  to  the  area  where  the
                              previous  two  drug  transactions  occurred. When  the  two  arrived,  the
                              undercover  officer  told  the  defendant  that  he  wanted  to  buy  $100
                              worth  of  crack  cocaine.  The  defendant  then  got  out  of  the  undercover
                              officerÕs  car, left for a short time, and then returned.  When the
                              defendant returned with the crack cocaine, the defendant found
                              someone  else  in  the  car  with  the  undercover  officer. The  defendant
                              proceeded  to  run  the  other  person  off,  telling  that  person  that  the
                              undercover officer was Òhis customer.Ó  The transaction then
                              occurred, ending with the undercover officer again giving the
                              defendant  some  of  the  crack  cocaine. When  the  crack  cocaine  was
                              later  tested,  it  weighed  .5  grams.
                                      On  July  26,  1999,  the  defendant  was  indicted  by  a  Fayette
                              County Grand Jury for two counts of delivery of a controlled
                              substance  in  an  amount  less  than  .5  grams,  to  wit  cocaine,  and  one
                              count  of  delivery  of  a  controlled  substance  in  an  amount  equal  to  .5
                              grams,  to  wit  cocaine. The  defendant  was  subsequently  arrested  .  .  .
                              . 
                       A  jury  convicted  the  petitioner  of  delivery  of  one-half  gram  of  cocaine,  a  Class  B  felony;
               delivery  of  less  than  one-half  gram  of  cocaine,  a  Class  C  felony;  and  simple  possession  of  cocaine,
               a  Class  A  misdemeanor. The  trial  court  sentenced  him  as  a  career  offender  to  concurrent  sentences
               of thirty  years  for  the  delivery  of  one-half  gram  of  cocaine  conviction;  fifteen  years  for  the  delivery
               of  less  than  one-half  gram  of  cocaine  conviction;  and  eleven  months,  twenty-nine  days  for  the  simple
               possession  conviction.



                                                                -3- At  the  post-conviction  evidentiary  hearing,  the  petitioner  testified  that  his  trial  attorney,  who
               was  retained,  never  explained  to  him  the  elements  of  the  delivery  of  cocaine  offenses  and  that  he
               never  understood  his  offenses. He  acknowledged  that  there  may  have  been  witnesses  who  could
               have  helped  in  his  defense  and  that  his  attorney  did  not  investigate  them. He  said  he  was  addicted
               to  drugs  and  alcohol  at  the  time  of  the  offenses. He  said  that  between  the  time  of  the  crimes  in  1998
               and  the  time  of  his  arrest  in  1999,  he  got  help  for  his  addictions  through  the  J.  B.  Summer  Treatment
               Program, Memphis Mental Health Institute (MMHI), New Directions Rehab, and Alcoholics
               Anonymous. The  defense  submitted  records  of  the  petitionerÕs  treatment  at  the  J.  B.  Summer
               Counseling  Center  and  MMHI  to  the  trial  court. 
                       The  petitioner  testified  that  he  was  working  and  Òback  on  trackÓ  when  he  was  indicted  and
               arrested  for the offenses.  He said his attorney  did not pursue any defenses other than casual
               exchange  and  simple  possession. He  said  that  his  attorney  never  discussed  using  records  from  the
               drug  treatment  centers  as  evidence  for  his  casual  exchange  defense  and  that  his  attorney  did  not  call
               witnesses  from  the  treatment  centers  to  testify. He  said  that  his  family  members  knew  about  his
               addictions and that his attorney did not call them to testify in his defense.  The petitioner
               acknowledged  that  although  he  had  wanted  his  attorney  to  pursue  an  entrapment  defense,  he  never
               discussed  entrapment  with  his  attorney.
                       The  petitioner  acknowledged  that  he  had  several  prior  felony  drug  convictions,  that  he  was
               on  parole  at  the  time  of  trial,  and  that  his  attorney  filed  motions  regarding  whether  those  prior
               convictions  could  be  used  against  him  at  trial. He  said  that  he  and  his  attorney  discussed  his  right
               to  testify  and  that  his  attorney  indicated  it  was  unnecessary  for  him  to  testify  because  the  attorney
               Òhad  covered  everything.Ó He  said  he  took  his  attorneyÕs  advice  and  did  not  testify  at  trial  or  his
               sentencing  hearing. When  asked  if  he  ever  expressed  a  wish  to  testify,  the  petitioner  replied,  ÒNow
               I  do.Ó He  said  that  his  trial  attorney  was  appointed  to  represent  him  in  the  appeal  of  his  convictions.
               He  said  he  did  not  know  if  his  attorney  alleged  on  appeal  that  the  evidence  was  insufficient  to
               support  the  convictions.
                       On  cross-examination,  the  petitioner  testified  that  he  spoke  with  his  attorney  about  six  times
               before  trial. He  said  that  although  his  attorney  explained  unlawful  delivery  to  him,  his  attorney  did
               not  fully  explain  it. He  stated  that  he  said  something  to  his  attorney  about  presenting  records  from
               the  drug  treatment  centers  at  trial. He  acknowledged  that  his  attorney  did  not  tell  him  that  he  could
               not  testify.
                       Lily  Anderson,  the  petitionerÕs  mother,  testified  that  the  petitioner  lived  with  her  before  his
               1999  arrest.  She  said  that  in  1997  and  1998,  the  petitioner  was  addicted  to  drugs.  She  acknowledged
               that  he  went  to  several  rehabilitation  centers  and  that  after  his  release  from  rehabilitation,  he  got  a
               job.  She  said  that  at  the  time  of  the  petitionerÕs  arrest,  he  also  was  attending  counseling  sessions  for
               his  addictions. She  said  the  petitionerÕs  attorney  did  not  ask  her  to  testify  at  the  petitionerÕs  trial.
                       The  petitionerÕs  trial  attorney  testified  that  his  law  practice  focused  on  criminal  defense. He
               said  that  he  had  hoped  to  work  out  a  plea  agreement  for  the  petitioner  but  that  the  state  would  not



                                                                -4- consent  to  it. He  said  he  met  with  the  petitioner  about  six  times  before  trial. He  said  he  explained
               unlawful  delivery  to  the  petitioner  and  how  it  differed  from  casual  exchange.  He  said  he  thought  the
               petitioner  understood  the  elements  of  the  offenses. He  said  the  only  way  to  defend  the  case  was  to
               argue  casual  exchange. He  said  that  entrapment  was  not  a  possible  defense  because  the  state  could
               have  shown  with  the  petitionerÕs  prior  convictions  that  he  was  predisposed  to  commit  the  crimes.
                       The  attorney  testified  that  the  petitioner  had  pled  guilty  to  six  or  eight  prior  felony  drug
               offenses. He  said  he  told  the  petitioner  that  if  the  petitioner  was  convicted,  the  trial  court  would
               sentence  him  as  a  career  offender  and  he  would  have  to  serve  sixty  percent  of  his  sentence  in
               incarceration. He  acknowledged  that  the  petitioner  helped  him  prepare  a  trial  strategy. He  said  the
               petitioner  had  planned  to  testify  about  the  petitionerÕs  treatment  for  drug  addiction  and  that  the
               testimony  would  have  supported  the  casual  exchange  defense. He  said  that  through  his  cross-examination 
                             of  the  stateÕs witnesses,  the  jury  heard  about  the  petitionerÕs  drug  addiction,  and,
               therefore,  the  petitioner  did  not  need  to  testify.  He  said  that  when  the  petitionerÕs  testimony  became
               unnecessary,  he  recommended  to  the  petitioner  that  he  not  testify. He  said  that  although  the  trial
               court  had  ruled  that  the  state  could  not  impeach  the  petitioner  with  prior  convictions,  he  was  afraid
               the  petitioner  would  open  the  door  to  the  prior  eight  felonies. He  said  that  he  explained  the  risk  in
               testifying  to  the  petitioner  and  that  the  petitioner  did  not  argue  with  him. 
                       The  attorney  testified  that  he  interviewed  the  stateÕs  witnesses,  including  Undercover  Officer
               Dan  Feathers,  who  was  involved in the drug  transactions. He  said  that  he  filed  a  request  for
               discovery  and  that  the  state  turned  over  a  videotape  showing  the  petitioner. He  said  that  he  handled
               the  petitionerÕs  appeal  and  that  he  did  not  raise  a  sufficiency  of  the  evidence  claim. He  said  he
               regretted not arguing on appeal that the evidence was insufficient to support the petitionerÕs
               convictions.
                       On cross-examination, the attorney testified that he did not remember a confidential
               informant  being  involved  in  the  petitionerÕs  case. He  said  that  the  evidence  showed  at  trial  that  the
               petitioner  was  a  drug  addict.  He  said  he  did  not  introduce  the  petitionerÕs  rehabilitation  records  into
               evidence  because  he  did  not  think  they  would  add  anything  to  the  defense. 
                       The  trial  court  denied  the  petitioner  post-conviction  relief.  In  its  order,  the  trial  court  stated,
                              PetitionerÕs  basic  contention  is  that  counsel  failed  to  present  evidence
                              that  after  the  alleged  event  took  place  the  petitioner  began  a  process
                              of  drug  and  alcohol  rehabilitation. Specifically,  petitioner  believed
                              counsel  should have presented reports  from rehabilitative centers
                              showing  petitionerÕs  treatment,  as  well  as  witnesses  who  could  testify
                              that petitioner had straightened out his life. The purpose of this
                              evidence  was  to  show  that  petitioner  was  a  user  of  drugs  and  not  a
                               drug  dealer. Counsel  for  petitioner  testified  that  this  was  exactly  the
                               trial  strategy  he  pursued.  Further,  the  record  indicated  that  the  StateÕs



                                                                -5- proof  conceded  that  the  petitioner  was  a  user.  Therefore,  counsel  felt
                              that  this  proof  was  amply  before  the  jury.
               The  trial  court  did  not  address  the  attorneyÕs  failure  to  raise  an  insufficiency  of  the  evidence  claim
               on  direct  appeal.
                       Under  the  Sixth  Amendment,  when  a  claim  of  ineffective  assistance  of  counsel  is  made,  the
               burden  is  on  the  petitioner  to  show  (1)  that  counselÕs  performance  was  deficient  and  (2)  that  the
               deficiency  was  prejudicial  in  terms  of  rendering  a  reasonable  probability  that  the  result  of  the  trial
               was  unreliable  or  the  proceedings  fundamentally  unfair. Strickland  v.  Washington,  466  U.S.  668,
               687,  104  S.  Ct.  2052,  2064  (1984);  see  Lockhart  v.  Fretwell,  506  U.S.  364,  368-72,  113  S.  Ct.  838,
               842-44  (1993). The  Strickland  standard  has  been  applied  to  the  right  to  counsel  under  Article  I,
               Section  9  of  the  Tennessee  Constitution. State  v.  Melson,  772  S.W.2d  417,  419  n.2  (Tenn.  1989).
                       In  Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.  1975),  our  supreme  court  decided  that
               attorneys  should  be  held  to  the  general  standard  of  whether  the  services  rendered  were  within  the
               range  of  competence  demanded  of  attorneys  in  criminal  cases.  Further,  the  court  stated  that  the  range
               of  competence  was  to  be  measured  by  the  duties  and  criteria  set  forth  in  Beasley  v.  United  States,
               491  F.2d  687,  696  (6th  Cir.  1974),  and  United  States  v.  DeCoster,  487  F.2d  1197,  1202-04  (D.C.  Cir.
               1973). Also,  in  reviewing  counselÕs  conduct,  a  Òfair  assessment  of  attorney  performance  requires
               that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
               circumstances of counselÕs challenged conduct, and to evaluate the conduct from counselÕs
               perspective  at  the  time.Ó Strickland,  466  U.S.  at  689,  104  S.  Ct.  at  2065;  see  Hellard  v.  State,  629
               S.W.2d  4,  9  (Tenn.  1982). Thus,  the  fact  that  a  particular  strategy  or  tactic  failed  or  even  hurt  the
               defense  does  not,  alone,  support  a  claim  of  ineffective  assistance.  Deference  is  made  to  trial  strategy
               or  tactical  choices  if  they  are  informed  ones  based  upon  adequate  preparation. See  Hellard,  629
               S.W.2d  at  9;  DeCoster,  487  F.2d  at  1201.
                       In  a  post-conviction  case,  the  burden  is  on  the  petitioner  to  prove  by  clear  and  convincing
               evidence  his  grounds  for  relief. Tenn.  Code  Ann.  ¤  40-30-210(f). On  appeal,  we  are  bound  by  the
               trial  courtÕs  findings  of  fact  unless  we  conclude  that  the  evidence  in  the  record  preponderates  against
               those  findings. Fields  v.  State,  40  S.W.3d  450,  456  (Tenn.  2001). We  review  the  trial  courtÕs
               conclusions  as  to  whether  counselÕs  performance  was  deficient  and  whether  that  deficiency  was
               prejudicial  under  a  de  novo  standard  with  no  presumption  of  correctness. Id.  at  457.
                       First,  the  petitioner  claims  that  he  received  the  ineffective  assistance  of  counsel  because  his
               trial  attorney  failed  to  present  evidence  of  the  petitionerÕs  treatment  for  drug  addiction. He  claims
               that  this  evidence  was  necessary  to  persuade  the  jury  that  he  was  a  drug  addict  who  was  guilty  of
               casual  exchange. The  state  contends  that  the  petitioner  was  not  prejudiced  by  his  attorneyÕs  failure
               to  present  the  evidence  because  the  evidence  was  cumulative. We  believe  that  the  petitioner  has
               failed  to  demonstrate  that  he  received  the  ineffective  assistance  of  counsel.



                                                                -6- At the evidentiary hearing, the petitionerÕs trial attorney stated that evidence of the
               petitionerÕs  drug  treatment  was  not  needed  because  state  witnesses  testified  at  trial  that  the  petitioner
               was  a  drug  addict. Our  review  of  the  trial  transcript  reveals  that  Officer  Feathers  was  the  only  state
               witness  who  made  statements  about  the  petitionerÕs  being  addicted  to  drugs. During  the  defenseÕs
               cross-examination  of  Officer  Feathers,  the  following  exchange  occurred:
                              Q.     Investigator, you have known Mr. Anderson for a while,
                                      havenÕt  you?
                              A.     ThatÕs  correct.
                              Q.     How  long  have  you  known  him?
                              A.     Approximately,  20  something  years.
                              Q.     A  long  time?
                              A.     Yes.
                              Q.     You  know  he  is  a  crack  addict?
                              A.     I  know  that  he  has  an  addiction.
                              Q.     You  donÕt  know  that  it  is  crack  cocaine?
                              A.     Not  personally.
                              Q.     But  you  know  that  he  is  addicted  to  some  kind  of  drug?
                              A.     Alcohol or cocaine.  I know that he has some type of
                                      addiction.
                              Q.     You  know  that  he  knows  who  most  of  the  drug  suppliers  are
                                      around  Fayette  County?
                              A.     Most  of  them.
                              .  .  .  .
                              Q.     DonÕt  you  also  know  that  he  accommodates  and  helps  out
                                      those  who are looking for drugs, and he gets him a little
                                      something  for  doing  so?



                                                                -7- A.     He  assisted  in  three  cases,  yes.
                              Q.     You  are  not  suggesting  that  thatÕs  the  only  three  times  that  he
                                      has  ever  done  that?
                              A.     No.
                              Q.     In  fact,  you  know  that  he  has  done  that  a  lot?
                              A.     ThatÕs  correct.
               During  closing  statements,  the  defense  argued  to  the  jury  that  the  petitioner  was  a  cocaine  addict  who
               was  guilty  of  casual  exchange.
                       Although  additional  evidence  of  the  petitionerÕs  drug  addiction  was  available  to  bolster  his
               casual  exchange  defense,  we  believe  he  has  failed  to  show  that  he  was  prejudiced  by  his  attorneyÕs
               failure to present such evidence.  At trial, the defense questioned Officer Feathers about the
               petitionerÕs  drug  addiction,  and  Officer  Feathers  testified  that  the  petitioner  was  addicted  to  cocaine
               or  alcohol. In  addition,  the  defense  argued  the  petitionerÕs  drug  addiction  and  casual  exchange
               defense  to  the  jury  during  closing  statements.  Moreover,  the  evidence  in  the  trial  regarding  the  drug
               sales  strongly  militates  against  casual  exchange. In  light  of  the  proof  and  argument  at  trial,  we
               conclude  that  the  petitioner  has  failed  to  demonstrate  that  he  received  the  ineffective  assistance  of
               counsel.
                       The  petitioner  also  contends  that  his  trial  attorney  was  ineffective  for  failing  to  argue  on
               appeal  that  the  evidence  was  insufficient  to  support  his  convictions. However,  when  viewed  in  the
               light  most  favorable  to  the  state,  the  evidence  is  sufficient  to  show  that  the  petitioner  committed  the
               offenses. Therefore,  he  has  not  shown  by  clear  and  convincing  evidence  that  his  attorney  was
               ineffective  for  failing  to  raise  the  issue  on  appeal.
                       Based  on  the  foregoing  and  the  record  as  a  whole,  we  affirm  the  judgment  of  the  trial  court.


                                                                     ___________________________________ 
                                                                     JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                              June  18,  2002  Session

                    STATE  OF  TENNESSEE  v.  JOHN  W.  ARCHEY

                   Direct  Appeal  from  the  Circuit  Court  for  Franklin  County
                           No.  13629  J.  Curtis  Smith,  Judge


                     No.  M2001-02148-CCA-R3-CD  -  Filed  July  26,  2002


         A  Franklin  County  jury  convicted  the  Defendant  of  reckless  driving.  On  appeal,  the  Defendant
         challenges  the  sufficiency  of  the  convicting  evidence. The  Defendant  also  claims  that  the  trial
         courtÕs  jury  instruction  for  reckless  driving  was  in  error.  After  a  careful  review  of  the  record,  we
         affirm  the  judgment  of  the  trial  court.

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  ALAN
         E.  GLENN,  JJ.,  joined.
         David  O.  McGovern,  Assistant  Public  Defender,  Jasper,  Tennessee,  for  the  Appellant,  John  W.
         Archey.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Elizabeth  T.  Ryan,  Assistant  Attorney  General;
         James  Michael  Taylor;  District  Attorney  General;  and  William  Copeland,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION
                                I.  BACKGROUND

             The  Franklin  County  Grand  Jury  indicted  the  Defendant  for  one  count  of  drag  racing  and  for
         one  count  of  reckless  driving.  The  indictment  alleges  that  both  offenses  occurred  on  September  24,
         2000.  The  Defendant  was  tried  by  a  jury  of  his  peers  for  both  charges  on  May  4,  2001.  At  the
         conclusion  of  the  trial,  the  jury  found  the  Defendant  not  guilty  of  drag  racing,  but  found  him  guilty
         of  reckless  driving.  The  trial  court  imposed  a  sentence  of  six  months,  probated  except  for  forty-eight
         hours  of  incarceration,  and  imposed  a  $500  fine. 

                                   II.  FACTS



                                                                -2- At  trial,  Officer  John  Stewart,  a  twelve-year  veteran  of  the  Winchester,  Tennessee  Police
               Department,  testified  that  on  the  morning  of  September  24,  2000,  he  was  off-duty. Officer  Stewart
               stated  that  he  was  driving  on  Highway  41-A  in  Winchester  and  pulled  up  to  a  red  light  at  Òthe  old
               Wal-Mart  building.Ó StewartÕs  vehicle  was  behind  a  Pontiac  Firebird  at  the  red  light,  when  a  red
               Corvette  pulled  up  to  the  red  light  next  to  the  Firebird. Stewart  testified  that  he  then  observed  both
               cars  revving  their  engines  and  thought,  ÒWell,  theyÕre  going  to  get  it  on,  which  they  did.Ó He  then
               observed  both  vehicles  leave  the  red  light  at  a  high  rate  of  speed  with  their  tires  Òsquawking.Ó
               Officer  Stewart  noted  the  license  tag  numbers  of  the  two  vehicles  and  learned  through  dispatch  that
               the  Corvette  was  registered  to  the  Defendant.  Stewart  observed  the  two  vehicles  stop  at  another  red
               light  and  again  depart  in  a  similar  manner. Officer  Stewart  described  the  second  light  as  the  Òhigh
               school  red  light.Ó The  two  vehicles  repeated  this  process  at  yet  a  third  light,  described  by  Officer
               Stewart  as  the  ÒAction  Video  red  light.Ó Shortly  thereafter,  the  Corvette  slowed  down  and  Officer
               Stewart  was  able  to  drive  parallel  to  the  car  long  enough  to  see  the  Defendant,  who  was  wearing  a
               blue-jean  jacket  and  a  baseball  cap. Officer  Stewart  further  testified  that  cars  were  coming  in  other
               lanes  and  that  people  were  standing  on  the  left  side  of  the  red  light  at  the  Wal-Mart. Officer  Stewart
               observed  other  individuals  in  the  Firebird  in  addition  to  the  driver. He  estimated  that  the  Corvette
               and  Firebird  reached  speeds  as  high  as  eighty  miles  per  hour  during  the  incident. 
                       The  next  day,  Officer  Stewart  located  the  Defendant  at  his  home,  where  he  appeared  to  be
               wearing  the  same  blue-jean  jacket  he  had  worn  the  previous  day. Officer  Stewart  issued  citations
               to  the  Defendant  for  the  offenses  of  drag  racing  and  reckless  driving.  At  trial,  the  Defendant  testified
               and  also  called  several  witnesses  in  an  unsuccessful  attempt  to  convince  the  jury  that  he  was  not  the
               driver  observed  by  Officer  Stewart  and  in  an  attempt  to  show  that  the  red  Corvette  observed  by
               Officer  Stewart  did  not  belong  to  him.

                                                        III. ANALYSIS
                                                      A. Jury  Instruction

                       The  Defendant  was  convicted  of  reckless driving,  which  is  defined  in  Tennessee  Code
               Annotated  ¤  55-10-205  as  follows:

                       55-10-205. Reckless  driving.  -  (a)  Any  person  who  drives  any  vehicle  in  willful  or
                       wanton  disregard  for  the  safety  of  persons  or  property  commits  reckless  driving.
                       (b)  A  violation  of  this  section  is  a  Class  B  misdemeanor.
                       The  Defendant  first  argues  that  the  trial  court  improperly  instructed  the  jury  on  the  offense
               of  reckless  driving. Specifically,  the  Defendant  argues  that  the  trial  court  failed  to  instruct  the  jury
               as  provided  in  Tennessee  Pattern  Jury  Instruction  38.12,  that
                       to  constitute  willful  disregard  for  the  safety  of  persons  or  property  there  must  be  a
                       designed  purpose,  an  intent  to  do  the  wrong,  while  to  constitute  wanton  disregard  the
                       party  doing  the  act  or  failure  to  act  must  be  conscious  of  his  conduct  and  though
                       having  no  intent  to  injure  must  be  conscious  from  his  knowledge  of  surrounding
                       circumstances  and  existing  conduct  that  his  conduct  may  naturally  or  probably  result



                                                                -3- in  injury.

                       Although  the  Defendant  did  not  request  the  instruction  at  trial,  he  argues  that  the  omission
               of  this  language  by  the  trial  court  was  reversible  error. The  State  contends  that  the  trial  court,  while
               not  instructing  the  jury  verbatim  from  Tennessee  Pattern  Jury  Instruction  38.12,  nonetheless  properly
               instructed  the  jury  as  to  the  elements  of  the  offense  of  reckless  driving  and  gave  the  jury  appropriate
               definitions  of ÒwillfulÓ  and  Òwanton.Ó We  agree  with  the  State.
                       The  trial  courtÕs  instruction  to  the  jury  on  reckless  driving  was  as  follows:
                       For  you  to  find  the  Defendant  guilty  of  this  offense,  the  State  must  have  proven
                       beyond  a  reasonable  doubt  the  existence  of  the  following  essential  elements.
                              (1)  the  Defendant  drove  a  vehicle;  and
                              (2)  that  driving  was  in  willful  or  wanton  disregard  for  the  safety  of  persons
                              or  property.
                       Now,  for  definitions.
                              A  willful  act  is  one  done  intentionally  and  knowingly.
                              The  definition  of  intentionally  means  doing  an  act  by  design  or  purpose,  a
                       determination to act in a certain way or do a certain thing.  A person acts
                       intentionally  when  that  person acts with  a  conscious  objective  either  to  cause  a
                       particular  result  or  to  engage  in  a  particular  conduct.
                              Knowingly  means  with  knowledge,  and  in  a  criminal  proceeding  means  that
                       the  defendant  knew  what  he  was  about  to  do  and  with  such  knowledge  proceeded  to
                       do  the  act  charged. A  person  acts  knowingly  if  that  person  acts  with  an  awareness
                       either  that  his  conduct  is  of  a  particular  nature  or  that  a  particular  circumstance  exists.
                              A  wanton  act  is  one  done  with  reckless  disregard  of  the  consequences  or
                       rights  or  safety  of  others.
                       The  trial  court  set  forth  the  elements  of  the  offense  and  provided  the  jury  definitions  of  Òa
               willful  actÓ  and  Òa  wanton  act.Ó We  agree  with  the  State  that  the  definitions  utilized  by  the  trial
               court  were  not  substantially  different  from  those  included  in  the  pattern  instructions. This  Court
               must  review  the  entire  jury  charge;  we  can  find  error  only  if,  when  read  as  a  whole,  the  charge  fails
               to  fairly  submit  the  legal  issues  or  misleads  the  jury  as  to  the  applicable  law. State  v.  Phipps,  883
               S.W.2d  138,  142  (Tenn.  Crim.  App.  1994). This  issue  is  without  merit.

                                                B. Sufficiency  of  the  Evidence

                       The  Defendant  next  argues  that  insufficient  evidence  was  presented  at  trial  to  convict  him
               of  reckless  driving.  Again,  we  must  respectfully  disagree.  When an accused  challenges  the
               sufficiency  of  the  evidence,  an  appellate  courtÕs  standard  of  review  is  whether,  after  considering  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. Tenn.  R.  App.  P.  13(e);  Jackson  v.
               Virginia,  443  U.S.  307,  324  (1979);  State  v.  Duncan,  698  S.W.2d  63,  67  (Tenn.  1985). This  rule



                                                                -4- applies  to  findings  of  guilt  based  upon  direct  evidence,  circumstantial  evidence,  or  a  combination
               of  both  direct  and  circumstantial  evidence. State  v.  Pendergrass,  13  S.W.3d  389,  392-93  (Tenn.
               Crim.  App.  1999).
                       In  determining  the  sufficiency  of  the  evidence,  this  Court  should  not  re-weigh  or  re-evaluate
               the  evidence. State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990). Nor  may  this
               Court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from  the  evidence.  State  v.  Buggs,
               995  S.W.2d  102,  105  (Tenn.  1999);  Liakas  v.  State,  286  S.W.2d  856,  859  (Tenn.  1956). Questions
               concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well  as  all
               factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact. Liakas,  286  S.W.2d  at  859.
               This Court must afford the State of Tennessee the strongest legitimate view of the evidence
               contained  in  the  record,  as  well  as  all  reasonable  inferences  which  may  be  drawn  from  the  evidence.
               State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992). Because  a  verdict  of  guilt  against  a  defendant
               removes  the  presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal
               defendant  bears  the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty
               verdict. Id. 
                       The  evidence  in  this  case  reveals  that  Officer  Stewart  witnessed  the  Defendant  driving  his
               vehicle  at  excessive  speeds  on  Highway  41-A  in  Winchester,  Tennessee,  racing  from  stop  light  to
               stop  light  with  another  vehicle  occupied  by  a  driver  and  passengers. The  DefendantÕs  Corvette  was
               apparently  within  a  few  feet  of  the  Firebird  with  which  he  was  racing,  and  both  vehicles  accelerated
               from  zero  to  up  to  eighty  miles  per  hour  as  they  traveled  past  shopping  areas  and  a  local  high  school.
               Each  acceleration  resulted  in  Òsquawking  tires.Ó  Officer  Stewart  also  testified  that  cars  were  coming
               in  other  lanes  and  that  people  were  standing  on  the  left  side  of  the  red  light  at  the  Wal-Mart. Even
               if  the  evidence  had  shown  that  the  city  of  Winchester  was  totally  deserted,  the  Defendant  was  clearly
               driving  in  willful  or  wanton  disregard  for  the  safety  of  the  driver  of  the  Firebird  and  for  the  safety
               of  his  passengers. The  evidence  is  more  than  sufficient  in  this  case  to  prove  that  the  Defendant  was
               driving  a  vehicle  in  willful  or  wanton  disregard  for  the  safety  of  persons  or  property. This  issue  is
               without  merit.
                       Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.



                                                             __________________________________
                                                             ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  September  25,  2002

                  CONNIE  LEE  ARNOLD  v.  STATE  OF  TENNESSEE

                   Direct  Appeal  from  the  Criminal  Court  for  Carter  County
                          No.  S15534  Robert  E.  Cupp,  Judge


                            No.  E2001-02526-CCA-R3-PC
                                November  13,  2002

         The  petitioner  was  convicted  of  child  rape  and  especially  aggravated  exploitation  of  a  minor  and
         sentenced  to  consecutive  sentences  of  twenty-five  years  and  twelve  years,  respectively.  Following
         the  affirmance  of  his  convictions  and  sentences  on  direct  appeal,  he  filed  a  pro  se  petition  for  post-conviction 
               relief.  Concluding  that  the  claims  consisted  of  conclusory  allegations  without  necessary
         supporting  facts,  the  post-conviction  court  dismissed  the  petition  without  affording  the  petitioner  the
         opportunity  to  amend  the  petition.  The  petitioner  timely  appealed.  Following  our  review,  we  affirm
         the  dismissal  of  the  petition.

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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES,  J.,  joined.
         JOSEPH  M.  TIPTON,  J.,  filed  a  dissenting  opinion. 
         Connie  Lee  Arnold,  Only,  Tennessee,  Pro  Se.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Elizabeth  B.  Marney,  Assistant  Attorney  General;
         Joe  C.  Crumley,  Jr.,  District  Attorney  General;  and  Kenneth  C.  Baldwin,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                    FACTS

             The  facts  which  resulted  in  the  convictions  of  the  petitioner  are  set  out  in  the  opinion  of  this
         court  on  direct  appeal:
                  Earnest  Hendrix,  a  cab  driver,  testified  that  on  October  23,  1994,  he
                  was  driving  the  defendant  from  Knoxville  to  Kingsport.  He  said  that
                  the  defendant  showed  him  a  photograph  depicting  oral  sex. Mr.
                  Hendrix  said  that  the  defendant  told  him  that  the  penis  in  the



                                                                -2- photograph was his and the girl was his daughter.  The state
                              introduced  a  Polaroid  photograph  into  evidence  as  exhibit  two,  and
                              Mr.  Hendrix  identified  it  as  the  one  displayed  by  the  defendant. He
                              testified  that  the  defendant  offered  to  have  his  daughter  perform  oral
                              sex  on  him  in  lieu  of  the  cab  fare. Mr.  Hendrix  said  that  upon  their
                              arrival  in  Kingsport,  he  called  the  police.
                                      The  victim  testified  that  she  was  eleven  years  old  in  October
                              1994. She  said  that  before  Halloween,  she  was  attending  to  her  sick
                              grandmother  when  her  father,  the  defendant,  came  to  the  door  and
                              motioned  her  out  of  the  room. She  said  the  defendant  grabbed  her
                              arm  and  took  her  to  his  bedroom. She  said  he  put  his  camera  on  the
                              dresser,  pushed  her  head  down,  stuck  his  penis  in  her  mouth,  and  told
                              her  to  go  up  and  down  on  it. She said  that  he  reached  over  and
                              pushed  the  button  on  the  camera. She  identified  exhibit  two  as  the
                              photograph the defendant made that day.  The jury found the
                              defendant  guilty  of  both  counts.
               State  v.  Connie  L.  Arnold,  No.  03C01-9902-CR-00081,  2000  WL  14691,  at  *1  (Tenn.  Crim.  App.
               Jan.  11,  2000),  perm.  to  appeal  denied  (Tenn.  Sept.  25,  2000). 
                       The  petition  for  post-conviction  relief  consists  of  nine  legal-sized  pages,  of  mostly  single-spaced 
                       type. Taking  the  most  expansive  view  of  the  pro  se  petition,  it  appears  to  combine  claims
               that  were  raised  unsuccessfully  at  trial  and  on  direct  appeal  and  recasts  at  least  some  of  them  as
               complaints  of  ineffective  assistance  by  both  trial  and  appellate  counsel. As  did  the  post-conviction
               court  in  its  review  of  the  petition,  we  will  set  out  the  petitionerÕs  claims,  as  best  we  understand  them.
                       Claiming  that  he  did  not  receive  a  fair  trial  because  of  pretrial  publicity,  the  petitioner  states:
                                      Yet  Petitioner  from  Arrest  to  Trial  and  ReTrial  was  subject  to
                              The  News  Media  Constant  Exploitation  of  said  Charges  and  No  fair
                              trial  could  ever  be  had  in  Carter  County  and  Counsel  of  Recod  [sic]
                              Did  Nothing  to  prevent  same  to  the  harms  way  of  Petition  in  his  Day
                              in  Court,  and  Unjust  Verdicts,  and  Illegal  Imprisonment  for  same. 
                       No  facts  or  details  are  provided  as  to  this  claim.
                       Apparently,  the  petitioner  reargues  the  claim  made  in  his  direct  appeal  that  the  trial  court,  sua
               sponte,  should  have  ordered  a  mental  evaluation  for  him  and  that,  in  this  regard,  both  trial  and
               appellate  counsel  Òweakly  arguedÓ  this  point. However,  on  appeal,  this  court  determined  that  Òa
               reasonable  judge  in  the  trial  courtÕs  position  would  not  have  doubted  the  [petitionerÕs]  competency.Ó
               Arnold,  2000  WL  14691,  at  *3. The  petitioner  also  claims  that  his  appellate  attorney  presented  a
               Òweak  argumentÓ  that  certain  remarks  of  the  prosecutor  during  closing  statements  should  have



                                                                -3- resulted  in  a  mistrial. The  offending  remarks  were  not  revealed,  but  we  note  that,  on  direct  appeal,
               this  court  concluded  that  the  StateÕs  comment  during  final  argument  that  the  jury  Òhad  not  heard  any
               proof  contrary  to  the  stateÕs  positionÓ  was  a  ÒproperÓ  argument. Id.  at  *4.
                       The  petitioner  claims  that  both  trial  and  appellate  counsel  were  ineffective  for  failing  to
               present  ÒwinableÓ  arguments  as  to  ÒTotal  FabricationÓ  of  StateÕs  witnesses  and  for  failing  to  assess
               or  present  his  lifeÕs  history  to  show  he  was  incompetent. He  concludes  that  counsel  was  ineffective
               because  a  ÒDiminished  Capacity  Defense  [was]  Not  AllowedÓ  and  that  the  trial  court  admitted  illegal
               evidence  by  allowing  his  ex-wife  to  testify  in  violation  of  the  marital  privilege  and  by  allowing  the
               ÒallegedÓ victim to perjure herself at the trial.  Additionally, counsel was ineffective for not
               presenting  arguments  on  all  of  the  petitionerÕs  pro  se  filings  before  the  trial  began  and  for  allowing
               a  ÒGross  Miscarriage  of  JusticeÓ  by  not  seeking  an  appellate  court  order  prior  to  the  trial  to  block
               Òthe  Rail-Roading  of  [the  petitioner]  by  the  Bias[ed]  and  Prejudice[d]  [trial  court  judgeÕs]  Gestapo
               Like  Court.Ó These  claims  are  presented  as  allegations  unadorned  with  any  supporting  facts.
                       The  petitioner  complains  about  the  fact  that  the  trial  court,  apparently,  admitted  into  evidence
               four  photographs  of  the  ÒallegedÓ  victim  although  he  was  not  in  the  photographs. He  asserts  that
               witness  credibility  was  Ònot  properly  arguedÓ  by  appellate  counsel  and,  apparently,  trial  counsel  as
               well. The  petitioner  argues  that  Òthere  was  no  strong  evidence  against  [him],  just  prefabricatedÓ  by
               his  ex-wife  and  that  exculpatory  evidence  was  withheld  by  both  the  State  and  his  own  trial  attorney.
               Apparently, he  claims  that  he  is  the  victim  of  cruel  and  unusual  punishment  because  the  State
               transported  him  in  chains  even  though  he  had  a  Òcollapsed  Lumbo  Sacral  SpineÓ  and  that  he  was
               denied  his  right  to  a  speedy  trial. Trial  counsel  was  ineffective  for  not  advising  the  jury  that  the
               proceeding  was  a  ÒMalicious  ProsecutionÓ  and  a  ÒVindictive  ProsecutionÓ  by  his  ex-wife.  Although
               it  is  unclear  how  this  claim  fits  within  the  petition,  if  it  does  at  all,  he  claims  that  the  trial  court  Òhad
               a  Computer  from  the  Higher  Courts  access  to  all  cases  pertaining  to  any  case  and  used  his  Judge  Roy
               Bean  Version  Nazi  Like  against  Petitioner,Ó  which  counsel  permitted  to  happen  and  did  not  present
               as  an  issue  on  appeal. He  claims  that,  following  the  convictions,  he  was  sent  to  Òdeath  [row]  at
               Riverbend  Maximum  Security  Prison,Ó  which  was  undeserved  cruel  and  unusual  punishment. He
               argues  that  trial  counsel  was  ineffective  for  not  investigating  his  case.  He  argues  that  he  was  denied
               jail credits and that the trial court, the prosecutor, and his attorney  changed the dates on the
               Òaffidavit,  warrant  and  indictmentsÓ  from  ÒSeptember  1993  up  to  October  1994Ó  and  changed  Òcode
               NoÕsÓ  as  well.
                       Tennessee  Code  Annotated  section  40-30-206(d)  and  (f)  sets  out  the  circumstances  under
               which  a  petition  for  post-conviction  relief  may  be  dismissed  without  a  hearing  and  the  procedure  for
               doing  so: 
                                      (d) The  petition  must  contain  a  clear  and  specific  statement
                              of  all  grounds  upon  which  relief  is  sought,  including  full  disclosure
                              of the factual basis of those grounds.  A bare allegation that a
                              constitutional  right  has  been  violated  and  mere  conclusions  of  law
                              shall  not  be  sufficient  to  warrant  any  further  proceedings. Failure  to



                                                                -4- state  a  factual  basis  for  the  grounds  alleged  shall  result  in  immediate
                              dismissal  of  the  petition. If,  however,  the  petition  was  filed  pro  se,
                              the  judge  may  enter  an  order  stating  that  the  petitioner  must  file  an
                              amended  petition  that  complies  with  this  section  within  fifteen  (15)
                              days  or  the  petition  will  be  dismissed. 
                                      (f) Upon  receipt  of  a  petition  in  proper  form,  or  upon  receipt
                              of  an  amended  petition,  the  court  shall  examine  the  allegations  of  fact
                              in  the  petition. If  the  facts  alleged,  taken  as  true,  fail  to  show  that  the
                              petitioner  is  entitled  to  relief  or  fail  to  show  that  the  claims  for  relief
                              have  not  been  waived  or  previously  determined,  the  petition  shall  be
                              dismissed.  The order of dismissal shall set forth the court's
                              conclusions  of  law.
                       In  this  matter,  the  post-conviction  court  entered  a  written  order  setting  out  its  findings  of  fact
               and conclusions of law, as to the insufficiencies of the petition.  Referring to the pleading
               requirement of Tennessee Code Annotated section 40-30-206(d) and reciting certain of the
               conclusory  allegations  set  out  in  the  petition,  the  post-conviction  court  stated  that  Ò[t]his  Court  has
               read  this  Petition  no  less  than  three  or  four  times,  and  each  time  the  result  is  unmistakably  the  same,
               that  is,  [it  is]  confusing,  and  is  fatally  devoid  of  facts.Ó The  post-conviction  court  then  found:
                                      The  Court  could  continue  listing  numerous  instances  of  these
                              types  of  allegations  by  the  petitioner,  but  the  need  to  do  so  is  not
                              necessary. This  Court  has  no  alternative  in  finding  that  this  petition
                              fails  to  state  a  clear  and  specific  statement  of  the  grounds  upon  which
                              relief  is  sought. Furthermore,  it  does  not  contain  a  full  disclosure  of
                              the factual basis of the grounds asserted.  Finally, the Petition
                              contains  [bare]  allegations  of  violations  of  constitutional  rights,  and
                              mere  conclusions  of  law. 
                                      This  court  is  not  unmindful  that  the  statute  provides  that  the
                               Trial  Court  can  allow  a  [pro  se]  petitioner  fifteen  (15)  days  within
                               which  to  amend  the  petition  to  comply  with  the  statute,  however,  this
                               statute  does  not  mandate  that  a  Judge  do  so.  This  court  in  reading  this
                               petition  is  of  the  opinion  that  to  allow  the  fifteen  (15)  days  to  amend
                               the  petition  to  comply  with  the  statute  would  be  an  exercise  in  futility.
                                      In all fairness to this  petitioner, this court has considered
                               whether  all  the  facts  stated  in  the  Petition,  when  taken  together,  could
                               constitute  grounds for ineffective assistance  of counsel.  In [the]
                               reading  of  this  petition,  either  three  [or]  four  times,  this  court  finds
                               that the facts do not state any  proof of ineffective assistance of



                                                                -5- counsel  in  the  slightest  degree,  and  does  not  state  any  prejudice  to  this
                              petitioner.
                       As  stated  in  Harris  v.  State,  996  S.W.2d  840,  842  (Tenn.  Crim.  App.  1999),  Òwhen  a  trial
               court  determines  that  a  petitioner  has  not  presented  a  colorable  claim  or  that  a  claim  has  been
               waived,  the  court  may,  in  its  discretion,  summarily  dismiss  the  petition  without  the  appointment  of
               counsel.Ó In  the  instant  appeal,  the  post-conviction  court  reviewed  the  petition  and  determined  that
               it  did  not  present  a  colorable  claim,  as  we  determined,  likewise,  by  our  review. Accordingly,  we
               conclude  that  the  post-conviction  court  did  not  abuse  its  discretion  in  dismissing  the  post-conviction
               petition. 

                                                        CONCLUSION

                       Based  upon  the  foregoing  authorities  and  reasoning,  we  affirm  the  post-conviction  courtÕs
               dismissal  of  the  petition.


                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                            November  27,  2001  Session

                STATE  OF  TENNESSEE  v.  BILLY  HAROLD  ARNOLD


                     Appeal  from  the  Criminal  Court  for  Sullivan  County
                          No.  S44,052  Phyllis  H.  Miller,  Judge



                            No.  E2000-03157-CCA-R3-CD 
                                February  22,  2002


         The  defendant,  Billy  Harold  Arnold,  appeals  his  misdemeanor  theft  conviction  for  which  the
         Sullivan  County  Criminal  Court  sentenced  him  to  eleven  months  twenty-nine  days,  all  suspended
         except  for  thirty  days  confinement,  Òday  for  day.Ó  He  contests  the  sufficiency  of  the  evidence,  the
         admission  into  evidence  of  prior  similar  conduct,  and  his  sentence. We  affirm  the  trial  court,
         although  we  also  note  that  a  Òday  for  dayÓ  term  of  confinement  does  not  bar  application  of  relevant
         good  conduct  credit  statutes.


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


         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and
         ALAN  E.  GLENN,  JJ.,  joined.

         Richard  A.  Spivey,  Kingsport,  Tennessee,  for  the  appellant,  Billy  Harold  Arnold.

         Paul  G.  Summers,  Attorney  General  and  Reporter;  Angele  M.  Gregory,  Assistant  Attorney  General;
         H.  Greeley  Wells,  Jr.,  District  Attorney  General;  and  Teresa  Murray-Smith,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION


             This  theft  case  arose  on  December  21,  1999,  in  a  Wal-Mart  in  Kingsport.  David  Martin,  a
         Wal-Mart  Loss  Prevention  Associate,  testified  that  he  observed  the  defendant  in  the  store  on  two
         separate  days,  the  21st  and  either  one  or  two  days  before.  On  the  first  occasion,  he  saw  the  defendant
         go  to  the  electronics  department,  take  a  PlayStation  video  set  from  the  shelf,  and  leave  the
         department,  although  electronic  equipment  purchases  were  to  be  made  at  the  electronics  department
         cash  registers.  Mr.  Martin  observed  the  defendant  go  to  the  lawn  and  garden  area  of  the  store,  obtain
         a  store  bag,  and  place  the  PlayStation  set  in  the  bag.  The  defendant  walked  toward  the  front  of  the
         store. Mr.  Martin  advised  an  Òexit  greeterÓ  for  the  store  not  to  look  at  or  stop  the  defendant.
         However,  the  greeter  turned  and  looked  around,  at  which  time  the  defendant  turned  and  walked
         through  the  store.  Mr.  Martin  saw  the  defendant  leave  the  PlayStation  in  the  foods  department,  leave
         the  store,  and  enter  a  tan  Chevrolet  van.



                                                                -2- Mr. Martin testified that on the afternoon of the 21st, he saw the defendant go to the
               electronics  department,  obtain  a  PlayStation  with  the  help  of  an  employee,  and  then  pay  for  the  set
               in  the electronics department.  He noted that the cashier marked the box in two places.  The
               defendant  left  the  store  and  entered  the  same  tan  Chevrolet  van. Mr.  Martin  observed  the  defendant
               reenter  the  store,  go  to  the  electronics  department,  reach  up  and  get  another  PlayStation,  mill  around
               some,  and  then  go  to  the  cleaning  supplies  section  of  the  store. Mr.  Martin  saw  the  defendant  pull
               from  his  pocket  a  Wal-Mart  bag  with  a  receipt  on  it,  which  fell  off. He  saw  the  defendant  take  out
               a  pen,  appear  to  mark  the  setÕs  box,  and  put  the  set  into  the  bag. He  also  saw  the  defendant  use  a
               small  stapler  to  staple  the  receipt  to  the  bag. The  defendant  then  walked  out  of  the  store  with  the
               bag. 

                       Mr.  Martin  testified  that  he  approached  the  defendant  and  had  him  reenter  the  store. They
               went  to  a  back  room  and  waited  for  the  police. Mr.  Martin  said  that  the  defendant  claimed  to  have
               purchased  the  set. He  said  that  at  another  point,  the  defendant  said  that  he  was  bringing  the  set  back
               for  a  refund. However,  when  the  defendant  was  asked  to  show  the  pink  refund  sticker  attached  to
               returned  property,  the  defendant  did  not  respond. The  defendant  told  Mr.  Martin  that  his  wife
               brought  him  to  the  store,  and  he  denied  having  a  van.

                       After  Kingsport  police  officer  James  Clark  issued  the  defendant  a  citation,  he  and  Mr.  Martin
               escorted  the  defendant  out  of  the  store. Mr.  Martin  said  that  he  and  the  officer  went  to  the  van,  and
               he  began  taking  photographs. He  said  that  the  defendant  came  over  from  a  pay  telephone  and
               wanted  to  know  what  they  were  doing,  although  still  denying  that  it  was  his  van. Mr.  Martin  said
               that  he  saw  another  PlayStation  partially  covered  with  a  towel  in  the  console  of  the  van.  He  also  saw
               mail  for  which  the  return  address  was  in  the  defendantÕs  name  at  the  address  the  defendant  had  given
               him. 
                       Peggy  Derrick  testified  that  she  had  been  a  sales clerk for  Wal-Mart  in  the  electronics
               department  and  had  sold  the  defendant  a  PlayStation  on  December  21. She  initialed  the  top  of  the
               box  on  the  bar  code,  placed  the  box  in  a  bag,  and  stapled  the  receipt  to  the  bag. When  shown  the
               PlayStation  box  taken  from  the  defendant,  Ms.  Derrick  identified  her  initials  but  denied  they  were
               in  her  handwriting.  She  also  said  that  she  used  two  staples.  The  record  reflects  that  the  receipt  taken
               from  the  defendantÕs  bag  had  one  staple  but  staple  holes  for  two  other  staples.

                       The  defendant  claimed  to  have  bought  the  PlayStation  in  question  at  Wal-Mart.  He  said  that
               on  Saturday,  December  19,  he  had  gone  to  Wal-Mart  with  his  children. He  said  he  intended  to  buy
               a  PlayStation  for  his  son  and  tried  to  do  so  without  his  children  seeing  him. He  explained  that  his
               placing  the  box  in  a  bag,  moving  about  the  store,  and  ultimately  leaving  the  PlayStation  in  the  foods
               department  all  arose  from  this  intent. He  said  that  when  he  believed  that  he  could  not  succeed,  he
               left  the  store.

                       The  defendant  testified  that  on  December  21,  he  returned  to  Wal-Mart,  bought  some  action
               figures  for  his  children,  and  left. He  said  he  went  to  his  parentsÕ  van  with  the  intent  to  go  to  Circuit
               City  to  buy  a  PlayStation. He  said  he  had  previously  bought  one  at  Circuit  City  that  was  still  in  the
               van. He  stated  that  he  decided  it  was  not  worth  the  trip  and  he  returned  to  Wal-Mart  and  bought  a



                                                                -3- PlayStation. He  testified  that  Mr.  Martin  stopped  him  and  he  was  ultimately  charged. The  jury
               convicted  him  of  theft.


                                           I. SUFFICIENCY  OF  THE  EVIDENCE


                       The  defendant  contends  that  the  evidence  is  insufficient  to  convict  him  once  conflicts  in  Mr.
               MartinÕs  testimony  are  considered  and  Mr.  MartinÕs  improper  testimony  about  the  defendantÕs
               previous  visit  to  the  store  is  excluded. We  conclude  that  the  evidence  is  sufficient. 

                       Our  standard  of  review  when  the  sufficiency  of  the  evidence  is  questioned  on  appeal  is
               Òwhether,  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.Ó
               Jackson  v.  Virginia,  443  U.S.  307,  319,  99  S.  Ct.  2781,  2789  (1979). This  means  that  we  do  not
               reweigh  the  evidence  but  presume  that  the  jury  has  resolved  all  conflicts  in  the  testimony  and  drawn
               all  reasonable  inferences  from  the  evidence  in  favor  of  the  state.  See  State  v.  Sheffield,  676  S.W.2d
               542,  547  (Tenn.  1984);  State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978).

                       We  believe  that  any  conflicts  in  Mr.  MartinÕs  testimony  were  resolvable  by  the  jury  in  favor
               of  the  state. In  fact,  the  evidence  does  not  reflect  any  conflicts  in  Mr.  MartinÕs  testimony  regarding
               what he saw the defendant do.  As for the claim that Mr. MartinÕs testimony regarding the
               defendantÕs  previous  visit  to  the  store  should  be  excluded  when  considering  the  sufficiency  of  the
               evidence,  we  disagree. Even  if,  for  argument  purposes,  such  evidence  was  improper,  any  error  in
               its  admission  would  only  result  in  a  new  trial. Judicial  review  of  the  sufficiency  of  the  evidence  to
               convict  that  would  exclude  evidence  deemed  inadmissible  on  appeal  would  unfairly  prejudice  the
               prosecution. For  instance,  if  the  state  knew  before  the  first  trial  that  a  particular  piece  of  evidence
               was  inadmissible,  it  would  be  entitled  to  amend  its  trial  strategy  and  rely  on  other  evidence  to  make
               its  case. However,  when  the  determination  of  inadmissibility  is  made  by  a  court  after  the  trial,  the
               state  is  foreclosed  from  those  considerations. Needless  to  say,  it  would  be  impossible  for  the  court
               to  know  what  additional  evidence  might  be  available  and  it  would  be  inappropriate  for  it  to  assess
               the  sufficiency  of  the  evidence  based  only  on  properly  admitted  evidence. See  State  v.  Longstreet,
               619  S.W.2d  97,  100-01  (Tenn.  1981).  Under  the  circumstances,  we  conclude  that  the  evidence  was
               sufficient  to  convict  the  defendant  of  theft. 


                                                     II. PRIOR  BAD  ACT


                       The  defendant  contends  that  the  trial  court  erred  by  allowing  the  state  to  illicit  testimony
               from Mr. Martin regarding the events occurring  a day or two before the date of the offense.
               However,  as  the  state  points  out,  the  defendant  did  not  file  a  motion  for  new  trial. Pursuant  to  Rule
               3(e),  T.R.A.P.,  Òno  issue  presented  for  review  shall  be  predicated  upon  error  in  the  admission  or
               exclusion  of  evidence  .  .  .  or  other  ground  upon  which  a  new  trial  is  sought,  unless  the  same  was
               specifically  stated  in  a  motion  for  a  new  trial;  otherwise  such  issues  will  be  treated  as  waived.Ó
               Thus,  the  issue  is  not  properly  before  us. However,  in  oral  argument,  the  defendant  argued  that  the
               admission  of  the  evidence  constitutes  plain  error  and  should  result  in  a  new  trial.



                                                                -4- Pursuant  to  Rule  52(b),  Tenn.  R.  Crim.  P.,  we  have  the  discretion  to  notice  an  error  that  has
               affected  the  substantial  rights  of  an  accused  when  necessary  to  do  substantial  justice. In  State  v.
               Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994), this court noted five factors in
               determining  whether  an  issue  merits  plain  error  status:

                              (1)  the  record  must  clearly  establish  what  happened  in  the  trial  court;

                              (2)  a  clear  and  unequivocal  rule  of  law  must  have  been  breached;

                              (3) a substantial right of the accused must have been adversely
                              affected;

                              (4)  the  accused  did  not  waive  the  issue  for  tactical  reasons;  and

                              (5)  consideration  of  the  error  is  necessary  to  do  substantial  justice. 

               In  the  present  case,  the  defendantÕs  intent  was  at  issue. Needless  to  say,  proof  of  his  unsuccessful
               attempt  two  days  before  the  offense  on  trial  to  take  a  PlayStation  without  paying  for  it  is  very
               probative  of  the  defendantÕs  intent  on  the  day  of  the  offense. Proof  of  prior  attempts  to  commit  the
               crime  on  trial  may  be  admissible  under  Rule  404(b),  Tenn.  R.  Evid.,  as  relevant  to  intent.  See  State
               v.  Stephenson,  878  S.W.2d  530,  541-42  (Tenn.  1994).  Plain  error  does  not  exist  in  the  record  before
               us. 


                                                      III. SENTENCING


                       The  defendant  contends  that  the  trial  court  erred  Òin  finding  certain  enhancement  factors  were
               present  and  that  certain  mitigation  factors  were  not.Ó He  also  argues  that  to  the  extent  enhancement
               factors  might  have  been  present,  Òthe  trial  court  failed  to  properly  balance  these  with  mitigation
               factors.Ó

                       Appellate  review  of  sentencing  is  de  novo  on  the  record  with  a  presumption  that  the  trial
               courtÕs determinations are correct.  Tenn. Code Ann. ¤ 40-35-401(d).  As the Sentencing
               Commission  Comments  to  this  section  note,  the  burden  is  now  on  the  defendant  to  show  that  the
               sentence  is  improper. This  means  that  if  the  trial  court  followed  the  statutory  sentencing  procedure
               and  it  gave  due  consideration  and  proper  weight  to  the  factors  and  principles  that  are  relevant  to
               sentencing  under  the  1989  Sentencing  Act,  as  amended,  we  may  not  disturb  the  sentence  on  appeal.
               See  State  v.  Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991). In  misdemeanor  sentencing,
               in  determining  the  percentage,  if  any,  of  the  sentence  to  be  served  in  confinement,  the  court  shall
               consider  the  purposes  of  the  Sentencing  Act,  the  principles  of  sentencing,  and  the  enhancement  and
               mitigating  factors. See  Tenn.  Code  Ann.  ¤  40-35-302(d);  State  v.  Troutman,  979  S.W.2d  271,  273-
               74  (Tenn.  1998).

                       The  trial  court  was  markedly  influenced  by  its  view  of  the  defendantÕs  illegal  behavior.  The
               defendant  admitted  smoking  marijuana,  even  after  he  was  charged  in  the  present  case.  The  trial  court



                                                                -5- also  noted  the  defendantÕs  first  attempt  to  steal  a  PlayStation  and  found  him  to  be  untruthful,
               unremorseful,  and  possessing  little  potential  for  rehabilitation. Moreover,  it  found  that  for  a  man
               in  his  forties,  the  defendant  had  a  poor  work  record  and  social  history.  The  trial  court  concluded  that
               Òsome  deterrenceÓ was needed and that  confinement was necessary to avoid depreciating the
               seriousness  of  the  conduct. It  sentenced  the  defendant  to  eleven  months  twenty-nine  days  in  the
               county  jail,  all  but  thirty  days,  day  for  day,  being  suspended. 

                       Relative  to  the  trial  courtÕs  reliance  upon  a  history  of  criminal  conduct,  the  defendant  does
               not believe that he should be punished for smoking marijuana when the only source of the
               information  was  his  candid  admission  of  the  fact  to  the  presentence  officer. He  argues  that  if
               sentencing  is  to  address  treatment  and  health  matters  regarding  the  defendant,  Òit  is  unwise  to  punish
               forthrightness  on  substance  abuse  issues  unrelated  to  a  conviction.Ó The  state  does  not  address  this
               argument,  relying  only  on  the  fact  that  this  court  has  previously  relied  on  a  defendantÕs  admissions
               regarding  drug  abuse  for  enhancing  a  sentence  because  of  a  history  of  criminal  behavior. See  State
               v.  Charles  S.  Jones,  No.  M1999-02335-CCA-R3-CD,  Montgomery  County  (Tenn.  Crim.  App.  Nov.
               9,  2000). We  believe  that  although  forthrightness  is  to  be  encouraged,  a  defendant  should  not  be
               given immunity for his admissions.  In this sense, the defendantÕs admission that he smoked
               marijuana  after  having  been  charged  in  this  case  does  not  bode  well  for  the  defendantÕs  rehabilitation
               with  a  short,  suspended  sentence.  In  any  event,  we  believe  that  the  trial  courtÕs  most  serious  concern
               was  the  fact  that  the  defendant  had  previously  attempted  to  steal  a  PlayStation. A  trial  court  may
               rely  upon  criminal  conduct  for  which  a  conviction  is  not  obtained  if  it  finds  by  a  preponderance  of
               the  evidence  that  the  conduct  occurred. See  State  v.  Winfield,  23  S.W.3d  279,  281  (Tenn.  2000).

                       Given  the  trial  courtÕs  findings  that  the  defendant  had  previously  attempted  to  steal  property,
               was  untruthful,  and  was  unremorseful,  we  conclude  that  a  sentence  of  eleven  months  twenty-nine
               days  with  confinement  for  thirty  days  was  justified  in  order  for  the  defendant  to  appreciate  the
               seriousness  of  his  criminal  conduct. We  note,  though,  that  the  trial  courtÕs  order  that  the  thirty-day
               confinement  be  day  for  day  does  not  bar  application  of  appropriate  conduct  credits. See  State  v.
               Frank  R.  Clark,  No.  M2000-00862-CCA-R3-CD,  Warren  County  (Tenn.  Crim.  App.  July  25,  2001)
               (for  publication).

                       In  consideration  of  the  foregoing  and  the  record  as  a  whole,  we  affirm  the  judgment  of
               conviction. 


                                                                     ___________________________________ 
                                                                     JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  November  27,  2001

                  STATE  OF  TENNESSEE  v.  CONNIE  LEE  ARNOLD


                      Appeal  from  the  Criminal  Court  for  Carter  County
                          No.  12165  Lynn  W.  Brown,  Judge



                            No.  E2001-00618-CCA-R3-CD 
                                 January  29,  2002


         The  defendant,  Connie  Lee  Arnold,  appeals  from  the  Carter  County  Criminal  CourtÕs  denial  of  his
         motion  for  return  of  property  by  the  state  in  its  prosecution  of  him  and  for  return  of  property  and  files
         in  the  possession  of  his  former  trial  attorney.  The  trial  court  concluded  that  it  had  no  jurisdiction  to
         rule  in  the  matter.  The  state  agrees  with  the  defendant  that  the  trial  court  has  jurisdiction  to  act  on
         the  motion  relative  to  evidence  used  in  the  case  and  otherwise  seized  and  possessed  by  the  state,  but
         it  asserts  that  property  and  files  possessed  by  the  defendantÕs  former  attorney  should  be  addressed
         by  the  Board  of  Professional  Responsibility  or  a  civil  court.  Although  we  hold  that  the  trial  court  had
         jurisdiction  relative  to  evidence  presented  in  the  case,  we  affirm  the  trial  court. 


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


         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and
         ALAN  E.  GLENN,  JJ.,  joined.

         Connie  Lee  Arnold,  Only,  Tennessee,  Pro  Se.

         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kathy  D.  Aslinger,  Assistant  Attorney  General;
         Joe  C.  Crumley,  Jr.,  District  Attorney  General;  and  Lisa  Rice,  Assistant  District  Attorney  General,
         for  the  appellee,  State  of  Tennessee.


                                   OPINION


             The  defendant  was  convicted  of  child  rape  and  especially  aggravated  sexual  exploitation  of
         a  minor,  and  this  court  affirmed  the  convictions  on  appeal.  See  State  v.  Connie  Lee  Arnold,  No.
         03C01-9902-CR-00081,  Carter  County  (Tenn.  Crim.  App.  Jan.  11,  2000),  app.  denied  (Tenn.  Sept.
         25,  2000).  Subsequently,  the  defendant  filed  a  motion  for  return  of  all  property  seized  by  the  state.
         Although  the  motion  states  that  return  is  sought  of  such  property  that  was  not  used  as  evidence,  it
         also  specifies  four  photographs  that  were  introduced  into  evidence.  It  also  specifies  photograph
         albums  with  photographs,  a  belt,  and  a  carrying  bag.  The  defendant  also  filed  a  motion  asking  the
         trial  court  to  require  his  trial  attorney  to  turn  over  his  files,  notes,  etc.,  regarding  the  case  in  order
         that  the  defendant  could  proceed  with  a  post-conviction  action. 



                                                                -2- In  denying  the  motion,  the  trial  court  held  that  it  had  no  jurisdiction  to  grant  the  defendant
               relief  because  the  underlying  criminal  case  had  ended. In  agreeing  with  the  defendant  that  the  trial
               court  has  jurisdiction  relative  to  items  seized  by  the  state  in  its  prosecution  of  the  defendant,  the  state
               asserts  that  statutes  empower  a  trial  court  to  dispose  of  records,  documents,  and  physical  evidence
               used  in  judicial  proceedings  when  such  evidence  is  deemed  to  be  no  longer  needed.  See  Tenn.  Code
               Ann.  ¤¤  18-1-201,  -206.  It  also  notes  that  this  court  has  concluded  that  Òa  trial  court  has  the  inherent
               authority  to  determine  the  custody  and  control  of  evidence  held  in  the  clerkÕs  office.Ó Ray  v.  State,
               984  S.W.2d  236,  238  (Tenn.  Crim.  App.  1997). We  believe  that  the  state  has  failed  to  see  the  limit
               of  the  statutes  and  Ray. 

                       The  focus  of  the  law  cited  by  the  state  is  upon  items  entered  as  evidence  in  the  case. It  does
               not  relate  to  property  possessed  by  law  enforcement  authorities  or  prosecutors  that  was  never  used
               as  evidence  in  court. In  this  respect,  we  agree  with  the  trial  court. We  do  not  see  how  the  trial  court
               can  exercise  any  authority  over  such  property  through  a  motion  once  the  criminal  case  is  at  an  end.
               On  the  other  hand,  a  defendant  certainly  has  the  right  to  sue  for  the  return  of  property  in  any  court
               of  competent  jurisdiction,  and  the  court  can  rule  on  the  merits. Likewise,  we  do  not  believe  that  the
               trial  court  can  act  pursuant  to  a  motion  in  a  case  that  has  already  ended  relative  to  the  defendantÕs
               former  attorneyÕs  files  and  related  property. Again,  the  defendant  has  the  right  to  sue  for  the  return
               of  property  in  any  court  of  competent  jurisdiction,  and  the  merits  can  be  resolved. 

                       Even  though  we  hold  that  the  trial  court  has  authority  to  dispose  of  evidence  used  in  the  case,
               we  do  not  mean  to  imply  that  the  defendant  is  entitled  to  such  evidence.  With  a  criminal  case  ending
               in  conviction,  there  is  the  real  potential  of  the  case  being  reopened  through  the  post-conviction
               process,  included  through  federal  habeas  corpus  action. In  fact,  the  defendant  says  he  plans  to  seek
               post-conviction  relief. Also,  as  a  practical  matter,  as  in  the  present  case,  filing  a  record,  including
               the  exhibits,  with  an  appellate  court  brings  the  exhibits  within  the  jurisdiction  of  the  appellate  court.
               In  such  event,  although  the  trial  court  may  determine  that  the  return  of  evidence  is  warranted,  the
               authorization  for  the  return  would  have  to  come  from  the  appellate  court. Under  the  existing
               circumstances,  including  the  defendantÕs  intent  to  pursue  post-conviction  relief,  we  hold  that  the  trial
               evidence  shall  remain  presently  as  part  of  the  record  in  the  convicting  case.

                       In  consideration  of  the  foregoing  and  the  record  as  a  whole,  we  affirm  the  trial  court.


                                                                     ___________________________________ 
                                                                     JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  September  25,  2002

                  CONNIE  LEE  ARNOLD  v.  STATE  OF  TENNESSEE 

                    Direct  Appeal  from  the  Criminal  Court  for  Carter  County
                          No.  S15534  Robert  E.  Cupp,  Judge


                            No.  E2001-02526-CCA-R3-PC 
                                November  13,  2002



         JOSEPH  M.  TIPTON,  J.,  dissenting.

             I  respectfully  dissent.  I  believe  the  pro  se  petition  sufficiently  complies  with  the  1995  Post-Conviction 
                Procedure  Act  and  states  a  colorable  claim  for  relief.
             In  reviewing  the  sufficiency  of  a  post-conviction  petition,  we  are  to  accept  the  allegations  as
         true,  unless  they  are  contrary  to  what  has  already  been  adjudicated.  See  Swanson  v.  State,  749
         S.W.2d  731,  735  (Tenn.  1988).  The  petition  alleges  the  following:
                  There  was  a  Mistrial  of  this  Case  in  Mountain  City  In  July  1995  and
                  Judge  Brown  in  Prejudice  and  Bias  Moved  it  to  The  Carter  County
                  Court.
                  .  .  .  .
                  Yet  Petitioner  from  Arrest  to  Trial  and  ReTrial  was  subject  to  The
                  News  Media  Constant  [Exploitation]  of  said  Charges  and  No  fair  trial
                  could  ever  be  had  in  Carter  County  and  Counsel  of  [Record]  Did
                  Nothing  to  prevent  same  to  the  harms  way  of  [Petitioner]  in  his  Day
                  in  Court,  and  Unjust  Verdicts,  and  Illegal  Imprisonment  for  same.
         I  conclude  that  this  alleges  a  colorable  claim  regarding  the  ineffective  assistance  of  counsel  for
         failure  to  seek  a  change  of  venue  in  the  face  of  bad  publicity.  I  would  remand  the  case  to  the  trial
         court  for  the  appointment  of  counsel  and  counselÕs  filing  of  a  concise  amendment  to  the  petition



                                                                -2- raising  any  legitimate  grounds  for  relief  the  petitioner  arguably  has. See  Tenn.  S.  Ct.  R.  28  ¤
               6(C)(2).

                                                                             _____________________________
                                                                             JOSEPH  M.  TIPTON,  JUDGE



                           1  We  note  that  the  conviction  was  entered  pursuant  to  Tenn.  Code  Ann.  ¤  55-10-401(a)(2),  which  prohibits
                  driving  while  having  an  alcohol  concentration  of  ten  hundredths  or  more.  The  certified  question  is  therefore  dispositive
                  of  the  case.IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                                 AT  JACKSON

                                                         December  4,  2001  Session

                                     STATE  OF  TENNESSEE  v.  HAROLD  D.  ARNOLD


                                           Appeal  from  the  Circuit  Court  for  Madison  County
                                                    No.  00-651    Donald  H.  Allen,  Judge



                                       No.  W2001-01450-CCA-R3-CD -  Filed  February  11,  2002


                  The  Defendant,  Harold  D.  Arnold,  pled  guilty  to  driving  under  the  influence  of  an  intoxicant  and
                  failure  to  maintain  an  accurate  log  book  after  the  trial  court  denied  his  motion  to  suppress  the  results
                  of  a  breath  analysis  test. The  Defendant  properly  reserved  a  certified  question  of  law  for  this  Court
                  to  determine whether the trial court erred in denying the DefendantÕs motion  to suppress.1  We
                  reverse  the  judgment  of  the  trial  court.


                         Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Circuit  Court  Reversed


                  DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  DAVID
                  G.  HAYES,  J.,  joined.

                  Lloyd  R.  Tatum,  Henderson,  Tennessee,  for  the  appellant,  Harold  D.  Arnold.

                  Paul  G.  Summers,  Attorney  General  and  Reporter;  J.  Ross  Dyer,  Assistant  Attorney  General;  Jerry
                  Woodall,  District  Attorney  General;  and  Shaun  A.  Brown,  Assistant  District  Attorney  General,  for
                  the  appellee,  State  of  Tennessee.


                                                                      OPINION

                           On  March  28,  2000,  Deputies  Marc  Byrum  and  David  Watts  responded  to  a  call  concerning
                  a  possible  drunk  driver  of  an  Òeighteen  wheelerÓ  tractor-trailer. Upon  arrival,  the  Deputies  observed
                  the  truck  partially  lodged  in  a  ditch. A  wrecker  was  called  and  the  Defendant  was  taken  into  custody
                  at  approximately  11:24  p.m. At  11:30,  the  officers  began  to  transport  the  Defendant  to  the  Madison
                  County  jail. They  arrived  at  the  jail  at  11:44  p.m. Deputy  Byrum  reviewed  the  implied  consent  form
                  with  the  Defendant  and  prepared  the  breath  analysis  machine,  and  at  11:53  p.m.  the  breath  analysis
                  test  was  administered.  The  test  revealed  that  the  DefendantÕs  blood  alcohol  concentration  was  .12%.



                                                                -2- While  transporting  the  Defendant  to  the  jail,  both  officers  sat  in  the  front  seat  of  the  patrol
               car,  and  the  Defendant  sat  in  the  back.  The  DefendantÕs  hands  were  handcuffed  behind  him.  Deputy
               Watts  testified  that  he  observed  the  Defendant  and  engaged  him  in  conversation  during  the  ride  to
               the  jail.  Deputy  Watts  acknowledged  that  he  did  take  his  eyes  off  the  Defendant  periodically  during
               the  drive  and  while  exiting  the  vehicle,  but  the  Defendant did not belch,  regurgitate,  or  place
               anything  in  his  mouth  during  the  twenty  minutes  prior  to  the  breath  analysis  test. 
                       Deputy  Byrum  testified  that  he  drove  the  patrol  car  to  the  jail  and  administered  the  breath
               analysis  test.  However,  Deputy  Byrum  stated  that  he  did  not  in  continuously  observe  the  Defendant.
                       In  State  v.  Sensing,  843  S.W.2d  412  (Tenn.1992),  our  supreme  court  set  forth  six  elements
               that  the  State  must  establish  before  the  results  of  a  breath-alcohol  test  may  be  admitted:
                       1.  The  test  was  performed  in  accordance  with  the  standards  and  operating  procedure
                       promulgated by the forensic services division of the Tennessee Bureau of
                       Investigation;
                       2. The  testing  officer  was  properly  certified  in  accordance  with  those  standards;
                       3.  The evidentiary  breath testing instrument used was certified by  the forensic
                       services  division,  was  tested  regularly  for  accuracy  and  was  working  properly  when
                       the  breath  test  was  performed;
                       4. The  motorist  was  observed  for  twenty  minutes  prior  to  the  test,  and  during  this
                       period, did not have foreign matter in his or her mouth, did not consume any
                       alcoholic  beverage,  smoke,  or  regurgitate;
                       5. The  testing  officer  followed  the  prescribed  operational  procedure;  and
                       6. The  testing  officer  identifies  the  printout  record  offered  in  evidence  as  the  result
                       of  the  test  given  to  the  person  tested. 
               See  id.  at  416. It  is  the  fourth  of  these  requirements  that  the  Defendant  claims  was  not  satisfied  in
               this  case.
                       The  purpose  of  the  fourth  requirement  is  to  ensure  Òthat  no  foreign  matter  is  present  in  the
               defendant's  mouth  that  could  retain  alcohol  and  potentially  influence  the  results  of  the  test.Ó State
               v.  Cook,  9  S.W.3d  98,  100-01  (Tenn.  1999). Thus,  this  Court  has  found  that
                       [t]he  twenty  minute  observation  requirement  of  Sensing  carries  with  it  two  distinct
                       elements.  The first is that the State must demonstrate that the Defendant was
                       observed  for  twenty  minutes.  An  officer  may  not  guess,  estimate  or  approximate  the
                       amount of time the subject was under observation.  The second element of the
                       requirement  is  that  the  State  must  establish  that  the  subject  did  not  smoke,  drink,  eat,



                                                                -3- chew  gum,  vomit,  regurgitate,  belch  or  hiccup  during  the  twenty  minutes  prior  to
                       taking  the  test. 
               State  v.  John  H.  Hackney,  No  01C01-9704-CC-00152,  1998  WL  85287,  at  *2  (Tenn.  Crim.  App.,
               Nashville,  Feb.  20,  1998);  State  v.  Harold  E.  Fields,  No.  01C01-9412-CC-00438,  1996  WL  180706,
               at  *2  (Tenn.Crim.App.,  Nashville,  Apr.  12,  1996). In  this  case,  the  test  was  administered  at  11:53
               p.m.  Thus,  the  twenty  minutes  prior  to  testing  required  by  Sensing  began  at  11:33  p.m.,  during  the
               drive  to  the  jail. The  Defendant  contends  that  because  both  officers  sat  in  the  front  of  the  car  while
               the Defendant was seated in the back and neither watched the Defendant continuously, the
               observation  period  was  not  continuous. The  Defendant  argues  that  the  State  has  thereby  failed  to
               satisfy  the  second  element  of  the  observation  requirement.
                       We  first  note  that  Ò[t]he  state  must  establish  compliance  with  Sensing  by  a  preponderance
               of  the  evidence.Ó State  v.  Deloit,  964  S.W.2d  909,  916  (Tenn.  Crim.  App.  1997). This  Court,  in
               turn,  must  presume  that  the  trial  court's  Sensing  decision  is  correct  unless  the  preponderance  of  the
               evidence  is  to  the  contrary. See  State  v.  Edison,  9  S.W.3d  75,  78  (Tenn.  1999).
                       This  Court  has  examined  this  issue  on  numerous  occasions.  In  State  v.  Korsakov,  34  S.W.3d
               534,  541  (Tenn.  Crim.  App.  2000),  this  Court  held  that  Sensing  does  not  require  an  Òunblinking  gaze
               for  twenty  minutes.Ó We  also  stated  in  that  case,  however,  that  Òthe  officer  must  be  watching  the
               defendant  rather  than  performing  other  tasks.Ó  Id.  In  Korsakov,  this  Court  found  that  Ò[the  officer's]
               belief  that  he  would  have  heard  or  smelled  anything  he  did  not  see  does  not  satisfy  the  prerequisite
               that  the  defendant  must  be  observed  for  twenty  minutes.Ó Id.  The  officer  in  Korsakov  was  standing
               across  a  counter  from  the  defendant  and  was  not  watching  him  constantly  throughout  the  required
               twenty  minutes. This  Court  found  such  a  casual  observance  to  be  insufficient  to  ensure  that  the
               Defendant  did  not  belch,  hiccup,  regurgitate,  or  ingest  something  because  of  the  concern  that  while
               often  a  belch  or  regurgitation  will  produce  a  noise  capable  of  being  heard  by  another  person,  this  is
               not  always  the  case. See  Fields,  supra,  at  *3.
                       In  considering  the  present  case,  we  find  two  other  opinions  from  this  Court  to  be  particularly
               instructive. First,  in  State  v.  McCaslin,  894  S.W.2d  310  (Tenn.  Crim.  App.  1994),  the  first  six
               minutes  of  the  requisite  twenty  minute  observation  period  prior  to  a  breath  analysis  test  occurred
               while  the  officer  was  driving  the  defendant  to  the  police  station.  This  Court  reversed  the  trial  courtÕs
               ruling  that  the  test  was  admissible  because  Ò[e]ven  though  the  officer  stated  that  he  was  continually
               in  the  presence  of  the  defendant,  he  cannot  say  with  certainty  that  the  defendant  did  not  regurgitate
               while  out  of  his  view  in  the  back  seat  of  the  patrol  car  from  2:20  a.m.  until  they  arrived  at  the
               station.Ó Id.  at  311.
                       Next,  the  trial  court  in  Deloit  concluded  that  the  twenty-minute  observation  period  included
               some  minutes  while  the  defendant  sat  in  the  back  of  the  police  car  as  the  arresting  officer  filled  out
               paperwork  in  the  front  seat. The  officer  testified  that,  during  this  time  in  the  car,  he  was  talking  to
               the  defendant  and  could  see  the  defendant  in  his  rearview  mirror. See  Deloit,  964  S.W.2d  at  915.
               The  trial  court  admitted  the  breath  test,  and  this  Court  found  the  admission  to  be  error,  noting  that



                                                                -4- Ò[t]he  officer  conceded  that  he  could  not  observe  the  defendant  while  writing  on  the  arrest  report.Ó
               Id.  at  916.
                       In rendering our decision in this case, we note that the reason for the twenty-minute
               observation  period  is  to  Òensure[  ]  that  no  foreign  matter  is  present  in  the  defendant's  mouth  that
               could  retain  alcohol  and  potentially  influence  the  results  of  the  test.Ó Cook,  9  S.W.3d  at  101. Our
               supreme  court  has  found  that,  Ò[i]f  credible  proof  establishes  that  the  subject  did  not  have  foreign
               matter  in  the  mouth,  did  not  consume  any  alcoholic  beverage,  and  did  not  smoke  or  regurgitate,  then
               the  rule  is  satisfied.  .  .Ó  State  v.  Hunter,  941  S.W.2d  56,  57-8  (Tenn.1997).  In  State  v.  Brad  Stephen
               Luckett,  No.  M2000-00528-CCA-R3-CD,  2001  WL  227353  (Tenn.  Crim.  App.,  Nashville,  March
               8,  2001),  we  found  Òthat  the  purpose  of  the  observation  period  is  satisfied  where,  as  here,  the  officer
               remains in very close proximity to the defendant for the entire time, engages him or her in
               conversation  (which  would  assist  in  determining  the  presence  of  foreign  matter  in  the  mouth),  and
               loses  direct  eye  contact  for  only  brief  intervals  of  time.Ó Id.  at  *2.
                       In  the  present  case,  approximately  ten  minutes  of  the  required  observation  time  occurred
               while  the  Defendant  was  being  transported  to  the  police  station. Unlike  McCaslin,  a  second  officer
               was  also  a  passenger  in  the  patrol  car  and  observed  the  Defendant  during  transport. Also,  unlike
               Deloit,  there  is  no  evidence  that  Deputy  Watts  was  filling  out  a  report or some other  form  of
               paperwork  during  the  observation  time.  However,  because  of  factors  such  as  road  noise,  noise  from
               the  police  radio,  and  other  distractions  that  are  likely  to  interfere  with  an  officerÕs  observation  of  a
               defendant,  we  must  conclude  that  observation  time  during  transportation  of  a  defendant  in  the  back
               of  a  patrol  car  is  suspect.
                       Deputy  Watts  conceded  that  he  did  not  continuously  observe  the  Defendant  during  the  ride
               to  the  station. He  conceded  that  he  could  not  observe  the  Defendant  during  the  time  he  exited  the
               patrol  car  to  remove  the  Defendant  from  the  back  seat. This  testimony  taken  in  light  of  the  many
               distractions  present  in  a  patrol  car,  discount  the  reliability  of  Deputy  WattsÕ  testimony  that  the
               Defendant  did  not  belch  or  regurgitate  during  the  twenty  minute  observation  period. As  we  have
               stated  before,  a  belch  or  regurgitation  sufficient  to  skew  the  results  of  a  breath  analysis  test  may  not
               produce  a  sound  loud  enough  to  be  heard  by  another  person. See  Fields,  supra,  at  *3. We  find  the
               likelihood  of  the  detection  of  such  a  belch  or  regurgitation  even  less  if  the  suspect  and  the  observer
               are  separated  in  the  front  and  back  seats  of  a  moving  patrol  car. We  cannot  say  that  Deputy  WattsÕ
               testimony,  taken  in  light  of  all  the  circumstances,  establishes  that  the  Defendant  was  sufficiently
               observed  for  the  requisite  twenty-minutes  as  required  by  Sensing.
                       Accordingly,  we  conclude  that  the  evidence  preponderates  against  the  trial  courtÕs  finding
               that  the  State  met  its  burden  of  proving  that  the  Defendant  was  observed  for  the  requisite  twenty
               minutes  prior  to  being  administered  the  breath-alcohol  test. Therefore,  the  trial  court  erred  in
               denying  the  DefendantÕs  motion  to  suppress  the  results  of  the  breath  analysis  test.



                                                                -5- CONCLUSION

                       For  the  foregoing  reasons,  we  conclude  that  the  trial  court  erred  in  denying  the  DefendantÕs
               motion  to  suppress. Accordingly,  the  judgment  of  the  trial  court  is  REVERSED,  the  DefendantÕs
               guilty  plea  is  vacated,  and  the  charge  of  Driving  Under  the  Influence  is  dismissed.








                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  November  7,  2001

                 ROBERT  A.  ATKINS  v.  JAMES  M.  DUKES,  WARDEN


                  Direct  Appeal  from  the  Circuit  Court  for  Lauderdale  County
                          No.  5497  Joseph  H.  Walker,  Judge


                     No.  W2001-01311-CCA-R3-CD  -  Filed  January  8,  2002



         The  petitioner,  Robert  A.  Atkins,  appeals  the  summary  dismissal  of  his  petition  for  writ  of  habeas
         corpus  by  the  Lauderdale  County  Circuit  Court.  Following  a  thorough  review  of  the  record  and
         applicable  law,  we  reverse  the  judgment  of  the  circuit  court.


                          Tenn.  R.  App.  P.  3  Appeal  as  of  Right;
                    Judgment  of  the  Circuit  Court  Reversed  and  Remanded.


         THOMAS  T.  WOODALL,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  JOE
         G.  RILEY,  J.,  joined.

         Robert  A.  Atkins,  Henning,  Tennessee,  pro  se. 


         Paul  G.  Summers,  Attorney  General  and  Reporter;  and  Peter  M.  Coughlan,  Assistant  Attorney
         General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

                                  Background


             The  record  on  appeal  is  somewhat  sparse.  However,  we  have  gleaned  from  it  the  following
         procedural  history  which  led  to  PetitionerÕs  request  for  habeas  corpus  relief.  In  1985,  Petitioner  was
         convicted  of  second  degree  murder  and  a  sentence  of  twenty  years  was  imposed. He  was
         subsequently  arrested  on  felony  drug  charges,  committed  while  he  was  on  parole  for  the  murder
         conviction.  Petitioner  pled  guilty  to  three  felony  drug  offenses  and  received  a  sentence  of  three  years
         and  six  months  for  each  offense.  The  trial  court  ordered  the  drug  offense  sentences  to  be  served
         concurrently  with  each  other.  Pertinent  to  the  habeas  corpus  petition,  and  this  appeal,  the  convicting
         court  further  ordered  that  the  felony  drug  offense  sentences  be  served  concurrently  with  his  sentence
         for  second  degree  murder.  Apparently,  his  parole  relating  to  the  murder  case  was  revoked.  At  some
         point,  the  Department  of  Correction  then  notified  Petitioner  that  all  three  sentences  for  the  felony
         drug  convictions  must  be  served  consecutively  to  the  sentence  for  second  degree  murder. 



                                                                -2- On  April  18,  2001,  Petitioner  filed  his  petition  for  writ  of  habeas  corpus  which  alleged  the
               following:  (1)  the  order  imposing  concurrent  sentencing  pursuant  to  PetitionerÕs  negotiated  plea
               agreement  directly  contravenes  Tennessee  Code  Annotated  section  40-28-123  and  is,  therefore,
               illegal;  (2)  even  though  concurrent  sentences  are  illegal,  the  Tennessee  Department  of  Correction
               is  not  vested  with  the  authority  to  modify  or  alter  his  sentences  to  run  consecutively;  (3)  Petitioner
               is  entitled  to  immediate  release  because  his  sentence  for  the  murder  conviction  has  expired;  and  (4)
               the Tennessee Department of Correction erred by failing to apply 282 days of jail credit to
               PetitionerÕs  sentence,  as ordered  in  the  judgment  pertaining  to  his  felony  drug  possession/sale
               convictions. 

                       In  an  order  dated  April  20,  2001,  the  Lauderdale  County  Circuit  Court  dismissed  the  petition
               and concluded the following: (1) time credits are Òinternal departmental mattersÓ which are
               inappropriate  for  a  habeas  corpus  proceeding  and  must  be  addressed  via  procedures  set  forth  in  the
               Uniform  Administrative  Procedures  Act,  Tenn.  Code  Ann.  ¤¤  4-5-101  to  -324;  (2)  habeas  corpus
               relief  is  available  only  in  cases  where  the  defendantÕs  sentence  has  expired  or  when  it  appears  on  the
               face  of  the  judgment  or  in  the  record  of  the  underlying  proceedings  that  a  convicting  court  was
               without  jurisdiction  or  authority  to  sentence  a  defendant,  thereby  rendering  the  judgment  void,  and
               Petitioner did not allege either ground in his petition; and (3) since habeas corpus relief is
               inappropriate,  and  the  Lauderdale  County  Circuit  Court  was  not  the  proper  court  in  which  to  file  a
               claim  for  post-conviction  relief,  the  petition  must  be  dismissed.

                       In  this  appeal,  Petitioner  challenges  the  circuit  courtÕs  summary  dismissal  of  his  petition  for
               writ  of  habeas  corpus,  restating the following  allegations  contained  therein:  (1)  Petitioner  was
               sentenced  in  direct  contravention  of  Tennessee  Code  Annotated  section  40-28-123,  which  effectively
               ÒnullifiesÓ  the  judgment  concerning  his  felony  drug  offenses;  (2)  the  Tennessee  Department  of
               Correction  unlawfully  modified  PetitionerÕs  sentence  to  require  that  he  serve  the  sentence  for  his
               recent  felony  drug  offenses  consecutively  to  his  previous  sentence,  rather  than  concurrently  as
               provided  in  his  negotiated  plea  agreement;  and  (3)  since  PetitionerÕs  original  sentence  has  expired
               and  the  alteration  of  his  sentence  agreement  was  unlawful,  his  continued  detention  is  also  unlawful
               and  immediate  release  is  warranted. For  the  reasons  which  follow,  we  reverse  the  judgment  of  the
               circuit  court  and  remand  this  matter  for  further  proceedings  consistent  with  this  opinion.


                                                             Analysis


                       The  determination  whether  habeas  corpus  relief  is  proper  is  a  question  of  law. McLaney  v.
               Bell,  59  S.W.3d  90,  92  (Tenn.  2001)  (citing  Hart  v.  State,  21  S.W.2d  901,  903  (Tenn.  2000)).  Thus,
               our  review  is  de  novo,  with  no  presumption  of  correctness  given  to  the  findings  of  the  lower  court.
               Id. 

                       The  grounds  upon  which  habeas  corpus  relief  is  warranted  are  decidedly  narrow. The  writ
               will  issue  only  when  it  appears  upon  the  face  of  the  judgment  or  the  record  of  the  proceedings  upon
               which  the  judgment  is  rendered  that  a  court  lacked  jurisdiction  or  authority  to  sentence  a  defendant
               or  that  the  sentence  has  expired. Stephenson  v.  Carlton,  28  S.W.3d  910,  911  (Tenn.  2000);  Archer
               v.  State,  851  S.W.2d  157,  164  (Tenn.  1993). A  habeas  corpus  petition  may  be  used  to  challenge



                                                                -3- judgments  that  are  void,  and  not  merely  voidable.  Taylor  v.  State,  995  S.W.2d  78,  83  (Tenn.  1999).
               A void judgment Òis one in which the judgment is facially invalid because the court lacked
               jurisdiction  or  authority  to  render  the  judgment  or  because  the  defendant's  sentence  has  expired.Ó
               Id.  (citations  omitted). By  contrast,  a  voidable  conviction  or  sentence  is  one  which  is  facially  valid,
               and  thus  requires  proof  beyond  the  face  of  the  record  or  judgment  to  establish  its  invalidity.  Id.  The
               burden  of  proof  that  the  judgment  or  sentence  is  Òvoid,Ó  rather  than  Òvoidable,Ó  rests  with  the
               petitioner. Wyatt  v.  State,  24  S.W.3d  319,  322  (Tenn.  2000). 

                       As relevant here, our supreme court has recognized that a sentence imposed in direct
               contravention  of  a  statute,  for  example,  is  void  and  illegal. State  v.  Burkhart,  566  S.W.2d  871,  873
               (Tenn.  1978).  Thus,  we  first  note  that  if  it  was  true  that  Petitioner  was  on  parole  when  he  committed
               the felony drug offenses for which he pled guilty, concurrent sentences would be in direct
               contravention  of  Tennessee  Code  Annotated  section  40-28-123,  which  provides  in  pertinent  part  the
               following:

                         Any  prisoner  who  is  convicted  in  this  state  of  a  felony,  committed  while  on  parole

                       from  a  state  prison,  jail  or  workhouse,  shall  serve  the  remainder  of  the  sentence  under
                       which  the  prisoner  was  paroled,  or  such  part  of  that  sentence,  as  the  board  may
                       determine  before  the prisoner commences  serving the sentence received for  the
                       felony  committed  while  on  parole. 

               Tenn.  Code  Ann.  ¤  40-28-123(a)  (1997)  (emphasis  added);  see  also  Tenn.  R.  Crim.  P.  32(c)(3)(A).

                       The  recent  decision  by  our  supreme  court  in  McLaney  v.  Bell,  59  S.W.3d  90  (Tenn.  2001),
               is  directly  on  point  and  controls  disposition  of  the  case  sub  judice. In  that  case,  the  supreme  court
               specifically  held  that  Òif  the  face  of  the  judgment  or  the  record  of  the  underlying  proceedings  shows
               that  the  concurrent  sentence  is  illegal,  such  sentence  creates  a  void  judgment  for  which  habeas
               corpus  relief  is  available.Ó Id.  at  91. 

                       According  to  the  allegations  of  the  petition  in  this  case,  concurrent  sentencing  was  ordered
               in  direct  contravention  of  a  statute  requiring  consecutive  sentencing. This  situation  mirrors  that
               presented  to  the  supreme  court  in  McLaney. Thus,  we  conclude  that  the  relief  granted  in  McLaney
               is  the  relief  appropriate  for  this  case. Specifically,  the  supreme  court  in  McLaney  held:

                       If  [the  petitionerÕs]  allegations  that  the  latter  offenses  were  committed  while  he  was
                       on  bail  are  proven  in  the  record  of  the  underlying  convictions,  then  the  sentence  is
                       void  and  the  habeas  corpus  court  is  mandated  by  statute  to  declare  it  so. If  the
                       sentence  is  void,  then  either  the  plea  may  be  withdrawn  or  the  conviction  remains
                       intact. If  the  plea  is  withdrawn,  then  [the  petitioner]  would  be  ordered  held  to  bail
                       pending  prosecution  for  the  offense;  if  the  conviction  remained  intact,  then  he  would
                       be committed to custody pending resentencing.  Thus, there is legal cause for



                                                                -4- continued  detention  pending  further  proceedings.  Therefore,  the  habeas  corpus  court
                       would  be  required,  after  voiding  the  judgment,  to  remand  the  case  to  the  trial  court
                       .  .  .  for  further  appropriate  action.

               Id.  at  94-95  (citations  omitted).

                       We  note  that  even  though  the  defendant  in  McLaney  was  granted  concurrent  sentences  for
               a  felony  committed  while  on  bail  for  another  felony  conviction,  the  result  is  the  same  under  the
               statute  providing  for  conviction  of  a  felony  committed  while  on  parole  for  a  prior  felony  conviction.
               Compare  Tenn.  Code  Ann.  ¤  40-20-111(b),  and  Tenn.  R.  Crim.  P.  32(c)(3)(C),  with  Tenn.  Code
               Ann. ¤ 40-28-123(a), and Tenn. R. Crim. P. 32(c)(3)(A).  Further, we note that the order  of
               concurrent  sentencing  in  the  felony  drug  convictions  would  not  affect  the  validity  of  the  murder
               conviction.

                       Therefore,  the  judgment  of  the  trial  court  summarily  dismissing  the  petition  for  writ  of
               habeas  corpus  in  PetitionerÕs  case  is  reversed,  and  this  case  is  remanded  to  the  Circuit  Court  of
               Lauderdale  County  for  appointment  of  counsel  and  an  evidentiary  hearing. At  the  evidentiary
               hearing,  the  trial  court  must  determine  whether  Petitioner  committed  the  felony  drug  offenses  while
               he  was  on  parole  for the prior  felony  conviction  of  murder. If  the  trial  court  is  satisfied  that
               Petitioner  committed the  felony  drug  offenses  while  on  parole  for  a  prior  felony  conviction,  then
               the  sentences  for  the  felony  drug  convictions  are  void  and  the  habeas  corpus  court  is  mandated  to
               declare  it  so. In  doing  such,  the  habeas  corpus  court  must  then  remand  the  case  to  the  Criminal
               Court  of  Shelby  County,  where  the  drug  convictions  arose. In  that  court,  Petitioner  may  withdraw
               his  guilty  pleas  to  the  felony  drug  offenses. If  the  pleas  are  withdrawn,  he  may  be  ordered  held  to
               bail  pending  prosecution  for  those  offenses. If  he  chooses  not  to  withdraw  his  guilty  pleas,  the
               convictions shall remain intact, and the Petitioner would be committed to custody pending
               resentencing. 

                       Petitioner  also  argues  in  his  brief  that  the  trial  court  erred  by  failing  to  rule  that  the  Tennessee
               Department  of  Correction  illegally  ÒalteredÓ  his  sentence  in  direct  contravention  of  the  judgment
               ordering concurrent sentences.  However, Rule 32(c)(3) of the Tennessee Rules of Criminal
               Procedure,  captioned  ÒMandatory  Consecutive  Sentences,Ó  provides  as  follows:

                          Where  a  defendant  is  convicted  of  multiple  offenses  from  one  trial  or  where  the
                       defendant  has  additional  sentences  not  yet  fully  served  as  the  result  of  the  convictions
                       in  the  same  or  other  court  and  the  law  requires  consecutive  sentences,  the  sentence
                       shall  be  consecutive  whether  the  judgment  explicitly  so  orders  or  not.  This  rule  shall
                       apply:  (A)  to  a  sentence  for  a  felony  committed  while  on  parole  for  a  felony;  (B)  to
                       a  sentence  for  escape  or  for  a  felony  committed  while  on  escape;  (C)  to  a  sentence



                                                                -5- for  a  felony  where  the  defendant  was  released  on  bail  and  the  defendant  is  convicted
                       of  both  offenses;  and  (D)  any  other  ground  provided  by  law.

               (Emphasis  added). Therefore,  by  rule,  the  Department  of  Correction  was  required  to  treat  the
               sentences  as consecutive,  Òwhether  the  judgment  explicitly  so  orders  or  not.Ó 

                       Finally,  Petitioner  argues  that  both  his  sentences  for  murder  and  for  the  felony  drug  sentences
               have  Òexpired.Ó However,  the  record,  in  its  present  status,  does  not  reflect  same. 
                       While  Petitioner  states  in  his  brief  that  he  was  Òindicted  and  sentencedÓ  (emphasis  added),
               to  serve  twenty  years  for  a  second  degree  murder  offense  on  April  30,  1985,  there  is  no  other
               documentation  in  the  record  which  clearly  reflects  the  date  of  his  conviction  for  second  degree
               murder. In  fact,  certain  documents  attached  to  the  petition  as  ÒexhibitsÓ  indicate  the  second  degree
               murder  offense  was  committed  in  April  1985.  In  any  event,  the  record  does  not  permit  a  conclusive
               determination  that  the  sentence  for  second  degree  murder  has  expired. Given  that  the  law  requires
               consecutive  sentencing,  the  additional  three  and  one-half  year  sentences  for  the  felony  drug  offenses
               received  for  these  convictions  in  April  1999  have,  likewise,  not  expired. Therefore,  Defendant  is
               not  entitled  to  relief  on  this  issue.

                                                        CONCLUSION


                       The  judgment  of  the  Lauderdale  Circuit  Court  summarily  dismissing  the  petition  for  writ  of
               habeas  corps  is  reversed. This  case  is  remanded  for  appointment  of  counsel  and  for  an  evidentiary
               hearing  in  compliance  with  McLaney  v.  Bell,  59  S.W.3d  90  (Tenn.  2001).  If,  following  the  hearing,
               the  trial  court  determines  that  the  felony  drug  conviction  judgments  are  void  pursuant  to  McLaney,
               the  habeas  corpus  court  must  remand  the  felony  drug  cases  to  the  Criminal  Court  of  Shelby  County
               for  proceedings  consistent  with  the  supreme  courtÕs  opinion  in  McLaney.


                                                                     ______________________________________
                                                                     THOMAS  T.  WOODALL,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  October  2,  2001

                  STATE  OF  TENNESSEE  v.  JESSIE  JAMES  AUSTIN


                      Appeal  from  the  Circuit  Court  for  Weakley  County
                       No.  CR25-2000  William  B.  Acree,  Jr.,  Judge



                      No.  W2001-00120-CCA-R3-CD  -  January  25,  2002



         The  defendant,  Jessie  James  Austin,  appeals  as  of  right  his  convictions  by  a  Weakley  County  Circuit
         Court  jury  for  two  counts  of  aggravated  assault,  a  Class  C  felony.  The  trial  court  sentenced  him  as
         a  Range  III,  persistent  offender  to  twelve  years  in  the  Department  of  Correction  for  each  count  to
         be  served  concurrently.  The  defendant  contends  that  the  evidence  is  insufficient  to  prove  either
         count  of  aggravated  assault  and  that  the  trial  court  should  have  instructed  the  jury  on  the  lesser
         included  offense  of  reckless  aggravated  assault.  We  affirm  the  trial  courtÕs  judgments  of  conviction.



            Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgments  of  the  Circuit  Court  Affirmed


         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  ROBERT
         W.  WEDEMEYER,  J.,  joined.

         C.  Michael  Robbins,  Memphis,  Tennessee  (on  appeal);  Harold  Gunn,  Humboldt,  Tennessee;  Joseph
         P.  Atnip,  District  Public  Defender;  and  Kevin  McAlpin,  Assistant  Public  Defender,  for  the  appellant,
         Jessie  James  Austin.

         Paul  G.  Summers,  Attorney  General  and  Reporter;  Laura  McMullen  Ford,  Assistant  Attorney
         General;  Thomas  A.  Thomas,  District  Attorney  General;  and  Allen  Strawbridge,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION


             The  defendantÕs  convictions  arise  from  an  incident  in  which  he  pointed  a  gun  at  two  young
         brothers.  Sherry  Hugheley,  the  victimsÕ  mother,  testified  that  in  January  2000,  she  lived  in  a  double-wide 
            trailer  with  her  two  sons  Paul  and  Zachary,  who  were  eleven  and  seven  years  old  respectively
         at  the  time  of  trial.  She  said  that  she  and  Zachary  had  Stickler  Syndrome,  a  genetic  disorder,  and
         that,  as  a  result,  she  had  difficulty  moving  around  and  doing  things  for  herself.  She  said  that  she  had
         known  the  defendant  for  one  and  one-half  years.  She  stated  that  at  first,  he  worked  for  her  doing
         yard  work,  cooking,  cleaning,  and  taking  her  and  Zachary  to  doctorÕs  appointments.  She  said  that
         a  government  agency  provided  her  the  money  to  pay  the  defendant  and  that  she  paid  him  monthly.



                                                                -2- She  said  that  it  took  three  weeks  from  the  time  that  she  submitted  his  hours  to  the  agency  for  her  to
               receive  a  check,  which  was  made  out  to  her.  She  said  that  eventually,  she  began  dating  the  defendant
               and  that  he  lived  with  her  while  continuing  to  work  for  her. She  said  that  during  this  time,  they
               pooled their money for living expenses.  She said that in mid-December 1999, the defendant
               accompanied  her  and  Zachary  on  a  week-long  trip  to  Maryland  to  attend  a  study  conducted  by  the
               National  Institute  of  Health. She  said  that  upon  their  return  on  December  13,  the  defendant  moved
               out  after  an  argument.

                       Ms.  Hugheley  testified  that  between  2:30  and  3:00  a.m.  on  January  21,  2000,  the  defendant
               came  to  her  home  wanting  money. She  said  that  at  that  time,  she  was  waiting  for  a  check  from  the
               agency  and  that  the  defendant  had  not  worked  for  her  since  the  Maryland  trip.  She  said  that  she  and
               the  boys  were  asleep  on  the  couch  when  the  defendant  knocked  on  the  door. She  said  that  she
               opened  the  door,  that  the  defendant  came  inside,  and  that  she  told  him  that  the  check  had  not  come
               yet. She  said  that  the  boys  awoke  while  she  and  the  defendant  argued  about  her  not  wanting  to  give
               him  fifteen  dollars. She  stated  that  the  defendant  entered  the  bedroom  and  that  she  could  hear  him
               struggling  with  the  guns,  which  were  in  a  dresser  drawer. She  said  that  she  went  outside  to  ask  the
               man  who  had  brought  the  defendant  to  get  him  out  of  her  house. She  said  that  she  heard  Paul
               screaming  at  the  defendant  but  that  she  never  heard  the  defendant  threaten  her  children. She  stated
               that  while  she  was  outside  on  the  wheelchair  ramp,  the  defendant  came  to  the  doorway  and  fired  a
               gun  straight  ahead  into  a  field. She  said  that  the  noise  scared  her  because  she  did  not  realize  that  the
               defendant  was  behind  her. She  said  that  she  was  outside  for  only  a  short  time.

                       Ms.  Hugheley  testified  that  the  defendant  took  one  of  the  two  guns  and  fifteen  dollars  from
               her  closet,  which  contained  around  four  hundred  dollars. She  admitted  that  the  defendant  did  not
               have  a  car,  that  he  always  had  someone  drive  him  to  her  house,  and  that  he  had  asked  for  gas  money
               to  give  the  driver  on  other  occasions. She  acknowledged  that  at  the  time  of  the  offenses,  she  owed
               the  defendant  $240  for  working  for  her. She  said  that  the  defendant  did  not  yell  at  her,  threaten  her
               with  the  gun,  or  point  it  at  her. She  said  that  PaulÕs  father  had  told  Paul  that  he  was  the  man  of  the
               house  and  that  he  was  to  take  care  of  everything. She  said  that  after  the  children  awoke,  Paul  tried
               Òto  stand  up  to  [the  defendant]  like  a  man  instead  of  a  little  boy,  because  this  is  what  his  daddy  told
               himÓ  to  do.  She  said  that  the  main  reason  that  she  separated  from  the  defendant  was  that  she  needed
               some  time  to  deal  with  Paul. She  said  that  her  children  were  taken  from  her  and  were  living  with
               their  father  at  the  time  of  trial  because  she  was  seeing  the  defendant.

                       Ms.  Hugheley  was  recalled  by  the  defendant  and  testified  that  the  defendant  had  come  to  her
               house  around  2:30  a.m.  on  other  occasions  before  the  day  of  the  offenses. She  said  that  at  the  time
               of  the  offenses,  the  defendant  was  still  accompanying  her  and  Zachary  to  the  doctorÕs  office  and  that
               she  would  have  needed  him  to  go  with  her  to  the  doctorÕs  office  sometime  after  January  21. 

                       Paul  Hugheley  testified  that  at  the  time  of  trial,  he  was  eleven  years  old  and  lived  with  his
               father.  He  stated  that  in  January  of  that  year,  he  had  been  living  with  his  mother  and  his  seven-year-old 
                   brother,  Zachary. He  said  that  the  defendant  worked  for  his  mother  and  lived  with  them  from
               time  to  time. He  said  that  in  the  early  morning  of  January  21,  2000,  he  was  asleep  with  his  mother
               and  brother  on  the  living  room  couch  when  he  was  awakened  by  his  mother  and  the  defendant



                                                                -3- yelling  at  each  other. He  said  that  the  defendant  was  demanding  money  and  that  his  mother  did  not
               have  it. He  said  that  the  defendant  went  into  his  motherÕs  room  and  returned  with  two  guns  and  the
               bag  in  which  the  money  was  kept. He  said  that  his  mother  went  outside  and  told  the  man  who  had
               brought  the  defendant  to  get  the  defendant  out  of  the  house  and  that  if  anyone  was  hurt,  the  man
               would  be  charged  too. He  said  that  the  defendant  was  standing  two  yards  from  the  back  door  and
               that  the  defendantÕs  back  was  toward  him  when  he  heard  the  defendant  fire  the  gun. He  said  that  he
               picked  up  the  phone  to  call  9-1-1.  He  said  that  he  had  pushed  the  nine  when  the  defendant,  who  was
               standing  about  two  feet  away  from  him,  pointed  the  gun  at  him  and  told  him  to  put  the  phone  down.
                He  said  that  he  believed  that  the  defendant  pointed  the  gun  at  his  face. He  said  that  the  defendant
               said,  ÒIf  I  can  drop  one,  I  can  drop  three.Ó  He  agreed  that  he  feared  for  his  safety  when  the  defendant
               pointed  the  gun  at  him  and  made  this  comment. He  said  that  Zachary,  who  was  on  the  couch  beside
               him,  told  the  defendant  to  leave  them  alone. He  said  that  the  defendant  pointed  the  gun  at  Zachary
               and  said,  ÒShut  up.Ó  He  testified  that  the  defendant  pointed  the  gun  at  him  before  firing  the  shot  out
               the  back  door,  then  Zachary  told  the  defendant  to  leave  them  alone,  and  the  defendant  said,  ÒShut
               up.Ó 

                       On  cross-examination,  Paul  testified  that  he  was  in  fifth  grade  when  the  offenses  occurred.
               He  said  that  the  weekend  following  the  incident,  he  told  his  father  what  had  happened  and  that  his
               father  called  the  police  and  his  lawyer. He  said  that  he  did  not  remember  his  father  telling  him  that
               no  black  man  could  spank  him. He  said  that  his  father  told  him  to  testify  truthfully. Paul  was
               questioned  about  his  preliminary  hearing  testimony  in  which  he  said  that  the  defendant  made  the
               comment  ÒIf  I  can  drop  one,  I  can  drop  threeÓ  to  his  mother  while  he  and  his  brother  were  pretending
               to  be  asleep  on  the  couch. Paul  stated  that  the  defendant  made  the  comment  to  all  three  of  them.
               He  admitted  that  the  defendant  never  discharged  the  gun  in  his  direction.

                       The thirty-six-year-old defendant testified that he had known the Hugheleys for about
               eighteen  months.  He  said  that  at  first,  he  worked  for  Ms.  Hugheley  but  that  after  four  or  five  months,
               they  began  dating  and  he  began  staying  at  her  house. He  stated  that  at  this  point,  they  pooled  their
               money. He  said  that  with  his  paychecks,  he  would  first  pay  child  support  for  his  two  children  and
               then  he  would  give  the  rest  of  the  money  to  Ms.  Hugheley  to  manage. He  said  that  he  frequently
               accompanied  the  Hugheleys  on  trips  out  of  town  for  medical  treatment. He  said  that  he  did  not  get
               paid  for  a  lot  of  these  trips  and  that  he  made  them  because  he  loved  Ms.  Hugheley.  He  said  that  once
               they  began  dating,  he  took  over  the  yard  work  in  order  that  Ms.  Hugheley  could  save  money. 

                       The  defendant  testified  that  he  got  along  well  with  Ms.  HugheleyÕs  sons.  He  said  that  he  had
               never  threatened  them  and  that  they  had  written  him  letters  saying  that  they  loved  him. He  said  that
               although  he  had  punished  the  boys  before,  he  would  always  tell  Ms.  Hugheley  first. He  stated  that
               once  he  told  Ms.  Hugheley  that  Paul  was  riding  his  bicycle  in  the  road  and  that  Ms.  Hugheley
               punished  Paul  for  a  week. He  said  that  Paul  got  mad  and  told  his  father  about  the  incident. He  said
               that  Paul  told  him,  ÒMy  daddy  said  if  that  old  n***er  will  whoop  me,  heÕs  gonna  have  him  locked
               up.Ó The  defendant  stated  that  once  the  fact  that  he  and  Ms.  Hugheley  were  dating  became  known,
               people  began  calling  Ms.  HugheleyÕs  house  and  threatening  to  kill  him  and  Ms.  Hugheley. He  said
               Ms.  Hugheley  had  her  telephone  tapped  in  order  to  learn  who  was  making  the  calls.



                                                                -4- The  defendant  testified  that  on  the  day  of  the  offenses  he  came  to  Ms.  HugheleyÕs  house  at
               2:30  a.m. He  said  that  Ms.  Hugheley  was  probably  going  to  the  doctorÕs  office  and  that  he  was
               supposed  to  have  been  at  her  house  earlier. He  said  that  he  did  not  realize  what  time  it  was  because
               he  had  been  asleep  and  that  he  asked  Mr.  Jamie  Pankey,  a  handicapped  man  who  went  to  his  church,
               to  take  him  to  Ms.  HugheleyÕs  house.  He  said  that  he  had  gone  to  Ms.  HugheleyÕs  house  in  the  early
               morning  before  due  to  his  transportation  situation  and  that  Ms.  Hugheley  had  paid  Mr.  Pankey
               twenty  dollars  for  bringing  the  defendant  to  her  house  before. He  said  that  when  Ms.  Hugheley  let
               him  inside  on  the  morning  of  the  offenses,  he  told  her  that  he  needed  fifteen  dollars  to  pay  the  man
               who  had  driven  him  there. He  said  that  Ms.  Hugheley  replied  that  they  needed  that  money  to  pay
               their  bills  that  month. 

                       The  defendant  testified  that  when  they  had  cleaned  out  the  trailer  in  which  Ms.  Hugheley
               lived,  they  had  found  an  old  .22  caliber  pistol,  which  belonged  to  the  trailerÕs  owner,  who  had  left
               town. The  defendant  testified  that  he  got  this  gun,  showed  it  to  Mr.  Pankey,  and  asked  if  he  would
               hold  it  until  the  next  morning. He  said  that  he  tried  to  take  the  bullet  out  of  the  gun  but  could  not
               and  that  he  fired  it  into  a  field  to  unload  it. He  said  that  Mr.  Pankey  replied  that  he  did  not  have
               enough  gasoline  to  get  home. He  said  that  he  told  Ms.  Hugheley  that  he  had  to  give  Mr.  Pankey
               some  money  for  gasoline. He  said  that  he  and  the  Hugheleys  had  recently  returned  from  a  trip  to
               Maryland  where  he  had  been  paid  thirty  or  forty  dollars  per  day  for  seven  or  eight  days.  He  said  that
               this  money  was  for  his  living  expenses  while  in  Maryland  but  that  they  had  brought  their  own
               groceries  in  order  to  save  the  expense  money  for  Christmas. He  said  that  he  had  about  $300  cash
               at  Ms.  HugheleyÕs  house  not  counting  the  $240  that  Ms.  Hugheley  owed  him. He  said  that  he  went
               inside,  got  fifteen  dollars,  and  paid  Mr.  Pankey. He  said  that  because  the  children  were  awake  and
               because  he  and  Ms.  Hugheley  had  a  misunderstanding,  Ms.  Hugheley  said  that  it  would  be  best  if
               he  left. He  said  that  although  he  had  intended  to  stay  for  a  few  days,  he  decided  not  to  spend  the
               night  because  he  and  Ms.  Hugheley  had  argued. 

                       The  defendant  testified  that  PaulÕs  testimony  that  he  had  pointed  a  gun  at  Paul  and  told  Paul
               not  to  use  the  phone  was  not  true.  He  said  that  he  never  told  Paul  not  to  call  9-1-1  or  he  would  Òdrop
               him.Ó He  said  that  it  would  have  been  impossible  for  Paul  to  see  him  with  the  gun  from  the  couch
               because  a  five-foot-tall  room  divider  would  have  blocked  PaulÕs  view. He  said  that  he  did  not  steal
               anything  from  Ms.  Hugheley.  He  said  that  he  considered  part  of  the  money  at  Ms.  HugheleyÕs  house
               to  be  his  and  that  when  he  took  fifteen  dollars,  more  money  remained. He  said  that  he  left  the  gun.


                                           I. SUFFICIENCY  OF  THE  EVIDENCE


                       The  defendant  contends  that  the  evidence  is  insufficient  to  convict  him  of  either  count  of
               aggravated  assault. He  argues  that  no  evidence  shows  that  he  intentionally  caused  Paul  or  Zachary
               Hugheley  to  fear  imminent  bodily  injury. The  state  contends  that  the  evidence  is  sufficient.

                       Our  standard  of  review  when  the  sufficiency  of  the  evidence  is  questioned  on  appeal  is
               Òwhether,  after  viewing  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.Ó Jackson
               v.  Virginia,  443  U.S.  307,  319,  99  S.  Ct.  2781,  2789  (1979). This  means  that  we  do  not  reweigh  the



                                                                -5- evidence but presume that the jury has resolved all conflicts in the testimony  and drawn all
               reasonable  inferences  from  the  evidence  in  favor  of  the  state. See  State  v.  Sheffield,  676  S.W.2d
               542,  547  (Tenn.  1984);  State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978).


                       As  charged  in  the  indictment,  one  commits  Class  C  aggravated  assault  by  intentionally  or
               knowingly  causing  another  reasonably  to  fear  imminent  bodily  injury  while  using  or  displaying  a
               deadly  weapon. Tenn.  Code  Ann.  ¤  39-13-101(a)(2),  -102(a)(1)(B). A  firearm  is  a  deadly  weapon.
               Tenn.  Code  Ann.  ¤  39-11-106(a)(5)(A).

                        With  regard  to  the  aggravated  assault  of  Paul  Hugheley,  the  defendant  argues  that  the
               evidence  shows  that  he  and  Paul  had  a  good  relationship  but  that  Paul  was  infected  by  his  fatherÕs
               racial  animosity. He  maintains  that  although  Paul  testified  that  the  defendant  pointed  a  gun  at  him,
               Paul  could  not  remember  the  particular  part  of  his  body  at  which  the  gun  was  pointed.  He  also  notes
               that  Ms.  Hugheley  testified  that  she  heard  Paul  yelling  at  the  defendant  but  that  she  did  not  hear  the
               defendant  say  anything. He  argues  that  these  inconsistencies  create  reasonable  doubt. 

                       Viewing  the  evidence  in  the  light  most  favorable  to  the  state,  Paul  testified  that  the  defendant
               pointed  a  gun  at  him  when  he  attempted  to  call  9-1-1. He  said  that  the  defendant  threatened  him  by
               saying  ÒIf  I  can  drop  one,  I  can  drop  threeÓ  and  that  this  comment  caused  him  to  fear  for  his  safety.
               This  evidence  is  sufficient  to  sustain  a  conviction  for  aggravated  assault.  The  credibility  and  weight
               to  be  given  to  a  witness's  testimony  are  issues  to  be  resolved  by  the  trier  of  fact.  State  v.  Pappas,  754
               S.W.2d  620,  623  (Tenn.  Crim.  App.  1987).  The  jury  heard  the  inconsistencies  and  racial  undertones
               raised  by  the  defendant  and  decided  to  accredit  PaulÕs  account  of  the  incident. 

                       The  defendant  contends  that  the  only  evidence  regarding  the  aggravated  assault  of  Zachary
               Hugheley  came  from  PaulÕs  testimony. He  argues  that  because  Zachary  did  not  testify,  nothing
               shows  that  Zachary  feared  imminent  bodily  harm  or  that  he  was  even  aware  that  a  gun  was  pointed
               at  him. Thus,  he  argues  that  any  finding  that  Zachary  was  in  fear  is  merely  speculative. The  state
               responds  that  PaulÕs  testimony  provided  circumstantial  evidence  that  Zachary  saw  the  gun  and  was
               in  fear. It  points  to  PaulÕs  testimony  that  Zachary,  who  was  on  the  couch  next  to  Paul,  told  the
               defendant  to  leave  them  alone  and  that  the  defendant  pointed  the  gun  at  Zachary  and  told  him  to
               ÒShut  up.Ó  It  argues  that  this  testimony  reveals  circumstantially  ZacharyÕs  awareness  of  the  gun  and
               fear.

                       A  victimÕs  fear  of  imminent  bodily  injury  may  be  proven  with  circumstantial  evidence.  See
               Stinson  v.  State,  181  Tenn.  172,  178,  180  S.W.2d  883,  885  (1944)  (noting  the  general  rule  that  either
               party  may  prove  any  material  fact  by  direct  or  circumstantial  evidence);  see  also  State  v.  James
               Albert  Adams,  No.  M1998-00468-CCA-R3-CD,  Davidson  County  (Tenn.  Crim.  App.  Dec.  15,
               1999),  app.  denied  (Tenn.  Sept.  25,  2000)  (inferring  the  victimÕs  fear  from  the  circumstances  of  the
               offense  even  though  she  did  not  testify  that  she  was  afraid);  State  v.  Gregory  Whitfield,  No.  02C01-
               9706-CR-00226,  Shelby  County  (Tenn.  Crim.  App.  May  8,  1998),  app.  denied  (Tenn.  Dec.  7,  1998)
               (inferring  fear  from  the  victimÕs  conduct  following  the  assault);  State  v.  Tommy  Arwood,  Jr.,  No.
               01C01-9505-CC-00159,  Bedford  County  (Tenn.  Crim.  App.  May  24,  1996)  (inferring  the  victimÕs
               fear  as  the  result  of  the  defendantÕs  conduct).  ÒThe  element  of  ÔfearÕ  is  satisfied  if  the  circumstances



                           1  With regard to this assertion, we note that at the close of the stateÕs proof, the trial court  granted the
                  defendantÕs  motion  for  a  judgment  of  acquittal  for  the  aggravated  assault  of  Ms.  Hugheley. It  also  granted  the  motion
                  with  regard  to  the  aggravated  robbery  count  but  determined  that  it  would  charge  the  lesser  included  offense  of  theft  for
                  that  count. It  denied  the  motion  as  to  the  two  counts  of  aggravated  assault  relating  to  Paul  and  Zachary  Hugheley. The
                  jury  acquitted  the  defendant  of  theft.

                                                                          -6- of  the  incident,  within  reason  and  common  experience,  are  of  such  a  nature  as  to  cause  a  person  to
                  reasonably  fear  imminent  bodily  injury.Ó Gregory  Whitfield,  slip  op.  at  4  (citation  omitted). 

                           According  to  PaulÕs  testimony  in  the  present  case,  Zachary  was  with  him  on  the  couch  when
                  the  defendant,  who  was  two  feet  away,  pointed  the  gun  at  Paul. The  defendant  told  Paul  to  put  down
                  the  telephone  and  threatened  the  boys  by  saying  ÒIf  I  can  drop  one,  I  can  drop  three.Ó Paul  testified
                  that  after  this,  Zachary  told  the  defendant  to  leave  them  alone  and  that  the  defendant  pointed  the  gun
                  at  Zachary  and  told  him  to  ÒShut  up.Ó From  the  testimony  about  ZacharyÕs  close  proximity  to  Paul
                  and  the  defendant,  the  jury  could  have  reasonably  inferred  that  Zachary  also  heard  the  defendantÕs
                  threat,  which  was  directed  to  all  three  Hugheleys. Zachary  responded  by  asking  the  defendant  to
                  leave  them  alone,  which  reveals  that  he  was  aware  of  the  defendantÕs  actions  and  also  suggests  that
                  he  was  in  fear. Finally,  the  jury  could  have  inferred  that  Zachary  reasonably  feared  imminent  bodily
                  injury  when  the  defendant  turned  the  gun  on  Zachary  after  threatening  that  he  could  easily  ÒdropÓ
                  the  three  Hugheleys. We  hold  that  the  evidence  is  sufficient  to  show  that  the  defendantÕs  actions
                  caused  Zachary  reasonably  to  fear  imminent  bodily  injury.

                           Finally, the defendant summarily contends that the evidence did not show that he
                  intentionally  or  knowingly  assaulted  either  victim. Without  further  explanation,  he  states  that  the
                  trial courtÕs grant of his motion for a judgment of acquittal for the aggravated assault of Ms.
                  Hugheley  and  the  juryÕs  acquittal  on  the  theft  charge  provide  additional  evidence  of  the  lack  of  an
                  intentional or knowing mental state.1  One Òacts intentionally with respect to the nature of the
                  conduct  or  to  a  result  of  the  conduct  when  it  is  the  personÕs  conscious  objective  or  desire  to  engage
                  in  the  conduct  or  cause  the  result.Ó Tenn.  Code  Ann.  ¤  39-11-302(a). One  Òacts  knowingly  with
                  respect  to  a  result  of  the  personÕs  conduct  when  the  person  is  aware  that  the  conduct  is  reasonably
                  certain  to  cause  the  result.Ó Tenn.  Code  Ann.  ¤  39-11-302(b). In  State  v.  Wilson,  924  S.W.2d  648,
                  651  (Tenn.  1996),  our  supreme  court  discussed  the  sufficiency  of  the  proof  of  the mens  rea  element
                  with  regard  to  aggravated  assault  convictions  stemming  from  a  drive-by  shooting:

                                    The aggravated assault statute under which the state seeks conviction of
                           defendant  requires  that  the  state  prove  either  that  defendant  shot  into  the  [victimsÕ]
                           home (a) for the purpose of causing the victims to fear imminent bodily injury
                           (intentionally)  or  that  the  defendant  was  (b)  aware  that  the  shooting  would  cause  the
                           victims  to  fear  imminent  bodily  injury  (knowingly).

                  The  court  affirmed  the  reversal  of  the  convictions  because  the  record  contained  no  proof  that  the
                  defendant  knew  that  anyone  was  in  the  house  at  the  time  of  the  shooting. Id.



                                                                -7- In the present case, we believe that the jury reasonably concluded that the defendant
               intentionally  or  knowingly  displayed  his  gun  in  order  to  place  Paul  and  Zachary  Hugheley  in  fear
               of  imminent  bodily  injury.  The  defendant  acted  intentionally  if  he  pointed  the  gun  at  the  victims  for
               the  purpose  of  causing  them  to  fear  imminent  bodily  injury. He  acted  knowingly  if  he  was  aware
               that  his  pointing  the  gun  at  the  victims  would  cause  such  a  fear. In  the  light  most  favorable  to  the
               state,  the  evidence  reveals  that  defendant  threatened  the  young  brothers  by  saying  ÒIf  I  can  drop  one,
               I  can  drop  three.Ó This  threat  reveals  that  the  defendant  intended  to  cause  the victims  to  fear
               imminent  bodily  injury. The  proof  also  reveals  that  Paul  picked  up  the  telephone  in  an  attempt  to
               summon  help  and  that  Zachary  asked  the  defendant  to  leave  them  alone. The  evidence  that  the
               defendant  subsequently  pointed  his  gun  at  the  victims  and  told  them  to  put  down  the  telephone  and
               to  ÒShut  upÓ  respectively  reveals  that  his  conscious  objective  or  desire  was  to  cause  the  victims  fear
               in  order  that  they  would  comply  with  his  orders. Thus,  the  defendant  acted  intentionally. The
               evidence  is  sufficient  to  convict  the  defendant  of  the  aggravated  assault  of  both  victims.


                                             II. LESSER  INCLUDED  OFFENSE


                       As  an  afterthought  to  his  sufficiency  argument,  the  defendant  contends  that  the  trial  court
               should  have  instructed  the  jury  on  the  lesser  included  offense  of  reckless  aggravated  assault,  a  Class
               D  felony.  The  state  contends  that  the  defendant  failed  to  raise  this  issue  in  his  motion  for  a  new  trial
               and  that  it  does  not  constitute  plain  error. It  argues  that  reckless  aggravated  assault  is  not  a  lesser
               included  offense  of  intentional  or  knowing  aggravated  assault  by  means  of  displaying  a  deadly
               weapon  because  the  former  contains  an  additional  element  Ð  that  of  physical  injury  Ð  aside  from  the
               differing  mental  state. It  also  contends  that  the  record  would  not  have  supported  an  instruction  on
               reckless  aggravated  assault  because  no  evidence  of  physical  injury  existed. 

                       We  begin  by  noting  that  a  defendant  seeking  to  challenge  the  jury  instructions  given  at  trial
               must  raise  the  issue  in  his  motion  for  new  trial  or  it  will  be  waived. T.R.A.P.  3(e). On  the  other
               hand,  the  defendantÕs  right  to  a  trial  by  jury  under  article  I,  section  6  of  the  Tennessee  Constitution
               Òis  violated  when  the  jury  is  not  permitted  to  consider  all  offenses  supported  by  the  evidence.Ó  State
               v.  Ely,  48  S.W.3d  710,  727  (Tenn.  2001). The  trial  court  has  a  duty  to  instruct  the  jury  on  all  lesser
               included  offenses  if  sufficient  evidence  exists  to  support  a  conviction  for  the  lesser  offense  even  if
               the  defendant  fails  to  request  the  instruction. Id.  at  718;  State  v.  Burns,  6  S.W.3d  453,  464  (Tenn.
               1999). When  the  failure  to  instruct  the  jury  on  an  appropriate  lesser  included  offense  affects  the
               substantial  rights  of  the  defendant,  we  may  reverse  the  conviction  on  the  basis  of  plain  error. See
               Tenn.  R.  Crim.  P.  52(b). In  this  respect,  five  factors  determine  whether  an  issue merits  plain  error
               status: 

                       1. The  record  must  clearly  establish  what  happened  in  the  trial  court;
                       2. a  clear  and  unequivocal  rule  of  law  must  have  been  breached;
                       3. a  substantial  right  of  the  accused  must  have  been  adversely  affected;
                       4. the  accused  did  not  waive  the  issue  for  tactical  reasons;  and
                       5. consideration  of  the  error  is  necessary  to  do  substantial  justice.

               State  v.  Adkisson,  899  S.W.2d  626,  639  (Tenn.  Crim.  App.  1994).



                                                                -8- The  problem  for  the  defendant  in  the  present  case,  though,  is  that  the  record  lacks  sufficient
               evidence  to  justify  an  instruction  on  reckless  aggravated  assault. Such  an  assault  is  defined  as
               recklessly  assaulting  another  by  intentionally,  knowingly,  or  recklessly  causing  bodily  injury  that
               is  either  serious  bodily  injury  or  committed  while  the  defendant  used  or  displayed  a  deadly  weapon.
               Tenn.  Code  Ann.  ¤¤  39-13-101(a)(1),  -102(a)(2)(A)-(B).  Bodily  injury  is  defined  as  Òa  cut,  abrasion,
               bruise,  burn  or  disfigurement;  physical  pain  or  temporary  illness  or  impairment  of  the  function  of
               a  bodily  member,  organ,  or  mental  faculty.Ó Tenn.  Code  Ann.  ¤  39-11-106(2).  Viewing  the
               evidence  in  the  light  most  favorable  to  the  existence  of  reckless  aggravated  assault,  the  record  is
               devoid  of  any  evidence  of  bodily  injury  to  either  Paul  or  Zachary  Hugheley. Thus,  much  less  plain
               error, the trial court did not commit any error by not instructing the  jury regarding reckless
               aggravated  assault. 

                       Based  upon  the  foregoing  and  the  record  as  a  whole,  we  affirm  the  judgments  of  conviction.


                                                                     ___________________________________ 
                                                                     JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  January  8,  2002

                  STATE  OF  TENNESSEE  v.  DELORES  ANN  BABB


                    Direct  Appeal  from  the  Circuit  Court  for  Henry  County
                          No.  13110  Julian  P.  Guinn,  Judge



                    No.  W2001-00415-CCA-R3-CD  -  Filed  February  4,  2002



         The  defendant  was  found  guilty  of  DUI  by  a  Henry  County  jury  and  sentenced  to  11  months  and  29
         days,  all  suspended  except  for  ten  days.  On  appeal,  she  argues  the  evidence  was  insufficient  to
         support  her  conviction.  We  affirm  the  judgment  of  the  trial  court.


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


         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ALAN
         E.  GLENN,  JJ.,  joined.

         Guy  T.  Wilkinson,  District  Public  Defender,  for  the  appellant,  Delores  Ann  Babb. 

         Paul  G.  Summers,  Attorney  General  and  Reporter;  T.  E.  Williams,  III,  Assistant  Attorney  General;
         G.  Robert  Radford,  District  Attorney  General;  and  Steven  L.  Garrett,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee. 



                                   OPINION


             The  defendant  was  driving  when  her  car  collided  with  Robert  BeechamÕs  car  at  an
         intersection  in  Paris,  Tennessee,  on  the  evening  of  April  21,  2000,  at  approximately  9:30  p.m.
         Robert  Beecham  immediately  approached  the  defendant. He  testified  he  noticed  she  had  been
         drinking;  he  smelled  alcohol  on  her  breath;  he  observed  she  was  unable  to  speak  clearly.  Beecham
         testified  he  had  the  green  light  when  he  proceeded  into  the  intersection,  causing  him  to  strike  her  car
         in  the  driver's  side. 

             Officer  Joshua  Fry  testified  he  approached  the  defendant  to  ascertain  her  condition.  When
         she  responded  to  his  questions,  he  noticed  a  strong  smell  of  alcohol.  Fry  stated  the  defendant's
         speech  was  slurred,  and  her  eyes  were  bloodshot.  He  opined  she  was  under  the  influence  of  alcohol,
         and  her  ability  to  drive  was  impaired. 



                                                                -2- The  defendant  complained  of  back  and  neck  pain,  so  Fry  called  for  an  ambulance.  After  the
               paramedics  checked  her  condition,  she  refused  treatment.  Fry  then  asked  the  defendant  if  there  was
               anything  to  prevent  her  from  performing  field  sobriety  tests. She  replied  there  was  not,  but  when
               he  asked  her  to  perform  the  Òheel  to  toe"  test,  she  told  him  she  could  not  do  it. Fry  testified  he  asked
               her  to  perform  another  test,  and  she  again  refused  to  comply. He  then  placed  her  under  arrest. 

                       Fry  stated  the  defendant  later  complained  of  pain  as  he  was  completing  her  arrest  paperwork
               at  the  sheriff's  department,  so  he  transported  her  to  the  emergency  room. He  prepared  an  implied
               consent  form  and  requested  she  submit  to  a  blood  test;  she  refused  to  give  consent. 

                       Paramedic  Larry  French  testified  he  responded  to  the  scene  of  the  accident  and  found  the
               defendant  seated  in  her  car. French  stated  the  defendant  had  no  visible  injuries  and,  after  responding
               to  a  series  of  questions,  elected  not  to  be  transported  in  the  ambulance.  He  said  the  defendant  smelled
               of  alcohol,  and  he  suspected  she  had  been  drinking. 

                       The  defendant  testified  she  drank  three  beers  in  her  home  over  a  period  of  an  hour  and  a  half
               while house cleaning.  According to the defendant, she left her home at about 4:00 p.m.,
               approximately  half  an  hour  after  she  stopped  drinking. She  said  she  visited  three  locations,  an  ATM
               machine,  Wal-Mart,  and  a  church  parking  lot, before  the  collision  at  approximately  9:30  p.m. The
               defendant  stated she had the green light when she entered the intersection.  She denied being
               impaired. 

                       The  defendant  testified  she  refused  to  perform  the  field  sobriety  tests  because  she  thought  her
               ribs  were  broken,  and  she  refused  to  give  a  blood  sample  because  she  feared  her  veins  would  collapse.
               She  was  released  from  the  hospital  on  the  night  of  her  arrest  after  x-rays  indicated  she  had  no  broken
               bones. She received  no  further  medical  treatment. 

                       The  defendant  was  indicted  for  driving  under  the  influence,  and  a  jury  convicted  her  as
               charged. 

                       The  defendant  contends  the  evidence  was  insufficient  to  prove  guilt  beyond  a  reasonable
               doubt.  In  Tennessee,  great  weight  is  given  to  the  result  reached  by  the  jury  in  a  criminal  trial. A  jury
               verdict  accredits  the  stateÕs  witnesses  and  resolves  all  conflicts  in  favor  of  the  state.  State  v.  Bigbee,
               885  S.W.2d  797,  803  (Tenn.  1994). On  appeal,  the  state  is  entitled  to  the  strongest  legitimate  view
               of  the  evidence  and  all  reasonable  inferences  which  may  be  drawn  therefrom. Id.;  State  v.  Cabbage,
               571  S.W.2d  832,  835  (Tenn.  1978).  Moreover,  a  guilty  verdict  removes  the  presumption  of  innocence
               which  the  defendant  enjoyed  at  trial  and  raises  a  presumption  of  guilt  on  appeal.  State  v.  Grace,  493
               S.W.2d  474,  476  (Tenn.  1973). The  defendant  has  the  burden  of  overcoming  this  presumption  of
               guilt. Id.

                       Tenn.  Code  Ann.  ¤  55-10-401(a)(1)  prohibits  driving  an  automobile  while  under  the  influence
               of  an  intoxicant. ÒUnder  the  influence  of  an  intoxicantÓ  is  a  term  which  includes  Ònot  only  all  the
               well-known  and  easily  recognized  conditions  and  degrees  of  intoxication,  but  also  any  impairment
               of  mental  or  physical  capabilities  that  deprives  one  of  that  clearness  of  mind  and  control  of  oneself



                                                                -3- which  he  or  she  would  otherwise  possess.Ó  State  v.  Keith  A.  Hartman,  C.C.A.  No.  03CO1-9410-CR-00386, 
                       1995  WL  382623,  at  *2  (Tenn.  Crim.  App.  June  27,  1995,  at  Knoxville). 
                       Viewing  the  evidence  in  a  light  most  favorable  to  the  state,  as  we  must,  the  evidence  is  more
               than  sufficient  to  support  the  verdict.  The  stateÕs  witnesses  testified  the  defendant  smelled  of  alcohol.
               Robert  Beecham  stated  the  defendant  had  difficulty  speaking.  Officer  Fry  observed  the  defendant  had
               slurred  speech  and  bloodshot  eyes,  and  he  opined  she  was  under  the  influence  of  alcohol  which
               impaired  her  driving  ability. The  credibility  of  the  witnesses  was  a  determination  to  be  made  by  the
               jury. We  conclude  this  evidence  is  sufficient  to  support  the  juryÕs  finding  that  the  defendant  was
               driving  under  the  influence  of  an  intoxicant. 


                       We  affirm  the  judgment  of  the  trial  court.

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                            December  11,  2001  Session

                   ALAN  DALE  BAILEY  v.  STATE  OF  TENNESSEE


                      Appeal  from  the  Circuit  Court  for  Coffee  County
                          No.  30,566  L.  Craig  Johnson,  Judge



                    No.  M2001-01018-CCA-R3-PC  -  Filed  February  8,  2002



         The  petitioner,  Alan  Dale  Bailey,  appeals  the  Coffee  County  Circuit  CourtÕs  denial  of  post-conviction 
                relief. The  petitioner  sought  relief  from  his  1999  Coffee  County  convictions  of
         aggravated  burglary  and  sexual  battery  on  the  basis  that  his  guilty  pleas  to  those  charges  were
         unknowing  and  involuntary  and  were  prompted  by  ineffective  assistance  of  counsel.  The  petitionerÕs
         primary  complaints  focus  upon  trial  counselÕs  failure  to  inform  the  petitioner  about  the  impact  of  a
         conviction  of  a  sexual  offense,  including  the  risk  that  parole  might  not  be  granted.  The  trial  court
         denied  relief  after  an  evidentiary  hearing,  and  we  affirm.


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


         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.

         Gerald  L.  Ewell,  Jr.,  Tullahoma,  Tennessee,  for  the  Appellant,  Alan  Dale  Bailey.

         Paul  G.  Summers,  Attorney  General  &  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         and  C.  Michael  Layne,  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.


                                   OPINION


                  The  district  public  defender  was  appointed  in  January,  1999  to  represent  the  petitioner
         on  charges  of  aggravated  burglary  and  sexual  battery.  On  May  25,  1999,  the  petitioner  submitted,
         and  the  trial  court  approved,  a  plea  agreement. Pursuant  to the  agreement,  the  court  imposed
         convictions  of  aggravated  burglary,  with  a  Range  I,  four-year  incarcerative  sentence,  and  of  sexual
         battery,  with  a  Range  I,  two-year  incarcerative  sentence. The  sentences  were  imposed  to  run
         concurrently.

                   In  his  petition  for  post-conviction  relief,  the  petitioner  challenges  his  convictions
         on  the  basis  that  his  guilty  pleas  were  unknowing  and  involuntary  and  were  the  product  of  ineffective
         assistance  of  counsel.  Specifically,  he  alleges  that  the  public  defender  told  him  that,  after  serving
         30  percent  of  his  four-year  sentence,  he  should  be  home  in  14.4  months.  He  claims  that  the  public



                                                                -2- defender  did  not  tell  him  that  he  would  be  labeled  a  sex  offender,  would  undergo  DNA  identification
               as  a  sex  offender,  and  would  be  required  to  serve  100  percent  of  his  four-year  sentence  before  being
               released. 

                              At  the  post-conviction  evidentiary  hearing,  both  the  petitioner  and  his  wife  testified
               that  the  public  defender  and  his  investigator  told  them  that  the  petitioner,  with  good  behavior,  would
               be  released  from  custody  in  fourteen  months.  The  petitioner  testified  that  his  counsel  failed  to  advise
               him  that  he  would  be  listed  on  a  sex-offender  registry  for  the  rest  of  his  life,  that  he  would  have  to
               provide  a  DNA  sample  for  sex-offender  identification,  that  his  picture  would  appear  on  the  internet
               identifying  him  as  a  sex  offender,  and  that  he  would  have  to  serve  the  entirety  of  the  four-year
               sentence  in  prison  because  of  his  sex-offender  status.  The  petitioner  testified  that,  at  the  time  of  the
               hearing,  he  had  already  served  eighteen  months  of  his  sentence  and  would  be  required  to  serve  the
               entire  four  years.  He  stated  that  he  would  not  have  pleaded  guilty  had  he  known  about  these  aspects
               of  his  plea. 

                              The  public  defenderÕs  investigator  testified  that  he  presented  the  plea  offer  to  the
               petitioner  at  counselÕs  request  and  calculated  for  him  the  release  eligibility  date  of  14.4  months,
               being  30  percent  of  the  four-year  sentence.  The  investigator  did  not  guarantee  a  release  date;  he
               testified  that  he  Òwould  never  tell  anybody  they  would  get  out  at  [the  release  eligibility]  time  because
               [he]  simply  [did]  not  know.Ó

                              The district public defender testified at the evidentiary hearing that he began
               representing the petitioner prior to the preliminary hearing.  Throughout the proceedings, the
               petitioner  wanted  to  go  to  trial. Counsel  stated  that  the  case  had  been  fully  investigated,  he  had
               obtained  complete  discovery,  and  he  was  ready  to  try  the  case. Just  before  trial,  however,  at  a
               meeting  in  counselÕs  office,  the  petitioner  decided  to  accept  the  stateÕs  offer  of  an  effective  four-year
               sentence. Counsel  told  the  petitioner  that,  with  good  behavior,  he  would  be  eligible  for  parole  in
               14.4  months,  that  counsel  could  not  guarantee  he  would  be  released  upon  his  release  eligibility  date,
               and  that  the  Department  of  Correction  Òruns  by  its  rules  rather  than  by  law  a  lot  of  times.Ó Counsel
               testified  that,  prior  to  the  plea,  he  told  the  petitioner  about  the  DNA  test.  Additionally,  the  petitioner
               read  the  proposed  conviction  judgments,  which  stated  the  requirement  of  the  DNA  test. Before  the
               plea,  counsel  also  gave  the  petitioner  a  copy  of  the  statutes  proscribing  the  charged  offenses  and
               setting  forth  the  sentencing  guidelines. 

                               Counsel  testified  that  he  thought  the  plea  offer  was  beneficial  to  the  petitioner,  who
               otherwise  could  have  been  classified  as  a  Range  II  offender. Counsel  denied  making  any  promises
               to  influence  the  petitioner  into  pleading  or  coercing  the  petitioner  into  making  the  plea.  Counsel
               admitted  telling  the  petitioner  that  he  Òhad  the  keys  to  the  jail  in  his  pocket.Ó

                              The  transcript  of  the  plea-submission  hearing  was  admitted  in  the  post-conviction
               evidentiary  hearing  and  reveals  that  the  trial  court  thoroughly  administered  the  customary  litany  of
               explanations  of  rights  and  admonitions  about  waiving  the  rights.  The  petitioner  acknowledged  under
               oath  that  he  was  making  the  plea  freely,  voluntarily,  and  without  fear. He  acknowledged  that  he



                                                                -3- understood  the  nature  of  the  charges,  that  counsel  had  explained  the  elements  of  the  offenses,  and
               that  he  was  pleading  guilty  because  he  was  guilty.

                              Before  examining  the  petitionerÕs  claims  that  his  plea  was  vitiated  by  the  lack  of
               pertinent  information  and  was  prompted  by  ineffective  assistance  of  counsel,  we  review  a  few
               familiar  principles  of  law.  Post-conviction  relief  is  available  when  Òa  conviction  or  sentence  is  void
               or  voidable  because  of  the  abridgmentÓ  of  a  constitutional  right. Tenn.  Code  Ann.  ¤  40-30-203
               (1997). The  burden  rests  upon  a  post-conviction  petitioner  to  establish  his  claims  by  clear  and
               convincing  evidence. Id.  ¤  40-30-210(f). 

                              When  a  post-conviction  petitioner  seeks  relief  on  the  basis  of  ineffective  assistance
               of  counsel,  he  or  she  must  establish  that  the  service  rendered  or  the  advice  given  was  below  Òthe
               range  of  competence  demanded  of  attorneys  in  criminal  cases.Ó Baxter  v.  Rose,  523  S.W.2d  930,
               936  (Tenn.  1975). Also,  the  petitioner  must  show  that  the  deficiencies  Òactually  had  an  adverse
               effect  on  the  defense.Ó Strickland  v.  Washington,  466  U.S.  668,  693,  104  S.  Ct.  2052,  2067  (1984).
               Should  the  petitioner  fail  to  establish  either  factor,  he  or  she  is  not  entitled  to  relief. See  id.  at  697,
               104  S.  Ct.  at  2069. ÒThe  Strickland  standard  has  been  applied  to  the  right  to  counsel  under  Article
               I,  Section  9  of  the  Tennessee  Constitution.Ó  Michael  E.  Christian  v.  State,  No.  E2000-00922-CCA-R3-
                   PC,  slip  op.  at  9  (Tenn.  Crim.  App.,  Knoxville,  June  24,  2000),  perm.  app.  denied  (Tenn.  2001);

               see  State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). A court scrutinizing a claim of
               ineffective  assistance  of  counsel  must  indulge  a  Òstrong  presumption  that  counselÕs  conduct  falls
               within  the  wide  range  of  reasonable  professional  assistance.Ó  Strickland,  466  U.S.  at  689,  104  S.  Ct.
               at  2065. 

                              When  a  post-conviction  petitioner  asserts  that  ineffective  assistance  of  trial  counsel
               resulted  in  a  guilty  plea  the  ÒprejudiceÓ  prong  of  Strickland  must  focus  Òon  whether  counselÕs
               constitutionally  ineffective  performance  affected  the  outcome  of  the  plea  process.Ó  Hill  v.  Lockhart,

               474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985).  The petitioner must establish Òa reasonable
               probability  that,  but  for  counselÕs  errors,  he  would  not  have  pleaded  guilty  and  would  have  insisted
               on  going  to  trial.Ó Id.;  see  Hicks  v.  State,  983  S.W.2d  240,  246  (Tenn.  Crim.  App.  1998). In  the
               context  of  ineffective  assistance  of  counsel  that  resulted  in  a  guilty  plea,  the  petitioner  is  not  required
               to  demonstrate  that  he  likely  would  have  fared  better  at  trial  than  he  did  by  pleading  guilty,  although
               evidence  of  this  type  can  be  persuasive  that  he  would  have  insisted  on  his  right  to  a  jury  trial. See
               Hill,  474  U.S.  at  59-60,  106  S.  Ct.  at  370. 

                               The  Due  Process  Clause  of  the  United  States  Constitution  requires  that  guilty  pleas
               be  knowing  and  voluntary. State  v.  Wilson,  31  S.W.3d  189,  194  (Tenn.  2001);  see  Boykin  v.
               Alabama,  395  U.S.  238,  243,  89  S.  Ct.  1709,  1712  (1969). The  constitutional  mandate  that  guilty
               pleas be knowing is essentially fulfilled by the court informing the accused of his or her
               constitutional  rights  against  self-incrimination,  to  confront  witnesses,  and  to  trial  by  jury. Boykin,

               395  U.S.  at  243,  89  S.  Ct.  at  1712.

                               In  the  present  case,  we  discern  from  our  review  of  the  record  before  us  that  the  parties
               and  the  court  below  were  at  a  loss  to  comprehend  any  basis  for  the  petitioner  being  required  to  serve



                           1        We  are  at  a  loss  to  comprehend  how  this  statutory  provision  would  affect  the  service  of  the  aggravated
                  burglary  sentence,  the  lengthier  of  the  two  concurrent  sentences. 

                                                                          -4- his  full  sentence  by  virtue  of  being  convicted  of  a  sexual  offense. Our  review  of  Tennessee  statutes,
                  however,  reveals  several  bases  for  limiting  or  preventing  parole  to  sexual  offenders. Code  section
                  40-35-321(c)  provides  that  a  person  convicted  of  sexual  battery,  inter  alia,  must  submit  a  specimen
                  for  DNA  analysis,  and  such  a  person  may  not  be  released  until  he  or  she  provides  the  specimen.
                  Tenn.  Code  Ann.  ¤  40-35-321(c)  (Supp.  2001). Section  41-21-235(b),  as  it  applied  to  the  time  of
                  the  petitionerÕs  offenses  committed  on  August  26,  1998,  provides,  ÒSuccessful  participation  and
                  completion of [a sexual abuse treatment program for incarcerated sex offenders] shall be a
                  consideration  for  parole  from  a  correctional  institution.Ó Id.  ¤  41-21-235(b). Finally,  Code  section
                  40-35-503(c)  provides,

                                    No  person  convicted  of  a  sex  crime  shall  be  released  on  parole  unless
                                    a  psychiatrist  or  licensed  psychologist  designated  as  a  health  service
                                    provider  has  examined  and  evaluated  such  inmate  and  certified  that,
                                    to a reasonable medical certainty, the inmate does not pose the
                                    likelihood  of  committing  sexual  assaults  upon  release  from
                                    confinement.


                   Id.  ¤  40-35-503(c).1 


                                                             I. Knowing  Guilty  Plea.


                                    The Boykin requirement that guilty pleas be knowing and voluntary may stand
                  independently  of  the  claim  that  an  unknowing  or  involuntary  guilty  plea  is  the  result  of  ineffective
                  assistance  of  counsel. As  we  have  pointed  out  above,  the  constitution  requires  that,  to  satisfy  due
                  process, the trial court must inform the guilty-pleading defendant of his rights to avoid self-incrimination, 
                                    to confront witnesses, and to be tried by a jury.  However, Òa guilty plea is  not
                  rendered  constitutionally  infirm  because  a  criminal  defendant  is  not  informed  about  Ôthe  details  of
                  his  parole  eligibility,  including  the  possibility  of  being  ineligible  for  parole.ÕÓ  Rickey  Sams  v.  State,

                  No.  03C01-9511-CC-00368,  slip  op.  at  4,  (Tenn.  Crim.  App.,  Knoxville,  Nov.  14,  1996)  (quoting

                  King v.  Dalton  17  F.3d  151,  154  (6  th Cir.  1994),  perm.  app.  denied  (Tenn.  1997). Thus,  in  the
                  present  case,  the  petitionerÕs  claim  that  he  should  have  been  informed  of  the  various  consequences
                  of  being  convicted  of  a  sex  offense  is  not  a  constitution-based  claim. As  we  have  also  pointed  out
                  above,  post-conviction  relief  is  only  available  to  address  the  abridgment  of  a  constitutional  right.
                  Therefore,  the  petitionerÕs  claim  that  he  had  a  right  to  be  informed  of  the  sex-offense  conditions  to
                  or  consequences  of  his  conviction  and  sentence  is  not  cognizable  in  this  proceeding. Id.



                                                     II. Ineffective  Assistance  of  Counsel.

                                                             A. Performance  Prong.



                                                                -5- We  now  review  the  adequacy  of  counselÕs  performance  in  assisting  the  petitioner  to
               enter  a  knowing  and  voluntary  plea. This  court  has  held  that  Òfailure  of  counsel  to  discuss  parole
               eligibility  or  the  parole  condition  of  successfully  completing  a  sexual  offender  treatment  program
               does  not  constitute  ineffective  assistance  of  counsel.Ó Ricky  Rutledge  v.  State,  No.  01C01-9706-CC-00201, 
                       slip  op.  at  11  (Tenn.  Crim.  App.,  Nashville,  July  2,  1998),  perm.  app.  denied  (Tenn.  1999)
               (basing  holding  upon  the  principle  that  ÒÔsilence  by  counselÕ  on  Ôany  collateral  consequences  of  a
               pleaÕ  does  not  Ôfall  below  the  range  of  competence  demanded  of  attorneys  in  criminal  cases,ÕÓ
               quoting  Adkins  v.  State,  911  S.W.2d  334,  350  (Tenn.  Crim.  App.  1994));  see  also  Rickey  Sams,  slip
               op.  at  5  (counsel  provided  effective  assistance  by  informing  guilty-pleading  defendant  of  his  release
               eligibility  date,  despite  not  informing  him  of  the  applicability  and  effect  of  the  parole  provision  in
               Code  section  40-35-503(c));  Rogers  Lamont  McKinley  v.  State,  No.  03C01-9308-CR-00255,  slip  op.
               at  9-11  (Tenn.  Crim.  App.,  Knoxville,  Aug.  17,  1994)  (refusing  to  find  that  Òthe  failure  of  the
               DefendantÕs attorneys to advise the Defendant of [the terms of Code section 40-35-503(c)]
               constituted  ineffective  assistance  of  counselÓ). Thus,  a  defendantÕs  counsel  does  not  deficiently
               perform  by  remaining  silent  on  the  matter  of  the  Òcollateral  consequencesÓ  implicated  by  that
               defendant  pleading  guilty  to  sexual  battery.

                              We  must  now  point  out,  however,  that  Ricky  Rutledge  was  Ònot  a  case,  as  in  Hill  v.
               Lockhart  .  .  .  in  which  counsel  [had]  given  erroneous  advice.Ó  See  Ricky  Rutledge,  slip  op.  at  10  n.6.
               In  the  present  case,  however,  counsel  gave  erroneous  advice,  as  opposed  to  merely  remaining  silent,
               when  he  told  the  petitioner  that  the  petitioner  held  Òthe  keys  to  the  jail  in  his  pocket.Ó In  effect,
               counsel  told  the  petitioner  that  he  had  it  within  his  power  to  win  release  once  he  had  attained  the
               release  eligibility  date. Because  Code  section  40-35-503(c)  conditions  the  release  of  a  person
               convicted  of  committing  a  Òsex  crimeÓ  upon  a  professionalÕs  certification  that  the  offender  is  not
               likely  to  commit  further  sexual  assaults,  the  inmate  does  not  hold  Òthe  keys  to  the  jail.Ó Such  an
               inmate, even one  who  has  provided  the  DNA  sampling  and  who  has  completed  the  treatment
               program, lacks the power to win his release.  To the extent that counsel ventured this bit of
               inaccurate  advice,  he  performed  deficiently  in  representing  the  petitioner.


                                                      B. Prejudice  Prong.


                              In  the  wake  of  this  limited  instance  of  deficient  performance,  however,  we  conclude
               that  the  petitioner  has  failed  to  establish  the  Òprejudice  prongÓ  of  Strickland  and  Hill. We  realize
               that  the  petitioner  testified  at  the  evidentiary  hearing  that  he  would  have  eschewed  the  plea  had  he
               known  that  he  would  be  branded  a  sex  offender  and  that  he  would  serve  more  than  14.4  months  in
               prison.  This  testimony,  however,  does  not  ipso  facto  establish  that  he  would  not  have  pleaded  guilty
               but  for  counselÕs  deficient  performance. The  attempt  to  establish  the  Òbut  forÓ  claim  through  his
               own  testimony  exclusively  is  fraught  with  the  risk  that  the  finder  of  fact might  not  accredit  him  as
               a  witness. See  Sneed  v.  State,  942  S.W.2d  567,  569  (Tenn.  Crim.  App.  1996)  (trial  judge  who
               accepted  guilty  plea  and  later  presided  over  post-conviction  evidentiary  hearing  Òwas  in  a  proper
               position  to  consider  the  petitionerÕs  credibility  at  both  appearancesÓ  and  to  give  Ògreater  credence
               to  his  responsesÓ  during  the  plea  hearing  than  to  his  claims  during  the  evidentiary  hearing). Indeed,
               in  the  present  case,  the  post-conviction  court  specifically  found  that  the  petitioner  was  not  a  credible



                                                                -6- witness.  We  defer  to  the  lower  courtÕs  resolution  of  credibility  issues.  Massey  v.  State,  929  S.W.2d
               399,  403  (Tenn.  Crim.  App.  1996);  Taylor  v.  State,  875  S.W.2d  684,  686  (Tenn.  Crim.  App.  1993).

                              Moreover,  as  Hill  suggests,  the  probability  that  the  petitioner  might  have  received  a
               more  severe  penalty  following  a  trial  may,  in  a  proper  case,  serve  as  an  indicator  that  the  petitioner
               nevertheless  would  have  pleaded  guilty  had  he  known  all  the  relevant  facts. Given  that  he  would
               be  characterized  as  a  sex  offender,  forced  to  undergo  DNA  testing,  subjected  to  monitoring  after
               leaving  custody,  and  put  at  risk  for  being  denied  any  parole  -  -  all  because  of  his  status  in  being
               convicted  of  sexual  battery  -  -  he  nevertheless  would  have  faced  the  same  prospects  in  the  wake  of
               a  jury  conviction. Indeed,  the  prospects  could  well  have  been  exacerbated  by  the  imposition  of  a
               longer  term  of  incarceration.  See  Wade  v.  State,  914  S.W.  2d  97,  104  (Tenn.  Crim.  App.  1995);

               Carl  A.  Jones  v.  State,  No.  02C01-9204-CC-00099,  slip  op.  at  9  (Tenn.  Crim.  App.,  Jackson,  Oct.
               21,  1992)  (despite  counselÕs  failure  to  acquaint  petitioner  with  Code section 40-35-503(c),  no
               prejudice  was  shown  because  petitioner  Òcould  not  have  avoided  these  requirementsÓ  by  going  to
               trial). Given  this  circumstance,  we  cannot  conclude  that  the  petitioner  has  established  by  clear  and
               convincing  evidence  that  he  would  not  have  pleaded  guilty  but  for  counselÕs  performance.

                              Therefore,  for  these  reasons,  we  hold  that  the  petitioner  has  failed  to  establish  the
               prejudice  prong  promulgated  in  Strickland  and  Hill,  and  consequently  he  has  failed  to  establish  his
               claim  of  ineffective  assistance  of  counsel.


                                                        III. Conclusion.


                              We  affirm  the  denial  of  post-conviction  relief.




                                                                     ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                          Assigned  on  Briefs  May  15,  2002

                STATE  OF  TENNESSEE  v.  ERICK  DARNELL  BAILEY

                     Appeal  from  the  Criminal  Court  for  Davidson  County
                          No.  99-B-1017  Seth  Norman,  Judge


                     No.  M2001-01974-CCA-MR3-CD  -  Filed  June  19,  2002


         The  defendant,  Erick  Darnell  Bailey,  appeals  his  first-degree  murder  convictions  imposed  following
         a  jury  trial  in  the  Davidson  County  Criminal  Court.  The  defendant  was  tried  and  convicted  on  both
         felony-murder  and  premeditated-murder  counts  in  the  indictment,  and  the  trial  court  merged  the
         convictions  into  a  single  conviction  of  first-degree  murder.  The  single  issue  raised  on  appeal  is
         whether  the  convicting  evidence  is  sufficient  to  support  the  verdicts.  We  modify  the  conviction  for
         premeditated  murder  to  second-degree  murder  and  affirm  the  conviction  for  first-degree,  felony
         murder.  The  second-degree  murder  conviction  merges  into  the  felony  murder  conviction.

             1.Tenn.  R.  App.  P.  3;  Judgment  of  the  Criminal  Court  Affirmed  as  Modified.

         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
         JOE  G.  RILEY,  JJ.,  joined.
         Ralph  Newman  and  Elizabeth  Ezell,  Nashville,  Tennessee  (at  trial)  and  C.  Dawn  Deaner,  Nashville,
         Tennessee  (on  appeal)  for  the  Appellant,  Erick  Darnell  Bailey.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  J.  Ross  Dyer,  Assistant  Attorney  General;  Victor
         S.  Johnson,  III,  District  Attorney  General;  and  Pamela  Anderson,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                  The  defendant  was  charged  in  a  two-count  indictment  with  killing  Timothy  Chandler
         on  December  27,  1998  at  a  Nashville  convenience  store.  The  first  count  alleged  that  the  defendant
         killed  the  victim  while  perpetrating  a  robbery,  see  Tenn.  Code  Ann.  ¤  39-13-202(a)(2)  (Supp.  2001),
         and  the  second  count  alleged  that  the  defendant  premeditatedly  and  intentionally  killed  the  victim,

         see  id.  ¤  39-13-202(a)(1)  (Supp.  2001).  After  a  three-day  trial,  the  jury  convicted  the  defendant  on
         both  counts. The  trial  court  merged  the  premeditated-murder  conviction  in  count  two  with  the
         felony-murder  conviction  in  count  one  and  imposed  a  life  sentence. 



                                                                -2- In  the  light  most  favorable  to  the  state,  the  evidence  introduced  at  trial  showed  that
               the  victim  left  his  home  on  the  evening  of  December  27,  1998  to  rent  video  movies  and  to  buy  food
               for  an  evening  meal  for  himself,  his  two  children,  his  girlfriend,  and  other  family  members.  The
               victim  was  driving  his  girlfriendÕs  gold-colored  Camaro  that  was  accessorized  with  a  set  of  chrome
               wire  wheels  valued  at  approximately  $4,000.  After  renting  the  videos  and  buying  the  food,  he
               stopped  at  an  Aztec  convenience  store  on  Dickerson  Road  and  at  7:48  p.m.  prepaid  for  ten  dollarsÕ
               worth  of  gas  with  ten  one-dollar  bills. He  left  the  store  through  the  rear  door  in  the  direction  of  the
               gas  pumps  that  were  located  on  the  back  side  of  the  store.
                              At  or  about  this  time,  the  defendant  was  riding  on  Dickerson  Road  with  his  twin
               brother  Derrick  Bailey  and  two  cousins,  Alvin  Hall  and  Javon  Garrison,  in  Derrick  BaileyÕs  Cadillac.
               According  to  Mr.  HallÕs  testimony,  Derrick  Bailey  was  driving  and  the  defendant  was  riding  in  the
               front  passenger  seat. Due  to  the  volume  of  the  radio,  Hall  could  not  hear  the  conversation  between
               the  two  Baileys  in  the  front  seat. After  they  passed  the  Aztec,  Derrick  Bailey  turned  the  Cadillac
               around  and  drove  back  toward  the  Aztec. He  pulled  the  car  into  the  Taco  Bell  parking  lot  adjacent
               to  the  Aztec  and  parked  behind  the  Taco  Bell. The  defendant  got  out  of  the  car  and  went  through
               the  shrubbery  into  the  rear  portion  of  the  Aztec  lot. 
                              Derrick  Bailey  then  drove  the  Cadillac  back  to  the  street  and  pulled  up  to  the  front
               of  the  Aztec  store. Hall  got  out  and  went  inside  the  store  to  buy  a  drink. Hall  and  the  store  clerk
               both  testified  that  the  defendant  was  in  the  store  when  Hall  came  in. The  defendant  asked  Hall  if  he
               had  change  for  $20  and,  after  receiving  a  negative  response,  exited  the  store  through  the  rear  door.
               According  to  the  clerk,  the  defendant  exited  the  store  some  time  after  the  victim  had  exited  through
               the  same  door. The  clerk  did  not  specify  the  amount  of  time  that  elapsed  between  the  victimÕs  exit
               and  the  defendantÕs  exit  through  the  same  door. She  testified  that  the  next  gas  sale  occurred  Ò[a]t
               the  most[]  20  minutesÓ  after  the  victimÕs  purchase.
                              Mary  Ann  Fenter,  an  Aztec  customer,  testified  that  when  she  drove  to  the  rear  of  the
               Aztec  only  one  car  was  present,  a  Òchampagne-coloredÓ  car  parked  beside  a  gas  pump.  Nearby  were
               two  men,  one  who  was  lying  on  the  ground  and  the  other,  a  black  man,  who  was  standing  over  and
               looking  down  at  the  prone  man. The  man  who  stood  was  holding  onto  the  jacket  of  the  prone  man,
               who  did  not  move.  When  the  man  who  was  standing  saw  Ms.  Fenter  looking  at  him,  he  turned  loose
               of  the  other  manÕs  jacket,  got  into  the  champagne-colored  car,  and  drove  away  in  a  manner  that  she
               ÒwouldnÕt  call  speeding,  but  .  .  .  wouldnÕt  call  it  slow.Ó 
                              Alvin Hall had exited the Aztec store through the front door and had rejoined
               Garrison  and  Derrick  Bailey  in  BaileyÕs  Cadillac.  Bailey  then  drove  the  Cadillac  around  to  the  rear
               of  the  Aztec  where  Hall  saw  the  Camaro  with  its  headlights  off,  moving  away  from  the  gas  pump.
               The  Cadillac  followed  the  Camaro  onto  and  down  Dickerson  Road. Both  vehicles  turned  onto
               Bellshire  Road. Hall  asked  to  be  let  out,  and  Derrick  Bailey  stopped  the  Cadillac  and  let  Hall  and
               Garrison  out. 



                                                                -3- Meanwhile,  Ms.  Fenter  had  alerted  the  store  clerk,  who  called  the  police. Although
               neither  Ms.  Fenter  nor  the  clerk  had  heard  a  gunshot,  the  victim  had  been  shot  by  a  .9  mm  weapon
               that  was  fired  within  six  inches  of  the  victimÕs  chest. The  bullet  struck  the  heart,  liver,  aorta,  and
               spine. The  victim  died  while  on  a  hospital  operating  table.
                            Later  that  evening,  a  motorist  discovered  the  Camaro  on  Jackson  Road  about  two  miles
               from  Dickerson  Road  and  five  miles  from  the  Aztec.  Jackson  Road  is  connected  to  Dickerson  Road
               via  Brick  Church  Road  and  Bellshire. The  wheels  and  tires,  radio,  and  speakers  had  been  removed
               from  the  Camaro,  and  someone  had  ineffectually  attempted  to  set  the  car  afire. 
                              The  police  were  alerted  to  the  defendantÕs  involvement  in  the  crime  by  the  store
               clerkÕs  identification  of  him  and  his  appearance  on  the  storeÕs  surveillance  videotape. After  the
               police  apprehended  the  defendant,  they  discovered  $950  on  his  person,  including  166  one-dollar
               bills. The  defendant  admitted  being  at  the  Aztec  during  the  evening  of  December  27  and  said  that
               he  had  Òheard  a  shot.Ó 
                              The  police  obtained  Derrick  BaileyÕs  Cadillac. They  found  evidence  that  someone
               had  placed  tires  in  the  backseat. They  photographed  a  portion  of  the  back  of  the  leather  front  seat,
               where  an  impression  of  raised  lettering  from  a  tire  had  been  left. This  lettering  was  identified  as
               belonging to  a  specific  make  and  model  of  tire  that  had  been  sold  to  the  victim  and  mounted  on  the
               Camaro  in  the  summer  of  1998. Also,  after  recovering  the  Camaro,  the  police  discovered  a  propane
               bottle  in  its  trunk  that  bore  the  defendantÕs  fingerprint. 
                              The  defendant  was  convicted  at  trial  of  both  felony  murder  and  premeditated  murder.
               On  appeal,  the  sole  issue  is  whether  the  convicting  evidence  is  sufficient. In  presenting  that  issue,
               the  defendant  concedes  that  the  evidence  supports  a  finding  that  he  robbed  the  victim  or  stole  his  car;
               however,  the  defendant  posits  that  the  evidence  fails  to  establish  that  he  was  the  person  who  shot  the
               victim.  Essentially,  he  argues  that  the  evidence  does  not  exclude  the  reasonable  hypothesis  that  the
               defendant  came  along  to  rifle  the  victimÕs  pockets  and  steal  his  car  after  someone  else  had  shot  the
               victim. 
                              It  is  well  established  that  a  jury  verdict,  approved  by  the  trial  judge,  accredits  the
               testimony  of  the  witnesses  for  the  state  and  resolves  all  conflicts  in  favor  of  the  theory  of  the  state.

               State  v.  Hatchett,  560  S.W.2d  627,  630  (Tenn.  1978);  State  v.  Townsend,  525  S.W.2d  842,  843
               (Tenn.  1975). On  appeal,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence  and
               all  reasonable  or  legitimate  inferences  which  may  be  drawn  therefrom. State  v.  Cabbage,  571
               S.W.2d  832,  836  (Tenn.  1978).
                              Moreover,  a  verdict  against  the  defendant  removes  the  presumption  of  innocence  and
               raises  a  presumption  of  guilt  on  appeal,  State  v.  Grace,  493  S.W.2d  474,  476  (Tenn.  1973);  Anglin
               v.  State,  553  S.W.2d  616,  620  (Tenn.  Crim.  App.  1977),  which  the  defendant  has  the  burden  of
               overcoming,  State  v.  Brown,  551  S.W.2d  329,  331  (Tenn.  1977).



                                                                -4- Most  significantly,  where  the  sufficiency  of  the  evidence  is  challenged,  the  relevant
               question  for  an  appellate  court  is  whether,  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. Tenn.  R.  App.  P.  13;  Jackson  v.  Virginia,  443  U.S.  307,  99  S.  Ct.  2781,
               2782  (1979);  see  also,  State  v.  Williams,  657  S.W.2d  405  (Tenn.  1983).  This  rule  applies  to  findings
               based  on  both  direct  and  circumstantial  evidence. State  v.  Thomas,  755  S.W.2d  838,  842  (Tenn.
               Crim.  App.  1988).
                              The  defendantÕs  appellate  challenge  to  the  sufficiency  of  the  convicting  evidence  calls
               into  play  the  rules  concerning  the  use  of  circumstantial  evidence.  Unquestionably,  a  criminal  offense
               may  be  established  exclusively  by  circumstantial  evidence.  Duchac  v.  State,  505  S.W.2d  237  (Tenn.
               1973);  State  v.  Jones,  901  S.W.2d  393,  396  (Tenn.  Crim.  App.  1995);  State  v.  Lequire,  634  S.W.2d
               608  (Tenn.  Crim.  App.  1982). However,  before  an  accused  may  be  convicted  of  a  criminal  offense
               based  upon  circumstantial  evidence  alone,  the  facts  and  circumstances  Òmust  be  so  strong  and  cogent
               as  to  exclude  every  other  reasonable  hypothesis  save  the  guilt  of  the  defendant.Ó  State  v.  Crawford,

               225  Tenn.  478,  482,  470  S.W.2d  610,  612  (1971);  Jones,  901  S.W.2d  at  396. In  other  words,  Ò[a]
               web  of  guilt  must  be  woven  around  the  defendant  from  which  he  cannot  escape  and  from  which  facts
               and  circumstances  the  jury  could  draw  no  other  reasonable  inference  save  the  guilt  of  the  defendant
               beyond  a  reasonable  doubt.Ó Crawford,  225  Tenn.  at  484,  470  S.W.2d  at  613.
                              First-degree  murder is committed by one who kills another premeditatedly and
               intentionally, Tenn. Code Ann. ¤ 39-13-202(a)(1) (Supp. 2001), or who kills another Òin the
               perpetration  of  or  attempt  to  perpetrate  any  .  .  .  robbery,Ó  id.  ¤  39-13-202(a)(2)  (Supp. 2001).
               Premeditation  involves  Òan  act  done  after  the  exercise  of  reflection  and  judgment  [and]  means  that
               the  intent  to  kill  must  have  been  formed  prior  to  the  act  itself[,  although]  it  is  not  necessary  that  the
               purpose  to  kill  pre-exist  in  the  mind  of  the  accused  for  any  definite  period  of  time.Ó Id.  ¤  39-13-
               202(d)  (Supp.  2001).  ÒNo  culpable  mental  state  is  required  for  conviction  [of  felony  murder]  except
               the  intent  to  commit  the  enumerated  offense[],Ó  which  in  the  present  case  is  robbery. Id.  ¤  39-13-
               202(b)  (Supp.  2001). 
                              Looking  first  to  the  felony-murder  conviction,  we  find  sufficient  evidence,  albeit
               circumstantial,  of  a  killing  committed  during  the  perpetration  of  a  robbery. In  so  doing,  we  reject
               the  defendantÕs  claim  that  the  circumstantial  evidence  fails  to  exclude  every  reasonable  hypotheses
               except  that  the  defendant  was  the  person  who  shot  the  victim. 
                              The  evidence  showed,  rather  palpably  we  think,  that  in  driving  past  the  Aztec,  the
               Bailey  brothers  were  attracted  to  something  they  saw,  causing  them  to  turn  around  and  resulting  in
               the  defendant  stealthily  entering  the  rear  of  the  Aztec  property. The  jury  could  easily  infer  that  he
               loitered  about  the  Aztec  store  while  the  victim  pumped  gas  into  the  Camaro. Then,  he  left  the  store
               Ð  not  through  the  front  door,  in  the  direction  of  his  brotherÕs  Cadillac  Ð  but  through  the  rear  door
               toward  the  rear  gas  pumps,  where  the  only  vehicle  known  to  be  present  was  the  Camaro. A  short
               time  later,  the  defendant  was  seen  standing  over  the  prone  victim  with  his  hands  on  the  victimÕs  coat.
               He  then  drove  away  in  the  victimÕs  car,  leaving  the  victim  mortally  wounded  by  a  gunshot  to  the



                                                                -5- chest. The defendantÕs brother followed in the Cadillac, and soon thereafter, the defendant
               abandoned  the  Camaro  after  removing  the  radio,  speakers,  and  expensive  wheels. 
                              These  events  bespeak  the  brothersÕ  plan  to  steal  the  Camaro  in order  to  obtain  the
               wheels,  a  plan  that  likely  was  hatched  between  the  time  that  they  passed  the  Aztec  the  first  time  and
               then  turned  around  to  go  back. The  defendantÕs  actions  in  lurking  about  the  Aztec  store  and  then
               exiting  through  the  rear  door  are  consistent  with  this  plan. Significantly,  until  Ms.  Fenter  arrived,
               there  was  no  evidence  of  any  other  persons  being  near  the  rear  gas  pumps  except  the  victim  and  the
               defendant. 
                              Accordingly,  we  find  unreasonable  the  hypothesis  that  someone  else  killed  the  victim
               and  that  the  defendant  merely  came  along  later  to  steal  the  Camaro. We  hold  that  the  evidence  of
               felony  murder  excluded  every  other  reasonable  hypothesis  except  the  guilt  of  the  defendant  beyond
               a  reasonable  doubt. 
                              Now,  we  address  the  issue  of  the  conviction  of  premeditated  murder. Of  course,  our
               determination  that  the  circumstantial  evidence  supports  the  conclusion  that  the  defendant  committed
               felony  murder  also  supports  the  general  conclusion  that  the  defendant  was  the  man  who  shot  the
               victim. That  conclusion  alone,  however,  does  not  establish  all  of  the  elements  of  premeditated
               murder. 
                              As  noted  above,  premeditation  involves  the  doing  of  an  act  after  the  exercise  of
               reflection  and  judgment. Tenn.  Code  Ann.  ¤  39-13-202(d)  (Supp.  2001).  ÒPremeditation  involves
               a  previously  formed  design,  or  actual  intention  to  kill.Ó  State  v.  Brown,  836  S.W.2d  530,  539  (Tenn.
               1992)  (quoting  Lewis  v.  State,  40  Tenn.  127,  147-48  (1859))  (emphasis  added  in  Brown).  It  is  the
               process  ÒÔof  thinking  about  a  proposed  killing  before  engaging  in  the  homicidal  conduct.ÕÓ  Id.  at
               541.  Ò[N]o  specific  period  of  time  need  elapse  between  the  defendantÕs  formulation  of  the  design
               to  kill  and  the  execution  of  that  plan  .  .  .  .Ó Id.  at  543. 
                              Our  legislature  has  mandated  that  Ò[t]he  mental  state  of  the  accused  at  the  time  the
               accused  allegedly  decided  to  kill  must  be  carefully  considered  in  order  to  determine  whether  the
               accused  was  sufficiently  free  from  excitement  and  passion  as  to  be  capable  of  premeditation.Ó  Tenn.
               Code  Ann.  ¤  39-13-202(d)  (Supp.  2001)  (emphasis  added).  However,  premeditation  may be
               inferred  from  the  circumstances  surrounding  the  killing.  Brown,  836  S.W.2d  at  541;  State  v.  Gentry,

               881  S.W.2d  1,  3  (Tenn.  Crim.  App.  1993). Facts  which  may  allow  a  jury  to  infer  premeditation
               include:
                              (1)  facts  about  how  and  what  the  defendant  did  prior  to  the  actual
                              killing  which  show  he  was  engaged  in  activity  directed  toward  the
                              killing,  that  is  planning  activity;
                              (2)  facts  about  the  defendantÕs  prior  relationship  and  conduct  with  the
                              victim  from  which  motive  may  be  inferred;  and 



                                                                -6- (3)  facts  about  the  nature  of  the  killing  from  which  it  may  be  inferred
                              that  the  manner  of  the  killing  was  so  particular  and  exacting  that  the
                              defendant  must  have  intentionally  killed  according  to  a  preconceived
                              design.

               State  v.  Bordis,  905  S.W.2d  214,  222  (Tenn.  Crim.  App.  1995). Moreover,  Tennessee  courts  have
               specified  relevant  circumstances  and  considerations:
                              the  use  of  a  deadly  weapon  upon  an  unarmed  victim;  the  particular
                              cruelty  of  the  killing;  declarations  by  the  defendant  of  an  intent  to
                              kill;  evidence  of  procurement  of  a  weapon;  preparations  before  the
                              killing  for  concealment  of  the  crime,  and  calmness  immediately  after
                              the  killing.

               State  v.  Bland,  958  S.W.2d  651,  660  (Tenn.  1997). 
                              In  the  present  case,  the  evidence  shows  that  the  defendant  planned  to  rob  the  victim
               of  the  Camaro,  but  the  record  is  devoid  of  proof  that  the  defendant  planned  to  kill  the  victim.
               Although  the  evidence  showed  that  the  defendant  knew  that  the  victim  possessed  the  Camaro  with
               the  expensive  wheels,  thus  establishing a motive  for  robbery,  there  was  no  proof  of  any  prior
               relationship  between  the  victim  and  the  defendant  that  supplies  a  motive  for  murder.  Although  a  gun
               was  used  upon  an  unarmed  victim,  there  is  no  evidence  that  the  defendant  procured  the  gun  in  order
               to  shoot  the  victim.  Significantly,  except  for  the  fact  that  the  gun  was  close  to  the  victim  when  it  was
               fired  into  his  chest, there  is  no  evidence  about  the  nature  or  circumstances  of  the  actual  killing.
               There  is  no  declaration  of  an  intent  to  kill  the  victim  and  no  indication  whether  there  was  an
               argument  or  struggle  that  might  have  prompted  a  passionate  or  an  accidental  shooting. In  truth,  we
               know  nothing  about  the  defendantÕs  critical  confrontation  with  the  victim.
                              When, as here, Òthere simply is no evidence  in the record that in causing [the
               victimÕs]  death,  [the  defendant]  acted  with  the  premeditation  .  .  .  required  to  establish  first-degree
               murder,Ó  see  Brown,  836  S.W.2d  at  543,  we  must  reverse  the  conviction  for  that  offense,  id.  at  544.
                Of  course,  one  could  speculate  that  the  defendant  formed  a  prior  intent  to  shoot  the  victim  in  order
               to  facilitate  the  theft  of  the  car,  but  a  jury  may  not  engage  in  Òpure  speculationÓ  and  may  not
               Òconstruct  a  theory  based  on  no  evidence  at  all.Ó  State  v.  West,  844  S.W.2d  144,  148  (Tenn.  1992).
               Ò[I]n  the  absence  of  proof  of  .  .  .  premeditation,  an  unlawful  killing  is  presumed  to  be  second  degree
               murder.Ó Id. 

                               Given  the  presumption  in  favor  of  second-degree  murder  and  finding  ample  evidence
               to  support  a  finding  that  the  defendant  knowingly  killed  the  victim,  we  reverse  and  vacate  the  first-degree 
                       murder  conviction  on  count  two  and  impose  in  lieu  thereof  a  conviction  of  second-degree
               murder. Accord  State  v.  Boyd,  909  S.W.2d  50,  55  (Tenn.  Crim.  App.  1995)  (where  stated  failed  to
               offer  any  evidence  of  deliberate  and  premeditated  nature  of  attempted  homicide,  presumption  applied
               that  attempted  unlawful  killing  was  attempted  second-degree  murder);  State  v.  Darnell,  905  S.W.2d



                                                                -7- 953,  961-62  (Tenn.  Crim.  App.  1995)  (premeditated  murder  conviction  modified  to  second-degree
               murder  where stateÕs arguments, although  strong and possibly correct, were not supported by
               quantum  of  proof  necessary  to  sustain  premeditated  first-degree  murder  conviction).  Of  course,  this
               conviction  in  count  two  remains  merged  with  the  first-degree  felony-murder  conviction  in  count  one.
                              In  all  other  respects,  we  affirm  the  actions  of  the  trial  court. 


                                                                     ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                               July  24,  2002  Session

                 STATE  OF  TENNESSEE  v.  JAMES  ALLEN  BAILEY

                    Direct  Appeal  from  the  Circuit  Court  for  Cocke  County
                        Nos.  8394-8399  Ben  W.  Hooper,  II,  Judge


                            No.  E2001-02443-CCA-R3-CD
                                 August  28,  2002

         The  defendant  pled  guilty  to  six  counts  of  arson,  Class  C  felonies,  and  one  count  of  setting  fire  to
         personal  property,  a  Class  E  felony.  The  trial  court  ordered  an  effective  sentence  of  fifteen  years
         incarceration  followed  by  five  years  of  probation.  On  appeal,  the  defendant  argues:  (1)  the  trial  court
         erred  in  conducting  an  independent  investigation  into  pyromania;  (2)  the  length  of  his  individual
         sentences  is  excessive;  (3)  the  trial  court  erred  in  imposing  consecutive  sentencing;  and  (4)  the  trial
         court  improperly  denied  alternative  sentencing.  We  modify  the  defendantÕs  sentences  to  an  effective
         term  of  ten  years  in  the  Department  of  Correction.

          Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgments  of  the  Circuit  Court  Affirmed  in  Part;
                          Reversed  in  Part;  Sentences  Modified

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH,  J.,  joined.  DAVID  H.
         WELLES,  J.,  filed  a  dissenting  opinion. 
         Edward  C.  Miller,  District  Public  Defender  (at  hearing);  and  Susanne  Bales,  Assistant  District  Public
         Defendant  (on  appeal),  for  the  appellant,  James  Allen  Bailey. 
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Elizabeth  B.  Marney,  Assistant  Attorney  General;
         Al  C.  Schmutzer,  Jr.,  District  Attorney  General;  and  Ronald  C.  Newcomb,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee. 


                                   OPINION

             The  defendant  admitted  setting  a  series  of  fires  near  his  home  in  Parrottsville,  Tennessee.
         He  burned  uninhabited  mobile  homes,  a  garage,  and  a  truck,  which  property  belonged  to  various
         neighbors  and  family  friends.  The  defendant  testified  at  sentencing  he  set  the  fires  because  he  was
         ÒaggravatedÓ  with  his  elderly  grandfather.  He  stated  he  knew  the  buildings  were  unoccupied.  He



                                                                -2- indicated  he  felt  better  Òfor  a  little  whileÓ  after  setting  a  fire,  but  would  later  regret  his  actions. He
               said  that  after  he  set  each  fire,  he  would  leave  the  scene  and  return  after  the  fire  department  arrived.
                       At  sentencing,  two  victims  testified  the  fires  had  made  them  fearful,  and  they  did  not  wish
               for the defendant to be released on probation.  Doris Ball, the defendantÕs aunt, testified the
               defendant  received  SSI  payments  due  to  his  mental  limitations. Ball  also  stated  the  defendant
               required  repeated  instructions  to  perform  tasks. 
                       The trial court applied enhancement factors seven (offense involved a victim and was
               committed  to  gratify  the  defendantÕs  desire  for  pleasure  or  excitement)  and  ten  (the  defendant  had
               no  hesitation  about  committing  a  crime  when  the  risk  to  human  life  was  high). Tenn.  Code  Ann.  ¤
               40-35-114(7),  (10). It  also  found  mitigating  factor  eight  (defendant  was  suffering  from  a  mental  or
               physical  condition  that  significantly  reduced  his  culpability)  could  also  apply. Tenn.  Code  Ann.  ¤
               40-35-113(8). In  regard  to  alternative  sentencing,  the  trial  court  stated  the  following:
                       One of the factors to be considered in probation is whether or not he might
                       reasonably  be  expected  to  be  successfully  rehabilitated,  and  as  I  stated  this  morning,
                       I  have  done  quite  a  bit  of  research  on  people  that  may  be  classified  as  pyromaniacs.
                       .  .  .  . 
                       There  is  virtually  no  cure,  no  treatment,  and  that  is  somewhat  sad  when  you  have  just
                       admitted  that  he  probably  suffers  from  a  mental  condition. Some  mental  conditions
                       can  be  treated  but  apparently  success  has  been  very  limited  in  this  area. 

                       The  trial  court  also  found  alternative  sentencing  to  be  inappropriate  because  of  the  need  to
               protect the public from the defendantÕs possible future conduct and to avoid depreciating the
               seriousness  of  the  offenses.  The  trial  court  then  sentenced  the  defendant  to  five  years  for  each  arson
               conviction  and  one  year  for  the  conviction  for  setting  fire  to  personal  property. 
                       Although it is not entirely  clear, it appears the trial court in determining consecutive
               sentencing  concluded  that,  despite  the  lack  of  psychiatric  proof,  the  defendant  was  a  Òdangerous
               mentally  abnormal  person.Ó See  Tenn.  Code  Ann.  ¤  40-35-115(b)(3). It  also  found  the  defendant
               was  a  dangerous  person  who  had  little  or  no  regard  for  human  life;  the  public  needed  to  be  protected;
               and  the  defendantÕs  record  showed  extensive  criminal  activity. See  Tenn.  Code  Ann.  ¤  40-35-
               115(b)(2), (4).  It ordered four of the five-year sentences to be served consecutively with the
               remaining  sentences  to  be  served  concurrently  for  an  effective  20-year  sentence.  However,  it  ordered
               the  defendant  to  spend  the  first  fifteen  years  in  incarceration  with  the  remaining  five  years on
               probation.
                       We  conclude  the  trial  court  made  three  errors  in  sentencing  the  defendant:  (1)  it  considered
               its  own  independent  research  on  pyromania;  (2)  it  improperly  applied  an  enhancement  factor;  and



                                                                -3- (3)  it  improperly  applied  two  consecutive  sentencing  factors. We,  therefore,  review  the  sentences

               de  novo  without  a  presumption  of  correctness. 


                                     I.  TRIAL  COURTÕS  INDEPENDENT  RESEARCH

                       The defendant first argues the trial court erred in conducting independent research of
               pyromania. We  must  agree.
                       A  court  must  restrain  itself  to  consider  only  those  facts  presented  to  it  by  the  parties;  it  may
               not make an independent investigation off the record and base its holding on the resulting
               information. State  v.  Hart,  911  S.W.2d  371,  376  (Tenn.  Crim.  App.  1995);  Jessie  C.  Minor  v.  State
               of  Tennessee,  No.  M2001-00545-CCA-R10-PC,  2001  Tenn.  Crim.  App.  LEXIS  932,  at  *34-35
               (Tenn.  Crim.  App.  Dec.  5,  2001,  at  Nashville). In  this  case,  the  trial  court  stated  it  conducted
               research  on  pyromania. Based  on  this  research,  the  trial  court  essentially  concluded  the  defendant
               was  a  pyromaniac  whose  condition  was  untreatable. Further,  it  is  apparent  from  the  record  that  the
               trial  court  relied  heavily  on  its  research  in  sentencing  the  defendant. We  also  note  the  trial  courtÕs
               statements  regarding  pyromania  did  not  contain  the  kind  of  information  subject  to  judicial  notice.

               See  Tenn.  R.  Evid.  201(b). 
                       The  state  correctly  argues this  courtÕs  review  of  the  lower  courtÕs  sentencing  decision  is  de
               novo  with  a  presumption  that  the  determinations  made  by  the  trial  court  are  correct. Tenn.  Code
               Ann. ¤ 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).  However,  for this
               presumption  to  apply  to  the  trial  courtÕs  actions,  there  must  be  an  affirmative  showing  in  the  record
               that  the  trial  court  considered  proper  sentencing  principles  and  all  relevant  facts  and  circumstances.
               State  v.  Pettus,  986  S.W.2d  540,  543-44  (Tenn.  1999). If  the  trial  court  does  not  comply  with
               statutory  sentencing  provisions,  our  review  of  the  sentence  is  de  novo  with  no  presumption  the  trial
               courtÕs  determinations  are  correct. State  v.  Winfield,  23  S.W.3d  279,  283  (Tenn.  2000).
                       Because  of  the  trial courtÕs  independent  investigation  and  consideration  of  information
               outside  of  the  record,  the  trial  courtÕs  sentence  is  not  entitled  to  a  presumption  of  correctness. 


                                II. THE  LENGTH  OF  THE  DEFENDANTÕS  SENTENCES

                       The  defendant  also  contends  the  length  of  his  sentences  for  the  offenses  is  excessive  because
               the  trial  court  erred  in  applying  enhancement  factors  seven  and  ten. See  Tenn.  Code  Ann.  ¤  40-35-
               114(7),  (10). 
                       As a Range I  standard offender,  the defendant faced three to six years for each arson
               conviction  and  one  to  two  years  for  the  conviction  for  setting  fire  to  personal  property. See  Tenn.
               Code  Ann.  ¤  40-35-112(a)(3),  (5). The  trial  court  applied  enhancement  factors  seven  (offense
               involved  a  victim  and  was  committed  to  gratify  the  defendantÕs  desire  for  pleasure  or  excitement)



                           1  On appeal,  the state  requests that  we apply  enhancement factor six  (the  amount  of  damages  to property
                  sustained  by  the  victim  was  particularly  great). See  Tenn.  Code  Ann.  ¤  40-35-114(6). At  the  sentencing  hearing,  the
                  trial  court  did  not  apply  this  factor. Although  this  court  has  the  authority  to  consider  an  enhancement  factor  not  found
                  by  the  trial  court,  we  are  reluctant  to  do  so  in  this  case  based  upon  the  limited  record  before  us  concerning  the  amount
                  of  damages  suffered  by  the  victims. 

                                                                          -4- and  ten  (the  defendant  had  no  hesitation  about  committing  a  crime  when  the  risk  to  human  life  was
                  high),  and  mitigating  factor  eight  (defendant  was  suffering  from  a  mental  or  physical  condition  that
                  significantly  reduced his culpability).  See  Tenn. Code Ann. ¤¤ 40-35-114(7), (10); -113(8).  It
                  sentenced  the  defendant  to  five  years  for  each  arson  conviction  and  the  minimum  one-year  sentence
                  for  setting  fire  to  personal  property. 
                           Based  on  our  review  of  the  record,  we  conclude  enhancement  factor  seven  applies.  See  Tenn.
                  Code Ann. ¤ 40-35-114(7).  At sentencing, the defendantÕs testimony indicated he relieved his
                  frustrations by committing  the offenses and would return to the scene to watch the fires.  We
                  reasonably  infer  from  the  evidence  that  the  defendant  committed  the  offenses  to  gratify  his  desire
                  for  pleasure  or  excitement  and  give  this  factor  great  weight.
                           However,  enhancement  factor  ten  is  inapplicable  under  the  facts  and  circumstances  of  this
                  case. See  Tenn.  Code  Ann.  ¤  40-35-114(10). We  must  look  to  the  specific  facts  and  circumstances
                  in  an  arson  case  on  a  case-by-case  basis in  order  to  determine  whether  this  factor  applies. State  v.
                  Lewis,  44  S.W.3d  501,  506  (Tenn.  2001). The  proof  showed  the  defendant  targeted  unoccupied
                  buildings.  Further, there was no proof any  of the firefighters who responded to the fires were
                  required  to  enter  the  burning  structures  or  were  otherwise  placed  in  danger,  other  than  that  normally
                  associated  in  extinguishing  a  fire,  as  a  result  of  the  defendantÕs  actions. This  case  is  distinguishable
                  from  Lewis  where  firefighters  actually  entered  and  searched  a  Òfully  involvedÓ  flaming  building.

                  Id. at 506-07.  Therefore, we are unable to conclude the defendant had no hesitation about
                  committing  a  crime  when  the  risk  to  human  life  was  high. See  Tenn.  Code  Ann.  ¤  40-35-114(10).
                           In summary, enhancement factor seven (offense committed for pleasure or excitement)
                  applies and is  entitled  to  great  weight. See  Tenn.  Code  Ann.  ¤  40-35-114(7). The  trial  courtÕs
                  application  of  mitigating  factor  eight  (mental  condition  reducing  culpability)  is  not  challenged. See

                  Tenn.  Code  Ann.  ¤  40-35-113(8). However,  we  give  it  very  little  weight. We  conclude  sentences
                  of  five  years  for  each  arson  and  one  year  for  setting  fire  to  personal  property  are  appropriate. We
                  recognize  this  is  the  same  length  of  the  sentences  determined  by  the  trial  court;  however,  we  reach
                  the  same  result  in  our  de  novo  review  without  the  presumption  of  correctness.1 



                                                    III.  CONSECUTIVE  SENTENCING

                           The  defendant  maintains  the  trial  court  erred  in  ordering  consecutive  sentencing.  We  modify
                  the  consecutive  sentencing  order  of  the  trial  court. 



                           2  As  stated  previously,  it  is  not  entirely  clear  whether  the  trial  court  actually  applied  this  factor.  However,  based
                  upon  our  reading  of  the  transcript,  it  appears  to  us  that  it  did.

                                                                          -5- Generally,  it  is  within  the  discretion  of  the  trial  court  to  impose  consecutive  sentences  if  it
                  finds  by  a  preponderance  of  the  evidence  that  at  least  one  of  following  statutory  criteria  apply: 
                                    ...
                                    (2)  [t]he  defendant  is  an  offender  whose  record  of  criminal  activity  is
                                    extensive; 
                                    (3) [t]he defendant is a dangerous mentally abnormal person so
                                    declared  by  a  competent  psychiatrist  who  concludes  as  a  result  of  an
                                    investigation  prior  to  sentencing  that  the  defendant's  criminal  conduct
                                    has been characterized by a pattern of repetitive or compulsive
                                    behavior  with  heedless  indifference  to  consequences;  [or]
                                    (4)  [t]he  defendant  is  a  dangerous  offender  whose  behavior  indicates
                                    little  or  no  regard  for  human  life,  and  no  hesitation  about  committing
                                    a  crime  in  which  the  risk  to  human  life  is  high; 
                                    ...

                  Tenn.  Code  Ann.  ¤  40-35-115(b). 

                           The  trial  court  found  the  defendant  was  both  a  Òdangerous  mentally  abnormal  personÓ2  and
                  a  Òdangerous  offender  whose  behavior  indicates  little  or  no  regard  for  human  life,  and  no  hesitation
                  about  committing  a  crime  in  which  the  risk  to  human  life  is  high.Ó See  Tenn.  Code  Ann.  ¤  40-35-
                  115(b)(3),  (4). It  also  found  the  defendantÕs  record  of  criminal  activity  was  extensive. Id.  at  (b)(2).
                  It  ordered  four  of  defendantÕs  five-year  sentences  to  be  served  consecutively. 

                           First,  the  consecutive  sentencing  statute  mandates  that  before  a  defendant  may  be  found  to
                  be  Òa  dangerously  mentally  abnormal  person,Ó  a  competent  psychiatrist  must  conclude  that  Òthe
                  defendant's  criminal  conduct  has  been  characterized  by  a  pattern  of  repetitive  or  compulsive  behavior
                  with  heedless  indifference  to  the  consequences.Ó Tenn.  Code  Ann.  ¤  40-35-115(b)(3).  There  was
                  no  such  psychiatric  proof  or  documentation  in  this  case. 

                           Further, as we previously discussed, there is nothing in the record to establish that the
                  defendantÕs  behavior  exhibited  Òlittle  or  no  regard  for  human  life,  and  a  lack  of  hesitation  about
                  committing a crime in which the risk to human life is high.Ó  See Tenn. Code Ann. ¤ 40-35-
                  115(b)(4). The  consecutive  sentencing  statute requires  such  evidence  before  the  defendant  can  be



                                                                -6- declared  a  Òdangerous  offender.Ó Id. Therefore,  the  Òdangerous  offenderÓ  criterion  for  consecutive
               sentences  does  not  apply. 

                       However,  we  conclude  the  proof  supports  the  trial  courtÕs  finding  that  the  defendant  had  an
               extensive  record  of  criminal  activity. While  the  defendantÕs  prior  criminal  history  is  sparse,  the
               record  shows  he  committed  the  instant  seven  felony  offenses  during  separate  incidents  over  a  period
               of  eleven  months. A  court  is  not  limited  to  considering  a  defendantÕs  prior  criminal  history  in
               determining  whether  he  has  an  extensive  record  of  criminal  activity;  it  may  also  consider  the  offenses
               for  which  he  is  being  sentenced. See  State  v.  Cummings,  868  S.W.2d  661,  667  (Tenn.  Crim.  App.
               1992);  State v. Timothy Jason Solomon, E1999-00991-CCA-R3-CD, 2000 Tenn. Crim. App.
               LEXIS  63,  at  *4  (Tenn.  Crim.  App.  Jan.  27,  2000,  at  Knoxville),  perm.  to  app.  denied  (Tenn.  2000).
               The  prior  criminal  record  of  an  offender  may  have  been  good,  but  Òthe  crimes  for  which  he  is  being
               sentenced  may  indicate  criminal  activity  so  extensive  and  continuing  for  such  a  period  of  time  as  to
               warrant  consecutive  sentencing.Ó  Gray  v.  State,  538  S.W.2d  391,  393  (Tenn.  1976);  see  Tenn.  Code
               Ann.  ¤  40-35-115  Sentencing  Commission  Comments  (explaining  that  the  consecutive  sentencing
               statute  essentially  codified  this  Gray  criterion). 

                       We find only one of the consecutive sentencing criteria applies under the facts and
               circumstances  of  this  case. Thus,  we  decide  the  issue  of  consecutive  sentencing  de  novo  without  a
               presumption  of  correctness. We  conclude  a  total  effective  sentence  of  ten  years  is  Òjustly  deserved
               in  relation  to  the  seriousness  of  the  offense[s]Ó  and  Ò[is]  no  greater  than  that  deserved  for  the
               offense[s]  committed.Ó  See  State  v.  Imfeld,  70  S.W.3d  698,  708  (Tenn.  2002)  (citing  Tenn.  Code
               Ann.  ¤¤  40-35-102(1);  -103(2)).  Thus,  the  first  two  five-year  arson  sentences  shall  run  consecutively
               to  each  other;  all  other  sentences  will  run  concurrently  with  each  other  and  the  first  two  arson
               sentences. 



                                             IV.  ALTERNATIVE  SENTENCING


                       The  defendant  argues  that  since  he  is  presumed  to  be  a  favorable  candidate  for  alternative
               sentencing,  the  trial  court  erred  in  not  allowing  him  to  serve  all  of  his  sentences  on  probation. We
               disagree.

                       A  defendant  is  eligible  for  probation  if  the  sentence  is  eight  years  or  less,  subject  to  some
               statutory  exclusions. Tenn.  Code  Ann.  ¤  40-35-303(a). A  defendant  with  a  total  effective  sentence
               in excess of eight years is eligible for probation if the individual sentences imposed for the
               convictions  fall  within  the  probation  eligibility  requirements.  State  v.  Goode,  956  S.W.2d  521,  527
               (Tenn.  Crim.  App.  1997).



                                                                -7- 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  in  the  absence  of  evidence  to  the
               contrary. Tenn.  Code  Ann.  ¤  40-35-102(6). A  trial  court  must  presume  that  a  defendant  sentenced
               to  eight  years  or  less  and  for  whom  incarceration  is  not  a  priority  is  subject  to  alternative  sentencing.
               State  v.  Byrd,  861  S.W.2d  377,  379-80  (Tenn.  Crim.  App.  1993). It  is  further  presumed  that  a
               sentence other than incarceration would result in successful rehabilitation unless rebutted by
               sufficient  evidence  in  the  record. Id.  at  380. 

                       In determining whether to grant or deny probation, a trial court should consider the
               circumstances  of  the  offense,  the  defendant's  criminal  record,  the  defendantÕs  social  history  and
               present  condition,  the  need  for  deterrence,  and  the  best  interest  of  the  defendant  and  the  public.  State
               v.  Grear,  568  S.W.2d  285,  286  (Tenn.  1978);  State  v.  Boyd,  925  S.W.2d  237,  244  (Tenn.  Crim.  App.
               1995). 

                       The trial court denied alternative sentencing, in part, because of the need to avoid
               depreciating  the  seriousness  of  the  offenses  and  to  protect  the  public. The  proof  at  trial  established
               that  the  defendant  set  fire  to  five  separate  structures  and  a  vehicle  over  a  period  of  eleven  months,
               and  that  he  set  fire  to  one  structure  twice. The  proof  further  established  the  defendantÕs  actions
               caused  his  victims  emotional  distress  and  property  loss. We  conclude  that  alternative  sentencing  is
               inconsistent  with  the  seriousness  of  these  offenses  and  is  not  in  the  best  interest  of  the  public  nor  the
               defendant.



                                                        CONCLUSION


                       After  conducting  a  de  novo  review  of  the  defendantÕs  sentences  with  no  presumption  of
               correctness,  we decline  to  modify  the length  of  any  of  the  defendantÕs  individual  sentences  as
               determined  by  the  trial  court;  however,  we  modify  the  judgments of the  trial  court  so  that  the
               defendant  will  serve  his  five-year  sentences  for  case  numbers  8394  and  8395  consecutively  to  each
               other,  and  case  numbers  8396,  8397,  8398,  and  8399  will  run  concurrently  with  each  other  and  with
               case  numbers  8394  and  8395  for  an  effective  sentence  of  ten  years. No  term  of  probation  will
               follow. 

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                               July  24,  2002  Session

                 STATE  OF  TENNESSEE  v.  JAMES  ALLEN  BAILEY

                       Appeal  from  the  Circuit  Court  for  Cocke  County
                        No.  8394-8399  Ben  W.  Hooper,  II,  Judge


                            No.  E2001-02443-CCA-R3-CD
                                 August  28,  2002



         DAVID  H.  WELLES,  J.,  dissenting.


                              DISSENTING  OPINION

             Based  on  my  de  novo  review  of  the  record  in  this  case,  I  am  unable  to  agree  that  the
         imposition  of  consecutive  sentences  is  warranted.  Therefore  I  respectfully  dissent  from  that  portion
         of  the  opinion  which  concludes  that  two  of  the  DefendantÕs  sentences  should  be  served
         consecutively.


             The  presentence  report  reflects  that  at  the  time  of  sentencing  the  Defendant  was  thirty-two
         years  old  and  unmarried.  His  formal  education  ended  in  the  eighth  grade  and  he  has  no  specialized
         training.  His  mental  capacity  is  limited.  He  is  physically  disabled  and  apparently  has  been  disabled
         all  of  his  life.  Because  of  his  disability,  he  has  never  maintained  regular  employment.  He  receives
         an  SSI  disability  check  each  month.



                                                                -2- The  Defendant  has  no  prior  convictions  and  apparently  has  no  prior  arrests. The  Defendant
               reported that he spent some time in jail when a juvenile as a result of theft charges, but the
               presentence  report  does  not  verify  this  information.


                       I  agree  that  a  sentencing  court  may  consider  the  offenses  for  which  a  defendant  is  being
               sentenced  in  determining  whether  the  Defendant  is  an  offender  who  has  an  extensive  record  of
               criminal  activity. The  record  in  this  case  does  not  establish  that  the  Defendant  had  any  record  of
               criminal  activity  prior  to  the  arson  offenses  for  which  he  was  sentenced  herein. The  question  thus
               becomes  whether  the  DefendantÕs  seven  convictions,  for  crimes  committed  within  an  approximate
               eleven-month  period,  are  sufficient  to  establish  a  Òrecord  of  criminal  activityÓ  which  is  extensive.
               I  agree  that  seven  felonies  committed  within  an  eleven-month  period  is  sufficient  to  establish  an
               extensive  record  of  criminal  activity,  although  perhaps  marginally  so.


                       Even though the Defendant qualifies for consecutive sentencing, whether to order the
               sentences to be served consecutively  lies within the discretion of the sentencing court.  Our
               legislature  has  acknowledged  that  the  StateÕs  resources  for  building  and  maintaining  prisons  are
               limited.  See  Tenn.  Code  Ann.  ¤  40-35-102(5).  Our  legislature  has  thus  recognized  that  consecutive
               sentences  are  generally  warranted  for  three  types  of  offenders: (1)  offenders  who  are  dangerous  to
               other  individuals,  (2)  sexual  offenders  who  prey  upon  children  and  (3)  offenders  who  make  their
               living  through  crime  or  have  substantial  criminal  records.



                                                                -3- In determining an appropriate sentence, our legislature has directed that Òthe sentence
               imposed  should  be  the  least  severe  measure  necessary  to  achieve  the  purposes  for  which  the  sentence
               is  imposed.Ó Tenn.  Code  Ann.  ¤  40-35-103(4). In  this  case,  the  Defendant  has  not  heretofore  been
               convicted  of  a  crime. Although  serious,  I  note  that  the  crimes  for  which  he  is  being  sentenced  are
               such  that  he  is  by  law  presumed  to  be  eligible  for  an  alternative  sentence,  in  view  of  his  status  of  a
               standard  offender. Tenn.  Code  Ann.  ¤  40-35-102(6).


                       As  pointed  out  by  Judge  Riley,  our  review  is  de  novo  without  a  presumption  of  correctness.
               Based  upon  my  review  of  the  entire  record  in  this  case,  I  would  order  that  the  DefendantÕs  sentences
               be  served  concurrently.






                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  October  1,  2002

                    STATE  OF  TENNESSEE  v.  DAVID  L.  BAKER

                   Direct  Appeal  from  the  Criminal  Court  for  Putnam  County
                        No.  01-0118  John  J.  Maddux,  Jr.,  Judge


                    No.  M2001-02025-CCA-R3-CD  -  Filed  November  26,  2002


         The  defendant,  David  L.  Baker,  was  convicted  of  driving  under  the  influence,  fourth  offense,  and
         sentenced  to  eleven  months,  twenty-nine  days,  with  210  days  to  be  served  in  the  county  jail  and  the
         balance  on  supervised  probation.  He  was  ordered  to  pay  a  fine  of  $1100  and  to  complete  an  alcohol
         education  safety  program,  and  his  driverÕs  license  was  suspended  for  four  years.  He  timely  appealed,
         presenting  as  the  single  issue  his  claim  that  the  evidence  presented  was  insufficient  to  support  the
         verdict.  Following  our  review,  we  affirm  the  judgment  of  conviction.

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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and 
         JAMES  CURWOOD  WITT,  JR.,  JJ.,  joined.
         David  N.  Brady,  District  Public  Defender,  and  H.  Marshall  Judd,  Assistant  Public  Defender,  for  the
         appellant,  David  L.  Baker.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Peter  M.  Coughlan,  Assistant  Attorney  General;
         William  E.  Gibson,  District  Attorney  General;  and  Gary  S.  McKenzie,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee. 

                                   OPINION

             Officer  Glen  Ramsey  of  the  Cookeville  Police  Department  testified  that  on  October  13,  2000,
         while  on  duty,  he  noticed  a  red  and  white  pickup  truck  make  a  "very  wide  left  turn,"  either  hitting
         the  sidewalk  or  coming  close  to  doing  so.  Officer  Ramsey  pulled  his  vehicle  behind  the  truck  and
         observed  that  it  was  "very  close,  if  not  on,  the  center  line."  After  following  the  truck  for  a  distance,
         Officer  Ramsey  activated  his  blue  lights  to  stop  the  truck,  which  then  made  a  very  wide  right  turn,
         completely  taking  up  the  oncoming  lane.  Officer  Ramsey  continued  to  follow  the  truck  as  it  traveled
         on  for  a  block  and  then  activated  his  siren,  resulting  in  the  truckÕs  stopping  after  it  had  gone  another
         block. With  difficulty,  Officer  Ramsey  got  the  defendant  to  remain  in  the  truck,  asking  for  his



                                                                -2- driverÕs  license  and  registration. He  detected  "a  very  strong  odor  of  alcohol"  or  what  he  believed  to
               be  alcohol  coming  from  the  defendant.
                       Officer  Ramsey  described  the  defendant  as  "very  uncooperative,"  not  doing  anything  asked
               of  him. His  speech  was  "[v]ery  slurred,"  and  he  was  difficult  to  understand. Initially,  he  agreed  to
               perform  field  sobriety  tests  but,  then,  refused,  saying  "if  you  are  going  to  arrest  me,  letÕs  just  go."
                       Inside  the  defendantÕs  truck  was  a  twelve-pack  of  beer,  with  five  cans  missing  and  the  ones
               remaining  "quite  cool." One  half-full  can  was  inside  the  truck. In  Officer  RamseyÕs  opinion,  the
               defendant  was  "drunk."  The  defendant  refused  to  submit  to  a  breathalyzer  test  or  to  sign  the  implied
               consent  form.
                       Officer  Mike  Green  of  the  Cookeville  Police  Department  testified  that  he  was  at  the  scene
               when  the  defendant  was  arrested  and  that,  in  his  opinion,  the  defendant  was  "intoxicated."
                       Following  the  testimony  of  Officer  Green,  the  State  rested  its  case. The  defendant  did  not
               present  any  proof.

                                                           ANALYSIS

                       In  considering  the  sole  issue  on  appeal,  we  apply  the  familiar  rule  that  where  sufficiency  of
               the  convicting  evidence  is  challenged,  the  relevant  question  of  the  reviewing  court  is  "whether,  after
               viewing  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,  99  S.  Ct.  2781,  2789,  61  L.  Ed.  2d  560,  573  (1979);  see  also  State  v.  Evans,  838
               S.W.2d  185,  190-92  (Tenn.  1992);  State  v.  Anderson,  835  S.W.2d  600,  604  (Tenn.  Crim.  App.
               1992);  Tenn.  R.  App.  P.  13(e)  ("Findings  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."). All  questions  involving  the  credibility  of  witnesses,  the  weight  and
               value  to  be  given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact. See  State  v.
               Pappas,  754  S.W.2d  620,  623  (Tenn.  Crim.  App.  1987). "A  guilty  verdict  by  the  jury,  approved  by
               the  trial  judge,  accredits  the  testimony  of  the  witnesses  for  the  State  and  resolves  all  conflicts  in  favor
               of  the  theory  of  the  State." State  v.  Grace,  493  S.W.2d  474,  476  (Tenn.  1973). Our  supreme  court
               stated  the  rationale  for  this  rule:
                                      This  well-settled  rule  rests  on  a  sound  foundation. The  trial
                              judge  and  the  jury  see  the  witnesses  face  to  face,  hear  their  testimony
                              and  observe  their  demeanor  on  the  stand. Thus  the  trial  judge  and
                              jury  are  the  primary  instrumentality  of  justice  to  determine  the  weight
                              and  credibility  to  be  given  to  the  testimony  of  witnesses. In  the  trial
                              forum alone is there human atmosphere and the totality of the
                              evidence  cannot  be  reproduced  with  a  written  record  in  this  Court.



                                                                -3- Bolin  v.  State,  219  Tenn.  4,  11,  405  S.W.2d  768,  771  (1966)  (citing  Carroll  v.  State  ,  212  Tenn.  464,
               370  S.W.2d  523  (1963)). A  jury  conviction  removes  the  presumption  of  innocence  with  which  a
               defendant  is initially 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.  See  State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982).
                       In  this  matter,  the  two  StateÕs  witnesses,  both  officers  with  the  Cookeville  Police  Department,
               testified that, in their opinions, the defendant was intoxicated. By their verdict, the jurors
               demonstrated  that  they  believed  this  testimony. There  is  no  basis  for  our  concluding that  the
               evidence  was  insufficient to  support  the  conviction,  for  there  was  no  proof  to  the  contrary.

                                                        CONCLUSION

                       Based  upon  the  foregoing  authorities  and  reasoning,  we  affirm  the  judgment  of  conviction.



                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



                           1 The  appellant  received  consecutive  sentences  of  eleven  months  and  twenty-nine  days  incarceration  for  the
                  DUI  conviction  and  six  months  incarceration  for  his  driving  on  a  revoked  license  conviction. 

                           2 The  transcript  of  the  trial  for  the  DUI  and  driving  on  a  revoked  license  convictions,  which  would  contain
                                                                                                                         (continued...) IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                 Assigned  on  Briefs  November  28,  2001

                                     STATE  OF  TENNESSEE  v.  RANDALL  P.  BAKER

                                  Appeal  as  of  Right  from  the  Circuit  Court  for  Williamson  County
                                                No.  II-900-288    Timothy  L.  Easter,  Judge


                                          No.  M2001-01603-CCA-R3-CD  -  Filed  March  8,  2002 


                  Pursuant  to  a  bench  trial,  the  appellant,  Randall  P.  Baker,  was  convicted  of  one  count  of  failure  to
                  appear,  a  class  E  felony. The  trial  court  sentenced  the  appellant  as  a  career  offender  to  six  years
                  incarceration. On  appeal,  the  appellant  contests  the  trial  courtÕs  order  mandating  that  his  sentence
                  be  served  consecutively  to  another  sentence  not  yet  served.  Upon review  of  the  record  and  the
                  partiesÕ  briefs,  we  affirm  the  judgment  of  the  trial  court. 

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

                  NORMA  MCGEE  OGLE,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  JERRY
                  L.  SMITH,  JJ.,  joined.
                  Eugene  Honea,  Franklin,  Tennessee,  for  the  appellant,  Randall  P.  Baker.
                  Paul  G.  Summers,  Attorney  General  and  Reporter;  Angele  M.  Gregory,  Assistant  Attorney  General;
                  Ronald L. Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney
                  General,  for  the  appellee,  State  of  Tennessee.

                                                                      OPINION
                                                             I. Factual  Background

                                    On  August  22,  1999,  the  appellant  was  convicted  of  second  offense  driving  under  the
                  influence  (DUI)  and  of  driving  on  a  revoked  licence.1  The  appellant  requested  additional  time  before
                  beginning service of his eighteen month sentence in order  to Òtake  care ofÓ or Òcheck onÓ his
                  daughter.2 The  trial  court  allowed  the  appellant  until  August  25,  2000,  to  report  for  service  of  his



                           2  (...continued)
                  the  precise  language  of  the  request,  is  not  included  in  the  record  for  our  review.

                                                                          -2- sentence. The  appellant  remained  on  bond  in  the  interim. However,  the  appellant  failed  to  report
                  at  the  time  designated  by  the  court. The  appellant  was  discovered,  two  or  three  weeks  later,  and
                  brought  in  to  begin  serving  his  sentence. 
                                    Subsequently,  pursuant  to  a  bench  trial,  the  court  found  the  appellant  guilty  of  failure
                  to  appear,  a  class  E  felony.  See  Tenn.  Code  Ann.  ¤  39-16-609(e)  (1997). At  the  sentencing  hearing,
                  after  reviewing  the  available  evidence,  the  trial  court  sentenced  the  appellant  as  a  career  offender  to
                  six  years  incarceration,  with  sixty  percent  of  the  sentence  to  be  served  in  confinement. The  trial
                  court  further  noted  that  the  appellant  was  an  offender  whose  Òcriminal  history  is  extensiveÓ  and
                  ordered  the  instant  sentence  to  be  served  consecutively  to  the  appellantÕs  eighteen  month  sentence
                  previously  imposed. The  appellant  now  appeals  the  consecutive  nature  of  this  sentence.

                                                                    II. Analysis

                                    Appellate  review  of  the  length,  range,  or  manner  of  service  of  a  sentence  is  de  novo.
                  Tenn.  Code  Ann.  ¤  40-35-401(d)  (1997).  In  conducting  its  de  novo  review,  this  court  considers  the
                  following  factors:  (1)  the  evidence,  if  any,  received  at  the  trial  and  the  sentencing  hearing;  (2)  the
                  presentence  report;  (3)  the  principles  of  sentencing  and  arguments  as  to  sentencing  alternatives;  (4)
                  the  nature  and  characteristics  of  the  criminal  conduct  involved;  (5)  evidence  and  information  offered
                  by  the  parties  on  enhancement  and  mitigating  factors;  (6)  any  statement  by  the  appellant  in  his  own
                  behalf;  and  (7)  the  potential  for  rehabilitation  or  treatment.  Tenn.  Code  Ann.  ¤  40-35-102  and  -103
                  (1997),-210  (2001  Supp.);  see  also  State  v.  Ashby,  823  S.W.2d  166,  168  (Tenn.  1991).  Moreover,
                  we note that, because the record reveals that the trial court adequately considered sentencing
                  principles and all relevant facts and circumstances, this court will accord the trial courtÕs
                  determinations  a  presumption  of  correctness. Tenn.  Code  Ann.  ¤  40-35-401(d);  Ashby,823  S.W.2d
                  at  169. Regardless,  the  burden  is  on  the  appellant  to  demonstrate  the  impropriety  of  his  sentence.
                  Tenn.  Code  Ann.  ¤  40-35-401,  Sentencing  Commission  Comments. 
                                    The  appellant  does  not  contest  the  length  of  his  sentence  or  his  designation  as  a  career
                  offender;  rather,  the  appellant  contends  that  the  trial  court  erred  by  running  his  sentence  for  failure
                  to  appear  consecutively  to  his  previous  eighteen  month  sentence. Tenn.  Code  Ann.  ¤  40-35-115(b)
                  (1997) provides that, if the appellant meets one of the listed criteria, a trial court may, in its
                  discretion,  impose  consecutive  sentences. Moreover,  if  the  trial  court  determines  that  consecutive
                  sentencing  is  appropriate  because  the  appellant  is  a  dangerous  offender,  the  court  must  also  find  that
                  the  sentence  reasonably  relates  to  the  severity  of  the  appellantÕs  offenses  and  that  confinement  is
                  necessary  to  protect  society  from  further  criminal  conduct  by  the  appellant. See  State  v.  Lane,  3
                  S.W.3d  456,  460-61  (Tenn.  1999);  State  v.  Wilkerson,  905  S.W.2d  933,  938  (Tenn.  1995). 



                           3  The  seven  felony  offenses  consist  of  automobile  burglary,  petit  larceny,  second  degree  burglary,  concealing
                  stolen  property,  grand  larceny,  vehicular  assault,  and  reckless  endangerment.

                                                                          -3- In the present case, the trial court imposed consecutive sentencing because the
                  appellant  Òis  an  offender  whose  record  of  criminal  activity  is  extensive.Ó Tenn.  Code  Ann.  ¤  40-35-
                  115(b)(2). Specifically,  the  trial  court  stated  to  the  appellant:
                                    It  makes  me  uneasy  to  think  that  you  would  get  out  any  earlier  than
                                    I  could  absolutely  order  you  to  serve  with  this  record,  which  indicates
                                    a  lot  of  criminal  conduct  involving  drinking  and  driving  and  hurting
                                    people,  vehicular  assault,  reckless  endangerment,  multiple  DUIs. I
                                    donÕt  think  I  could  live  with  myself  if  you  got  out  one  day  early  and
                                    hurt  somebody  else  or  killed  somebody  because  youÕre  drinking  and
                                    driving.
                  A  review  of  the  appellantÕs  presentence  report  clearly  reveals  that  the  appellant  has,  in  addition  to
                  the  seven  prior  felony  offenses  used  to  establish  his  career  offender  status,3  numerous  convictions
                  for  DUI  and  driving  on  a  revoked  license. See  State  v.  Palmer,  10  S.W.3d  638,  649  (Tenn.  Crim.
                  App.  1999);  State  v.  Robbie  R.  Bailey,  No.  E2001-00210-CCA-R3-CD,  2001  Tenn.  Crim.  App.
                  LEXIS  918,  at  *26  (Knoxville,  November  29,  2001). Additionally,  the  presentence  report  notes  that
                  Ò[t]he [appellant] has additional driving offense convictions that are not listed above (he was
                  convicted  of  DUI  8  th  offense  in  1997).Ó See  State  v.  James  Clifford  Wright,  No.  01C01-9811-CC-00476, 
                           1999  Tenn.  Crim.  App.  LEXIS  1121,  at  **7-8  (Nashville,  October  29,  1999);  State  v.  Fred
                  Edmond Dean, No. 03C01-9508-CC-00251, 1997 Tenn. Crim. App. LEXIS 10, at **35-36
                  (Knoxville,  January  10,  1997). We  conclude  that  this  history  is  sufficiently  extensive  to  warrant  the
                  imposition  of  consecutive  sentencing.
                                     Moreover,  we  note  that  the  trial  court  also  had  authority  to  sentence  the  appellant
                  to  consecutive  sentences  under  Tenn.  Code  Ann.  ¤  39-16-609(f)  (1997),  which  statute  provides  that
                  Ò[a]ny  sentence  received  for  [failure  to  appear]  may  be  ordered  to  be  served  consecutively  to  any
                  sentence  received  for  the  offense  for  which  the  defendant  failed  to  appear.Ó See  State  v.  Scotty  Ray
                  Haynes,  No.  01C01-9706-CC-00227,  1998  Tenn.  Crim.  App.  LEXIS  385,  at  *12  (Nashville,  March
                  27,  1998). ÒThus,  upon  a  conviction  for  failure  to  appear,  it  is  left  to  the  discretion  of  the  trial  court
                  whether  to  impose  a  consecutive  sentence  or  a  concurrent  sentence.Ó State  v.  John  David  Rankin,
                  Jr.,  No.  03C01-9511-CC-00369,  1996  Tenn.  Crim.  App.  LEXIS  510,  at  *17  (Knoxville,  August  19,
                  1996). Accordingly,  the  trial  court  could  have,  in  its  discretion,  also  properly  ordered  consecutive
                  sentencing  based  upon  this  statute.

                                                                  III. Conclusion

                                    Based  upon  the  foregoing,  we  affirm  the  judgment  of  the  trial  court. 


                                                                                 ___________________________________ 



                                                                -4-  NORMA  McGEE  OGLE,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                             August  20,  2002  Session

                 STATE  OF  TENNESSEE  v.  GARY  WILLIAM  BALES

                      Appeal  from  the  Circuit  Court  for  Blount  County
                        No.  C-10765  D.  Kelly  Thomas,  Jr.,  Judge


                            No.  E2001-00814-CCA-R3-CD
                                December  16,  2002

         The  defendant,  indicted  for  second  degree  murder,  was  convicted  by  a  jury  of  voluntary
         manslaughter  and  sentenced  to  six  years  in  the  Department  of  Correction.  See  Tenn.  Code  Ann.  ¤
         39-13-211.  In  this  appeal  as  of  right,  the  defendant  challenges  the  length  of  his  sentence,  arguing
         that  the  trial  court  improperly  applied  two  enhancement  factors  and  failed  to  properly  weigh  one
         mitigating  factor.  The  judgment  of  the  trial  court  is  affirmed.

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

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JAMES  CURWOOD  WITT,  JR.,  and
         ROBERT  W.  WEDEMEYER,  JJ.,  joined.
         Joseph  E.  Costner  and  Amy  E.  Burroughs,  Maryville,  Tennessee,  for  the  appellant,  Gary  William
         Bales.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Peter  M.  Coughlan,  Assistant  Attorney  General;
         and  Kirk  E.  Andrews  and  Edward  P.  Bailey,  Jr.,  Assistant  District  Attorneys  General,  for  the
         appellee,  State  of  Tennessee.

                                   OPINION

             On  August  11,  1997,  the  defendant  struck  the  victim,  Ray  Brewer,  on  the  head  with  a  cinder
         block.  Afterwards,  the  defendant  telephoned  911  and  reported  to  the  dispatcher  that  he  had  injured
         the  victim,  who  had  repeatedly  made  sexual  comments  about  a  14-year-old  female  acquaintance.
         When  the  authorities  arrived,  the  victim,  whose  skull  was  partially  crushed,  was  still  alive  but
         appeared  to  be  choking  on  blood.  Later,  he  died.  When  questioned,  the  defendant  admitted  the
         altercation,  explaining  that  he  was  offended  by  the  victimÕs  comments  about  the  female
         acquaintance.  The  defendant  acknowledged  that  he  struck  the  victim  first,  but  claimed  self-defense
         because  the  victim  was  acting  in  a  threatening  manner.



                                                                -2- Dr.  Robert  Sadoff  testified  that  the  defendant  suffered  from  a  diminished  mental  capacity
               characterized  by  both  schizophrenia,  including  auditory  and  visual  delusions  and  hallucinations,  and
               post-traumatic  stress  disorder. The  defendant,  who  had  been  forcibly  institutionalized  in  1995,
               reported  to  Dr.  Sadoff  that  he  was  sexually  abused  by  a  babysitter  when  he  was  approximately  five
               or  six  years  old.  Dr.  Sadoff  also  recalled  that  when  the  defendant  was  sixteen  or  seventeen  years  old,
               he  was  assaulted  and  sodomized  by  four  men. According  to  Dr.  Sadoff,  the  defendant  insisted  that
               the  men  pushed  a  wire  in  one  of  his  ears  and  out  the  other  and  left  a  drill  bit  in  his  rectum  that  he
               believed  was  still  there. Dr.  Diana  McCoy  described  the  defendant  as  mildly  mentally  retarded  and
               schizophrenic.  It  was  also  her  opinion  that  the  defendant  suffered  from  post-traumatic  stress  disorder
               as  a  result  of  the  rapes.
                       In  rebuttal,  the state  offered  the  testimony  of  Dr.  Rokeya  Farooque,  who  evaluated  the
               defendant at the Middle Tennessee Mental Health Institute.  According to Dr. Farooque, the
               defendant  had  a  history  of  substance  abuse. She  believed  that  a  diagnosis  of  post-traumatic  stress
               disorder  was  erroneous  because  the  defendant  did  not  exhibit  all  of  the  clinical  symptoms. It  was
               her  opinion  that  the  defendant,  who  reported  neither  flashbacks  nor  the  hearing  of  voices  at  the  time
               of  his  attack  upon  the  victim,  was  not  in  a  disassociative  state  at  the  time  of  the  offense. Samuel
               Craddock,  a  psychologist  at  the  Tennessee  Mental  Health  Institute,  testified  that  the  defendant  indeed
               suffered  from  schizophrenia,  but  was  nevertheless  able  to  recognize  the  wrongfulness  of  his  actions.
                       The  jury  convicted  the  defendant  of  voluntary  manslaughter. After  a  hearing,  the  trial  court
               found  two  enhancement  factors  to  be  applicable:  (1)  that  the  defendant  has  a  previous  history  of
               criminal  convictions  or  criminal  behavior  in  addition  to  those  necessary  to  establish  the  appropriate
               range;  and  (4)  that  the  victim  of  the  offense  was  particularly  vulnerable  because  of  age  or  physical
               or  mental  disability. See  Tenn.  Code  Ann. ¤ 40-35-114(1),  (4). In  mitigation,  the  trial  court
               considered  the  defendantÕs  Òmental  disease,Ó  see  40-35-113(8),  but  determined  that  it  did  not  justify
               a  downward  adjustment  of  the  defendantÕs  sentence,  which  was  set  at  the  Range  I  maximum  of  six
               years. See  Tenn.  Code  Ann.  ¤¤  39-13-211(b)  (classifying  voluntary  manslaughter  as  a  Class  C
               felony),  40-35-112(a)(3)  (setting  a  Range  I  Class  C  felony  sentence  at  three  to  six  years).
                       When  there  is  a  challenge  to  the  length,  range,  or  manner  of  service  of  a  sentence,  it  is  the
               duty  of  this  court  to  conduct  a  de  novo  review  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);  see  State  v.
               Jones, 883 S.W.2d 597, 600 (Tenn. 1994).  "If the trial court applies inappropriate factors or
               otherwise  fails  to  follow  the  1989  Sentencing  Act,  the  presumption  of  correctness  falls." State  v.
               Shelton,  854  S.W.2d  116,  123  (Tenn.  Crim.  App.  1992). The  Sentencing  Commission  Comments
               provide  that  the  burden  is  on  the  defendant  to  show  the  impropriety  of  the  sentence. Tenn.  Code
               Ann.  ¤  40-35-401,  Sentencing  Commission  Comments.
                       Our  review  requires  an  analysis  of  (1)  the  evidence,  if  any,  received  at  the  trial  and  sentencing
               hearing;  (2)  the  presentence  report;  (3)  the  principles  of  sentencing  and  the  arguments  of  counsel



                                                                -3- relative  to  sentencing  alternatives;  (4)  the  nature  and  characteristics  of  the  offense;  (5)  any  mitigating
               or  enhancing  factors;  (6)  any  statements  made  by  the  defendant  in  his  own  behalf;  and  (7)  the
               defendant's  potential  for  rehabilitation  or  treatment. Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;
               State  v.  Smith,  735  S.W.2d  859,  863  (Tenn.  Crim.  App.  1987).
                       In  calculating  the  sentence  for  a  Class  B,  C,  D,  or  E  felony  conviction,  the  presumptive
               sentence  is  the  minimum  in  the  range  if  there  are  no  enhancement  or  mitigating  factors.  Tenn.  Code
               Ann.  ¤  40-35-210(c). If  there  are  enhancement  but  no  mitigating  factors,  the  trial  court  may  set  the
               sentence  above  the  minimum,  but  still  within  the  range. Tenn.  Code  Ann.  ¤  40-35-210(d). A
               sentence  involving  both  enhancement  and  mitigating  factors  requires  an  assignment  of  relative
               weight  for  the  enhancement  factors  as  a  means  of  increasing  the  sentence.  Tenn.  Code  Ann.  ¤  40-35-
               210(e).  The  sentence  must  then  be  reduced  within  the  range  by  any  weight  assigned  to  the  mitigating
               factors  present. Id.
                       Initially,  the  defendant  contests  the  application  of  enhancement  factor  (1),  that  he  has  a
               history  of  criminal  convictions  or  criminal  behavior  in  addition  to  those  necessary  to  establish  the
               appropriate  range.  See  Tenn.  Code  Ann.  ¤  40-35-114(1). He  argues  that  the  trial  court  erroneously
               considered  charges  of  attempted  escape  and  assault  for  which  no  evidence  was  introduced  at  either
               trial  or  sentencing. The  state  contends  that  because  the  record  is  inadequate  for  review,  the  trial
               courtÕs  application  of  the  enhancement  factor  was  presumptively  correct.  The  state  also  asserts  that
               the  defendantÕs  prior  use  of  illegal  drugs  supports  application  of  the  factor.
                       In  determining  the  applicability  of  enhancement  factor  (1),  a  trial  court  must  look  to  Ònot  only
               the  defendantÕs  prior  conviction  record  .  .  .  but  also  any  other  criminal  misconduct,  regardless  of
               whether  it  resulted  in  arrest,  indictment,  or  conviction.Ó State  v.  Massey,  757  S.W.2d  350,  352
               (Tenn.  1988). Such  criminal  misconduct  must  be  shown  by  a  preponderance  of  the  evidence.  State
               v.  Carico,  968  S.W.2d  280,  287  (Tenn.  1998). ÒAn  arrest  or  charge  is  not  considered  evidence  of
               the  commission  of  a  crime. A  trial  court  should  not  use  evidence  merely  showing  arrests,  without
               more,  to  enhance  a  sentence.Ó State  v.  Marshall,  870  S.W.2d  532,  542  (Tenn.  Crim.  App.  1993)
               (emphasis  added)  (citations  omitted);  see  also  State  v.  Buckmeir,  902  S.W.2d  418,  424  (Tenn.  Crim.
               App.  1995)  (holding  that  trial  court  erroneously  applied  enhancement  factor  (1)  where  there  was  Òno
               evidence  in  the  record  that  the[]  charges  against  the  defendant  were  anything  more  than  chargesÓ).
                       In  this  case,  the  presentence  report  indicates  that  at  the  time  of  sentencing,  four  counts  of
               aggravated  assault  were  pending  against  the  defendant  in  Davidson  County.  The  charges  arose  while
               the  defendant  was  at  a  Department  of  Correction  special  needs  facility. The  report  includes  no
               further information.  Other information in the record indicates that the incident involved an
               attempted  escape  and  an  assault  on  facility  staff. In  applying  enhancement  factor  (1),  the  trial  judge
               ruled  as  follows:
                       I  think  I  am  to  consider  the  [d]efendant  as  he  sits  before  me  today,  regarding  criminal
                       history  and  criminal  behavior,  which  means  that  things  that  happened  after  this  event
                       can  be  considered. And  that  includes  the  Ð  some  type  of  assaultive  and  violent



                                                                -4- behavior  against  an  inmate  here  in  the  jail  and  personnel  at  the  hospital  in  Middle
                       Tennessee  that  Ð  IÕm  not  going  [to]  recount  all  that  proof  because  that  was  subject  to
                       hearings  that  we  had  during  the  course  of  the  trial  and  ruling  on  the  evidentiary
                       hearings. The  grade  of  criminal  behavior,  I  donÕt  know. But  from  the  facts  that  I
                       heard,  it  certainly  was,  in  my  opinion,  as  it  relates  to  this  sentencing.
                              The  other  is  Ð  and  I  weighed  that  very  heavily.  Because  those  are  violent  acts.
                       And  we  are  here  today  sentencing  for  a  very  violent  act.
               (Emphasis  added.)
                       In  our  view,  those  comments  establish  that  the  trial  court  did  not  rely  solely  on  the  existence
               of  the  assault  charges  against  the  defendant  to  support  the  application  of  enhancement  factor  (1).
               The  record  suggests  that  the  trial  court  considered  the  facts  and  circumstances  underlying  the  charges
               and  determined  that  they  constituted  prior  criminal  behavior  on  the  part  of  the  defendant. Although
               the  state  did  not  present  such  evidence  at  the  sentencing  hearing,  it  had  been  introduced  during  the
               course  of  other  hearings  which  occurred  either  before  the  trial  or  before  the  imposition  of  sentence.
               The  trial  judge  declined  to  recite  the  details  of  the  evidence  and  defense  counsel  made  no  objection
               or  request  for  clarification. The  other  hearings  were  neither  recorded  nor  transcribed  and,  as  such,
               are  not  part  of  the  record. The  defendant  chose  not  to  file  a  statement  of  the  evidence. See  Tenn.
               R.  App.  P.  24(c).
                       When  critical  portions  of  the  record  are  omitted,  this  court  must  presume  that  the  decision
               of  the  trial  court  was  correct. State  v.  Keen,  996  S.W.2d  842  (Tenn.  Crim.  App.  1999);  State  v.
               Oody,  823  S.W.2d  554,  559  (Tenn.  Crim.  App.  1991). Because  it  is  the  duty  of  the  appellant  to
               supply  an  adequate  record  for  a  determination  on  the  merits,  we  cannot,  under  these  circumstances,
               ascribe  error  to  the  trial  court. See  Tenn.  R.  App.  P.  24;  State  v.  Coolidge,  915  S.W.2d  820,  826
               (Tenn.  Crim. App. 1995), overruled on other grounds by  State v. Troutman, 979 S.W.2d 271
               (Tenn.1998). Furthermore,  other  factors  in  the  record  are  sufficient  to  support  the  application  of
               enhancement  factor (1).  The presentence  report reflects that the  defendant was convicted for
               underage  drinking  in  1996. He  admitted  previous  use  of  illegal  drugs,  including  extensive  use  of
               marijuana. In  our  view,  enhancement  factor  (1)  was  properly  applied.
                       Next,  the  defendant  contends  that  the  trial  court  erred  by  applying  enhancement  factor  (4),
               that  the  victim  of  the  offense  was  particularly  vulnerable  because  of  age  or  physical  or  mental
               disability. See  Tenn.  Code  Ann.  ¤  40-35-114(1). He  argues  that  the  state  failed  to  prove  any
               particular  vulnerability  on  the  part  of  the  victim  or  that  the  victim  was  unable  to  resist  as  a  result
               thereof. The  state  maintains  that  the  evidence  of  the  victimÕs  mental  disability  was  sufficient,  but
               it  concedes  that  the  record  does  not  support  a  finding  that  it  caused  the  victim  to  be  particularly
               vulnerable  to  the  defendantÕs  attack.
                       The  state  bears  the  burden  of  proving  that  a  victim  is  particularly  vulnerable. State  v.  Poole,
               945  S.W.2d  93  (Tenn.  1997);  State  v.  Adams,  864  S.W.2d  31  (Tenn.  1993). In  State  v.  Hayes,  899



                                                                -5- S.W.2d  175,  185  (Tenn.  Crim.  App.  1995),  this  court  ruled  that  evidence  that  the  victim  was  unable
               to resist, unable  to summon help, or unable to testify  against the perpetrator, would indicate
               particular  vulnerability. Findings  of  fact  made  in  the  trial  court  are  conclusive  on  this  court  unless
               the  evidence  preponderates  otherwise. Graves  v.  State,  512  S.W.2d  603,  604  (Tenn.  Crim.  App.
               1973).
                       At  the  sentencing  hearing,  the  victimÕs  sister-in-law,  Brenda  Brewer,  testified  as  follows
               regarding  the  victimÕs  mental  status:
                       [The  victim]  was  in  an  automobile  accident  when  he  was  just  a  young  boy,  about
                       fifteen  years  old. And  it  mentally  .  .  .  done  something  to  him. Because  he  was  in  a
                       coma  for  six  months,  .  .  .  . And  he  was  .  .  .  like  a  child.  I  mean,  he  was  a  grown  man,
                       but  he  was  .  .  .  still  like  a  child  in  so  many  ways.
               Ms.  Brewer  also  stated  that  the  victim was  unable  to  keep  a  job  because  of  his  Òmind.Ó She
               acknowledged  that  she  had  not  known  the  victim  prior  to  the  automobile  accident.
                       In  applying  enhancement  factor  (4),  the  trial  court  made  the  following  findings:
                              Also,  the  mental  condition  of  the  victim,  I  did  consider  that.  From  the  proof,
                       he  is  a  man  that  has  been  disabled  because  of  .  .  .  the  mental  impact  of  a  serious
                       wreck.  HeÕs  been  disabled  all  of  his  life. And  was  described  by  a  family  member  as
                       having  more  of  a  childlike  mentality,  which  would  impact  his  ability  to  appreciate
                       what  was  going  on  and  react  like  a  normal  person  would  under  the  circumstances.
                       In  our  view,  the  record  does  not  support  the  application  of  the  enhancement  factor. That  the
               victim  was  Òlike  a  child  in  so  many  waysÓ  provides  little,  if  any,  insight  into  the  victimÕs  degree  of
               vulnerability  and  falls  short  of  establishing  the  existence  of  a  mental  disability. Moreover,  there  is
               no  evidence  to  suggest  that  the  victimÕs  mental  status  would  have  rendered  him  unable  to  resist,
               unable  to  summon  help,  or  unable  to  testify  against  the  defendant. The  application  of  enhancement
               factor  (4)  was  erroneous.
                       In  this  appeal,  the  state  urges  this  court  to  apply  enhancement  factor  (9),  that  the  defendant
               possessed  or  employed  a  deadly  weapon  during  the  commission  of  the  offense. See  Tenn.  Code
               Ann.  ¤  40-35-114(9). This  court  may  apply  an  enhancement  factor  not  found  by  the  trial  court  if  it
               is  appropriate  for  the  offense  and  established  in  the  record. State  v.  Winfield,  23  S.W.3d  279,  283-
               84  (Tenn.  2000). Here,  the  trial  court  found  that  a  deadly  weapon  was  used  during  the  commission
               of  the  offense,  but  it  declined  to  apply  the  enhancement  factor  because  it  was  an  element  of  the
               offense.  Use of a deadly weapon is not, however, an element of the offense of voluntary
               manslaughter. See  Tenn.  Code  Ann.  ¤  39-13-211(a);  State  v.  Shaun  Michael  Fleegle,  No.  E2000-
               02045-CCA-R3-CD  (Tenn.  Crim.  App.,  at  Knoxville,  Jan.  22,  2002).  Thus,  enhancement  factor  (9)
               is  applicable  and  therefore  entitled  to  some  weight. Several  photographs  appearing  in  the  record
               reveal  that  the  damage  inflicted  upon  the  victim  was  considerable.



                                                                -6- Finally,  the  defendant  argues  that  the  trial  court  erroneously  failed  to  give  sufficient  weight
               to  his  diminished  mental  capacity  as  a  mitigating  factor. See  Tenn.  Code  Ann.  ¤  40-35-113(8)
               (Ò[t]he defendant was suffering from a mental . . . condition that significantly reduced the
               defendantÕs  culpability  for  the  offenseÓ). In  applying  the  factor,  the  trial  court  observed  as  follows:
                              In  mitigation,  I  did  consider  [the  defendantÕs]  mental  disease.  I  think  that  was
                       considered  very  heavily  by  the  [j]ury  in  deciding  whether  or  not  he  was  guilty  of
                       second  degree  murder  .  .  .  .  I  did  not  weigh  that  very  heavily  as  it  relates  to  voluntary
                       manslaughter,  because  of  the  facts  of  this  case. And  I  think  that  thatÕs  already  been
                       given quite a bit of weight.  And IÕm not meaning to intimate that that wasnÕt
                       justified.  ThatÕs  what  happened  and  I  think  that  has  already  been  considered,  as  well.
                       But  I  did  consider  it  here  because  his  mental  condition  would  [a]ffect  what  would
                       provoke  him  as  opposed  to  what  would  provoke  another  person,  .  .  .  so  I  did  consider
                       that  slightly,  but  not  enough  to  reduce  the  sentence  down  below  the  six  years.
                       As  long  as  the  trial  court  complies  with  the  purposes  and  principles  of  the  sentencing  act  and
               its  findings  are  supported  by  the  record,  the  weight  given  each  enhancement  and  mitigating  factor
               is  discretionary.  Tenn.  Code  Ann.  ¤  40-35-210,  Sentencing  Commission  Comments;  State  v.  Moss,
               727  S.W.2d  229,  238  (Tenn.  1986);  State  v.  Kelley,  34  S.W.3d  471,  479  (Tenn.  Crim.  App.  2000).
               That  the  jury  convicted  the  defendant  of  the  lesser  included  offense  of  voluntary  manslaughter  rather
               than  second  degree  murder  suggests  that  the  jury  considered  the  defendantÕs  diminished  mental
               capacity. That  the  trial  court  chose  not  to  further  mitigate  the  gravity  of  the  crime  by  imposing  a
               lesser  sentence  based  solely  upon  that  factor  was  not  erroneous.
                       In  summary,  the  trial  court  properly  found  and  weighted  enhancement  factor  (1),  that  the
               defendant  has  a  prior  history  of  criminal  convictions  or  behavior. Enhancement  factor  (4),  that  the
               victim  was  particularly  vulnerable,  should  not  have  been  applied. Enhancement  factor  (9),  that  the
               defendant employed a deadly weapon, is appropriate and is entitled to considerable weight.
               Mitigating  factor  (8),  that  the  defendant  was  suffering  from  a  culpability-reducing  mental  condition,
               is  applicable,  but  was  afforded  little  weight  by  the  trial  court.
                       Voluntary  manslaughter  is  a  Class  C  felony  bearing  a  sentence  of  three  to  six  years  for  Range
               I offenders.  See Tenn. Code Ann. ¤¤ 39-13-211(b), 40-35-112(a)(3).  The two applicable
               enhancement factors, both entitled to great weight, justify a three-year increase above the
               presumptive  minimum  to  the  six-year  maximum.  It  was  not  erroneous  for  the  trial  court  to  recognize
               the  diminished  capacity  of  the  defendant  as  a  mitigating  factor  without  a  corresponding  reduction
               in sentence.  Although the trial court misapplied an enhancement factor, the sentence was
               appropriate.
                       Accordingly,  the  judgment  of  the  trial  court  is  affirmed.



                                                                -7-  ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  August  6,  2002

                   STATE  OF  TENNESSEE  v.  CALVIN  T.  BARHAM

                    Direct  Appeal  from  the  Circuit  Court  for  Chester  County
                           No.  99-027  Roger  A.  Page,  Judge


                    No.  W2002-00246-CCA-R3-CD  -  Filed  November  19,  2002


         Defendant  pled  guilty  to  possession  of  cocaine  with  intent  to  sell,  a  Class  C  felony.  DefendantÕs
         motion  to  suppress  evidence  was  denied  by  the  trial  court.  Defendant  claimed  that  evidence  found
         on  him  was  the  result  of  an  illegal  search  and  should  have  been  suppressed.  The  suppression  issue
         was  certified  for  review.  We  affirm  the  trial  court  and  hold  the  evidence  was  properly  admissible.

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

         JOHN  EVERETT  WILLIAMS,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
         THOMAS  T.  WOODALL,  JJ.,  joined.
         George  Morton  Googe,  District  Public  Defender,  and  Vanessa  D.  King,  Assistant  Public  Defender,
         for  the  appellant,  Calvin  T.  Barham.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Angele  M.  Gregory,  Assistant  Attorney  General;
         James  G.  (Jerry)  Woodall,  District  Attorney  General;  and  Shaun  A.  Brown,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION
                                     Facts

            A  Henderson  police  officer  made  a  night  traffic  stop  of  a  car  in  which  defendant,  Calvin  T.
         Barham,  was  a  passenger.  The  stop  was  made  due  to  a  defective  tail  light.  After  being  pulled  over,
         the  driver  of  the  car  exited  and  walked  to  the  officerÕs  patrol  car,  where  the  driver  was  issued  a
         verbal  warning  for  the  defective  light.  After  noticing  some  ÒnervousÓ  movements  by  the  passengers
         in  the  car,  the  officer  asked  the  driver  for  his  consent  to  search  the  car.  The  driver  consented.  The
         officer  then  conducted  a  pat-down  of  the  remaining  passengers  as  they  exited  the  car.  At  this  time,
         no  contraband  was  found  on  the  passengers  or  in  the  car.  As  the  passengers  returned  to  the  car,  the
         officer  noticed  defendantÕs  shoe  was  untied,  which  led  the  officer  to  believe  defendant  could  have



                           1  A  best  interest  guilty  plea,  otherwise  known  as  an  ÒAlford  Plea,Ó  North  Carolina  v.  Alford,  400  U.S.  25,  91
                  S.  Ct.  160,  27  L.  Ed.  2d  162  (1970),  allows  a  defendant  to  plead  guilty  while  maintaining  innocence  if  he  deems  the
                  evidence  is  such  that  a  guilty  plea  may  be  the  best  option. Such  pleas  are  specifically  accepted  in  Tennessee,  Dortch  v.
                  State,  705  S.W.2d  687,  688  (Tenn.  Crim.  App.  1985).

                                                                          -2- contraband  in  his  shoe. The  officer  asked  defendant  if  he  had  anything  in  his  shoe,  and  defendant
                  stated  he  did  not. The  officer  then  asked  defendant,  ÒWell,  do  you  want  to  take  your  shoe  off?Ó,  and
                  defendant  immediately  kicked  off  his  shoes,  revealing  two  small  packages  containing  marijuana  and
                  two  small  bags  containing  cocaine. The  officer  then  placed  defendant  under  arrest.
                           Defendant was indicted for felonious possession of cocaine, Tenn. Code Ann. ¤ 39-17-
                  417(a)(4).  His  motion  to  suppress  the  evidence  found  on  him  as  the  result  of  an  illegal  search  was
                  denied. He  subsequently  entered  a  best-interest  1  guilty  plea,  certifying  a  question  of  law  as  to  the
                  denial  of  his  motion  to  suppress. This  Court  dismissed  his  appeal  for  failure  to  properly  certify  the
                  question,  and  our  supreme  court  denied  his  application  to  appeal. See  State  v.  Barham,  No.  W2000-
                  00871-CCA-R3-CD,  2001  Tenn.  Crim.  App.  LEXIS  368,  (May  15,  2001,  at Jackson),  perm. to
                  appeal  denied  (Tenn.  Oct.  29,  2001). Defendant  then  filed  for  post-conviction  relief,  which  was
                  granted  by  the  trial  court,  as  the  trial  court  concluded  his  guilty  plea  had  not  been  made  knowingly,
                  willfully  or  voluntarily. Defendant  then  re-entered  his  guilty  plea  and  made  a  proper  certification
                  of  the  following  question  for  this  appeal:
                           [W]hether  law  enforcement  seized  the  defendant  in  violation  of  his  constitutional
                           rights  without  having  a  reasonable  suspicion  supported  by  specific  and  articulable
                           facts  to  stop  the  defendant,  whether  the  frisk  complied  with  Terry  v.  Ohio,  392  U.S.
                           1  (1968),  and  whether  the  consent  search  was  voluntary...

                                                          Motion  to  Suppress  Hearing

                           The  arresting  officer  testified  at  the  original  suppression  hearing  that  he  stopped  the  car  in
                  question  due  to  a  defective  brake  light. He  indicated  the  driver  appeared  nervous  as  he  walked  from
                  the  car  towards  the  officer. Seeing  movement  in  the  car,  the  officer  asked  and  was  given  consent
                  from  the  driver  to  search  the  car. Subsequently,  the  passengers  exited  the  car  and  were  frisked  by
                  the  officer. The  officer  indicated  he  found  no  contraband  during  the  frisks  of  the  passengers  nor  did
                  he find any  contraband in the car.  He indicated that after the search, as the passengers were
                  preparing  to  leave,  he  noticed  defendantÕs  shoe  was  untied.  With  the  movement  in  the  car,  this  drew
                  his  attention  as  he  perceived  it  as  unusual. He  testified  that,  from  his  training  and  experience,  a  shoe
                  was  a  common  hiding  place  for  contraband. He  stated  that  he  then  asked  if  defendant  had  anything
                  in  his  shoe,  and  defendant  answered  that  he  did  not. The  officer  then  said  to  defendant,  ÒWell,  do
                  you  want  to  take  your  shoe  off?Ó,  at  which  time  he  said  defendant  kicked  off  both  his  shoes,  and
                  drugs  fell  from  the  shoes  onto  the  street. The  officer  testified  he  found  two  small  brown  Òpaper-towelÓ- 
                           like  bags  and  two  smaller  cellophane  bags,  which  lab  tests  later  confirmed  to  be  marijuana
                  and  cocaine. He  said  he  then  arrested  defendant. The  officer  further  stated  there  were  three  other
                  officers  at  the  scene  and  that  at  least  one  of  them  witnessed  the  drug  recovery. 



                                                                -3- On  cross-examination,  the  arresting  officer  admitted  he  initiated  the  traffic  stop  due  to  the
               defective  tail  light  and  that  the  presence  of  the  other  officers  at  the  scene  was  a  safety  precaution.  He
               had  not  specifically  called  them. He  stated  he  had  received  consent  from  the  driver  to  search  the
               vehicle,  but  he  had  not  received  consent  from  the  passengers  for  the  searches  upon  them. He
               admitted  to  finding  nothing  during  the  original  pat-down  of  the  passengers. The  officer  stated  that
               defendant  voluntarily  removed  his  shoes  in  response  to  the  statement, ÒWell,  do  you  want  to  take
               your  shoe  off?Ó
                       In  sum,  defendant argues  that  the  evidence  found  as  a  result  of  the  removal  of  his  shoes  was
               the  result  of  an  involuntary  search. He  contends  the  removal  of  the  shoe  was  coerced,  based  on  the
               totality  of  the  circumstances  as  they  existed  the  night  of  the  traffic  stop.
                       The  trial  court  found  there  had  been  articulable  facts  given,  rising  to  a  reasonable  suspicion,
               to  allow  the  initial  stop. It  determined  the  question  to  be  whether  defendantÕs  removal  of  his  shoes
               was  voluntary.  Based  on  the  testimony  heard  at  the  suppression  hearing,  accompanied  with  weighing
               the  credibility  of  the  witnesses,  the  trial  court  found  defendant  voluntarily  removed  his  shoes  and,
               therefore,  denied  the  motion  to  suppress.

                                                      Standard  of  Review

                       Unless  the  evidence  contained  in  the  record  preponderates  against  them,  the  findings  of  fact
               made  by  the  trial  court  at  the  hearing  on  a  motion  to  suppress  are  binding  upon  this  Court. State  v.
               Ross,  49  S.W.3d  833,  839  (Tenn.  2001). The  trial  court,  as  the  trier  of  fact,  is  able  to  assess  the
               credibility  of  the  witnesses,  determine  the  weight  and  value  to  be  afforded  the  evidence,  and  resolve
               any  conflicts  in  the  evidence.  State  v.  Odom,  928  S.W.2d  18,  23  (Tenn.  1996).  However,  this  Court
               is  not  bound  by  the  trial  courtÕs  conclusions  of  law. State  v.  Simpson,  968  S.W.2d  776,  779  (Tenn.
               1998). The  application  of  the  law  to  the  facts  found  by  the  trial  court  is  a  question  of  law  that  this
               Court  reviews  de  novo. State  v.  Daniel,  12  S.W.3d  420,  423  (Tenn.  2000). Defendant  has  the
               burden  of  establishing  that  the  evidence  contained  in  the  record  preponderates  against  the  findings
               of  fact  made  by  the  trial  court. Braziel  v.  State,  529  S.W.2d  501,  506  (Tenn.  Crim.  App.  1975).
                       A warrantless search is presumed unreasonable under both the federal and Tennessee
               constitutions,  and  evidence  seized  from  the  warrantless  search  is  subject  to  suppression  unless  the
               State  demonstrates  by  a  preponderance  of  the  evidence  that  the  search  was  Òconducted  pursuant  to
               one  of  the  narrowly  defined  exceptions  to  the  warrant  requirement.Ó Simpson,  968  S.W.2d  at  780,
               (Tenn.  1998); see  Coolidge  v.  New  Hampshire,  403  U.S.  443,  454-55,  91  S.  Ct.  2022,  2032,  29  L.
               Ed.2d  564,  576  (1971). Consent  to  a  search  is  a  well  founded  exception  to  the  need  for  a  warrant.
               See  infra  p.  7.
                       A  policeman  may  make  an  investigatory  stop  when  the  officer  has  a  reasonable  suspicion,
               supported  by  articulable  and  specific  facts,  that  a  criminal  offense  has  been,  or  is  about  to  be,
               committed. Terry  v.  Ohio,  392  U.S.  1,  21,  88  S.  Ct.  1868,  1880,  20  L.  Ed.  2d  889,  906  (1968);  see
               also  United  States  v.  Arvizu,  534  U.S.  266,  272,  122  S.  Ct.  744,  750,  151  L.  E.  2d  740,  749  (2002);



                                                                -4- Simpson,  968  S.W.2d  at  780. For  a  court  to  determine  whether  a  policemanÕs  reasonable  suspicion
               is supported by articulable and specific facts, the court must consider the totality of the
               circumstances. Arvizu,  534  U.S.  at  272,  122  S.  Ct.  at  750;  Simpson,  968  S.W.2d  at  783. This
               inquiry  includes  such  factors  as  objective  observations,  information  obtained  from  other  officers  or
               agencies,  information  obtained  from  citizens,  and  certain  offendersÕ  patterns  of  operation.  Simpson,
               968  S.W.2d  at  783;  State  v.  Lawson,  929  S.W.2d  406,  408  (Tenn.  Crim.  App.  1996). 
                       Hence,  in  determining  whether  the  motion  to  suppress  should  have  been  granted,  we  will
               examine  the  totality  of  the  factors  concerning  the  arresting  officerÕs  actions  during  and  at  the  time
               of  the  arrest,  will  check  to  see  if  his  actions  were  supported  by  articulable  facts,  and  will  then  make
               a  determination  whether  we  conclude  that  the  totality  of  the  circumstances  compels  us  to  disturb  the
               finding  of  the  trial  court.

                                                            Analysis

                       It  is  clear  the  officer  had  a  legitimate  reason  to  make  the  initial  traffic  stop. A  police  officer
               may  make  a  traffic  stop  if  he  has  probable  cause  or  reasonable  suspicion  to  believe  a  traffic  violation
               has  occurred.  State  v.  Vineyard,  958  S.W.2d  730,  734  (Tenn.  1997),  citing  Whren  v.  United  States,
               517  U.S.  806,  809-10,  11  S.  Ct.  1769,  35  L.  Ed.  2d  89  (1996). The  officer  noticed  a  defective  brake
               light,  which  is  a  traffic  violation,  and  he  gave  articulable  and  specific  facts  to  support  his  decision
               to  make  the  initial  stop. Based  on  this  particular  officerÕs  experience,  we  can  find  no  fault  in  his
               decision  to  initiate  the  stop. Nonetheless,  even  if  the  traffic  stop  is  legitimate,  it  is  considered  a
               seizure  and  triggers  constitutional  protections. Vineyard,  958  S.W.2d  at  734. As  such,  in  order  for
               a  warrantless search to be considered valid, it must be subject to an exception to the warrant
               requirement. 
                       Subsequent  to  the  initial  traffic  stop,  the  driver  of  the  car  voluntarily  exited  the  car  and,  upon
               being  asked  by  the  officer  if  he  could  search  the  car,  consented  to  the  search. Consent  is  a  clear
               exception  to  the  need  for  a  warrant.  Schneckloth  v.  Bustamonte,  412  U.S.  218,  220,  93  S.  Ct.  2041,
               2043-44,  36  L.  Ed.  2d  854,  858  (1973). Defendant  presents  no  evidence  nor  has  any  standing  to
               protest  the  driverÕs  consent  of  a  search  of  his  own  car. Unlike  defendant,  the  driver  of  the  car  never
               raised  the  issue  that  his  consent  was  coerced,  and  defendant  lacks  standing  to  object  to  the  search
               of  the  driverÕs  car.
                       After  receiving  consent  to  search  the  car,  the  police  officer  conducted  a  frisk  of  the  remaining
               passengers  as  they  exited  the  car. No  evidence  was  obtained  as  a  result  of  these  frisks. Absent  any
               evidence  being  obtained,  there  is  simply  no  issue  here  regarding  the  legitimacy  of  the  frisks.  We  need
               not  address  it  further.
                       After  the  frisks,  as  the  passengers  were  preparing  to  re-enter  the  car,  the  police  officer  noticed
               defendantÕs  shoe  was  untied. He  asked  defendant  if  he  was  hiding  anything  in  his  shoe,  to  which
               defendant  answered  he  was  not. The  officer  than  asked  defendant,  ÒWell,  do  you  want  to  take  your
               shoe off?Ó  Defendant responded by immediately Òkicking offÓ his shoes, resulting in the



                                                                -5- incriminating  drugs  being  found.  The  main  issue  in  this  case  is  whether  defendant  voluntarily
               removed  his  shoes  or  removed  them  because  he  felt  coerced. Because  the  trial  court  found  that
               defendant removed his shoes voluntarily, the burden is on defendant to present evidence to
               preponderate against that finding.  The existence of consent and whether consent was given
               voluntarily  are  questions  of  fact.  State  v.  McMahan,  650  S.W.2d  383,  386  (Tenn.  Crim.  App.  1983).
               We  will  examine  defendantÕs  argument  that  there  was  no  consent  given  or  that,  at  the  least,  any
               consent  given  was  coerced.
                       Defendant  argues  the  circumstances  surrounding  the  shoe  removal  were  coercive.  He  points
               to  State  v.  Morelock,  851  S.W.2d  838,  840  (Tenn.  1992),  for  the  proposition  that  a  prolonged  and
               extended  traffic  stop  can  result  in  the  invalidation  of  consent. The  underlying  facts  of  Morelock,
               however,  indicate  a  far  more  coercive  atmosphere  than  the  present  case. In  Morelock,  defendant
               refused  to  give  a  police  officer  consent  to  open  a  trunk  five  times  before  finally  consenting  to  open
               it.  In  the  present  case,  there  was  one  question,  ÒWell,  do  you  want  to  take  your  shoe  off?Ó,  followed
               by  an  immediate  removal  of  the  shoes. The  coercive  elements  that  were  found  in  Morelock  are  not
               found  in  the  instant  case,  making  it  clearly  distinguishable.
                       In  Schneckloth  v.  Bustamonte,  the  United  States  Supreme  Court  listed  a  number  of  factors
               to  be  taken  into  account  when  assessing  the  voluntariness  of  a  defendantÕs  consent.  412  U.S.  at  226.
               These  factors  include  defendantÕs  age,  education,  intelligence,  lack  of  advice  regarding  constitutional
               rights,  length  of  detention,  whether  there  was  repeated  and  prolonged  questioning,  and  any  use  of
               physical  punishment. In  the  present  case,  there  is  nothing  presented  to  indicate  defendantÕs  age,
               education,  or  intelligence  were  a  factor.  There  is  no  evidence  he  was  subject  to  any  physical
               punishment  or  to  a  barrage  of  repeated  questioning.  If  anything,  only  the  length  of  detention  and  lack
               of  advice  concerning  constitutional  rights  apply.
                       Defendant  points  to  State  v.  Halprin,  CCA  No.  1079,  1989  LEXIS  180,  at  *2  (Tenn.  Crim.
               App.,  filed  March  13,  1989,  at  Knoxville),  where  this  Court  held  that  detaining  a  defendant  longer
               than  necessary  for  the  purpose  of  the  initial  traffic  stop  creates  a  coercive  environment. Yet,  in
               Halprin,  the  defendant  testified  he  was  ordered  to  open  the  trunk  after  having  refused  consent  to  do
               so.  This  is  clearly  distinguishable  from  the  instant  case  where,  following  the  officerÕs  initial  request,
               defendant  removed  his  shoes  without  protest. Additionally,  defendant  points  to  United  States  v.
               McCaleb,  552  F.2d  717,  721  (6th  Cir.  1976),  where  the  court  stated  that  consent  must  be  proved  by
               clear and positive testimony and must be unequivocal, specific, intelligently given, and
               uncontaminated  by  any  duress  or  coercion. However,  in  McCaleb,  the  court  concluded  that  the
               defendant  had  been  improperly  stopped  and  that  the  DEA  agents  told  him  he  could  consent  or  remain
               in detention until a warrant was obtained.  In the present case, there was no such coercive
               environment. 
                       While  knowledge  of  oneÕs  rights  is  a  factor  in  determining  voluntariness,  such  knowledge
               is  not  a  prerequisite  for  consent. Schneckloth,  412  U.S.  at  249. Furthermore,  in  order  for  consent
               to  a  search  to  be  considered  voluntary,  a  defendant  need  not  be  advised  he  is  free  to  leave. Ohio  v.
               Robinette,  519  U.S.  33,  117  S.  Ct.  417,  136  L.  Ed.  2d  347  (1996). The  fact  that  defendant  was



                                                                -6- unaware  he  did  not  have  to  remove  his  shoes  is  not  dispositive  in  this  case. It  does  not  vitiate  the
               voluntariness  of  the  act.





                                                           Conclusion

                       The  trial  court  found  defendant  voluntarily  removed  his  shoes  in  response  to  the  police
               officerÕs  statement. We  conclude  defendant  has  not  met  his  burden  of  showing  that  the  evidence
               preponderates  against  that  finding.  Accordingly,  we  affirm  the  judgment  of  the  trial  court.





                                                                      ______________________________
                                                                     JOHN  EVERETT  WILLIAMS,  JUDGE



                           1  The  defendant  was  indicted  under  the  spelling  ÒRhyunia,Ó  but  all  other  pleadings  use  the  spelling  ÒRhynuia,Ó
                  including  those  signed  by  the  defendant  and  the  records  in  this  court.  We  will  continue  to  utilize  the  spelling  ÒRhynuia.Ó IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                             April  9,  2002  Session

                              STATE  OF  TENNESSEE  v.  RHYNUIA  LAMONT  BARNES  1


                                     Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                                                  No.  97-D-2542    Walter  C.  Kurtz,  Judge


                                           No.  M2001-00631-CCA-R3-CD  -  Filed  June  24,  2002


                  The  defendant  was  convicted  of  premeditated  first  degree  murder  by  a  Davidson  County  jury  and
                  sentenced  to  life  imprisonment  with  the  possibility  of  parole. In  this  appeal,  he  contends  (1)  the
                  evidence  was  insufficient  to  sustain  his  conviction;  (2)  he  was  denied  the  opportunity  to  retain  his
                  counsel  of  choice;  (3)  the  state  committed  prosecutorial  misconduct  when  it  failed  to  sua  sponte

                  redact  a  portion  of  an  audio  tape,  and  the  trial  court  improperly  denied  the  defendant's  request  for
                  a  mistrial;  and  (4)  the  trial  court  erred  when  it  failed  to  instruct  the  jury  on  facilitation  of  first  degree
                  murder and voluntary manslaughter as lesser-included offenses of first degree murder.  After
                  reviewing  the  record,  we  affirm. 

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

                  JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  ALAN  E.  GLENN,  J.,  joined. NORMA
                  MCGEE  OGLE,  J.,  concurred  in  results  only.
                  David  A.  Collins  (on  appeal)  and  Paula  Ogle  Blair  (at  trial),  Nashville,  Tennessee,  for  the  appellant,
                  Rhynuia  Lamont  Barnes.
                  Paul  G.  Summers,  Attorney  General  and  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
                  Victor  S.  Johnson,  III,  District  Attorney  General;  and  Kymberly Haas  and  Bernard  F.  McEvoy,
                  Assistant  District  Attorneys  General,  for  the  appellee,  State  of  Tennessee. 


                                                                      OPINION



                                                                -2- Joyce  Martin  testified  she  lived  with  her  two  sons,  24  year-old  DaÕShon  Martin,  the  victim,
               and  19  year-old  Carlton  Martin. She  stated  that  on  September  2,  1997,  at  approximately  2:00  p.m.,
               Tom  Morrell,  a  neighbor,  came  to  her  door  and  asked  if  the  victim  were  home. Martin  responded
               the  victim  was  sleeping  in  his  room,  and  Morrell  walked  toward  his  room  and  told  the  victim
               someone  wanted  to  see  him. Morrell  then  walked  out  of  the  residence  and  returned  to  his  home.
               Martin  stated  she  looked outside  her  house  and  saw  the  defendant,  whom  she  had  never  met,
               standing  at  her  gate. The  victim  exited  the  residence,  stood  on  the  porch,  and  inquired  what  the
               defendant  wanted.  Martin  said  she  next  saw  the  defendant  brandish  a  pistol,  at  which  time  the  victim
               ran  back  inside  the  house. The  defendant  then  said,  ÒYour  son  stole  my  jewelry,  and  IÕm  going  to
               kill  him;Ó  the  victim  ran  to  the  back  of  the  house;  and  the  defendant  ran  to  her  backyard  with  his  gun
               in  his  hand. Martin  explained  her  back  door  was  secured  by  a  deadbolt  key  lock  which  required  a
               key  to  open. 
                       Martin  further  testified  she  phoned  911  while  the  victim  was  hiding  in  the  back  of  the
               residence,  and  the  defendant  was  in  the  backyard.  The  defendant  then  ran  back  inside  her  front  door
               holding  his  gun.  The  defendant  then  said  twice  that  he  would  shoot  the  victimÕs  mother  if  the  victim
               did  not  come  out  of  hiding. At  that  point,  the  defendant  ran  toward  the  bathroom  at  the  rear  of  the
               house, and another man, later identified as James Barnes, the defendantÕs father, entered the
               residence  and  inquired  about  his  son. Martin  told  James  Barnes  the  defendant  went  to  the  rear  of
               the  house.  Martin  testified  she  then  heard  one  shot  and  fled  from  the  residence  to  a  neighborÕs  home.
               Martin  identified  the  murder  weapon  as  the  gun  she  saw  in  the  defendantÕs  hand. 
                       Tommy  Morrell,  a neighbor, testified that on September 2nd, the defendant arrived at
               approximately  3:00  p.m.  riding  in  the  front  seat  of  a  vehicle  driven  by  an  older  man. Morrell
               testified  the  defendant  requested  he  get  the  victim.  Morrell  further  stated  he  went  inside  the  victimÕs
               house  and  told  the  victim  Òtwo  guysÓ  wanted  to  see  him,  and  Morrell  exited  the  house. When
               Morrell  reached the front gate, he saw the  victim step onto the porch.  Morrell later saw the
               defendant  go  inside  the  gate. Morrell  further  stated  the  older  man  was  seated  in  the  car. 
                       Morrell  explained  he  knew  Òsomething  [was]  going  down,Ó  so  he  went  back  to  his  house  and
               instructed  his  mother  to  stay  inside. Morrell  stated  the  older  man  exited  the  car;  the  defendant  first
               ran  in  the  house  but  then  exited  the  house  telling  the  older  man  that  Ò[the  victim]  might  have  gone
               out  the  backdoor;Ó  the  defendant  ran  around  one  side  of  the  house,  while  the  older  man  ran  around
               the  other;  the  defendant  ran  back  around  to  the  front  of  the  house  and  entered  it  brandishing  a  gun;
               the  older  man  entered  the  house;  and  he  heard  a  gunshot.  Morrell  stated  he  never  saw  the  older  man
               with  a  gun.  On  cross-examination,  Morrell  denied  receiving  drugs  as  compensation  for  summoning
               the  victim  outdoors. 
                       Metro  Police  Officer  Jerry  Bottom  testified  he  arrived  on  the  scene  within  one  minute  of
               receiving  the  dispatch and saw the defendant running across the street holding his waistband.
               Officer  Bottom  stated  his  first  priority  was  the  victim,  and  since  a  second  cruiser  had  arrived,  he
               entered  the  victimÕs  residence  through  the  open  front  door  and  found  the  wounded  victim  on  the
               floor.  Officer  Bottom  stated  he  saw  a  man  standing  by  a  parked  car  when  he  initially  arrived;  he  was



                                                                -3- unsure  if  the  defendant  ran  from  inside  the  home;  and  the  interior  of  the  home  exhibited  no  signs  of
               a  struggle. 
                       Metro  Police  Officer  Marshall  James  Brown  testified  he  and  his  partner,  Officer  Chris  Locke,
               arrived  at  the  scene  immediately  after  Officer  Bottom. Officer  Brown  stated  that  while  he  and
               Officer  Locke  were  walking  toward  the  residence,  the  defendant  ran  from  across  the  street  and  dove
               head  first  into  the  backseat  of  a  parked  car. He  additionally  stated  James  Barnes  walked  toward  the
               vehicleÕs  driverÕs  side. He  and  Locke  then  detained  them,  and  Joyce  Martin  identified  them  as  the
               persons  in  her  home.  On  cross-examination,  Officer  Brown  stated  James  Barnes  was  bleeding  from
               a  cut  on  his  hand. 
                       Officer Chris Locke corroborated Officer BrownÕs testimony.  He further  testified the
               defendant  made  remarks  after  being  arrested;  he  activated  his  pocket  audio  recorder  to  record  the
               defendant;  and  he  made  notes  during  the  defendantÕs  outbursts. He  testified  the  defendant,  while
               being  handcuffed,  stated  that  the  victim  should  not  break  in  his  house  and  steal  his  jewelry. At  that
               point,  Officer  Locke  placed  the  defendant  in  the  rear  seat  of  the  cruiser,  activated  his  pocket  audio
               recorder,  and  sat  in  the  driverÕs  seat  for  approximately  one  hour  and  fifteen  minutes. Officer  Locke
               also  wrote  down  the  defendantÕs  statements  verbatim.  Officer  Locke  testified  from  his  written  notes,
               which  indicated  the  defendant  said: 
                              I  went  in  the  house  with  him;  I  didnÕt  shoot  him;  I  threw  my  dope  in  the  alley;
                       thatÕs  why  I  ran. I  ainÕt  did  nothing. I  ainÕt  got  no  gun;  what  [are]  you  detaining  me
                       for.  .  .  .  He  needed  to  quit  lying  on  me. He  finded  [sic]  no  gun  on  me. Why  am  I
                       being  detained? I  ran  and  dumped  my  dope  and  came  back.  .  .  No  gun,  no  motive.
                       I  ainÕt  got  no  lie  to  tell. I  dumped  my  dope. He  stole  my  jewelry. 
                       At  that  point,  other  officers  found  a  gun  in  the  defendantÕs  line  of  sight,  and  the  defendant
               said,  ÒMan,  ainÕt  found  no  gun  on  me. Man,  how  do  you  know  it  was  me;  that  could  have  been
               anybodyÕs. Whose  gun? I  know  my  lawyer  will  get  me  off. I  got  money;  I  got  big  money. Take
               me  down  so  I  can  make  bond.Ó The  defendant  also  stated,  ÒMan,  he  steals  $4,000  worth  of  jewelry
               and  IÕm  supposed  to  let  it  ride. F**k  that  s**t,  man.Ó 
                       Metro  Police  Investigator  David  Elmore  testified  he  searched  the  area  and  found  a  gun
               hidden  inside  a  plastic  bag  of  clothing  in  a  pile  of  garbage  across  the  street  from  the  victimÕs
               residence. 
                       Metro  Police  Officer  Charles  Ray  ÒFridayÓ  Blackwood  testified  he  searched  the  victimÕs
               residence  and  was  unable  to  find  a  weapon;  he  recovered  three  live  .38  shells  from  James  BarnesÕ
               pocket;  and  the  .38  revolver  found  in  the  garbage  had  five  spent  casings  in  its  chambers. 
                       Medical  Examiner  Dr.  Bruce  Levy  testified  the  victim  died  as  a  result  of  three  gunshot
               wounds  fired  from  a  distance  of  Ògreater  than  18  to  24  inchesÓ  from  the  victimÕs  body. Although
               Dr.  Levy  stated  the  victim  had  small  abrasions  on  his  chin,  arm,  back,  and  abdomen,  he  opined  they
               were  not  the  result  of  a  struggle. 



                                                                -4- Danny  Morris,  a  specialist  in  latent  fingerprint  analysis  with  the  Metro  Police  Identification
               Division,  testified  a  palm  print  was  recovered  from  the  weapon  that  did  not  match  the  defendantÕs
               print. Morris  explained,  however,  this  evidence  did  not  definitively  establish  that  the  defendant
               never  handled  the  gun  since  there  are  numerous  reasons  why  one  could  touch  a  surface  and  not  leave
               a  latent  print.
                       Metro  Police  Detective  Kent  McAlister  testified  he  searched  the  crime  scene  and  was  unable
               to  find  a  gun  or  spent  shell  casings.  Det.  McAlister  stated  although  the  defendant  and  James  Barnes
               were  initially  both  suspects,  the  charges  against  James  Barnes  were  dropped  at  his  preliminary
               hearing.  He  explained  James  Barnes  was  not  initially  fingerprinted  because  his  hand  was  bandaged,
               and  after  the  charges  were  dropped,  it  became  impossible  to  obtain  his  prints. 
                       Metro  Police  Detective  Jeff  West  testified  he  assisted  in  interviewing  the  defendant  at  the
               police  station.  He  testified  that  although  he  could  not  recall  if  the  defendant  and  James  Barnes  were
               seated  together  while  awaiting  questioning,  it  was  unlikely  because  standard  procedure  dictates  they
               be  separated.  Det.  West  testified  the  defendant  confessed  to  the  crime  and  told  him  to  release  James
               Barnes  because  he  had  Ònothing  to  do  with  itÓ  and  had  tried  to  stop  him  from  going  into  the  Martin
               residence  with  his  gun. 
                       TBI  firearms  expert  Steve  Scott  testified  the  shell  casings  and  bullet  fragments  submitted  for
               analysis  were  fired  from  the  .38  revolver. Scott  conceded  the  gun  was  not  tested  for  the  presence
               of  blood  or  tissue,  and  it  was  possible  for  a  personÕs  hand  to  become  injured  if  caught  between  the
               weaponÕs  hammer  and  firing  pin. 
                       The  defendant  testified  when  he  got  in  the  car  with  his  father,  James  Barnes,  on  September
               2  nd  ,  he  did  so  with  the  intention  of  receiving  a  ride  to  visit  his  son. The  defendant  stated  his  father
               requested  the defendant direct him to the defendantÕs drug supplier, a  person by the name of
               ÒRicko,Ó  which  the  defendant  did. After  their  arrival,  James  Barnes  asked  Ricko  the  location  of  his
               stolen  jewelry,  and  they  drove  to  the  victimÕs  residence  to  replevy  the  jewelry.  The  defendant  stated
               his  father  parked  his  vehicle  on  the  street  near  the  victimÕs  residence,  handed  the  defendant  the
               revolver,  and  told  the  defendant  to  place  it  in  his  pocket. The  defendant  testified  the  gun  remained
               in  his  shorts  until  he  handed  it  back  to  James  Barnes. He  stated  that,  under  the  instruction  of  James
               Barnes,  he  gave  Tommy  Morrell  drugs  to  summon  the  victim  outside. 
                       The  defendant  further  testified  he  and  James  Barnes  walked  toward  the  residence,  and  the
               victim  exited  onto  the  porch. When  the  defendant  inquired,  Òwhere  [is]  the  jewelry,Ó  the  victim  ran
               back  inside  the  home. The  defendant  stated  he  then  stepped  in  the  front  room  of  the  house,  and  the
               victimÕs  mother  told  him  to  Òget  out;Ó  he  exited  and  ran  around  the  side  of  the  house,  attempting
               entry  through  the  back  door;  and  since  the  door  was  locked,  he  returned  to  the  front  of  the  house
               where  he  handed  James  Barnes  the  gun.  The  defendant  said  he  Ò[g]ave  [James  Barnes]  the  gun  back
               [and]  started  out  [of]  the  yard  .  .  .  thinking  heÕs  coming  behind  me  .  .  .  thinking  itÕs  over.Ó 



                                                                -5- The  defendant  further  stated  once  he  arrived  at  the  car,  he  realized  his  father  had  not  followed
               him,  so  he  reentered  the  residence,  went  to  the  rear  of  the  home,  and  saw  the  victim  run  to  the
               bathroom.  He  then  attempted  to  open  the  bathroom  door,  which  was  either  locked  or  being  held,  and
               as  he  started  to  leave  the  home  again,  James  Barnes  fired  a  shot  through  the  bathroom  door. After
               the  shot  was  fired,  the  victim  exited  the  bathroom  and  struggled  for  the  gun  with  James  Barnes.  The
               defendant  stated  that  after  a  brief  struggle,  James  Barnes  fired  shots,  handed  the  defendant  the  gun,
               and  they  exited  the  home. The  defendant  stated  he  then  ran  across  the  street  and  discarded  his
               Òeighty-ballÓ  of  ÒdopeÓ  and  the  gun. He  stated  that  he  ran  back  to  the  car  because  he  thought  he  left
               his  beeper  in  the  car  and  then  dove  into  the  car. 
                       The  defendant  stated  he  had  no  intention  of  killing  the  victim,  and  after  he  was  arrested,  he
               made  admissions  to  Officer  Locke  because 
                       in  [his]  neighborhood,  itÕs  like,  you  try  to  make  the  polices  as  mad  as  you  can  by
                       being  as  smooth  as  you  can  with  them. You  just  smart  off  to  them,  just  try  to  smart
                       off  to  them,  make  them  mad  cause  like  --  thatÕs  all  I  was  doing  was  really  just
                       mouthing  off. 
               The  defendant  further  testified  he  was  seated  next  to  his  father  at  police  headquarters,  and  his  father
               intimidated  him,  so  he  confessed  to  the  crime.  The  defendant  explained  he  was  fearful  of  his  father,
               and  his  father  had  always  said  Òthe  worst  thing  you  can  be  is  a  snitch.Ó 
                       The  defendant  further  testified  he  ÒprobablyÓ  threatened  to  shoot  the  victimÕs  mother,  but  did
               so  to  try  to  scare  her  out  of  the  house  so  Òno  more  innocent  bystanders  [would  get]  hurt;Ó  he  got
               blood  on  his  shorts  while  attempting  to  protect  the  victim  by  trying  to  separate  James  Barnes  from
               him;  and  James  Barnes  wiped  the  gun  clean  prior  to  giving  it  to  him.  The  defendant  further  admitted
               he  had  contact  with  James  Barnes  while  awaiting  trial  on  bond,  and  he  conceded  he  said  he  was  on
               bond  because  of  the  person  he  killed,  but  explained  it  was  just  Òeveryday  neighborhood  talk.Ó 
                       Saunte  Lewis  Young,  the  defendantÕs  sister,  testified  the  defendant  never  owned  jewelry;
               James Barnes wore jewelry; James Barnes had previously ÒcutÓ the defendant; and they had
               previously  shot  at  each  other. Sandra  Barnes,  the  defendantÕs  mother,  testified  the  defendant  and
               James  Barnes  had  a  bad  relationship,  but  she  had  requested  the  defendant  try  to  get  along  with  him.
                       The  jury  convicted  the  defendant  of  premeditated  first  degree  murder. 


                                           I. SUFFICIENCY  OF  THE  EVIDENCE

                       The  defendant  contends  the  evidence  was  insufficient  to  sustain  his  conviction  because  the
               state  failed  to  prove  the  defendant  acted  with  Òdeliberat[ion]Ó  as  alleged  in  the  indictment. We
               disagree.



                                                                -6- A. Standard  of  Review

                       When  an  accused  challenges  the  sufficiency  of  the  evidence,  this  court  must  review  the
               record  to  determine  if  the  evidence  adduced  during  the  trial  was  sufficient  "to  support  the  finding
               by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt." Tenn.  R.  App.  P.  13(e).  This  rule  is
               applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
               combination  of  direct  and  circumstantial  evidence.  State  v.  Brewer,  932  S.W.2d  1,18  (Tenn.  Crim.
               App.  1996).
                       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). Nor  may  this  court  substitute  its
               inferences  for  those  drawn  by  the  trier  of  fact  from  circumstantial  evidence. Liakas  v.  State,  199
               Tenn.  298,  305,  286  S.W.2d  856,  859  (1956). To  the  contrary,  this  court  is  required  to  afford  the
               state  the  strongest  legitimate  view  of  the  evidence  contained  in  the  record  as  well  as  all  reasonable
               and  legitimate  inferences  which  may  be  drawn  from  the  evidence. State  v.  Tuttle,  914  S.W.2d  926,
               932  (Tenn.  Crim.  App.  1995).
                       The  trier  of  fact,  not  this  court,  resolves  questions  concerning  the  credibility  of  the  witnesses,
               the  weight  and  value  to  be  given  the  evidence  as  well  as  all  factual  issues  raised  by  the  evidence.

               Id. In  State  v.  Grace,  the  Tennessee  Supreme  Court  stated,  "[a]  guilty  verdict  by  the  jury,  approved
               by  the  trial  judge,  accredits  the  testimony  of  the  witnesses  for  the  State  and  resolves  all  conflicts  in
               favor  of  the  theory  of  the  State." 493  S.W.2d  474,  476  (Tenn.  1973). 
                       Because  a  verdict  of  guilt  removes  the  presumption  of  innocence  and  replaces  it  with  a
               presumption  of  guilt,  the  accused  has  the  burden  in  this  court  of  illustrating  why  the  evidence  is
               insufficient  to  support  the  verdict  returned  by  the  trier  of  fact.  State  v.  Tuggle,  639  S.W.2d  913,  914
               (Tenn.  1982);  Grace,  493  S.W.2d  at  476. 

               B. Analysis

                       The  indictment  alleged  the  defendant  Òintentionally,  deliberately  and  with  premeditationÓ
               killed  the  victim.  (Emphasis  added).  The  defendantÕs  claim  of  insufficiency  of  the  evidence  is  based
               on  the  indictmentÕs  usage  of  the  term  Òdeliberately.Ó  The  present  first  degree  murder  statute  defines
               first  degree  murder  as  a  Òpremeditated  and  intentional  killing  of  anotherÓ  and  became  effective  July
               1, 1995.  See Tenn. Code Ann. ¤ 39-13-202(a)(1) (1997).  However, the indictment alleged
               deliberation  --  an  element  required  under  the  former  premeditated  first  degree  murder  statute. See

               Tenn.  Code  Ann.  ¤  39-13-202(a)(1)  (1991);  see  generally  State  v.  Carruthers,  35  S.W.3d  516,  558
               (Tenn.  2000)  (citations  omitted).  During  the  jury  charge  conference,  the  state  erroneously  conceded
               it  bore  the  burden  of  proving  deliberation  since  it  was  alleged  in  the  indictment.  See  State  v.  Hopper,



                                                                -7- 695  S.W.2d  530,  535  (Tenn.  1985)  (allegation  in  felony  murder  indictment  of  ÒdeliberatelyÓ  held
               to  be  surplusage  which  did  not  have  to  be  proved). 
                       Regardless,  deliberation  was  sufficiently  established.  Deliberation  Òrequires  proof  of  a  Ôcool
               purposeÕ  that  includes  some  period  of  reflection  during  which  the  mind  is  free  from  passion  and
               excitement.Ó  Carruthers,  35  S.W.3d  at  558. 
                       We  view  the  evidence  in  a  light  most  favorable  to  the  state. The  defendant  got  Tommy
               Morrell  to  summon  the  victim  out  of  his  home.  The  defendant  then  demanded  return  of  his  jewelry,
               brandished  the  murder  weapon,  and  told  the  victimÕs  mother  Ò[y]our  son  stole  my  jewelry,  and  IÕm
               going  to  kill  him.Ó  The  defendant  entered  the  residence,  was  ordered  out  by  the  victimÕs  mother,  and
               exited  upon  her  request. He  then  ran  around  the  side  of  the  house  and  attempted  to  gain  entry
               through  the  back  door,  but  since  it  was  locked,  returned  to  the  front  of  the  home  and  reentered  the
               residence.  The  defendant  threatened  to  kill  the  victimÕs  mother  if  the  victim  would  not  stop  hiding,
               and  the  victim  was  shot  three  times.  The  defendant  attempted  to  hide  the  murder  weapon  and,  when
               arrested,  confessed  to  the  crime. Although  the  defendant  testified  his  father  shot  the  victim  and
               coerced  him  to  confess  to  the  crime,  the  jury  was  free  to  disbelieve  him. See  State  v.  Summerall,
               926  S.W.2d  272,  275  (Tenn.  Crim.  App.  1995). 
                       Having  reviewed  the  evidence  in  the  light  most  favorable  to  the  state,  we  conclude  the
               evidence  sufficiently  established  the  defendant  deliberately  killed  the  victim. We  further  conclude
               the  evidence  sufficiently  established  that  the  killing  was  premeditated  and  intentional. This  issue
               is  without  merit. 


                                                 II. CHOICE  OF  COUNSEL

                       The  defendant  contends  he  was  denied  the  right  to  retain  counsel  of  his  choice. We
               disagree. 
                       ÒThe  right  to  counsel  includes  the  qualified  right  to  the  [retained]  counsel  of  one's  choice.Ó
               State  v.  Parrott,  919  S.W.2d  60,  61  (Tenn.  Crim.  App.  1995). An  indigent  defendantÕs  right  to
               appointed  counsel,  however,  Òdoes  not  include  the  right  to  appointment  of  counsel  of  choice,  or  to
               special  rapport,  confidence,  or  even  a  meaningful  relationship  with  appointed  counsel.Ó  Carruthers,
               35  S.W.3d  at  546. 
                       Counsel  had  been  appointed  for  the  defendant  based  upon  his  affidavit  of  indigency.  His  first
               appointed  counsel  was  allowed  to  withdraw  because  of  her  conflict  with  the  defendant.  New  counsel
               was  appointed. During  a  pretrial  motion  less  than  a  week  before  the  trial  was  scheduled  to  begin,
               counsel  moved  for  a  continuance.  Counsel  explained  that  due  to  the  defendantÕs  failure  to  maintain
               contact  with  her,  she  was  unprepared  for  the  scheduled  trial  date. The  court  announced,  Ò[G]iven
               what  you  say  about  your  clientÕs  irresponsibility  in  keeping  track  with  his  lawyer,  his  [present]  bond



                           2  We  again  take  this  opportunity  to  discourage  Òoff-the-recordÓ  discussions  concerning  matters  of  significance
                  in  criminal  proceedings;  otherwise,  appropriate  appellate  review  may  be  precluded. See  Tenn.  Code  Ann.  ¤  40-14-
                  307(a)  (requiring  court  reporter  to  Òattend  every  stage  of  each  criminal  caseÓ);  see  also  State  v.  Hammons,  737  S.W.2d
                  549,  551  (Tenn.  Crim.  App.  1987)  (condemning  Òoff-the-record  bench  conferencesÓ);  State  v.  James  Hall  Schlegel,  No.
                  W2000-02597-CCA-R3-CD,  2002  Tenn.  Crim.  App.  LEXIS  77,  at  *14  (Tenn.  Crim.  App.  Jan.  28,  2002,  at  Jackson)
                  (condemning  in-chambers  charge  conferences);  State  v.  Blaine  M.  Wright,  CCA  No.  03C01-9401-CR-00388,  1995
                  Tenn.  Crim.  App.  LEXIS  960,  at  *28  (Tenn.  Crim.  App.  Dec.  11,  1995,  at  Knoxville),  perm.  to  app.  denied  (Tenn.
                  1996)  (noting  the  requirement  to  preserve  for  the  record  all  bench  conferences). 

                                                                          -8- is  set  at  $35,000,  under  these  circumstances,  .  .  .  indicating  his  irresponsibility,  the  Court  increases
                  his  bond  to  $85,000.Ó 
                           DefendantÕs counsel then announced that the defendant did not desire her continued
                  representation. The  defendant  then  stated,  ÒYour  Honor,  can  I  file  a  motion,  I  donÕt  want  her  on  my
                  case  anymore;  I  donÕt  want  her  on  my  case  .  .  . I  need  a  little  time  to  get  me  another  lawyer;  I  would
                  have  the  money.Ó After  the  prosecutor  explained  to  the  court  the  defendantÕs  first  appointed  counsel
                  had filed a motion to withdraw due to conflict with the defendant, the trial judge ordered the
                  defendant  taken  into  custody  based  on  the  new  bond  setting,  and  the  trial  court  requested  an  in-chambers 
                             conference.2  When  court  resumed,  the  trial  judge  reinstated  the  $35,000  bond  and  strongly
                  admonished  the  defendant  to  keep  in  contact  with  his  lawyer. The  defendant  agreed  and  thanked  the
                  judge. 
                           After the defendant was convicted, different counsel represented the defendant.  At the
                  motion  for  new  trial,  the  defendant  testified  that  after  the  judge  increased  his  bond  and  ordered  him
                  confined,  trial  counsel  met  with  him  within  ten  minutes  and  said,  ÒI  talked  to  the  judge  about  your
                  bond. He  said  you  can  get  back  on  your  bond  if  you  keep  me  on  your  case.Ó The  defendant  testified
                  he  ÒdidnÕt  want  to  go  back  to  [the]  Justice  Center,Ó  so  he  said,  ÒCool.Ó Although  the  defendant
                  initially  testified  he  had  $5,000  for  a  retainer  fee  for  private  counsel,  he  conceded  the  charge  for  an
                  attorney  would  actually  have  been  a  lump  sum  of  $15,000,  for  which  he  was  going  to  sell  drugs  to
                  acquire. 
                           Paula  Blair,  the defendantÕs  appointed  trial  counsel,  testified  at  the  motion  for  new  trial
                  hearing  she  was  unable  to  contact  the  defendant  prior  to  the  pretrial  hearing  and  confronted  him
                  about  this. Blair  stated  the  defendant  told  her  that  he  wanted  another  lawyer. Blair  further  testified
                  she  informed  him  they  would  speak  with  the  judge  about  it;  she  attended  an  off-the-record  discussion
                  in  chambers;  and  upon  leaving  chambers,  she  met  with  the  defendant  and  told  him  his  bond  would
                  remain at $35,000, he would be released, and he was granted a continuance.  Blair stated the
                  agreement  did  not  require  she  remain  as  the  defendantÕs  counsel,  and  the  defendant  appeared  Òvery
                  happy.Ó 
                           Anthony  Finley  testified  he  was  present  in  the  holding  area  where  the  defendant  met  with  his
                  trial  counsel. Finley  testified  he  overheard  trial  counsel  tell  the  defendant  he  would  not  be  able  to



                                                                -9- get  back  out  on  bond  unless  he  kept  her  as  his  counsel. Finley  conceded  he  was  serving  a  sentence
               for  aggravated  sexual  assault  and  had  a  prior  armed  robbery  conviction. 


                       At  the  conclusion  of  the  hearing,  the  trial  judge  stated: 
                              I  donÕt  see  any  place  in  the  transcript  where  I  said  that  if  he  moved  to  have
                       Ms.  Blair  withdraw,  I  would  revoke  his  bond. I  can  say,  and  I  hope  itÕs  clear  from
                       the  transcript,  my  concern  was  that  he  was  not  keeping  Ð  he  wasnÕt  communicating
                       with  his  lawyer. That  led  me  to  believe  that  he  was  not  a  good  risk  to  appear,
                       because  he  had  acted  irresponsibly,  and  I  increased  his  bond  because  I  was  not
                       confident  that  a  $35,000  bond  would  get  him  where  he  needed  to  be,  given  what  Ms.
                       Blair  had  just  told  me.  .  .  . The  court  doors  were  open. If  he  had  hired  other  counsel
                       .  .  .  new  counsel  could  certainly  have  made  an  appearance  and  then  either  tried  to  get
                       ready  for  the  July  trial  or  moved  otherwise. In  no  way  did  I  or  did  I  mean  to  indicate
                       that  his  bond  would  be  revoked  if  he  tried  to  change  a  lawyer.
                       The  evidence  does  not  preponderate  against  the  trial  courtÕs  findings. Defendant  was  not
               deprived  of  his  right  to  retain  counsel  of  his  choice. 


                                          III. PROSECUTORIAL  MISCONDUCT

                       The  defendant  contends  the  state  committed  prosecutorial  misconduct  by  failing  to  sua
               sponte  redact  an  inculpatory  hearsay  statement  contained  in  an  audio  tape  played  to  the  jury  even
               though  defense  counsel  was  afforded  an  opportunity  to  review  the  tape  pretrial. We  disagree. 
                       The  state  played  an  audio  tape  recording  of  the  defendantÕs  detention  in  the  cruiser  which
               included  a  statement  by  an  unknown  officer  indicating  James  Barnes  said  the  defendant  shot  the
               victim.  The  trial  court,  sua  sponte,  alerted  the  parties  to  the  hearsay  statement.  Defense  counsel  then
               moved  for  a  mistrial. The  trial  court  denied  the  motion  for  a  mistrial  and  held  that  a  curative
               instruction was an adequate remedy, noting, according to the defenseÕs theory, James Barnes
               wrongfully  accused  the  defendant  of  the  shooting  and  coerced  him  to  accept  blame. The  trial  court
               then  gave  the  jury  an  appropriate  curative  instruction. 
                       ÒThe  test  to  be  applied  in  reviewing  a  claim  of  prosecutorial  misconduct  is  whether  the
               improper  conduct  could  have  affected  the  verdict  to  the  prejudice  of  the  defendant.Ó Brimmer  v.
               State,  29  S.W.3d  497,  527  (Tenn.  Crim.  App.  1998)  (citations  omitted). Here,  the  defendant  has
               failed  to  establish  prosecutorial  misconduct. Furthermore,  a  jury  is  presumed  to  follow  curative
               instructions  given  by  the  trial  court. State  v.  Smith,  893  S.W.2d  908,  914  (Tenn.  1994). The  trial
               courtÕs  usage  of  a  curative  instruction  was  a  proper  remedy. In  addition,  we  conclude  the  defendant
               suffered  no  prejudice. See  Tenn.  R.  App.  P.  36(b). This  issue  is  without  merit. 



                                                           -10- IV. LESSER-INCLUDED  OFFENSES

                     The  trial  court  instructed  the  jury  on  the  indicted  offense  of  premeditated  first  degree  murder
              and  the  lesser  offenses  of  second  degree  murder  and  reckless  homicide.  The  defendant  contends  the
              trial  courtÕs  failure  to  instruct  the  jury  on  facilitation  of  premeditated  first  degree  murder  and
              voluntary  manslaughter  constituted  error. We  disagree. 

              A. Waiver

                     Initially,  we  conclude  this  issue  has  been  waived  by  the  defendant. Our  court  has  stated  the
              following:
                            We  recognize  that  Tenn.  Code  Ann.  ¤  40-18-110(a)  [1997]  requires  a  trial
                     court  to  charge  all  lesser-included  offenses  even  Òwithout  any  request  on  the  part  of
                     the  defense  to  do  so.Ó  Thus,  the  requirement  to  charge  lesser-included  offenses  is  not
                     contingent  upon  a  request  by  the  defendant  to  do  so.  State  v.  Smiley,  38  S.W.3d  521,
                     524  (Tenn.  2001). 
                            Nevertheless,  our  appellate  courts  have  consistently  recognized  that  a  party
                     cannot  take  advantage  of  errors  which  he  or  she  committed,  invited  or  induced  the
                     trial  court  to  commit. Adkins  v.  State,  911  S.W.2d  334,  346  (Tenn.  Crim.  App.
                     1994);  State  v.  Banes,  874  S.W.2d  73,  82  (Tenn.  Crim.  App.  1993). In  discussing
                     the  failure  of  a  defendant  to  object  to  a  mistrial,  our  supreme  court  stated:
                            Obviously,  the  rationale  for  requiring  an  objection  to  a  mistake  is  that
                            it  gives  the  trial  judge  an  opportunity  to  cure  a  situation  that  one  or
                            both  parties  perceive  to  be  in  error. A  party  ought  not  be  permitted
                            to stand silently by while the trial court commits an error in
                            procedure,  and  then  later  rely  on  that  error  when  it  is  to  his  advantage
                            to  do  so. State  v.  Mounce,  859  S.W.2d  319,  323  (Tenn.  1993). 
              State  v.  Elesa  D.  McDaniels,  No.  E2000-02790-CCA-R3-CD,  2001  Tenn.  Crim.  App.  LEXIS  867,
              at  *14-15  (Tenn.  Crim.  App.  Nov.  1,  2001,  at  Knoxville).  In  McDaniels,  we  concluded  that  defense
              counselÕs  affirmative  acquiescence  in  the  failure  to  charge  a  lesser-included  offense  constituted  a
              waiver  of  the  error. Id.  at  *15-16. McDaniels  has  been  cited  with  approval  by  this  court  in  other
              cases. See  Yasmond  Fenderson  v.  State,  No.  E2001-01088-CCA-R3-PC,  2002  Tenn.  Crim.  App.
              LEXIS  402,  at  *16-17  (Tenn.  Crim.  App.  May  2,  2002,  at  Knoxville);  State  v.  Drini  D.  Xhaferi,  No.
              M2000-01758-CCA-R3-CD,  2002  Tenn.  Crim.  App.  LEXIS  174,  at  *7  (Tenn.  Crim.  App.  Mar.  7,



                                                           -11- 2002,  at  Nashville);  State  v.  James  Hall  Schlegel,  No.  W2000-02597-CCA-R3-CD,  2002  Tenn.
              Crim.  App.  LEXIS  77,  at  *16-17  (Tenn.  Crim.  App.  Jan.  28,  2002,  at  Jackson). 
                     Our  supreme  court  has  held  that  a  trial  court  may  charge  an  applicable  lesser-included  offense
              even  though  the  defendant  objects  to  the  charge. State  v.  Bolden,  979  S.W.2d  587,  593  (Tenn.
              1998). Nevertheless,  we  see  nothing  in  Bolden  that  approves  a  defendant  affirmatively  agreeing  to
              a charge on lesser-included  offenses and then taking a totally  inconsistent position after the
              conviction  when  it  is  to  his  advantage  to  do  so.  See  Drini  D.  Xhafer,  2002  Tenn.  Crim.  App.  LEXIS
              174,  at  *7;  see  generally  Mounce,  859  S.W.2d  at  323. 
                     We  now  examine  what  transpired  in  the  trial  court. The  trial  court  discussed  the  proposed
              jury  charge  with  counsel  prior  to  final  argument. The  trial  court  indicated  its  intent  to  charge  first
              degree murder, second degree murder and reckless homicide.  The following exchange  then
              occurred: 
                                    THE  COURT:  Okay. Now,  [defense  counsel],  what  do  you
                            say  about  these  lesser-included  offenses? 
                                    [DEFENSE COUNSEL]: I see reckless homicide, Your
                            Honor,  but  I  donÕt  see  voluntary  manslaughter,  and  the  facts  that  [the
                            prosecutor] presented to support voluntary  manslaughter, I donÕt
                            remember  those  --  that  specific  story. I  believe  she  said  that  Mr.
                            Barnes  said  in  his  statement,  he  shot  through  the  door,  the  victim
                            came  out,  and  he  shot  him  in  the  leg  and  then  a  struggle  ensued. I
                            thought  that  it  was  the  other  way  around. 
                                    THE  COURT: So youÕre  satisfied  with  First,  Second  and
                            Reckless?
                                    [DEFENSE  COUNSEL]:  Yes,  sir. 
              Thus,  defense  counsel  expressly  agreed  to  the  charge  on  lesser-included  offenses,  and  we  assume,
              although  final  argument  is  not  in  the  record,  tailored  her  argument  accordingly. Furthermore,  there
              is  no  indication  that  there  was  any  objection  to  the  jury  charge. The  issue  was  first  raised  in  the
              motion  for  new  trial  when  defendant  had  different  counsel. 
                     As  in  McDaniels,  defendant  affirmatively  acquiesced  in  the  failure  to  charge  facilitation  of
              first  degree  murder  and  voluntary  manslaughter  and  took  a  totally  inconsistent  position  in  the  motion
              for  new  trial  and  in  this  appeal. Relief  is  not  available  to  a  party  who  is  responsible  for,  or  fails  to
              take  action  to  prevent,  an  error. Tenn.  R.  App.  P.  36(a). We,  therefore,  consider  this  issue  waived.
              In  the  event  further  appellate  review  concludes  otherwise,  we  now  address  the  issue  on  the  merits.

              B. Duty  to  Instruct  on  Lessers 



                                                           -12- The  trial  court  has  a  duty  to  instruct  the  jury  on  any  lesser-included  offenses  of  the  charged
              offense  when  such  instruction  is  supported  by  the  evidence,  regardless  of  whether  the  defendant  has
              requested  such  an  instruction. State  v.  Bowles,  52  S.W.3d  69,  74  (Tenn.  2001);  State  v.  Burns,  6
              S.W.3d  453,  464  (Tenn.  1999). The  standard  for  an  appellate  courtÕs  review  of  the  trial  courtÕs
              charge  to  the  jury  regarding  lesser-included  offenses  is  de  novo  with  no  presumption  of  correctness.
              Bowles,  52  S.W.3d  at  74. 
                     If  an  offense  is  found  to  be  a  lesser-included  offense,  the  court  must  next  ascertain  whether
              the  evidence  justifies  a  jury  instruction  on  the  lesser-included  offense.  Id.  at  75.  To  do  so,  the  court
              must  first  determine  whether  there  is  evidence  that  Òreasonable  mindsÓ  could  accept  to  establish  the
              lesser-included  offense. Burns,  6  S.W.3d  at  469. The  court  must  view  the  evidence  liberally  in  a
              light  most  favorable  to  the  existence  of  the  lesser-included  offense  without  judging  its  credibility.
              State  v.  Ely,  48  S.W.3d  710,  722  (Tenn.  2001);  Burns,  6  S.W.3d  at  469. Finally,  the  court  must
              determine  if  the  evidence  is  Òlegally  sufficientÓ  to  support  a  conviction  for  the  lesser-included
              offense. Burns,  6  S.W.3d  at  469. 
                     The  evidence,  not  the  theories  of  the  parties,  determines  whether  an  instruction  on  a  lesser-included 
                       offense  should  be  given.  State  v.  Allen,  69  S.W.3d  181,  188  (Tenn.  2002). Furthermore,
              the  decision  to  convict  on  a  lesser-included  offense  should  not  be  taken  from  the  jury  simply  because
              the  element  distinguishing  the  greater  offense  from  the  lesser  offense  is  Òuncontroverted.Ó  Id.  at  189.
              If  the  evidence  justifies  an  instruction,  the  failure  to  charge  the  offense  is  error  even  though  the
              evidence  was  also  sufficient  to  support  the  greater  offense. Burns,  6  S.W.3d  at  472. 

              C. Voluntary  Manslaughter

                     Voluntary  manslaughter,  a  Class  C  felony,  Òis  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.Ó Tenn.  Code  Ann.  ¤  39-13-211(a). Voluntary  manslaughter  is  a  lesser-included 
                       offense  of  premeditated  first  degree  murder. State  v.  Williams,  977  S.W.2d  101,  106
              (Tenn.  1998). 
                     It  is  questionable  whether  a  charge  on  voluntary  manslaughter  was  justified  in  light  of  the
              evidence  presented  at  trial.  Nevertheless,  in  the  event  the  trial  court  erred  by  not  charging  voluntary
              manslaughter,  it  was  clearly  harmless  beyond  a  reasonable  doubt. Harmless  error  may  be  shown
              where  the  jury  convicts  on  the  highest  offense  charged  to  the  exclusion  of  the  immediately  lesser
              offense,  thereby  rejecting  other  lesser  offenses. Id. Here  the  trial  court  charged  premeditated  first
              degree  murder,  second  degree  murder  and  reckless  homicide.  By  finding  the  defendant  guilty  of  first
              degree murder and rejecting second degree murder, the jury would have rejected voluntary
              manslaughter. See  id. (holding  a  guilty  verdict  on  first  degree  murder  and  rejection  of  second
              degree  murder  renders  the  failure  to  charge  voluntary  manslaughter  harmless  beyond  a  reasonable
              doubt). Thus,  if  the  trial  court  erred  in  failing  to  charge  voluntary  manslaughter,  it  was  harmless
              beyond  a  reasonable  doubt. 



                                                           -13- D. Facilitation  of  First  Degree  Murder

                     ÒA  person  is  criminally  responsible  for  the  facilitation  of  a  felony  if,  knowing  that  another
              intends  to  commit  a  specific  felony,  but  without  the  intent  required  for  criminal  responsibility  under
              ¤  39-11-402(2),  the  person  knowingly  furnishes  substantial  assistance  in  the  commission  of  the
              felony.Ó Tenn.  Code  Ann.  ¤  39-11-403(a). Facilitation  of  first  degree  murder  is  a  Class  A  felony.

              See  Tenn.  Code  Ann.  ¤  ¤  39-11-117(a)(1),  -403(b). Facilitation  of  first  degree  murder  is  a  lesser-included 
                       offense  of  premeditated  first  degree  murder. Burns,  6  S.W.3d  at  470. 
                     This  court  has  held:
                            Before  an  accused  can  be  convicted  of  the  facilitation  of  a  felony,  the  state
                     must  prove  beyond  a  reasonable  doubt  that  the  accused  (a)  knew  another  person  was
                     going to commit a specified felony and (b) knowingly furnished substantial
                     assistance  in  the  commission  of  the  felony  although  the  accused  did  not  possess  the
                     requisite  intent  to  be  guilty  of  the  felony. 
              State  v.  Parker,  932  S.W.2d  935,  950-51  (Tenn.  Crim.  App.  1996).
                     In  order  for  reasonable  minds  to  find  the  defendant  guilty  of  facilitation  of  premeditated  first
              degree  murder,  the  jury  would  have  to  conclude  in  this  case  that  the  defendant,  although  not  acting
              with  the  intent  to  promote  premeditated  murder  nor  benefit  in  the  results,  gave  this  father  the  pistol
              or  otherwise  furnished  substantial  assistance  to  his  father  Òknowing  that  [his  father]  inten[ded]  to
              commit  [premeditated  first  degree  murder].Ó See  Tenn.  Code  Ann.  ¤  39-11-403(a). This  was  not
              the  stateÕs  theory  nor  was  it  the  defense  theory;  however,  the  evidence,  not  the  theories  of  the  parties,
              controls  whether  a  lesser-included  offense  should  be  charged. Allen,  69  S.W.3d  at  188. In  Allen,
              the  court  concluded  the  failure  to  charge  facilitation  of  robbery  was  error,  even  though  the  use  of  a
              deadly  weapon  was  uncontroverted,  since  it  was  controverted  whether  the  accomplice  defendant
              shared  the  intent  of  his  principal. Id. 

                     We  are  required  to  view  the  evidence  in  a  light  most  favorable  to  the  existence  of  the  lesser-included 
                       offense  without  judging  credibility. Ely,  48  S.W.2d  at  722. Although  it  is  indeed  a  close
              question,  we  believe  that  reasonable  minds  could  have  found  the  defendant  guilty  of  facilitation  of
              premeditated  first  degree  murder.  We  further  believe  the  evidence  was  legally  sufficient  to  support
              such  a  conviction. Nevertheless,  this  does  not  end  our  inquiry. 
                     Having  concluded  a  jury  charge  on  facilitation  of  first  degree  murder  was  justified,  we  now
              examine  whether  the  failure  to  charge  it  was  harmless  error. Harmless  error  relating  to  the  failure
              to  charge  lesser-included  offenses  must  be  shown  Òbeyond  a  reasonable  doubt.Ó Ely,  48  S.W.3d  at
              727. Harmless  error  may  be  shown  where  the  jury  convicts  on  the  highest  offense  to  the  exclusion
              of  the  immediately  lesser  offense,  necessarily  rejecting  other  lesser  offenses.  Williams,  977  S.W.2d
              at  106. However,  harmless  error  is  not  limited  to  the  Williams  rejection  of  an  intermediate  lesser
              offense;  the  proper  inquiry  is  Òwhether  it  appears  beyond  a  reasonable  doubt  that  the  error  did  not



                                                           -14- affect the outcome of the trial.Ó  Allen, 69 S.W.3d at 191.  In making the harmless error
              determination,  this  court  must  Òconduct  a  thorough  examination  of  the  record,  including  the  evidence
              presented  at  trial,  the  defendantÕs  theory  of  defense,  and  the  verdict  returned  by  the  jury.Ó Id. 

                     We  first  examine  the  evidence  at  trial. The  stateÕs  proof  established  the  following. The
              defendant  entered  the  victimÕs  home  brandishing  the  murder  weapon,  demanded  his  jewelry,  and  told
              the  victimÕs  mother  he  intended  to  kill  the  victim. The  defendant  went  around  to  the  back  of  the
              residence  seeking  the  victim  and,  not  being  able  to  unlock  the  back  door,  reentered  through  the  front
              door.  He  threatened  to  kill  the  victimÕs  mother. The  victim  was  shot  three  times  at  close  range;  the
              defendant  discarded  the  weapon  outside;  and  the  defendant  confessed  to  the  crime  at  the  police
              station,  stating  his  father  had  Ònothing  to  do  with  it.Ó  It  was  not  the  stateÕs  theory  that  the  defendant
              was  criminally  responsible  for  the  conduct  of  his  father,  nor  was  criminal  responsibility  even  charged
              to  the  jury. The  state  never  waivered  from  its  theory  that  the  defendant  was  the  triggerman. 
                     The  defendant  testified  he  gave  his  father  the  pistol  prior  to  the  shooting,  Òthinking  itÕs  over,Ó
              and  thinking  his  father  was  following  him  to  the  car. The  defendant  did  not  indicate  he  knew  his
              father  intended  to  commit  premeditated  murder.  It  was  the  defense  theory  the  defendant  was  not  the
              triggerman  and  did  not  know  his  father  intended  to  kill  the  victim. His  testimony  was  inconsistent
              with  facilitation  to  commit  premeditated  first  degree  murder. Such  a  charge  was  never  requested.
                     The  juryÕs  verdict  reflects  it  flatly  rejected  defendantÕs  testimony  and  theory  of  defense  and
              fully  accredited  the  stateÕs  theory  that  the  defendant  was  the  triggerman. Facilitation  to  commit
              premeditated  first  degree  murder  is  a  Class  A  felony  as  is  second  degree  murder;  therefore,  the
              Williams  harmless  error  scenario  is  inapplicable  because  there  was  no  intermediate  lesser-included
              offense. Nevertheless,  unlike  Allen  where  the  jury  passed  over  the  greater  offense  in  favor  of  a
              lesser  offense  and  the  court  did  not  find  harmless  error,  see  Allen,  69  S.W.3d  at  189,  the  jury  in  this
              case  did  not  pass  over  the  greater  charge  of  premeditated  first  degree  murder  in  favor  of  second
              degree  murder. 
                     Considering  the  evidence  at  trial,  the  defendantÕs  theory  of  defense,  and  the  verdict  rendered
              by  the  jury,  we  conclude  the  failure  to  instruct  on  facilitation  to  commit  premeditated  first  degree
              murder  was  harmless  beyond  a  reasonable  doubt  and  did  not  affect  the  outcome  of  the  trial. 


                                                     CONCLUSION

                     Based  on  the  evidence,  we  affirm  and  conclude:  (1)  the  evidence  was  sufficient  to  sustain  the
              conviction;  (2)  the  defendant  was  not  deprived  of  the  opportunity  to  secure  retained  counsel  of  his
              choice;  (3)  the  defendant  has  failed  to  establish  prosecutorial  misconduct;  and  (4)  the  trial  courtÕs
              failure  to  charge  facilitation  of  first  degree  murder  and  voluntary  manslaughter  as  lesser-included
              offenses  was  waived  as  an  appellate  issue  and,  further,  was  harmless  beyond  a  reasonable  doubt. 



                                                           -15- ___________________________________ 
                                                                JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                         Assigned  on  Briefs  January  23,  2002

             STATE  OF  TENNESSEE  v.  TIMOTHY  SCOTT  BARNES,  DAVID
                        GROOMS,  and  RICHARD  GROOMS

                      Appeal  from  the  Criminal  Court  for  Cocke  County
                      Nos.  8131,  8145,  8146  Ben  W.  Hooper  II,  Judge 

                            No.  E2001-01390-CCA-R3-CD
                                 March  27,  2002

         The  defendants,  Timothy  Scott  Barnes,  David  Grooms,  and  Richard  Grooms,  were  convicted  of
         attempted  burglary,  a  Class  E  felony.  The  trial  court  imposed  Range  I  sentences  as  follows:  Timothy
         Scott  Barnes,  one  year,  three  months;  David  Grooms,  one  year,  six  months;  and  Richard  Grooms,
         one  year,  six  months. In  this  appeal  of  right,  the  defendants  challenge  the  sufficiency  of  the
         evidence.  The  judgments  are  affirmed. 

                   Tenn.  R.  App.  P.  3;  Judgments  of  the  Trial  Court  Affirmed

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JAMES  CURWOOD  WITT,  JR.,  and
         NORMA  MCGEE  OGLE,  JJ.,  joined.
         John  B.  Bunnell,  Newport,  Tennessee,  for  the  appellant,  Timothy  Scott  Barnes,  and  Thomas  V.
         Testerman,  Newport,  Tennessee,  for  the  appellants,  David  Grooms  and  Richard  Grooms.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Thomas  E.  Williams,  III,  Assistant  Attorney
         General;  and  Ronald  C.  Newcomb,  Assistant  District  Attorney  General,  for  the  appellee,  State  of
         Tennessee. 


                                   OPINION

             In  the  late  fall  of  1999,  John  David  Thacker,  a  building  contractor,  began  the  construction
         of  a  residence  for  the  victim,  Lee  Schilling.  The  construction  site,  located  in  a  heavily  wooded  area
         in  Cocke  County,  was  accessible  by  a  private  driveway  leading  from  Ogle's  Chapel  Road.  During
         the  course  of  the  construction,  materials  and  equipment  had  been  stolen  from  the  property  on  three
         separate  occasions.  The  basement  of  the  residence  had  been  burglarized  on  two  occasions.  In  an
         effort  to  protect  against  theft,  Thacker  placed  a  chain  across  the  driveway,  installed  a  heavy  duty  door
         on  the  basement  where  approximately  $2,500.00  in  equipment  and  material  had  been  stored,  and
         asked  Detective  Bryan  Murr  of  the  Cocke  County  Sheriff's  Department  to  conduct  surveillance  of
         the  property. 



                                                                -2- On  March  24,  2000,  Thacker,  who  lived  in  relatively  close  proximity  to  the  Schilling  tract,
               left  work  at  approximately  8:00  P.M. At  9:00  P.M.  that  night,  he  returned  to  the  construction  site
               and  saw  no  signs  of  any  break-in  or  theft. At  about  the  same  time,  Detective  Murr,  assisted  by
               Constable  Richard  Valentine  and  reserve  Deputy  Steve  Johnson,  set  up  surveillance  at  a  point  from
               which  he  could  see  any  vehicle  approaching  the  Schilling  property  by  either  Ogle's  Chapel  Road  or
               by  a  private  road  which  served  as  an  alternative  access. About  one  hour  later,  Detective  Murr  saw
               a  truck  traveling  on  the  private  road  stop  and  back  into  the  Schilling  driveway. For  a  period  of
               between  15  and  20  minutes,  Detective  Murr  could  hear  the  truck's  doors  opening  and  other  sounds
               he  described  as  like  a  hammer  striking  wood.  Detective  Murr  contacted  Valentine  and  Johnson  and
               instructed  them  to  position  themselves  at  the  end  of  the  private  road  access. As  another  vehicle,
               which  never  stopped,  passed  by  the  Schilling  driveway,  the  truck,  occupied  by  the  three  defendants,
               pulled  out  of  the  driveway  and  turned  onto  the  private  road.  Detective  Murr,  despite  sustaining  a  flat
               tire  to  his  pursuing  vehicle,  was  able  to  maintain  visual  contact  with  the  tail  lights  of  the  defendants'
               truck  until  the  defendants  were  stopped  by  Constable  Valentine  and  Deputy  Johnson.  Inside  the  cab
               of  the  truck,  the  officers  found  tools,  including  a  pry  bar,  that  were  consistent  with  some  damage  that
               was  later  discovered  on  the  basement  door  of  the  Schilling  property. At  10:30  P.M.,  Thacker
               inspected  the  basement  door  and  found  damage  to  the  hasp,  as  if  someone  had  attempted  to  pry  it
               off. The  wood  near  the  hasp  had  been  splintered  and  there  was  damage  to  the  concrete  blocks
               adjacent  to  the  door.  After  inspecting  the  construction  site,  which  had  an  unpaved,  muddy  driveway,
               Thacker  met  with  the  officers  at  the  place  of  the  defendants'  arrest. He  observed  that  two  of  the
               defendants  had  mud  on  their  shoes  and  that  the  tires  of  their  truck  were  muddy. The  trailer  hitched
               to  the  truck  contained  pieces  of  concrete  block  which  were  consistent  with  the  marks  on  the  door  of
               the  victim's  basement.  Thacker  and  Detective  Murr  observed  tire  tracks  and  freshly  made  foot  prints
               near  the  victim's  residence. 
                       At the conclusion of the state's case in chief, the  defense offered  no proof but sought
               judgments  of  acquittal. 
                       In  this  appeal,  the  defendants  argue  that  the  circumstantial  evidence  is  insufficient  because
               the  proof  did  nothing  more  than  establish  that  each  of  them  was  present  at  the  crime  scene. The
               defense  argues  that  the  state  failed  to  establish  that  each  of  the  three  defendants  actually  participated
               in  the  burglary  attempt. 
                       Rule  29  of  the  Tennessee  Rules  of  Criminal  Procedure  empowers  the  trial  judge  to  direct  a
               judgment  of  acquittal  when  the  evidence  is  insufficient  to  warrant  a  conviction  either  at  the  time  the
               state  rests  or  at  the  conclusion  of  all  the  evidence. Overturf  v.  State,  571  S.W.2d  837  (Tenn.  1978).
               At  the  point  the  motion  is  made,  the  trial  court  must  favor  the  opponent  of  the  motion  with  the
               strongest  legitimate  view  of  the  evidence,  including  all reasonable  inferences,  and  discard  any
               countervailing  evidence. Hill  v.  State,  470  S.W.2d  853  (Tenn.  Crim.  App.  1971). The  standard  by
               which  the  trial  court  determines  a  motion  for  judgment  of  acquittal  at  that  time  is,  in  essence,  the
               same  standard which applies on appeal in determining the sufficiency  of the evidence after a
               conviction. That  is,  "whether,  after  reviewing  the  evidence in  the  light  most  favorable  to  the



                                                                -3- prosecution,  any  rational  trier  of  fact  could  have  found  the  essential  elements  of  the  crime  beyond
               a  reasonable  doubt." Tenn.  R.  App.  P.  13(e);  Jackson  v.  Virginia,  443  U.S.  307  (1979). 
                       On  appeal,  of  course,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence,  and
               all  reasonable  inferences  which  may  be  drawn  therefrom. State  v.  Cabbage,  571  S.W.2d  832,  835
               (Tenn.  1978). The  credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and  the
               reconciliation  of  conflicts  in  the  evidence  are  matters  entrusted  exclusively  to  the  jury  as  the  trier  of
               fact. Byrge  v.  State,  575  S.W.2d  292,  295  (Tenn.  Crim.  App.  1978). A  guilty  verdict,  approved  by
               the  trial  judge,  accredits  the  testimony  of  the  witnesses  for  the  state  and  resolves  all  conflicts  in  the
               proof  in  favor  of  the  state's  theory. State  v.  Hatchett,  560  S.W.2d  627,  630  (Tenn.  1978). 
                       An  offense  may  be  proven  by  circumstantial  evidence  alone.  Price  v.  State,  589  S.W.2d  929,
               931  (Tenn.  Crim.  App.  1979). Our  scope  of  review  is  the  same  when  the  conviction  is  based  upon
               circumstantial  evidence  as  it  is  when  it  is  based  upon  direct  evidence. State  v.  Brown,  551  S.W.2d
               329,  331  (Tenn.  1977);  Farmer  v.  State,  343  S.W.2d  895,  897  (Tenn.  1961). 
                       With  convictions  such  as  these,  where  the  evidence  is  entirely  circumstantial,  the  jury  must
               find  that  the  proof  is  not  only  consistent  with  the  guilt  of  the  accused  but  inconsistent  with  his
               innocence.  There must be an evidentiary basis upon which the jury  can exclude every other
               reasonable  theory  or  hypothesis  except  that  of  guilt. Pruitt  v.  State,  460  S.W.2d  385,  390  (Tenn.
               Crim.  App.  1970). The  trial  court  has  the  duty  to  charge  the  jury  on  the  weight  and  significance  of
               circumstantial  evidence  when  it  is  the  only  basis  upon  which  the  state's  case  rests. Bishop  v.  State,
               287  S.W.2d  49,  52  (Tenn.  1956). Like  all  other  fact  questions,  the  determination  of  whether  all
               reasonable  theories  or  hypotheses  are  excluded  by  the  evidence  is  primarily  a  jury  question. State
               v.  Tharpe,  726  S.W.2d  896  (Tenn.  1987);  Marable  v.  State,  313  S.W.2d  451,  457  (Tenn.  1958). 
                       The  jury  is  governed  by  four  rules  when  testing  the  value  of  circumstantial  evidence:  (1)  The
               evidence  should  be  acted  upon  with  caution;  (2)  all  of  the  essential  facts  must  be  consistent  with  the
               hypothesis  of  guilt;  (3)  the  facts  must  exclude  every  other  reasonable  theory  except  that  of  guilt;  and
               (4)  the  facts  must  establish  such  a  certainty  of  guilt  as  to  convince  beyond  a  reasonable  doubt  that
               the  defendant  is  the  perpetrator  of  the  crime. Marable,  313  S.W.2d  at  456. 
                       In  the  light  most  favorable  to  the  state,  it  was  established  that  at  9:00  P.M.  on  March  24,
               2000,  there  was  no  indication  of  an  attempted  burglary  at  the  Schilling  residence.  At  the  same  time,
               the  Cocke  County  Sheriff's  Department  set  up  a  surveillance  of  the  property. An  hour  later,  a  truck
               later determined to be occupied by  the three defendants backed into the Schilling driveway.
               Detective  Murr  heard  doors  open  and  sounds  like  a  hammer  striking  wood. Fifteen  to  20  minutes
               later,  the  truck  left  the  driveway  and  traveled  onto  a  private  road  which  ultimately  led  to  Rooster
               Town  Road,  where  Constable  Valentine  and  Officer  Johnson  waited.  Detective  Murr  never  lost  sight
               of  the  truck's  tail  lights  as  it  was  driven  from  the  scene  until  it  was  stopped. All  three  defendants
               were  in  the  cab  of  the  vehicle. The  contractor  and  the  officers  discovered  damage  to  the  basement
               door  of  the  residence. A  truck  trailer  hitch  matched  dents  in  the  masonry  and  a  pry  bar  found  in  the
               vehicle  was  consistent  with  damage  done  to  the  premises. There  were  concrete  particles  and  some



                                                                -4- small  wooden  splinters  on  the  ball  of  the  trailer  hitch. The  only  other  vehicle  at  the  scene  did  not
               stop  at  the  Schilling  residence  and  proceeded  onto  Ogle's  Chapel  Road. Two  of  the  defendants  had
               muddy  shoes. There  were  truck  tire  tracks  in  the  mud  near  the  Schilling  residence. During  the  time
               Constable  Valentine  and  Officer  Johnson  were  stationed  at  the  intersection  of  the  private  road  and
               Rooster  Town  Road,  no  one  else  drove  into  the  intersection  from  the  direction  of  the  Schilling
               residence. 
                       A  burglary  is  committed  when  one,  without  the  consent  of  the  owner,  enters  a  building  other
               than  a  habitation  with  an  intent  to  commit  a  felony,  a  theft,  or  an  assault. Tenn.  Code  Ann.  ¤  39-14-
               402. The  criminal  attempt  of  a  burglary  occurs  when  one  (a)  with  the  requisite  intent  takes  a
               substantial  step  towards  the  commission  of  the  offense. Tenn.  Code  Ann.  ¤  39-12-101. One  is
               criminally  responsible  for  the  conduct  of  another  when  one  intends  to  promote  or  assist  in  the
               commission  of  the  offense  or  benefit  in  the  proceeds  and  solicits,  directs,  aids,  or  attempts  to  aid
               another  to  commit  the  offense. Tenn.  Code  Ann.  ¤  39-11-402(2). 
                       In  our  view,  the  state  was  able  to  exclude  every  reasonable  hypothesis  other  than  the  three
               defendants'  jointly  traveling  to  a  construction  site  located  in  a  remote,  wooded  area  in  an  effort  to
               commit  a  burglary.  The  truck  occupied  by  all  three  defendants  was  utilized  in  an  effort  to  gain  entry
               to  the  basement  where  valuables  were  stored. At  least  two  of  the  three  individuals  had  mud  on  their
               shoes.  The  truck's  tire  marks  were  in  the  muddy  driveway  of  the  construction  site.  No  other  vehicles
               stopped  at  the  site  during  the  period  of  time  in  question.  The  defendants  fled  together  from  the  scene
               and  when  stopped  by  officers,  their  truck  contained  tools  consistent  with  the  burglary  and  bore  marks
               of  an  attempt  to  force  entry  into  the  Schilling  basement. The  record  establishes  that  the  defendants
               either  attempted  to  or  were  criminally  responsible  for  forcibly  entering  the  Schilling  basement. In
               our  view,  a  rational  trier  of  fact  could  have  found  each  of  the  defendants  guilty  beyond  a  reasonable
               doubt  based  entirely  upon  the  circumstantial  evidence. 
                       Accordingly,  the  judgments  are  affirmed.


                                                                     ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  April  9,  2002

             STATE  OF  TENNESSEE  v.  ELWOOD  JEFFREY  BARRIGHER

                    Direct  Appeal  from  the  Circuit  Court  for  Obion  County
                         No.  9-416  William  B.  Acree,  Jr.,  Judge


                     No.  W2001-02238-CCA-R3-CD  -  Filed  April  19,  2002


         The  Appellant,  Elwood  Jeffrey  Barrigher,  appeals  the  judgment  of  the  Obion  County  Circuit  Court
         revoking  his  placement  in  the  Community  Corrections  program  and  reinstating  his  original  nine-year
         sentence  in  the  Department  of  Correction.  Prior  to  his  revocation,  Barrigher  was  serving  a  nine-year
         Community  Corrections  sentence,  which  stemmed  from  his  1999  class  B  felony  conviction  for
         delivery  of  a  Schedule  II  controlled  substance. Finding  no  abuse  of  discretion,  we  affirm  the
         revocation.

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

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  JAMES
         CURWOOD  WITT,  JR.,  JJ.,  joined.
         Joseph  P.  Atnip,  District  Public  Defender,  Dresden,  Tennessee,  for  the  Appellant,  Elwood  Jefffrey
         Barrigher.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  Braden  H.
         Boucek,  Assistant  Attorney  General;  Thomas  A.  Thomas,  District  Attorney  General;  and  Kevin
         McAlpin,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.


                                   OPINION
                                Factual  Background

             On  June  28,  2001,  a  Community  Corrections  Violation  Report  was  filed  alleging  that  the
         Appellant  had  tested  positive  for  drug  use  and  for  failing  to  make  any  payment  toward  his  court
         ordered  cost  and  restitution.  After  a  hearing  on  July  13,  2001,  the  trial  court  revoked  the  AppellantÕs
         placement  in  the  Community  Corrections  program  and  ordered  him  to  serve  the  balance  of  his  nine-year 
            sentence  in  the  Department  of  Correction. 



                                                                -2- In  this  appeal,  the  Appellant  asserts  that  the  trial  court  abused  its  discretion  by  Òsentencing
               him  to  the  Department  of  Correction  rather  than  giving  him  another  chance  under  the  supervision
               of  Westate  Corrections  Network,Ó  the  local  Community  Corrections  program. Specifically,  the
               Appellant  argues  that  Òhis  unusual  parenting  circumstances  call  for  an  unusual  measure  of  leniency,Ó
               and  further  asserts  that  he  should  have  been  given  long-term  drug  treatment  instead  of  incarceration.
                       The  law  concerning  revocation  of  a  Community  Corrections  sentence  is  clear.  The  trial  court
               has  the  discretion  to  revoke  a  Community  Corrections  sentence  upon  a  finding  that  the  defendant  has
               violated  the  conditions  of  his  behavioral  contract.  State  v.  Harkins,  811  S.W.2d  79,  82  (Tenn.  1991).
               Before  a  defendant  may  be  revoked,  however,  the  record  must  contain  sufficient  evidence  to  permit
               the  trial  court  to  make  an  intelligent  and  conscientious  decision. Id. On  appeal,  the  trial  courtÕs
               decision  will  not  be  disturbed  absent  a  finding  that  the  trial  court  abused  its  discretion. Id. To  find
               an  abuse  of  discretion,  the  reviewing  court  must  conclude  that  the  record  contains  no  substantial
               evidence  to  support  the  conclusion  of  the  trial  court  that  the  defendant  violated  the  terms  of  the
               Community  Corrections  program. Id. 

                       At the revocation hearing, the State presented the testimony of Glenda Hubbard, the
               AppellantÕs  Community  Corrections  case  officer. Ms.  Hubbard  testified  that  the  Appellant  had
               failed  to  make  any  payments  to  the  court  toward  court-ordered  costs  and  restitution  in  direct  violation
               of  Rule  4  of  the  behavioral  contract  signed  by  the  Appellant. The  proof  further  established  that
               approximately  six  months  after  completing  an  inpatient  treatment  program  in  the  Veterans  Hospital
               in  Memphis  for  drug  addiction,  the  Appellant  tested  positive  for  the  use  of  marijuana.  The  Appellant
               was  then  admitted  to  the  Serenity  Recovery  Center  in  Memphis  for  additional  substance  abuse
               treatment.  He failed to complete the prescribed course of treatment at the Serenity Center.
               Following  the  AppellantÕs  departure  from  the  Serenity  Center,  he  twice  tested  positive  for  cocaine
               and  marijuana  use.  The  behavioral  condition  violations  for  drug  use  are  based  upon  the  AppellantÕs
               use  of  drugs  following  his  release  from  the  Serenity  Center. The  Appellant,  testifying  on  his  own
               behalf,  admitted  to  using  narcotics  while  serving  his  Community  Corrections  sentence.  Nonetheless,
               the  Appellant  again  requested  placement  in  long-term  drug  rehabilitation  in  lieu  of incarceration
               because  he  was  a  single  parent  responsible  for  the  care  of  his  fifteen-year-old  daughter.
                       In  revoking  the  AppellantÕs  placement  in  the  local  Community  Corrections  program,  the  trial
               court  found  that,
                       [a]ccording  to  the  file,  the  defendant  has  received  drug  treatment  two  different  times,
                       at  the  VeteranÕs  Hospital,  and  then  at  Serenity,  and  it  hasnÕt  done  any  good. .  .  .  I
                       understand  you  have  a  drug  problem,  but  the  efforts  so  far  havenÕt  done  any  good,
                       and  I  donÕt  really  think  you  are  really  interested  at  this  time  in  doing  anything  about
                       your  drug  problem. Maybe  you  canÕt. I  donÕt  know. As  I  previously  stated,  on  two
                       different  occasions,  youÕve  received  treatment  since  you  have  been  sentenced  by  this
                       Court. .  .  .  I  canÕt  allow  you  to  remain  on  Westate  Corrections  and  violate  the
                       program. If  I  allowed  you  to  do  that,  everybody  would  do  it. ThereÕs  really  nothing



                                                                -3- else  to  do  with  you  other  than  send  you  to  the  Department  of  Correction,  which  IÕm
                       going  to  do. You  are  resentenced  to  the  Tennessee  Department  of  Correction.
               We  agree  with  the  trial  courtÕs  reasoning. The  behavioral  contract  signed  by  the  Appellant  states,
               Ò[a]ny  violation  of  the  rules  is  a  serious  matter  and  could  result  in  the  revocation  of  your  Community
               Corrections  sentence.Ó Thus, the  Appellant  was  well  aware  that  his  actions  could  lead  to  the
               revocation  of his Community Corrections sentence.  The  record before us contains more than
               sufficient proof to support the trial courtÕs decision that enrollment in another drug-treatment
               program  was  not  a  viable  choice,  as  the  Appellant  had  twice  failed  such  programs.  Furthermore,  the
               AppellantÕs  contractual  obligations  to  the  Community  Corrections  program  are  in  no  way  altered
               because  of  his  status  as  a  single  parent. 

                                                        CONCLUSION

                       We find that the trial court did not abuse its discretion by revoking the AppellantÕs
               Community  Corrections  sentence  and  ordering  incarceration. The  judgment  of  the  Obion  County
               Circuit  Court  is  affirmed.



                                                                     ___________________________________ 
                                                                     DAVID  G.  HAYES,  JUDGE



                           1  The defendant testified he received consecutive sentencing in the general sessions court; however, the
                  judgments  of  that  court  are  silent  as  to  concurrent/consecutive  sentencing  for  the  two  counts. That  issue  is  moot  in  view
                  of  the  de  novo  appeal  to  circuit  court.  IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                  Assigned  on  Briefs  August  14,  2002

                                  STATE  OF  TENNESSEE  v.  JAMES  RAY  BARTLETT

                                                       Circuit  Court  for  Lincoln  County
                                                                   No.  S0100037


                                       No.  M2001-02419-CCA-R3-CD  -  Filed  September  20,  2002

                                                                       ORDER

                           Defendant  appeals  the  circuit  court  judgments  denying  him  probation  on  two  misdemeanor
                  counts  of  passing  worthless  checks. We  affirm  pursuant  to  Rule  20,  Rules  of  the  Court  of  Criminal
                  Appeals.
                           On  June  18,  2001,  the  defendant  pled  guilty  in  Lincoln  County  General  Sessions  Court  to  two
                  misdemeanor  charges  of  passing  worthless  checks. See  Tenn.  Code  Ann.  ¤  39-14-121. The  general
                  sessions judge sentenced him to sentences of eleven months and twenty-nine days, with all
                  suspended  except  for  nine  months  in  the  county  jail.1 The  defendant  appealed  his  sentences  to  the
                  circuit court, which conducted a sentencing hearing.  The circuit court sentenced him to two
                  concurrent  sentences  of  eleven  months  and  twenty-nine  days  to  be  served  in  the  county  jail. The  sole
                  issue  in  this  appeal  is  whether  the  trial  court  erred  by  denying  probation. 
                           The  proof  from  the  sentencing  hearing  reflects  the  defendant  has  an  extensive  prior  criminal
                  record  which  includes  misdemeanor  convictions  and  numerous  felony  convictions,  such  as  grand
                  larceny,  aggravated  burglary,  multiple  burglaries,  aggravated  assault,  and  multiple  felony  thefts. He
                  committed  some  of  these  offenses  while  he  was  on  probation  and/or  parole. 
                           In determining whether to grant or deny probation, a trial court should consider the
                  circumstances  of  the  offense,  the  defendant's  criminal  record,  the  defendantÕs  social history  and
                  present  condition,  the  need  for  deterrence,  and  the  best  interest  of  the  defendant  and  the  public.  State
                  v.  Grear,  568  S.W.2d  285,  286  (Tenn.  1978);  State  v.  Boyd,  925  S.W.2d  237,  244  (Tenn.  Crim.  App.
                  1995). The  trial  court  may  also  consider  whether  measures  less  restrictive  than  confinement  have
                  been  unsuccessful. See  Tenn.  Code  Ann.  ¤  40-35-103(1)(C). Given  the  proof  presented  to  the  trial
                  court  regarding  the  defendantÕs  extensive  prior  criminal  history  and  the  crimes  he  has  committed



                                                                -2- while  on  probation  and/or  parole,  we  cannot  conclude  the  trial  court  abused  its  discretion  in  denying
               probation  to  the  defendant.
                       Accordingly,  it  is  ORDERED  that  the  judgment  of  the  trial  court  be  affirmed  pursuant  to
               Rule  20,  Rules  of  the  Court  of  Criminal  Appeals. Costs  are  taxed  to  the  state  since  the  defendant
               is  indigent. 



                                                                             JOE  G.  RILEY,  JUDGE

                                                                             DAVID  G.  HAYES,  JUDGE

                                                                             NORMA  MCGEE  OGLE,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                          Assigned  on  Briefs  March  19,  2002

                     STATE  OF  TENNESSEE  v.  DAVID  W.  BASS

                      Appeal  from  the  Criminal  Court  for  Roane  County
                          No.  12,1777  E.  Eugene  Eblen,  Judge

                            No.  E2001-01146-CCA-R3-CD
                                  June  14,  2002

         The  defendant,  David  W.  Bass,  was  indicted  for  driving  under  the  influence,  violation  of  the  implied
         consent  law,  failure  to  appear,  and  operating  a  motor  vehicle  with  an  improper  taillight.  Pursuant
         to  a  plea  agreement,  the  defendant  entered  a  plea  of  guilt  to  driving  under  the  influence,  first  offense.
         After  the  entry  of  his  plea  but  before  sentencing,  the  defendant  sought  to  withdraw  his  plea,  arguing
         that  it  was  not  knowingly  and  voluntarily  made.  The  trial  court  denied  the  motion  and  imposed  a
         sentence  of  eleven  months  and  twenty-nine  days,  with  all  but  three  days  suspended.  In  this  appeal
         of  right,  the  defendant  contends  that  the  trial  court  erred  by  denying  the  motion  to  withdraw  the
         guilty  plea.  The  judgment  of  the  trial  court  is  affirmed.

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

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  ROBERT
         W.  WEDEMEYER,  JJ.,  joined.
         John  M.  McFarland,  Kingston,  Tennessee,  for  the  appellant,  David  W.  Bass.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Braden  H.  Boucek,  Assistant  Attorney  General;  and
         Frank  Harvey,  Assistant  District  Attorney  General,  for  the  appellee,  the  State  of  Tennessee.

                                   OPINION

             The  defendant  was  indicted  for  driving  under  the  influence,  violation  of  the  implied  consent
         law,  failure  to  appear,  and  operating  a  motor  vehicle  with  an  improper  taillight.  The  defendant
         entered  a  plea  of  guilt  to  driving  under  the  influence,  first  offense.  Pursuant  to  a  plea  agreement,  the
         state  agreed  to  dismiss  the  remaining  charges  and  recommend  a  sentence  of  eleven  months  and
         twenty-nine  days,  with  all  but  three  days  suspended.  A  fine  of  $400  was  assessed.
             At  the  entry  of  the  defendantÕs  guilty  plea,  the  trial  court  specifically  explained  the  terms  of
         the  agreement  to  the  defendant  and  warned  him  that  he  would  be  giving  up  a  number  of
         constitutional  rights  if  he  chose  to  plead  guilty.  The  defendant  acknowledged  that  he  understood  and



                                                                -2- persisted  in  pleading  guilty. The  trial  court  directed  the  defendant  to  return  to  court  in  three  months
               for  the  imposition  of  sentence  and  the  service  of  the  jail  term.
                       On  the  day  he  was  scheduled  for  sentencing,  the  defendant  filed  a  motion  to  withdraw  his
               guilty  plea,  arguing  that  it  was  not  knowingly  and  intelligently  made. The  trial  court  permitted
               defense  counsel  to  withdraw,  so  that  he  could  testify  at  the  motion  hearing,  and  appointed  substitute
               counsel  for  the  defendant.  At  the  hearing  on  the  motion  to  withdraw  the  defendantÕs  guilty  plea,  the
               defendantÕs  prior  counsel  testified  that  he  had  discussed  with  the  defendant  the  legal  options  that
               were  available  and  had  read  and  explained  the  plea  agreement  Òline  by  line.Ó Prior  counsel  further
               claimed  that  he  explained  to  the  defendant  the  consequences  of  his  guilty  plea  and  expressed  his
               belief  that  the  defendant  understood  the  plea  agreement  and  its  ramifications.  He  acknowledged  that
               several  weeks  after  the  entry  of  the  plea,  the  defendant  informed  him  that  he  was  Òuncomfortable
               with  the  plea.Ó It  was  prior  counselÕs  belief  that  the  defendant  Òprobably  was  confused  aboutÓ  the
               terms.
                       A  defendant  who  submits  a  guilty  plea  is  not  entitled  to  withdraw  the  plea  as  a  matter  of
               right. State  v.  Turner,  919  S.W.2d  346,  355  (Tenn.  Crim.  App.  1995). In  appropriate  cases,  trial
               courts  have  the  authority  to  set  aside  a  guilty  plea  after  its  acceptance. State  v.  Burris,  40  S.W.3d
               520, 524 (Tenn. Crim. App. 2000).  Under Tennessee Rule of Criminal Procedure 32(f), a
               defendant's  motion  to  withdraw  a  plea  of  guilty  filed  before  the  imposition  of  sentence  may  be
               granted  upon  a  showing  Òof  any  fair  and  just  reason.Ó A  guilty  plea  will  not  be  set  aside  simply
               because  the  defendant  experiences  a  change  of  heart. See  Ray  v.  State,  224  Tenn.  164,  170,  451
               S.W.2d  854,  856  (1970). The  withdrawal  of  a  guilty  plea  is  a  matter  of  the  sound  discretion  of  the
               trial  court. State  v.  Davis,  823  S.W.2d  217,  220  (Tenn.  Crim.  App.  1991). An  abuse  of  discretion
               occurs  when  there  is  no  substantial  evidence  to  support  the  conclusion  of  the  trial  court.  See  Goosby
               v.  State,  917  S.W.2d  700,  705  (Tenn.  Crim.  App.  1995)  (citing  State  v.  Williams,  851  S.W.2d  828,
               830-31  (Tenn.  Crim.  App.  1992)). Our  scope  of  review  is,  therefore,  limited  to  a  determination  of
               whether  there  is  substantial  evidence  to  support  the  trial  courtÕs  conclusion  that  the  defendantÕs
               guilty  plea  was  knowingly  and  voluntarily  made.
                       The  law  is  well  established  that  a  guilty  plea  may  be  withdrawn  if  it  was  not  knowingly,
               voluntarily,  and  understandingly  made. Boykin  v.  Alabama,  395  U.S.  238,  242-44  (1969). A  plea
               which  is  the  product  of  Òignorance,  incomprehension,  coercion,  terror,  inducements,  [or]  subtle  or
               blatant  threatsÓ  is  not  voluntary. Boykin,  395  U.S.  at  242-43. Ò[T]he  core  requirement  of  Boykin
               is Ôthat no guilty plea  be accepted without an affirmative showing that it was intelligent and
               voluntary.ÕÓ Blankenship  v.  State,  858  S.W.2d  897,  904  (Tenn.  1993)  (quoting  Fontaine  v.  United
               States,  526  F.2d  514,  516  (6th  Cir.  1975)).
                       When  examining  the  voluntariness  of  a  guilty  plea,  a  reviewing  court  must  consider  the  age
               of  the  defendant,  the  defendantÕs  familiarity  with  the  criminal  justice  system,  the  reasons  for  his
               decision  to  plead  guilty,  and  whether  the  defendant  was  given  ample  opportunity  to  confer  with
               counsel  about  all  options  available  to  him. Blankenship,  858  S.W.2d  at  904. Further,  before  a  plea
               may  be  considered  knowingly  and  voluntarily  entered,  the  defendant  must  be  informed  of  the  rights



                                                                -3- and  circumstances  involved  and  nevertheless  choose  to  waive  or  relinquish  those  rights. State  v.
               Mackey,  553  S.W.2d  337,  340  (Tenn.  1977).
                       Here,  the  forty-six-year-old  defendant  entered  a  plea  of  guilty  to  driving  under  the  influence
               pursuant  to  a  plea  agreement. In  exchange  for  his  guilty  plea,  the  state  dismissed  three  charges
               pending  against  him  and  made  a  sentencing  recommendation  to  the  trial  court. At  the  time  of  the
               plea,  the  defendant  was  advised  that  he  had  the  right  to  a  jury  trial,  the  right  to  compel  and  confront
               witnesses,  and  the  right  to  maintain  a  plea  of  not  guilty. The  record  demonstrates  that  the  defendant
               expressed  a  clear  understanding  of  those  rights  and  made  an  informed  choice  to  plead  guilty. The
               trial court accredited his counselÕs testimony that the defendant understood the terms of the
               agreement.  Finally,  the  defendant  made  no  assertion  that  his  will  was  overborne,  stating  simply  that
               he  felt  ÒuncomfortableÓ  with  the  plea. That  is  not  enough. It  is  our  view  that  the  trial  court  did  not
               abuse  its  discretion  by  denying  the  defendantÕs  motion  to  withdraw  his  guilty  plea.
                       Accordingly,  the  judgment  of  the  trial  court  is  affirmed.


                                                                     ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  January  15,  2002

                    STATE  OF  TENNESSEE  v.  JOSEPH  G.  BATTS

                   Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                        No.  99-D-2290  Cheryl  Blackburn,  Judge


                   No.  M2001-00896-CCA-R3-CD  -  Filed  September  11,  2002


         The  appellant,  Joseph  Batts,  was  convicted  by  a  jury  of  the  offense  of  rape.  He  was  sentenced  to  a
         term  of  twelve  (12)  years  in  the  Tennessee  Department  of  Correction.  In  this  appeal  he  contends  that
         the  evidence  is  insufficient  to  sustain  the  conviction  for  rape  and  that  his  sentence  is  excessive.  After
         carefully  reviewing  the  record  as  presented,  we  are  of  the  opinion  that  the  evidence  is  legally
         sufficient  to  support  the  conviction. Moreover,  in  the  absence  of  a  transcript  of  the  sentencing
         hearing  we  must  presume  the  sentence  is  correct.  The  judgment  of  the  trial  court  is  affirmed.

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

         JERRY  L.  SMITH,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  ROBERT  W.
         WEDEMEYER,  JJ.,  joined.
         Leslie  Bruce,  at  trial  and  sentencing;  and  C.  LeAnn  Smith,  on  appeal,  for  the  appellant,  Joseph  G.
         Batts.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Patricia  C.  Kussmann,  Assistant  Attorney  General;
         Victor  S.  Johnson,  District  Attorney  General;  and  Grady  Moore,  Assistant  District  Attorney  General,
         for  the  appellee,  State  of  Tennessee.

                                   OPINION

             On  the  afternoon  of  July  20,  1999,  the  female  victim  in  this  case  went  to  a  bar  and  restaurant
         located  in  the  alley  of  the  Arcade  in  downtown  Nashville.  There  she  met  friends  and  remained  in
         the  bar  until  about  9:45  p.m.  When  she  left  the  bar  she  attempted  to  go  to  her  car,  which  was  parked
         in  a  nearby  bank  parking  garage.  Finding  the  gates  in  and  out  of  the  garage  were  closed,  the  victim
         decided  to  return  to  the  bar.  On  her  way  she  encountered  the  appellant,  who  she  noticed  was  wearing
         a  blue  shirt. He  asked  the  woman  if  anything  was  wrong.  She  told  him  no  and  thanked  him  for  his
         concern.



                                                                -2- When  the  victim  reached  the  bar  she  found  that  it  was  closed. As  she  started  to  leave,  the
               appellant  stepped  in  front  of  her  and  identified  himself  as  a  security  guard. He  told  her  that  he  had
               received  complaints  about  her  stumbling  around  the  area.  The  appellant  escorted  the  victim  into  the
               locked  Arcade  where  he  asked  her  what  had  happened. The  victim  explained  the  situation  with  the
               parking  garage,  and  the  appellant  asked  if  he  could  call  anyone  for  her. The  woman  gave  the
               appellant  the  name  of  an  individual  in  Murfreesboro,  and  the  appellant  appeared  to  make  a  call  to
               directory  assistance.  He  told  the  woman  that  the  name  of  the  person  she  had  given  him  had  no  listing
               in  Murfreesboro.  The  appellant  refused  to  allow  the  victim  to  use  his  mobile  phone.
                       Eventually,  the  appellant  informed  the  victim  that  he  was  going  to  frisk  her,  and  he  asked  her
               if  she  knew  what  that  meant.  She  stated  that  she  did  and  demanded  that  the  appellant  call  the  police.
               He  refused. Fearing  she  was  in  danger  the  victim  accompanied  the  appellant  to  a  restroom  where
               he  inspected  the  contents  of  her  purse.  He  asked  the  woman  how  long  it  had  been  since  she  had  been
               with  a  man. The  victim  replied  she  was  afraid  of  the  appellant  because  he  was  a  large  man. The
               appellant  then  asked  the  victim  what  she  could  do  for  him  so  he  would  not  call  the  police. The
               woman  replied,  ÒNothing,  absolutely  nothing.Ó
                       The  appellant  ordered  the  victim  to  stand  up  against  a  wall  with  her  legs  spread. He  pulled
               up  the  womanÕs  sweater  and  fondled  her  breasts. He  also  placed  his  hand  into  her  panties. As  the
               appellant  and  the  victim  left  the  restroom  he  told  her  he  had  to  perform  a  strip  and  body  cavity
               search.  Despite  her  protests  the  victim  acceded  to  the  appellantÕs  demands  to  return  to  the  restroom
               where  she  removed  her  clothing. When  she  was  nude  the  appellant  again  fondled  her  breasts  and
               inserted  his  fingers  in  her  vagina.
                       When  the  appellant  finished  with  the  victim  he  drove  her  to  Hermitage. His  car  had  a
               screwdriver  stuck  into  the  hole  for  the  radio  antenna.  During  the  drive  he  repeatedly  told  the  victim
               not  to  tell  anyone  what  had  happened  or  both  of  them  would  lose  their  jobs. At  the  victimÕs  request
               the  appellant  dropped  her  off  at  a  gas  station. She  entered  the  station  where  she  began  crying. The
               victim  informed  the  station  attendant  that  a  security  guard  at  the  Arcade  was  after  her.  The  attendant
               called  the  police  who  arrived,  took  a  statement  from  the  victim,  and  drove  her  to  the  hospital.
                       Officers  went  to  the  Arcade  and  found  the  appellant  working  there  as  a  janitor. He  was
               dressed  as  the  victim  described  except  he  had  on  a  green  shirt  instead  of  a  blue  one. However,  a
               surveillance  tape  of  the  Arcade  for  the  evening  in  question  shows  the  appellant  walking  through  the
               Arcade  with  a  female  and  wearing  a  blue  shirt.  In  the  tape  the  appellant  wears  a  blue  shirt  until  2:49
               a.m.  after  which  he  appears  in  a  green  shirt.
                                                           Sufficiency
                       When  a  defendant  challenges  the  sufficiency  of  the  evidence,  this  Court  is  obliged  to  review
               that  claim  according  to  certain  well-settled  principles.  A  verdict  of  guilty,  rendered  by  a  jury  and
               Òapproved  by  the  trial  judge,  accredits  the  testimony  of  theÓ  State's  witnesses  and  resolves  all
               conflicts  in  the  testimony  in  favor  of  the  State. State  v.  Cazes,  875  S.W.2d  253,  259  (Tenn.  1994);



                                                                -3- State  v.  Harris,  839  S.W.2d  54,  75  (Tenn.  1992). Thus,  although  the  accused  is  originally  cloaked
               with  a  presumption  of  innocence,  the  jury  verdict  of  guilty  removes  this  presumption  Òand  replaces
               it  with  one  of  guilt.Ó State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982). Hence,  on  appeal,  the
               burden  of  proof  rests  with  the  defendant  to  demonstrate  the  insufficiency  of  the  convicting  evidence.
               Id.  The  relevant  question  the  reviewing  court  must  answer  is  whether  any  rational  trier  of  fact  could
               have  found  the  accused  guilty  of  every  element  of  the  offense  beyond  a  reasonable  doubt.  See  Tenn.
               R.  App.  P.  13(e);  Harris,  839  S.W.2d  at  75.  In  making  this  decision,  we  are  to  accord  the  State  Òthe
               strongest  legitimate  view  of  the  evidence  as  well  as  all  reasonable  and  legitimate  inferences  that  may
               be  drawn  therefrom.Ó  See  Tuggle,  639  S.W.2d  at  914.  As  such,  this  Court  is  precluded  from  re-weighing 
                         or  reconsidering  the  evidence  in  evaluating  the  convicting  proof. State  v.  Tilson,  929
               S.W.2d  380,  383  (Tenn.  Crim.  App.  1996);  State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.
               App.  1990).  Moreover,  we  may  not  substitute  our  own  Òinferences  for  those  drawn  by  the  trier  of  fact
               from  circumstantial  evidence.Ó  Id.  at  779.
                       The  appellant  claims  the  evidence  is  insufficient  to  support  his  conviction.  In  the  instant  case
               the  State  charged  the  appellant  with  having  committed  the  rape  through  posing  as  a  security  guard.
               Therefore,  pursuant  to  Tennessee  Code  Annotated  section  39-13-503(a)(4)  the  State  was  required
               to  prove  the  unlawful  sexual  penetration  of  the  victim  accomplished  by  fraud.
                       The  appellant  first  complains  that  because  the  victim  consented  to  the  sexual  penetrations
               to  which  she  was  subjected  and  no  force  or  coercion  was  used  by  the  defendant,  her  testimony  must
               be  corroborated  because  she  is  essentially  an  accomplice. This  argument  might  have  some  validity
               had  this  been  a  statutory  rape  prosecution. See,  e.g.  State  v.  McKnight,  900  S.W.2d  36,  48  (Tenn.
               Crim.  App.  1994). However,  with  respect  to  the  offense  of  rape  the  legislature  has  provided  that
               fraud  in  either  the  act  of  sexual  penetration  or  in  the  inducement  of  the  sexual  act  so  vitiates  the
               victimÕs  consent  that  the  act  of  sexual  penetration  is  considered  non-consensual.  See  State  v.  Tizard,
               897  S.W.2d  732,  742  (Tenn.  Crim.  App.  1994); State  v.  Raymond  Mitchell,  III,No.  01C01-9612-
               CR-00502  1999  Tenn.  Crim.  App.  LEXIS  857  (Tenn.  Crim.  App.  at  Nashville,  filed  July  30,  1999).
               Therefore,  in  this  case  the  victimÕs  testimony  need  not  be  corroborated  and  is  sufficient  standing
               alone  to  support  the  conviction  of  rape.
                       Secondly,  the  appellant  argues  that  the  credibility  of  the  victim  is  questionable  because  she
               had been drinking on the night of the incident.  However, as noted earlier, determinations of
               credibility  are  reserved  for  the  fact  finder  and  this  Court  will  not  disturb  those  findings. It  is  clear
               from  its  verdict  that  the  jury  found  the  victim  credible  and  that  determination  ends  the  matter.
                       Finally,  the  appellant  argues  that  the  State  failed  to  prove  fraud  because  there  was  no  proof
               that  he  was  wearing  the  black  uniform  or  the  badge  of  Arcade  security. However,  according  to  the
               victim,  the  appellant  represented  himself  as  a  security  guard,  he  gave  orders  and  conducted  himself
               as  if  he  had  the  authority  to  order  the  victim  in  the  manner  he  did,  and  the  victim  apparently  believed
               he  was  a  security  guard. Under  these  circumstances  we  believe  fraud  was  sufficiently  proven  for
               purposes  of  establishing  the  appellantÕs  guilt  of  rape. This  issue  is  without  merit. 



                                                                -4- Sentencing
                       In  his  last  issue  presented  for  review  the  appellant  alleges  that  the  trial  court  erroneously
               applied  two  enhancement  factors  and  erroneously  failed  to  apply  certain  mitigating  factors. This,
               the  appellant  claims,  resulted  in  his  receiving  an  excessive  sentence  of  12  years  incarceration,  the
               maximum  for  the  appellantÕs  offense  and  range.  We  are  unfortunately  precluded  from  reviewing  this
               issue  because  there  is  no  transcript  of  the  sentencing  hearing  in  the  record  before  us. We  must
               therefore  presume  the  sentence  imposed  was  proper. State  v.  Keen,  996  S.W.2d  842,  844  (Tenn.
               Crim.  App.  1999);  State  v.  Oody,  823  S.W.2d  554,  559  (Tenn.  Crim.  App.  1991).
                       This  issue  is  therefore  without  merit.
                                                           Conclusion
                       In  light  of  the  foregoing,  the  judgment  and  sentence  of  the  trial  court  is  affirmed.


                                                                     ___________________________________ 
                                                                     JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  January  23,  2002

                 STATE  OF  TENNESSEE  v.  RICHARD  LYNN  BATTS

                      Appeal  from  the  Circuit  Court  for  Obion  County
                         No.  1-36  William  B.  Acree,  Jr.,  Judge

                    No.  W2001-01602-CCA-R3-CD  -  Filed  February  28,  2002


         The  defendant,  Richard  Lynn  Batts,  was  convicted  of  driving  under  the  influence,  third  offense,  and
         violation  of  the  implied  consent  law.  The  trial  court  imposed  a  sentence  of  11  months  and  29  days
         with  120  days'  incarceration  and  the  balance  to  be  served  on  probation  for  the  DUI  offense.  The
         judgment  provided  for  a  three-year  period  of  license  revocation.  See  Tenn.  Code  Ann.  ¤  55-10-
         401(a)(1).  For  violation  of  the  implied  consent  law,  the  trial  court  imposed  a  concurrent  one-year
         period  of  license  revocation. See  Tenn.  Code  Ann.  ¤  55-10-406. In  this  appeal  of  right,  the
         defendant  contends  that  the  evidence  was  insufficient  to  establish  that  he  was  in  physical  control  of
         his  vehicle.  The  judgment  for  violation  of  the  implied  consent  law  is  modified  to  establish  that  the
         one-year  license  revocation  period  is  to  run  concurrently  with  the  three-year  revocation  for  the
         defendant's  DUI  conviction.  In  all  other  respects,  the  judgments  are  affirmed.

               Tenn.  R.  App.  P.  3;  Judgments  of  the  Trial  Court  Affirmed  as  Modified 

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JAMES  CURWOOD  WITT,  JR.,  and
         NORMA  MCGEE  OGLE,  JJ.,  joined.
         Joseph  P.  Atnip,  District  Public  Defender  (at  trial  and  on  appeal),  and  Colin  Johnson,  Assistant
         District  Public  Defender  (at  trial),  for  the  appellant,  Richard  Lynn  Batts.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Braden  H.  Boucek,  Assistant  Attorney  General;  and
         Allen  Strawbridge,  Assistant  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

             At  approximately  1:30  A.M.  on  November  4,  2000,  Officer  Brandon  Adams  of  the  South
         Fulton  Police  Department,  while  on  routine  patrol,  observed  a  vehicle  parked  behind  Dot's  Bar.
         Upon  a  closer  examination,  Officer  Adams  saw  the  defendant  asleep  in  the  front  seat  of  his  car.  The
         car  keys  were  in  the  defendant's  left  hand.  Sergeant  David  Crocker  arrived  at  the  scene  in  a  separate
         vehicle.  Sergeant  Crocker  identified  the  defendant,  knocked  on  the  window  in  order  to  wake  him,
         and  asked  him  to  step  outside  of  the  vehicle.  The  defendant  had  trouble  standing,  slurred  his  speech,



                                                                -2- and  smelled  of  alcohol. While  Officer  Adams  was  checking  on  the  status  of  the  defendant's  driver's
               license,  the  defendant  told  Sergeant  Crocker  that  he  was  cold  and  that  he  intended  to  leave  the
               premises. The  defendant  remarked,  "If  we  are  going  to  stand  here  all  night,  I'm  going  home." The
               defendant  opened  the  door  of  his  vehicle  and  tried  to  start  the  engine. When  "he  got  back  halfway
               in  the  driver's  seat,"  the  officers  handcuffed  the  defendant  and  placed  him  in  the  back  seat  of  Officer
               Adams'  police  vehicle. The  defendant  refused  to  submit  to  alcohol  tests. Officer  Adams,  who
               returned  later  to  drive  the  defendant's  vehicle  to  an  impound  lot,  described  the  vehicle  as  fully
               operable. Each  of  the  two  officers  described  the  defendant  as  "very  intoxicated,"  too  intoxicated  to
               perform  a  field  sobriety  test. 
                       At  trial,  the  defendant  admitted  that  he  was  intoxicated.  Because  the  bar  closed  at  midnight,
               he  reasoned  that  he  had  been  in  his  car  for  at  least  an  hour  and  a  half. When  police  arrived,  the  keys
               were  not  in  the  ignition  and  the  engine  was  off. The  defendant  contended  that  his  father,  who  had
               driven  him  to  Dot's,  left  approximately  two  hours  earlier  to  play  pool  at  a  pool  hall. The  defendant
               claimed  that  his  father  intended  to  return  in  order  to  drive  him  home. The  defendant  stated  that  his
               intention  was  to  wait  in  the  car  until  his  father  came  back.
                       Moss  Batts,  the  defendant's  father,  testified  that  he  shot  pool  with  his  son  at  Dot's  Bar  that
               night  but  left  at  about  10:00  P.M.  in  order  to  go  to  the  Tennessee  Pool  Room. Batts  stated  that  he
               instructed  his  son  not  to  drive  and  to  wait  in  the  vehicle  for  his  return. He  claimed  that  he  gave  his
               son  a  set  of  car  keys  so  he  could  unlock  the  car  door. Batts  explained  that  he  decided  to  go  to
               Paducah,  Kentucky,  before  returning  to  Dot's  Bar  at  approximately  2:00  A.M.  He  stated  that  neither
               his  son  nor  his  car  was  in  the  parking  lot  at  the  time  of  his  return. 
                       As  indicated,  the  defendant  acknowledged  that  he  was  in  no  condition  to  drive  and  speculated
               that someone had "slipped [him] a Mickey" due to the extent of his intoxication.  The  only
               significant  conflict  in  the  testimony  offered  by  the  state  and  the  defense  had  to  do  with  whether  the
               vehicle  was  in  the  parking  lot  at  2:00  A.M. While  the  defendant's  father  contended  that  the  vehicle
               was  not  there  at  that  time,  Officer  Adams  testified  that  the  car  was  not  removed  until  almost  3:00
               A.M.
                       The  defendant  argues  that  the  state  was  unable  to  establish  that  he  was  in  physical  control
               of  the  vehicle  as  required  by  Tennessee  Code  Annotated  section  55-10-401(a)(1),  which  provides
               as  follows: 
                              It  is  unlawful  for  any  person  to  drive  or  to  be  in  physical  control  of  any
                       automobile  or  other  motor  driven  vehicle  on  any  of  the  public  roads  and  highways
                       of  the  state,  or  on  any  streets  or  alleys,  or  while  on  the  premises  of  any  shopping
                       center,  trailer  park  or  any  apartment  house  complex,  or  any  other  premises  which  is
                       generally  frequented  by  the  public  at  large,  while: (1)  Under  the  influence  of  any
                       intoxicant,  marijuana,  narcotic  drug,  or  drug  producing  stimulating  effects  on  the
                       central  nervous  system;  .  .  .  . 



                                                                -3- The  state  insists  that  the  defendant  not  only  attempted  to  enter  the  car  and  operate  the  vehicle
               but  that  the  jury  was  entitled  to  infer  that  the  defendant  was  in  physical  control  because  he  was
               asleep  in  the  driver's  seat  with  the  keys  in  his  hand. 
                       On  appeal,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence and  all
               reasonable  inferences  which  might  be  drawn  therefrom. State  v.  Cabbage,  571  S.W.2d  832,  835
               (Tenn.  1978). When  the  sufficiency  of  the  evidence  is  challenged,  the  relevant  question  is  whether,
               after  reviewing  the  evidence  in  the  light  most  favorable  to  the  state,  any  rational  trier  of  fact  could
               have  found  the  essential  elements  of  the  crime  beyond  a  reasonable  doubt. Tenn.  R.  App.  P.  13(e);
               State  v.  Williams,  657  S.W.2d  405,  410  (Tenn.  1983). 
                       The  credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and  the  reconciliation
               of  conflicts  in  the  evidence  are  matters  entrusted  exclusively  to  the  jury  as  the  trier  of  fact. Byrge
               v.  State,  575  S.W.2d  292,  295  (Tenn.  Crim.  App.  1978).  This  court  may  not  substitute  its  inferences
               for  those  drawn  by  the  trier  of  fact  from  the  evidence. Liakas  v.  State,  199  Tenn.  298,  305,  286
               S.W.2d 856, 859 (1956).  This rule applies to findings of guilt based upon direct evidence,
               circumstantial  evidence,  or  a  combination  of  direct  and  circumstantial  evidence.  State  v.  Dykes,  803
               S.W.2d  250,  253  (Tenn.  Crim.  App.  1990). 
                       In  State  v.  Lawrence,  849  S.W.2d  761,  765  (Tenn.  1993),  our  supreme  court  adopted  a
               totality  of  the  circumstances  test  to  determine  whether  a  defendant,  in  circumstances  such  as  these,
               was  in  physical  control  of  the  vehicle. Factors  such  as  "the  location  of  the  defendant  in  relation  to
               the  vehicle,  the  whereabouts  of  the  ignition  key,  whether  the  motor  was  running,  the  defendant's
               ability,  but  for  his  intoxication,  to  direct  the  use  or  non-use  of  the  vehicle,  or  the  extent  to  which  the
               vehicle  itself  is  capable  of  being  operated  or  moved  under  its  own  power  or  otherwise"  are  relevant
               considerations.  Id.  Our  supreme  court  interpreted  the  legislation  as  "'intended  to  enable  the  drunken
               driver  to  be  apprehended  before  he  strikes.'" Id.  (quoting  Hughes  v.  State,  535  P.2d  1023,  1024
               (Okla.  1975)).
                       In  State  v.  Zan  Ray  McCracken,  No.  E2000-01762-CCA-R3-CD  (Tenn.  Crim.  App.,  at
               Knoxville, July 19, 2001), a conviction for driving under the influence  was upheld when the
               defendant  was  asleep  at  the  wheel  of  his  truck. The  keys  were  in  the  ignition  and  the  lights  were  on
               but  the  engine  was  not  running. The  truck  was  parked  on  the  side  of  a  public  street. 
                       In State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411 (Tenn. Crim. App., at
               Knoxville,  Dec.  3,  1999),  a  panel  of  this  court  ruled  that  the  evidence  was  sufficient  to  support  a
               conviction  for  driving  under  the  influence.  Meeks,  while  intoxicated,  was  slumped  over  the  steering
               wheel  of  his  vehicle  while  it  was  parked  in  a  restaurant  parking  lot. The  engine  was  running  and  the
               lights  were  turned  on.  While  the  defendant  accurately  submits  that  the  evidence  of  Meeks'  physical
               control  was  more  substantial  than  in  the  case  at  issue,  that  does  not  mean  that  the  evidence  here  is
               insufficient. Each  of  the  officers  testified  that  the  defendant,  while  he  was  in  possession  of  the  car
               keys  and  after  the  police  had  arrived,  attempted  to  re-enter  his  car  after  expressing  an  intent  to  drive
               away. Sergeant  Crocker  testified  that  the  defendant  "stated  that  he  was  cold,  we  [weren't]  doing



                                                                -4- anything  and  he  was  leaving." There  was  testimony  that  he  tried  to  start  the  car. From  these
               circumstances,  the  jury  could  have  inferred  that  the  defendant  was  in  physical  control  of  the  vehicle
               and,  absent  the  officers'  intervention,  would  have  driven  away. 
                       While  this  court  in  Meeks  described  the  facts  of  that  case  as  testing  "the  boundaries  of  the
               driving  under  the  influence  statute"  on  the  issue  of  physical  control,  that  does  not  mean,  in  our  view,
               that  its  facts  constitute  the  minimum  standard  of  sufficiency. By  use  of  the  Lawrence  test,  it  is  our
               conclusion  that  the  evidence  was  sufficient. Here,  the  defendant  was  in  the  driver's  seat  of  a  car
               parked  in  a  commercial  parking  lot. The  car  was  operable. He  had  the  keys  in  his  hand,  was  alone
               in the vehicle, and was fully capable, except for his intoxication, of driving the car.  Most
               importantly,  after  he  was  removed  from  the  vehicle,  he  complained  about  the  weather  and  the
               officers'  inaction,  stated  his  intention  to  leave,  and  attempted  to  re-enter  the  vehicle  and  start  the
               engine. 
                       Finally,  although  not  raised  by  the  parties,  we  observe  that  the  judgment  of  conviction  for
               the  defendant's  violation  of  the  implied  consent  law  specifies  that  the  one-year  license  revocation
               is  to  run  consecutively  to  the  three-year  license revocation  for  DUI. The  transcript,  however,
               indicates  that  the  trial  court  ordered  the  revocations  to  run  concurrently. In  the  event  of  such  a
               discrepancy,  the  transcript  will  control. See,  e.g.,  State  v.  Zyla,  628  S.W.2d  39,  42  (Tenn.  Crim.
               App.  1981). We  therefore  modify  the  judgment  to  reflect  concurrent  revocation. 
                       Accordingly,  the  judgment  for  violation  of  the  implied  consent  law  is  modified  to  establish
               that  the  one-year  license  revocation  period  is  to  run  concurrently  with  the  three-year  revocation  for
               the  defendant's  DUI  conviction. In  all  other  respects,  the  judgments  are  affirmed.


                                                                     ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                        Assigned  on  Briefs  December  18,  2001

                    STATE  OF  TENNESSEE  v.  DAMON  L.  BAUGH

                  Direct  Appeal  from  the  Circuit  Court  for  Williamson  County
                         No.  1700-209  Donald  P.  Harris,  Judge

                   No.  M2001-00895-CCA-R3-CD  -  Filed  September  27,  2002


         The  Williamson  County  Grand  Jury  indicted  the  Defendant  for  one  count  of  possession  of  more  than
         0.5  grams  of  cocaine  for  resale,  a  Class  B  felony,  and  for  one  count  of  simple  possession  of
         marijuana,  a  Class  A  misdemeanor. The  Defendant  filed  a  motion  to  suppress  the  cocaine  and
         marijuana  obtained  during  his  arrest,  alleging  that  the  search  of  his  car  was  unconstitutional.
         Following  a  hearing,  the  trial  court  denied  the  motion  to  suppress. A  Williamson  County  jury
         convicted  the  Defendant  of  the  charged  offenses.  The  Defendant  now  appeals,  arguing  that  the  trial
         court  erred  in  failing  to  suppress  the  cocaine  and  marijuana  obtained  pursuant  to  his  arrest.
         Concluding  that  the  search  of  the  DefendantÕs  car  was  constitutional,  we  affirm  the  judgment  of  the
         trial  court.

            Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgments  of  the  Circuit  Court  Affirmed

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
         THOMAS  T.  WOODALL,  JJ.,  joined.
         F.  Shayne  Brasfield,  Franklin,  Tennessee,  for  the  Appellant,  Damon  L.  Baugh.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kim  R.  Helper,  Assistant  Attorney  General;
         Ronald  L.  Davis,  District  Attorney  General;  and  Derek  K.  Smith,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                                   I.  FACTS
             A  suppression  hearing  was  held  at  which  only  Officer  Tom  Justus  and  Officer  Craig  Wright
         testified. After  a  thorough  review  of  the  record,  we  note  that  the  testimony  adduced  at  the
         suppression  hearing  by  Officer  Wright  and  Officer  Justus  was  substantially  the  same  as  that  adduced
         at  the  trial.  Thus,  the  facts  of  this  opinion  are  taken  from  the  trial,  with  any  discrepancies  from  the
         hearing  on  the  motion  to  suppress  indicated. 



                           1  At  the  suppression  hearing,  Officer  Justus  testified  that  the  informant  told  him  that  there  was  a  passenger  in
                  the  DefendantÕs  vehicle. 

                                                                          -2- Officer  Tom  Justus  testified  that  on  April  21,  2000,  an  informant,  April  McNabb,  came  to
                  the  police  station  to  Òwork  offÓ  recent  charges  against  her  for  drug  possession. Officer  Justus,  along
                  with  his  partner,  Officer  J.  P.  Taylor,  provided  the  informant  with  a  cellular  phone  and  instructed  her
                  to  initiate  a  drug  purchase.  According  to  Justus,  the  informant  called  a  dealer,  who  identified  himself
                  as  ÒTerry  D.,Ó  and  requested  an  Òeight  ballÓ  of  cocaine.  Justus  explained  that  an  Òeight  ballÓ  is  one
                  eighth  of  an  ounce  or  3.5  grams  of  cocaine. Justus  told  the  informant  to  set  up  the  transaction  at
                  Liberty  School. Justus  testified  that  according  to  the  informant,  Terry  D.  could  not  meet  her,  so  he
                  sent  someone  in  his  place. Justus  stated  that  the  informant  told  him  that  the  person  whom  Terry  D.
                  was  sending  wanted  to  meet  on  the  Òwest  sideÓ  of  town,  so  the  location  was  changed  to  a  deserted
                  parking  lot  across  town. Justus  stated  that  the  informant  told  him  that  the  new  dealer  was  in  a  brown
                  car.1


                           Justus  testified  that  the  informant  and  police  immediately  went  to  the  new  location. Once
                  there,  the  informant  got  out  of  the  car  that  she  was  in  and  went  into  some  nearby  bushes  for  Òsafety
                  reasons.Ó  Justus explained that the informant was instructed by the police  to act like she was
                  trespassing. Justus  testified  that  soon  thereafter,  a  brown sedan  in  Òrough  conditionÓ  pulled  up
                  beside  the  informantÕs  car. Justus  testified  that  the  location  was  Òpretty  remoteÓ  and  that  there  were
                  no  other  vehicles  besides  those  of  the  suspect  and  the  informant  at  the  location. 
                           According  to  Justus,  police  approached  the  suspectÕs  vehicle  and  identified  the  driver  as  the
                  Defendant. Justus  recalled  that  he  asked  the  Defendant  why  he  was  in  the  deserted  parking  lot,  but
                  the  Defendant  did  not  respond. Justus  testified  that  police  searched  the  DefendantÕs  person  for  drugs
                  and  weapons  and  found  $401  in  cash  ÒlooseÓ  in  the  DefendantÕs  pocket. Officers  then  searched  the
                  car  to  locate  the  drugs  and  found  an  Òeight  ballÓ  of  cocaine  and  an  ounce  of  marijuana  under  the
                  driverÕs  seat. Justus  testified  that  the  Defendant  was  then  placed  under  arrest. Justus  recalled  that
                  the  Defendant  told  Officer  Wright  that  the  drugs  belonged  to  him. On  cross-examination,  Justus
                  testified  that  the  parking  lot  did  not  have  any  Òno  trespassingÓ  signs. Justus  also  stated  that  he  did
                  not  issue  a  citation  to  the  Defendant  for  trespassing.
                           Justus  testified  that  the  informant  had  not  worked  with  police  in  the  past,  and  Justus  did  not
                  know  the  informant  until  just  prior  to  the  informantÕs  work  on  this  case  when  she  was  arrested  on
                  drug charges.  Justus acknowledged that he had nothing upon which to base the informantÕs
                  reliability. Justus  also stated that no  transaction  between  the  informant  and  the  Defendant  ever
                  occurred. 
                           The  informant  testified  that  she  was  twenty  years  old  at  the  time  of  trial  and  that  she  lived
                  outside  of  Tennessee. The  informant  stated  that  she  did  not  graduate  from  high  school  and  that  she
                  was  working  two  jobs  at  the  time  of  trial. She  also  stated  that  she  had  an  eight-month-old  daughter.
                  The  informant  testified  that  she  had  never  been  convicted  of  a  crime. 



                           2  At  the  suppression  hearing,  Officer  Justus  testified  that  Officer  Wright  had  informed  him  that  the  Defendant
                  was  on  parole  or  probation  for  a  felony  drug  offense. 

                                                                          -3- The  informant  testified  that  prior  to  her  work  in  this  case,  she  was  caught  with  cocaine  by
                  the  Franklin  Police  Department  and  was  ÒadvisedÓ  to  contact  police  to  Òwork  offÓ  her  charges. The
                  informant  recalled  that,  in  an  effort  to  work  off  her  charges,  she  went  to  the  police  station  on  April
                  21,  2000,  and  told  police  that  she  could  set  up  a  drug  deal  with  a  man  named  Terry. She  stated  that
                  she  told  police  that  she  had  previously  purchased  drugs  from  Terry.
                           The  informant  testified  that  she  used  a  cell  phone  given  to  her  by  police  and  called  Terry,  but
                  Terry  told  her  that  he  could  not  meet  her  that  evening. Instead,  Terry  told  the  informant  that  he
                  would  send  Òone  of  his  boys.Ó The  informant  recalled  that  Terry  told  her  the  manÕs  name,  that  the
                  name  started  with  the  letter  ÒD,Ó  and  that  the  name  sounded  like  ÒDamian.Ó The  informant  testified
                  that  a  meeting  was  set  up  in  an  old  bank  parking  lot  in  Franklin.
                           Once  at  the  location,  the  informant  got  out  of  the  car  and  went  behind  some  bushes  in  an
                  effort  to  appear  to  be  using  the  restroom. While  in  the  bushes,  the  informant  saw  a  Òbig  brownÓ  car
                  pull  into  the  parking  lot. The  informant  testified  that  she  saw  the  driver  get  out  of  the  car. She  stated
                  that although she was expecting only one person, there was a passenger in the vehicle.  The
                  informant  testified  that  she  did  not  know  the  Defendant. She  also  testified  that  there  was  no  audio
                  or  video  surveillance  on  the  night  of  the  DefendantÕs  arrest. 
                           Officer  J.  P.  Taylor  testified  that  he  watched  Officer  Justus  search  the  DefendantÕs  vehicle
                  and  find  cocaine  and  marijuana  under  the  driverÕs  seat. Taylor  testified  that  he  was  supposed  to
                  pretend  that  he  was  searching  the  informantÕs  car  and  then  back  up  Officer  Justus. Taylor  testified
                  that  police  decided  to  release  the  brown  vehicle  to  the  passenger  of  the  car. 
                           Officer Craig Wright testified that he decided to Òback upÓ Officers Justus and Taylor.
                  Wright  testified  that  he  pulled  his  vehicle  behind  the  brown  sedan. Wright  stated  that  he  informed
                  Officers  Justus  and  Taylor  that  the  Defendant  was  on  parole  or  probation  for  a  felony  drug  offense.2

                  Wright  testified  that  after  the  Defendant  was  taken  into  custody  and  was  seated  in  the  back  of  a
                  police  car,  he  heard  the  Defendant  say  that  the  drugs  found  in  the  brown  vehicle  belonged  to  him.
                  Wright  testified  that  the  Defendant  made  the  statement  after  the  passenger  of  the  vehicle  said  that
                  he  ÒcouldnÕt  take  the  charge.Ó Wright  testified  that  the  Defendant  had  been  ÒMirandizedÓ  before  he
                  made  the  statement. 
                           Glen  Everett  with  the  Tennessee  Bureau  of  Investigation  (TBI)  crime  lab  testified  that  he
                  analyzed  the  drugs  taken  from  the  DefendantÕs  vehicle. According  to  Everett,  twenty-one  grams  of
                  marijuana  and  three  and  a  half  grams  of  cocaine  were  submitted  to  him  for  testing. 
                                                                   II.  ANALYSIS



                                                                -4- We  initially  note  that  the  State  urges  this  Court  to  deem  all  of  the  DefendantÕs  arguments
               waived  due  to  his  failure  to  cite  to  the  videotape  record  in  this  case. See  Tenn.  Ct.  Crim.  App.  R.
               10(b). We  must  caution  counsel  for  the  Defendant  that  the  StateÕs  point  is  well  taken  and  that
               counsel  should  in  all  future  briefs  comply  with  the  rules  and  properly  cite  to  the  record. However,
               in  the  interest  of  judicial  economy,  we  choose  to  address  the  issues  raised  in  this  appeal  on  the
               merits.
                       The  Defendant  argues  that  the  trial  court  erred  in  failing  to  suppress  evidence  obtained
               pursuant  to  the  DefendantÕs  arrest. The  trial  court  in  this  case  found  that  probable  cause  existed  for
               officers  to  make  a  warrantless  search  of  the  DefendantÕs  vehicle.  At  the  conclusion  of  the  sentencing
               hearing, the  trial  court  noted  that  the  informant  had  planned  to  meet  a  dealer  at  one  location;
               however,  the  location  was  changed  and  within  a  Òmatter  of  minutes,Ó  a  vehicle  fitting  the  description
               and  containing  the  exact  number  of  occupants  given  by  the  informant  arrived  at  the  deserted  parking
               lot.  Thus,  the  trial  court  found  that  there  was  probable  cause  that  the  DefendantÕs  vehicle  contained
               contraband.  In  addition,  the  trial  court  found  that  the  inherent  mobility  of  the  vehicle  was  an  exigent
               circumstance  allowing  for  an  immediate  search  of  the  vehicle. 
                       When  reviewing  a  trial  courtÕs  ruling  on  a  motion  to  suppress,  Ò[q]uestions  of  credibility  of
               the  witnesses,  the  weight  and  value  of  the  evidence,  and  resolution  of  conflicts  in  the  evidence  are
               matters  entrusted  to  the  trial  judge  as  the  trier  of  fact.Ó State  v.  Odom,  928  S.W.2d  18,  23  (Tenn.
               1996). Findings  of  fact  made  by  a  trial  court  in  ruling  on  a  motion  to  suppress  are  binding  upon  this
               Court  unless  the  evidence  preponderates  against  the  findings. See  id. However,  the  application  of
               the  law  to  the  facts  found  by  the  trial  court  is  a  question  of  law  which  this  Court  reviews  de  novo.
               State  v.  Yeargan,  958  S.W.2d  626,  629  (Tenn.  1997).
                       The  Fourth  Amendment  to  the  United  States  Constitution,  made  applicable  to  the  states  by
               the  Fourteenth  Amendment,  provides:
                       The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects,
                       against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no  warrants
                       shall issue, but upon probable cause, supported by oath or affirmation, and
                       particularly  describing  the  place  to  be  searched,  and  the  person  or  things  to  be  seized.
               Article  I  ¤  7  of  the  Tennessee  Constitution  provides  that
                       people shall be secure in their persons, houses, papers and possessions, from
                       unreasonable  searches  and  seizures;  and  that  general  warrants,  whereby  an  officer
                       may be commanded to search suspected places, without evidence of the fact
                       committed,  or  to  seize  any  person  or  persons  not  named,  whose  offences  are  not
                       particularly  described  and  supported  by  evidence,  are  dangerous  to  liberty  and  ought
                       not  to  be  granted.
               Both  of  these  constitutional  provisions  are  intended  to  ÒÔsafeguard  the  privacy and security  of
               individuals  against  arbitrary  invasions  of  government  officials.ÕÓ  State  v.  Randolph,  74  S.W.3d  330,
               334  (Tenn.  2002)  (quoting  Camara  v.  Municipal  Court,  387  U.S.  523,  528  (1967)).



                                                                -5- Under both the federal and state constitutions, warrantless searches are presumed
               unreasonable,  and  evidence  obtained  from  such  a  seizure  should  be  suppressed  unless  the  State
               demonstrates  by  a  preponderance  of  the  evidence  that  the  search  or  seizure  was  conducted  pursuant
               to  an  exception  to  the  warrant  requirement.  See  Coolidge  v.  New  Hampshire,  403  U.S.  443,  454-55
               (1971);  State  v.  Yeargan,  958  S.W.2d  626,  629  (Tenn.  1997). One  exception  to  the  search  warrant
               requirement  is  Òcaused  by  the  need  for  immediate  action  under  the  circumstances.Ó  State  v.  Parker,
               525 S.W.2d 128, 130 (Tenn. 1975).   Warrantless searches of automobiles under certain
               circumstances  are  allowed.  See  State  v.  Shrum,  643  S.W.2d  891,  893  (Tenn.  1982).  An  automobile
               may  be  searched  without  a  warrant  if  the  officer  has  probable  cause  to  believe  that  the  vehicle
               contains  contraband  and  if  exigent  circumstances  require  an  immediate  search. Carroll  v.  United
               States,  267  U.S.  132,  155-56  (1925);  State  v.  Leveye,  796  S.W.2d  948,  950  (Tenn.  1990).  The
               mobility  of  a  vehicle  is  an  exigent  circumstance  necessitating  an  immediate  search.  See  Carroll,  267
               U.S.  at  153;  Shrum,  643  S.W.2d  at  893.
                       In  determining  whether  probable  cause  exists  to  make  a  warrantless  search  of  an  automobile
               based  on  an  informantÕs  tip,  the  State  must  establish  (1)  that  the  informant  had  a  basis  for  his  or  her
               information  that  a  person  was  involved  in  criminal  conduct  and  (2)  that  the  informant  is  credible  or
               that  his  or  her  information  is  reliable.  See  State  v.  Jacumin,  778  S.W.2d  430,  432,  436  (Tenn.  1989).
               Ò[W]here  a  tip  fails  under  either  or  both  of  the  two  prongs,  probable  cause  may  still  be  established
               by  independent  police  investigative  work  that  corroborates  the  tip  to  such  an  extent  that  it  supports
               the  inference  that  the  informant  was  reliable  and  that  the  informant  made  the  charge  on  the  basis  of
               information  obtained  in  a  reliable  way.Ó State  v.  Bridges,  963  S.W.2d  487,  491  (Tenn.  1997). In
               addition,  Ò[p]robable  cause  need  not  rest  on  an  informantÕs  tip  alone,  but  may  be  supplemented  by
               direct  observation  by  the  officers  or  a  combination  of  the  two.Ó Shrum,  643  S.W.2d.  at  894.
                       The  informant  who  provided  the  tip  about  the  DefendantÕs  criminal  activity  had  recently  been
               arrested  on  drug  charges  and  was  Òworking  offÓ  the  charges.  The  informant  had  never  provided  the
               police  with  information  before  this  case. However,  several  facts  supplied  by  the  informant,  such  as
               the  location  of  the  meeting,  the  time  of  the  meeting,  a  description  of  the  suspectÕs  car  and  the  number
               of  occupants,  were  corroborated  by  police  when  they  arrived  at  the  scene  and  support  the  credibility
               of  the  informant. A  showing  that  the  informantÕs  tip  is  reliable  may  satisfy  the  credibility  prong  of
               the  Jacumin  test. State  v.  Simpson,  968  S.W.2d  776,  782  (Tenn.  1998)  (citing  State  v.  Ballard,  836
               S.W.2d  560,  562  (Tenn.  1992));  see  also  Jacumin,  778  S.W.2d  at  432,  436. We  conclude  that  the
               credibility  of  the  informant  was  established.
                       Regarding  the  informantÕs  basis  of  knowledge,  the  informant  stated  that  she  had  purchased
               drugs  from  a  person  named  Terry  in  the  past. On  the  date  in  question,  she  called  Terry  to  set  up  a
               drug  transaction,  but  Terry  told  her  that  he  was  sending  someone  else  in  his  place. The  content  of
               the  tip  was  confirmed  when  officers  arrived  at  the  designated  meeting  location  to  find  a  car  matching
               the  description  given  by  the  informant. The  informant  had  also  stated  that  the  person  who  was
               meeting  her  had  a  name  that  sounded  like  ÒDamian.Ó Officers  identified  the  driver  of  the  vehicle
               as  Damon  Baugh.  The  circumstances  surrounding  the  tip  were  sufficient  to  establish  the  informantÕs
               basis  of  knowledge. 



                                                                -6- In  addition  to  the  informantÕs  tip,  Officer  Justus  noted  that  the  Defendant  was  evasive  in
               answering  questions. When  Justus  asked  the  Defendant  why  he  was  in  the  deserted  parking  lot,  the
               Defendant  said  Òbasically  nothing.Ó This  response  was  Òinconsistent  with  lawful  activity.Ó  Shrum,
               643  S.W.2d  at  894. ÒResponse  to  questioning  by  police  officers  is  a  common  source  of  probable
               cause  determinations.Ó Id.
                       We  conclude,  as  did  the  trial  court,  that  the  police  search  of  the  DefendantÕs  vehicle  was
               constitutional.  The informantÕs tip, independent corroboration by  officers of that tip, and the
               unresponsiveness  of  the  Defendant  to  questioning  by  officers  provided  probable  cause  that  the
               vehicle  searched  in  this  case  contained  contraband.  Accordingly,  the  judgment  of  the  trial  court  is
               AFFIRMED.


                                                                     ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                       Assigned  on  Briefs  April  24,  2001  Session

                   STATE  OF  TENNESSEE  v.  MELVIN  E.  BEARD


                  Direct  Appeal  from  the  Criminal  Court  for  Williamson  County
                        No.  I-1098-345  Timothy  L.  Easter,  Judge



                    No.  M2000-02207-CCA-R3-CD  -  Filed  January  31,  2002


         After  being  indicted  for  aggravated  perjury,  the  defendant,  Melvin  E.  Beard,  filed  a  motion  for  a  bill
         of  particulars.  In  response,  the  state  filed  two  bills  of  particulars,  one  on  January  22,  1999  and  one
         on  August  5,  1999.  At  the  conclusion  of  a  jury  trial,  which  was  held  on  March  8-9,  2000,  the  jury
         convicted  the  defendant  of  aggravated  perjury.  The  trial  court  sentenced  the  defendant  as  a  Range
         II  multiple  offender  to  serve  five  years  in  confinement. The  defendant  now  brings  this  appeal
         challenging  his  conviction  and  sentence  on  several  grounds.  Following  a  thorough  review,  we  find
         none  of  the  issues  raised  warrant  relief  and  we  therefore  affirm  the  conviction  and  sentence.

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


         JERRY  L.  SMITH,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  THOMAS
         T.  WOODALL,  J.,  joined.

         Eric  L.  Davis,  Franklin,  Tennessee,  for  appellant,  Melvin  E.  Beard.

         Paul  G.  Summers,  Attorney  General  &  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         Ron  Davis,  District  Attorney  General;  and  Derek  K.  Smith,  Assistant  District  Attorney  General,  for
         appellee,  State  of  Tennessee.


                                   OPINION

                                Factual  Background

             On  May  19,  1997,  following  a  conviction  of  driving  after  being  declared  a  motor  vehicle
         habitual  offender,  the  defendant  was  ordered  to  serve  a  four-year  term  in  the  Community  Corrections
         program.  On  May  5,  1998,  Tracie  Johnson,  who  was  serving  as  a  confidential  informant  for  the  drug
         task  force  of  the  Williamson  County  SheriffÕs  Department,  contacted  the  defendant,  one  of  her  drug
         suppliers,  and  arranged  to  meet  him  in  order  to  buy  some  crack  cocaine  from  him.  Ms.  Johnson,  who
         had  arranged  to  meet  the  defendant  at  his  trailer,  saw  the  defendant  in  a  parking  lot  before  their
         scheduled  meeting  time  and  purchased  the  crack  cocaine  from  him  at  that  time. The  police
         monitored  this  transaction  via  a  recording  device  that  Ms.  Johnson  had  agreed  to  wear.  After  the



                           1        Painter  asked  the  defendant,  ÒWhat  do  you  think,  Melvin?Ó Ms.  Johnson  testified  at  trial  that  she
                  believed  that  this  question  evidenced  that  the  defendant  was  the  actual  dealer  and  that  he  was  allowing  Painter  to  handle
                  the  drug  transaction  for  him.

                           2        The  state  filed  a  bill  of  particulars  on  January  22,  1999  and  another  on  August  5,  1999  stating  that  the
                  above  statement,  made  in  the  context  of  a  Community  Corrections  violation  hearing  held  in  a  Williamson  County  court,
                  was  the  allegedly  perjured  statement. 

                                                                          -2- transaction  was  completed,  Ms.  Johnson  met  the  police  and  gave  the  cocaine  to  them. Subsequent
                  testing determined  the  weight  of  the  cocaine  to  be  0.2  grams.  Shortly  thereafter,  Ms.  Johnson  and
                  Mr.  Bennett,  Ms.  JohnsonÕs husband  who  had  also  accompanied  her  when  she  made  the  earlier
                  cocaine  purchase,  drove  to  the  defendantÕs  trailer  to  make  a  second  cocaine  purchase.  Mr.  Bennett
                  purchased the cocaine this time  while Ms. Johnson waited outside the defendantÕs trailer.  Mr.
                  Bennett  and  Ms.  Johnson  then  met  the  police  and  gave  them  the  cocaine  from  this  transaction. The
                  police  later  determined  this  amount  to  be  0.1  grams.
                           On  May  7,  1998,  Ms.  Johnson  and  Mr.  Bennett  went  to  the  defendantÕs  trailer  in  order  to
                  make another cocaine purchase. The police also monitored this transaction through the wire
                  transmitter  that  Ms.  Johnson  had  agreed  to  wear.  Once  Ms.  Johnson  and  Mr.  Bennett  arrived,  Ms.
                  Johnson  showed  the  defendant  her  money,  indicating  that  she  wished  to  make  a  cocaine  purchase.
                  The  defendant  directed  Ms.  Johnson  to  a  gentleman  known  to  her  as  ÒPainter.Ó Painter allotted  a
                  certain amount of crack cocaine for Ms. Johnson; asked the defendant if that amount was
                  appropriate,1  to  which  the  defendant  nodded  his  head  affirmatively;  and  then  gave  Ms.  Johnson  the
                  cocaine.
                           On September 28, 1998, a court held a hearing to investigate the defendantÕs alleged
                  Community  Corrections program violation, as he  had tested positive for cocaine use.   At the
                  hearing,  the  prosecutor  asked  the  defendant,  ÒWhile  youÕve  been  on  this  Community  Corrections
                  program, have you been involved in any way in the sale of crack cocaine?Ó  The defendant
                  responded,  ÒNot  that I  know  of.Ó2  The  defendant  gave  this  testimony  while  under  oath.  The  trial
                  court revoked the defendantÕs participation in the Community Corrections program, and the
                  defendant  was  tried  and  convicted  of  aggravated  perjury. He  now  brings  this  appeal  challenging  his
                  conviction on eight grounds, alleging  (1) that the evidence admitted at trial was insufficient to
                  support  his  conviction;  (2)  that  the  trial  court  erred  by  allowing  a  police  officer  to  offer  hearsay  by
                  testifying  about  his  conversation  with  Ms.  Johnson;  (3)  that  the  trial  court  erred  by  giving  the  jury
                  an  unconstitutionally  vague  definition  of  material;  (4)  that  the  trial  court  erred  by  refusing  to  give
                  one  of  the  defendantÕs  proposed  jury  instructions;  (5)  that  the  trial  court  erred  by  refusing  to  instruct
                  the  jury  regarding  ignorance  of  mistake  of  fact;  (6)  that  the  trial  court  erred  by  refusing  to  grant  the
                  defendantÕs  motion  for  judgment  of  acquittal;  (7)  that  the trial  court  erred  when  sentencing  the
                  defendant;  and  (8)  that  the  trial  court  erred  by  failing  to  arrest  judgement,  as  the  presentment  failed
                  to  charge  an  offense. After  reviewing  these  allegations,  we  find  that  none  of  them  merit  relief.

                                                                     Sufficiency

                           The  defendant  challenges  the  sufficiency  of  the  evidence  presented  at  trial  to  support  his
                  conviction. When  a  defendant  challenges  the  sufficiency  of  the  evidence,  this  Court  is  obliged  to



                                                                -3- review  that  claim  according  to  certain  well-settled  principles.  A  verdict  of  guilty,  rendered  by  a  jury
               and  Òapproved  by  the  trial  judge,  accredits  the  testimony  of  theÓ  stateÕs  witnesses  and  resolves  all
               conflicts  in  the  testimony  in  favor  of  the  state. State  v.  Cazes,  875  S.W.2d  253,  259  (Tenn.  1994);
               State  v.  Harris,  839  S.W.2d  54,  75  (Tenn.  1992). Thus,  although  the  accused  is  originally  cloaked
               with  a  presumption  of  innocence,  the  jury  verdict  of  guilty  removes  this  presumption  Òand  replaces
               it  with  one  of  guilt.Ó State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982). Hence,  on  appeal,  the
               burden  of  proof  rests  with  the  defendant  to  demonstrate  the  insufficiency  of  the  convicting  evidence.
               Id.  The  relevant  question  the  reviewing  court  must  answer  is  whether  any  rational  trier  of  fact  could
               have  found  the  accused  guilty  of  every  element  of  the  offense  beyond  a  reasonable  doubt.  See  Tenn.
               R.  App.  P.  13(e);  Harris,  839  S.W.2d  at  75.  In  making  this  decision,  we  are  to  accord  the  state  Òthe
               strongest  legitimate  view  of  the  evidence  as  well  as  all  reasonable  and  legitimate  inferences  that  may
               be  drawn  therefrom.Ó  Tuggle,  639  S.W.2d  at  914.  As  such,  this  Court  is  precluded  from  re-weighing
               or  reconsidering  the  evidence  when  evaluating  the  convicting  proof. State  v.  Morgan,  929  S.W.2d
               380,  383  (Tenn.  Crim.  App.  1996);  State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.
               1990).  Moreover,  we  may  not  substitute  our  own  Òinferences  for  those  drawn  by  the  trier  of  fact  from
               circumstantial  evidence." Matthews,  805  S.W.2d  at  779.
                       The  defendant  was  convicted  of  aggravated  perjury.  Tennessee  Code  Annotated  section  39-
               16-703  sets  forth  the  elements  of  this  offense: (a)  A  person  commits  an  offense  who,  with  intent  to
               deceive: (1)  Commits  perjury  as  defined  in  ¤  39-16-702;  (2)  The  false  statement  is  made  during  or
               in  connection  with  an  official  proceeding;  and  (3)  The  false  statement  is  material. Tenn.  Code  Ann.
               ¤  39-16-703. Section  39-16-702  defines  perjury  as  follows: (a)  A  person  commits  an  offense  who,
               with  intent  to  deceive: (1)  Makes  a  false  statement,  under  oath;  (2)  Makes  a  statement,  under  oath,
               that confirms the truth of a false statement previously  made and the statement is required or
               authorized  by  law  to  be  made  under  oath;  .  .  .  . Tenn.  Code  Ann.  ¤  39-16-702.
                       The  defendant  argues  that  the  state  failed  to  prove,  beyond  a  reasonable  doubt,  that  the
               defendant  made  a  false  statement  under  oath,  that  the  defendant  made  the  statement  with  the  intent
               to  deceive,  or  that  the  defendantÕs  statement  was  material. However,  after  reviewing  the  record,  we
               find  that  a  rational  trier  of  fact  could  have  found  the  defendant  guilty  of  every  element  of  aggravated
               perjury  beyond  a  reasonable  doubt.
                       The  defendant  claims  that  the  state  failed  to  meet  its  burden  of  proving  that  his  statement  was
               false  because  his  response  was  merely  a  vague,  either  true  or  half-true,  response  to  the  stateÕs  overly
               broad  question.  The  defendant  claims  that  the  state  purposefully  asked  the  defendant  an  overly  broad
               question,  rather  than  a  series  of  specific  questions  about  the  defendantÕs  various  drug  transactions,
               thereby  hoping  to  illicit  a  superficially  false  response. However,  we  find  that  the  question  that  the
               state  posed  to  the  defendant,  namely,  ÒWhile  youÕve  been  on  this  Community  Corrections  program,
               have  you  been  involved  in  any  way  in  the  sale  of  crack  cocaine?,Ó  was  sufficiently  specific  to  convey
               to  the  defendant  what  types  of  conduct  the  question  encompassed. Moreover,  the  defendantÕs
               response,  ÒNot  that  I  know  of,Ó  was  neither  true  nor  half-true,  but  literally  false.  C.f.  State  v.  Forbes,
               918  S.W.2d  431  (Tenn.  Crim.  App.1995)  (holding  that  a  Òhalf  truth,Ó  i.e.  a  literally  true  statement
               omitting  the  truth  of  the  matter,  was  Òlegally  [in]sufficient  to  support  a  conviction  for  making  a  false
               representation  of  factÓ). The  police  monitored  three  separate  crack  cocaine  sales  by  the  defendant
               during  the period in which the defendant was placed in the Community  Corrections program,
               indicating  that  the  defendant  had  indeed  been  involved  in  the  sale  of  crack  cocaine  while  in  the



                                                                -4- Community  Corrections  program.  While  the  defendant  argues  that  he  did  not  make  those  drug  sales,
               the  juryÕs  verdict  of  guilt  accredits  the  stateÕs  witnesses,  who  testified  that  the  defendant  did  indeed
               sell  cocaine  on  these  three  occasions. Moreover,  there  is  no  evidence  in  the  record  to  support  a
               finding  that  his  statement  was  literally  true. Therefore,  a  rational  jury  could  have  found  that  the
               defendantÕs  response  to  the  stateÕs  question  was  a  literally  false  statement. 
                       The  defendant  also  avers  that  his  statement  was  not  made  with  an  intent  to  deceive,  arguing
               that  the  state  erroneously  failed  to  refresh  the  defendantÕs  recollection. However,  as  noted  above,
               the  defendant  did  indeed  sell  crack  cocaine  while  he  was  in  the  Community  Corrections  program,
               and  the  record  indicates  he  understood  the  question  posed  to  him  as  to  whether  he  had  been  involved
               in  cocaine  transactions  during  this  period. Therefore,  a  rational  jury  could  have  found  that  the
               defendant  made  the  false  statement  at  his  hearing  because  he  intended  to  deceive  the  court  and
               thereby  procure  a  less  harsh  punishment  for  his  Community  Corrections  violation.
                       Finally,  the  defendant  argues  that  the  evidence  was  not  sufficient  to  prove  that  the  statement
               was  material,  as  defined  by  Tennessee  Code  Annotated  section  39-16-701(1).  Section  39-16-701(1)
               defines  the  test  for  materiality  as  whether  Òthe  statement,  irrespective  of  its  admissibility  under  the
               rules  of  evidence,  could  have  affected  the  course  or  outcome  of  the  official  proceeding.Ó  Tenn.  Code
               Ann.  ¤  39-16-701(1).  The  defendant  argues  that  the  evidence  presented  to  the  jury  was  insufficient
               to  allow  them  to  determine  whether  the  defendantÕs  statement  Òcould  have  affected  the  outcome  of
               theÓ  Community  Corrections  violation  hearing  because  the  jury  was  not  informed  of  the  nature  of
               the  defendantÕs  alleged  violation. If  the  violation  had  involved  failure  to  report  to  a  supervisor,
               moving  without  permission,  or  failing  to  perform  public  service  hours,  the  defendant  argues,  the  jury
               could  have  found  that  the  defendantÕs  statement  was  immaterial.  The  defendant  argues  that  without
               any  information  regarding  the  nature  of  the  defendantÕs  violation,  it  was  impossible  for  the  jury  to
               make  any  determination  of  materiality. 
                       The  state  counters  that  the  jury  was  informed  that  a  trial  court  has  several  options  when
               sentencing  a  defendant  who  has  violated  the  conditions  of  his  Community  Corrections  program.
               After  finding  that  a  defendant  has  violated  the  conditions  of  this  program,  the  court  may  revoke  his
               eligibility  to  participate  in  the  program  and  require  him  to  serve  his  entire  sentence,  require  him  to
               serve  a  portion  of  his  sentence  and  then  return  him  to  the  program,  or  return  him  to  the  program  at
               Level  One. The  state  argues  that  because  the  trial  court  had  several  options  as  to  how  to  sentence
               the  defendant  for  his  Community  Corrections  program  violation,  a  rational  jury  could  have  found
               that  the  defendantÕs  statement  disclaiming  any  participation  in  illegal  drug  sales  could  have  affected
               the  outcome  of  his  violation  hearing  because  the  trial  court,  if  properly  apprised  that  the  defendant
               was  selling  drugs,  could  have  imposed  a  different  sentence. 
                       We  agree  that  based  on  the  information  presented  at  trial,  a  rational  jury  could  have  found
               that  the  defendantÕs  statement  was  material. Although  the  Community  Corrections  revocation
               proceeding  was  based  on  illegal  cocaine  use,  as  opposed  to  the  sale  of  cocaine,  the  jury  was  aware
               that  given  the  myriad  of  options  available  to  a  trial  judge  when  revoking  Community  Corrections,
               lying about participation in cocaine transactions could effect the ultimate disposition of the
               defendantÕs  revoked  Community  Corrections  sentence.



                                                                -5- Constitutionality  of  the  Materiality  Definition

                       The  defendant  also  asserts  that  the  definition  of  material  as  an  element  of  perjury,  which  is
               set  forth  in  Tennessee  Code  Annotated  section  39-16-701(1),  is  unconstitutionally  vague.  The  Code
               defines  the  test  for  the  materiality  element  of  perjury  as  whether  Òthe  statement,  irrespective  of  its
               admissibility  under  the  rules  of  evidence,  could  have  affected  the  course  or  outcome  of  the  official
               proceeding.Ó Tenn.  Code  Ann.  ¤  39-16-701(1). The  defendant  asserts  that  this  definition,  which
               the  trial  court  included  in  its  charge  to  the  jury,  is  unconstitutionally  vague  because  it  includes  the
               language  Òcould  have  affected,Ó  which  does  not  clearly  define  its  prohibitions.  The  defendant  asserts
               that  the  inclusion  of  this  language  Òpermit[s]  a  jury  to  wildly  speculate  as  to  the  potential  effect  of
               any  false  statement  []regardless  of  its  actual  materiality.Ó 
                       It  is  a  basic  principle  of  due  process  that  an  enactment  is  void  for  vagueness  if  its  prohibitions
               are  not  clearly  defined.  Grayned  v.  City  of  Rockford,  408  U.S.  104,  92  S.  Ct.  2294,  33  L.  Ed.  2d  222
               (1972). The  fair  warning  requirement  embodied  in  the  due  process  clause  prohibits  the  states  from
               holding an individual criminally responsible for conduct that he could not have reasonably
               understood  to  be  proscribed. United  States  v.  Harriss,  347  U.S.  612,  74  S  .Ct.  808,  98  L.  Ed.  989
               (1954). Due  process  requires  that  the  law  give  sufficient  warning  so  that  people  may  avoid  conduct
               that  is  forbidden. Rose  v.  Locke,  423  U.S.  48,  96  S.  Ct.  243,  46  L.  Ed.  2d  185  (1975). The  words
               of  a  statute  are  to  be  taken  in  their  natural  and  ordinary  sense  without  a  forced  construction  to  limit
               or  extend  their  meaning. Ellenburg  v.  State,  384  S.W.2d  29,  30  (Tenn.  1964). Initially,  trial  courts
               are  charged  with  upholding  the  constitutionality  of  statutes  where  possible. Dykes  v.  Hamilton
               County, 191  S.W.2d  155,  159  (Tenn.  1945);  State  v.  Joyner,  759  S.W.2d  422,  425  (Tenn.  Crim.
               App.  1987). A  party  challenging  the  constitutionality  of  a  statute  has  the  burden  of  rebutting  the
               presumption  that  the  statute  is  constitutional.  Helms  v.  Tennessee  DepÕt  of  Safety,  987  S.W.2d  545,
               549  (Tenn.  1999);  State  v.  Blanton,  975  S.W.2d  269,  286  (Tenn.  1998). The  constitutional  test  for
               vagueness  is  whether  a  statute's  prohibitions  are  not  clearly  defined  and  are  thus  susceptible  to
               different  interpretations  as  to  what  conduct  the  statute  actually  proscribes. State  v.  Forbes,  918
               S.W.2d  431,  447-48  (Tenn.  Crim.  App.  1995);  see  also  Grayned,  408  U.S.  at  108;  Baggett  v.  Bullitt,
               377  U.S.  360,  367,  84  S.  Ct.  1316,  12  L.  Ed.  2d  377  (1964). 
                       A party challenging the constitutionality of a statute may challenge the statute as
               unconstitutional  on  its  face  or  unconstitutional  as  applied  to  that  partyÕs  case. See,  e.g.,  State  v.
               Rhonda  Leigh  Burkhart,  No.  01C01-9804-CC-00174,  1999  WL  1096051,  at  *3  (Tenn.  Crim.  App.
               at  Nashville,  December  6,  1999),  perm.  to  appeal  granted,  (Tenn.  2000). To  bring  a  facial  challenge,
               the  challenging  party  must  prove  that  no  set  of  circumstances  exist  under  which  the  act  would  be
               valid. Davis-Kidd  Booksellers,  Inc.  v.  McWherter,  866  S.W.2d  520,525  (Tenn.  1993)  (quoting
               United  States  v.  Salerno,  481  U.S.  739,  745  (1987)). This  the  defendant  has  not  done.
                       When considering the constitutionality of the statute as applied to the defendant, the
               defendant  argues  that  the  jury  could  not  have  found  that  the  materiality  prong  of  aggravated  perjury
               was supported by evidence introduced at trial because the state did not introduce evidence
               concerning  the  nature  of  the  defendantÕs  Community  Corrections  violation,  namely  whether  the
               defendant  tested  positive  for  cocaine  use. Accordingly,  the  defendant  argues  that  the  jury  could  not
               have  Òconcluded  that  the  defendantÕs  alleged  false  statement  Ôcould  haveÕ  affected  the  trial  courtÕs
               decision  as  to  whether  or  not  the  defendant  tested  positive  on  July  21,  1998,  as  it  was  not  informed



                                                                -6- of the nature of the defendantÕs alleged violation.Ó However, the jury  was charged not with
               determining  whether  the  defendantÕs  statement  could  have  affected  the  verdict,  but  whether  his
               statement  Òwould  have  affected  the  course  or  outcome  of  the  official  proceeding.Ó  Tenn.  Code  Ann.
               ¤  39-16-701(1). Although  the  jury  was  not  informed  of  the  nature  of  the  defendantÕs alleged
               violation,  a rational  jury  could  have  found  that  whether  the  defendant  had  violated  another  term  of
               enrollment  in  the  program,  namely  whether  he  had  engaged  in  the  sale  of  illegal  drugs,  could  have
               affected  the  course  or  outcome  of  the  hearing,  as  the  trial  courtÕs  knowledge  of  this  additional
               violation  could  have  affected  its  sentencing  decision.

                                              Admissibility  of  Hearsay  Statement

                       The  defendant  argues  that  the  trial  court  erred  by  allowing  the  detective  who  conducted
               surveillance  on  the  defendant  to  testify  regarding  the  conversation  that  he  had  with  Ms.  Johnson,  his
               confidential  informant,  on  May  5,  1998. The  detective  testified  that  while  he  was  wiring  Ms.
               Johnson  with  a  transmitting  device,  she  told  him  that  she  had  already  been  in  contact  with  the
               defendant  earlier  that  day. Defense  counsel  made  a  timely  objection,  and  the  trial  court  ruled  that
               the  hearsay  was  admissible  because  Ms.  Johnson  was  still  available  for  cross-examination.  We  agree
               that  the  ruling  was  error. However,  we  find  it  to  be  harmless  error  in  light  of  the  other  evidence
               presented  at  trial.
                       ÒÔHearsayÕ  is  a  statement,  other  than  one  made  by  the  declarant  while  testifying  at  the  trial
               or  hearing,  offered  in  evidence  to  prove  the  truth  of  the  matter  asserted.Ó  Tenn.  R.  Evid.  801(c).  The
               detectiveÕs  statement  recounting  his  conversation  with  Ms.  Johnson  was  offered  for  the  truth  of  the
               matter  asserted,  as  it  was  offered  to  prove  that  Ms.  Johnson  did  indeed  have  a  conversation  with  the
               defendant  before  she  met  with  the  detective.  Moreover,  Ms.  JohnsonÕs  availability  does  not  cure  the
               hearsay  problem. 
                       The trial court admitted the hearsay  statement,  which had the effect of bolstering  Ms.
               JohnsonÕs  testimony  because  Ms.  Johnson  had  testified  earlier  in  the  trial  that  she  had  indeed  spoken
               with the defendant before meeting with the detective on May  5, 1998.  However, while this
               testimony was erroneously  admitted, the defendant fails to allege how the admission of this
               testimony  affected  a  substantial  right  and  that  the  admission  Òmore  probably  that  not  affected  the
               judgmentÓ  of  this  case. See  Tenn.  R.  App.  P.  36(b). Moreover,  the  evidence  against  the  defendant
               was  strong,  as  the  defendantÕs  drug  sales  were  recorded  and  introduced  at  trial  along  with  Ms.
               JohnsonÕs  incriminating  testimony.  Therefore,  because  the  defendant  has  failed  to  demonstrate  that
               he  was  prejudiced  by  this  admission  and  because  the  evidence  against  the  defendant  was  strong,  we
               find  that  the  trial  courtÕs  error  in  admitting  this  hearsay  testimony  was,  at  most,  harmless  error.

                                                  Jury  Instruction  Challenge

                       The  defendant  argues  that  the  trial  court  erroneously  denied  his  requested  jury  instruction
               regarding  how  the  jury  should  weigh  the  defendantÕs  status  as  a  Community  Corrections  program
               enrollee. Specifically,  the  defendant  requested  that  the  trial  court  instruct  the  jury  as  follows:
                       You  are  further  instructed  that  evidence  that  the  [d]efendant  was  on  Community
                       Corrections  for  a  four  year  sentence  cannot  be  considered  by  you  for  the  purpose  of



                           3        Moreover,  as  the  state  correctly  notes  in  its  brief,  the  defendant  asked  that  the  court  adopt  his  requested
                  instruction  Òor  words  to  that  effectÓ in  his  request  for  a  jury  instruction,  thereby  implicitly  agreeing  to  the  courtÕs
                  modification  of  his  requested  charge. 

                                                                          -7- believing  that  the  [d]efendant  had  some  form  of  criminal  conviction  that  could  affect
                           his credibility or believability, or in any way be used adverse to him in these
                           proceedings. That  evidence  can  be  considered  by  you  only  for  the  limited  purpose
                           of  background  information  as  to  why  he  was  participating  in  this  program,  and  as  to
                           the  nature  of  a  Community  Corrections  program. It  cannot  be  used  in  any  way  to
                           impeach  the  character  or  credibility  of  the  [d]efendant  in  this  case. 
                  However, the trial court instructed the jury regarding the defendantÕs status as a Community
                  Corrections  enrollee  as  follows:
                           You are further instructed that evidence of this alleged offense can only be
                           considered  by  you  for  the  limited  purpose  of  background  information  as  to  why  the
                           defendant  was  participating  in  a  program  which  resulted  in  his  being  present  at  an
                           alleged official proceeding.  You may not consider such evidence to prove his
                           disposition  to  commit  such  a  crime  as  to  that  on  trial.
                  After  the  trial  judge  informed  defense  counsel  that  he  had  modified  the  defendantÕs  proposed  jury
                  instruction  to  reflect  the  instruction  above,  defense  counsel  responded  that  the  modified  instruction
                  was  Òfine,Ó  and  when  the  trial  judge  asked  for  any  objections,  the  prosecuting  attorney  objected,  not
                  defense  counsel.  We  find  that  the  defendant  waived  any  objection  to  this  modified  instruction  by
                  indicating  that  the  modified  instruction  was  acceptable  and  by  failing  to  make  a  contemporaneous
                  objection  at  trial.3 Moreover,  the  defendant  fails  to  allege  how  the  modified  charge  differed  from
                  his  proposal  in  such  degree  as  to  render  it  an  erroneous  instruction. Accordingly,  we  find  that  the
                  defendant  has  waived  this  issue  on  appeal. See  Tenn.  R.  App.  P.  36(a).
                           The defendant also argues that the trial court erred by  refusing to grant the defendantÕs
                  request for  a  jury  instruction  regarding  ignorance  or  mistake  of  fact,  as  defined  in  Tennessee  Code
                  Annotated  Section  39-11-502. Ignorance  or  mistake  of  fact  is  a  defense  to  prosecution,  and  the  trial
                  court  must  instruct  the  jury  on  the  defense  if  it  is  fairly  raised  by  the  proof. Tenn.  Code Ann.  ¤¤
                  39-11-203(a),  (c),  -502. In  determining  whether  a  defense  is  fairly  raised  by  the  proof,  a  trial  court
                  should  consider  the  evidence  in  the  light  most  favorable  to  the  defendant. State  v.  Shropshire,  874
                  S.W.2d  634,  639  (Tenn.  Crim.  App.  1993). Moreover,  if  an  instruction  is  warranted,  the  court  must
                  instruct  the  jury  that  any  reasonable  doubt  on  the  existence  of  the  defense  requires  acquittal. Tenn.
                  Code Ann. ¤ 39-11-203(d).  Ignorance or mistake of fact is Òa defense to prosecution if such
                  ignorance  or  mistake  negates  the  culpable  mental  state  of  the  charged  offense.Ó Tenn.  Code  Ann.
                  ¤  39-11-502(a). 
                           We  find  that  there  was  insufficient  evidence  presented  at  trial  to  fairly  raise  the  defense  of
                  ignorance  or  mistake  of  fact. While  the  defenseÕs  argument  is  that  the  defendant  was  confused  by
                  the  stateÕs  overly  broad  question  posed  at  the  Community  Corrections  violation  hearing  and  that  the
                  defendant  was not in fact directly  involved in the sale of  crack cocaine,  there is no evidence to
                  support  a  theory  of  confusion,  ignorance,  or  mistake  of  fact. Defense  counsel  cross-examined  the



                           4        Regarding  his  denied  motion  for  judgment  of  acquittal,  the  defendant  argues  that  his  motion  should
                  have  been  granted  on  two  grounds:  (1)  because  the  presentment  was  fatally  deficient  (discussed  infra)  and  (2)  because
                  the  evidence  was  insufficient  to  support  his  conviction.  A  trial  judge  may  grant  a  motion  for  judgment  of  acquittal  after
                  finding  that  the  evidence  presented  at  trial  is  insufficient  to  support  a  conviction. Tenn.  R.  Crim.  P.  29(a).  When
                  reviewing  the  defendantÕs  sufficiency  challenge,  supra,  we  determined  that  the  evidence  was  indeed  sufficient  to  support
                  his  conviction. Accordingly,  we  find  that  the  trial  court  did  not  err  by  refusing  to  grant  the  defendantÕs  motion  for
                  judgment  of  acquittal  on  the  grounds  that  the  evidence  was  insufficient  to  support  the  defendantÕs  conviction.

                                                                          -8- stateÕs  witnesses,  but  during  cross-examination,  the  witnesses  refused  to  concede  that  the  defendant
                  had  not  been  involved  in  the  sale  of  crack  cocaine  to  Ms.  Johnson. Furthermore,  the  defense  rested
                  after  the  presentation  of  the  stateÕs  proof,  and  neither  the  defendant  himself  nor  any  other  witnesses
                  testified  and  offered proof  supporting  this  theory. See,  e.g.,  State  v.  Benjamin  F.  Dishman,  No.
                  03C01-9610-CR-00361,  1998  WL  191447  (Tenn.  Crim.  App.  at  Knoxville,  Apr.  23,  1998)  (finding
                  that  an  instruction  on  ignorance  or  mistake  of  fact  was  not  warranted  because  it  was  not  fairly  raised
                  by  the  proof;  the  defendant  did  not  testify  at  trial  to  put  forth  evidence  supporting  such  a  defense  and
                  the victimÕs statements were inconsistent with such a defense); State v. Kenneth Wilson, No.
                  02C01-9510-CR-00322,  1996  WL  512637  (Tenn.  Crim.  App.  at  Jackson,  Sept.  11,  1996)  (finding
                  that  an  instruction  on  ignorance  or  mistake  of  fact  was  not  warranted  because  the  defense  attorney
                  did  not  ask  any  questions  regarding  the  defendantÕs  state  of  mind  and  because  the  defendant  also  did
                  not  testify  regarding  his  own  state  of  mind  at  the  time  of  the  commission  of  the  crime). But  see  State
                  v.  Michael  S.  Nevens,  No.  M2000-00815-CCA-R3-CD,  2001  WL  430602  (Tenn.  Crim.  App.  at
                  Nashville,  Apr.  27,  2001)  (an  instruction  on  ignorance  or  mistake  of  fact  was  fairly  raised  by  the
                  evidence  presented  at  trial  based  on  both  the  defendantÕs  testimony  and  his  motherÕs  testimony).
                  Because  evidence  was  not  presented  at  trial  to  fairly  raise  this  defense,  we  find  that  an  instruction
                  on ignorance or mistake of fact was not warranted, and therefore the trial court did not err by
                  refusing  the  defendantÕs  request.


                                                         Sufficiency  of  the  Presentment

                           The defendant argues that the presentment charging him with the offense of aggravated
                  perjury  was  fatally  deficient  because  the  state  failed  to  include  in  the  presentment  the  nature  of  the
                  defendantÕs  Community  Corrections  violation,  therefore  presenting  insufficient  information  for  a
                  jury  to  determine  if  the  defendantÕs  alleged  false  statement  was  material. The  defendant  also  alleges
                  that  the  presentment  was  fatally  deficient  because  it  failed  to  comply  with  the  mandates  of  Tennessee
                  Code  Annotated  section  40-13-213,  which  outlines  the  allegations  that  must  be  pled  in  an  indictment
                  alleging  perjury. See  Tenn.  Code  Ann.  ¤  40-13-213(b). The  defendant  further  argues  that  because
                  the  presentment  was  fatally  deficient,  the  trial  court  erred  by  refusing  to  grant  the  defendantÕs  request
                  for  judgment  of  acquittal  4  or  arrest  of  judgment. 
                           The presentment charging the defendant with aggravated perjury states the following
                  accusation,  in  relevant  part:
                           Melvin  E.  Beard,  heretofore,  to-wit,  on  the  28th  day  of  September,  1998,  before  a
                           finding of this presentment, in said County and State, unlawfully, feloniously,
                           knowingly  and  with  intent  to  deceive  did  make  a  false  statement,  under  oath,  and  said



                           5        Tennessee  Code  Annotated  section  40-13-213(a)  states  that  it  is  not  necessary  for  a  perjury  indictment
                  to  set  forth  Ò[r]ecords  or  proceedings  with  which  the  oath  is  connected[]  or[  t]he  commission  or  authority  of  the  court
                  or  the  person  before  whom  the  perjury  was  committed.Ó Tenn.  Code  Ann.  ¤  40-13-213(a).

                                                                          -9- false  statement  was  made  during  and  in  connection  with  an  official  proceeding,  and
                           said  false  statement  was  material,  in  violation  of  Section  39-16-703,  Tennessee  Code
                           Annotated,  and  against  the  peace  and  dignity  of  the  State  of  Tennessee.
                  While  the  above  presentment  sufficiently  alleges  the  elements  of  perjury  as  set  forth  in  Tennessee
                  Code  Annotated  section  39-16-703,  it  does  not  include  the  specifics  mandated  by  section 
                  40-13-213(b),  which  provides  that  an  indictment  (or  presentment)  will  be  sufficient  if  it  alleges 
                           the substance  of  the  controversy  or  matter  with  respect  to  which  the  offense  was
                           committed,  in  what  court  or  before  whom  the  oath  alleged  to  be  false  was  taken,  and
                           that  the  court  or  person  before  whom  it  was  taken  had  authority  to  administer  it,  with
                           proper  allegations  of  falsity  of  the  matter  on  which  the  perjury  is  assigned.
                  Tenn.  Code  Ann.  ¤  40-13-213(b).5 The  state,  in  response  to  the  defendantÕs  motion  for  a  bill  of
                  particulars,  filed two  bills to satisfy  this requirement. The first bill, which set forth the stateÕs
                  question  and  the  defendantÕs  answer  to  that  question  that  the  state  alleged  constituted  aggravated
                  perjury,  was  filed  at  least  a  year  prior  to  the  date  of  the  defendantÕs  trial. The  second  bill,  which  set
                  forth that the defendant made the allegedly perjured statement in his Community Corrections
                  violation  hearing  and  in  which  court  that  hearing  was  held,  was  filed  at  least  six  months  prior  to  trial.
                           The  function  of  a  bill  of  particulars  is  to  provide  a  defendant  with  information  about  the
                  details of the charge that are necessary in the preparation of his or her defense and to avoid
                  prejudicial  surprise  at  trial. See  State  v.  Hicks,  666  S.W.2d  54,  56  (Tenn.  1984)  (quoting  1  Charles
                  Alan  Wright, Federal  Practice  and  Procedure,  Criminal  ¤  129,  at  434  (1982));  see  also  State  v.
                  Stephenson,  878  S.W.2d  530,  539  (Tenn.  1994).  The  defendant  should  be  given  enough  information
                  about  the  events  charged  so  that  he  or  she  may  diligently  prepare  for  trial. See  id.;  see  also  State  v.
                  Hammonds,  30  S.W.3d  294  (Tenn.  2000)  (holding  that  an  indictment  must  inform  the  accused  of
                  the  nature  and  cause  of  the  accusation);  Wyatt  v.  State,  24  S.W.3d  319  (Tenn.  2000)  (holding  that
                  an  indictment  serves  several  purposes,  one  of  which  is  to  provide  the  accused  with  notice  of  the
                  offense  charged). Where  the  indictment  is  not  sufficiently  detailed,  a  bill  of  particulars  will  serve
                  this  purpose. See  Stephenson,  878  S.W.2d  at  539. 
                           Thus,  the  question  of  whether  a  bill  of  particulars  is  adequate  to  cure  a  deficient  presentment
                  or  indictment  appears  to  turn  on  whether  the  bill  gives  sufficient  notice  to  the  defendant  to  allow  him
                  or  her  to  adequately  prepare  for  trial. In  the  instant  case,  the  state  filed  both  bills  of  particulars  at
                  least  six  months  prior  to  trial,  thereby  giving  the  defendant  adequate  notice  of  the  wording  of  the
                  allegedly  perjured  statement  and  the  context  in  which  the  alleged  perjured  statement  was  made.
                  Moreover, recent supreme court decisions indicate that the state is no longer required to plead
                  indictments  with  strict  specificity. In  Hammonds,  the  supreme  court  reversed  this  CourtÕs  finding
                  that  an  indictment  was  insufficient,  stating  that 



                           6        The defendant  argues  that  Cutshaw,  a  1977  case  in  which  this  Court  found a presentment to be
                  insufficient  because  it  failed  to  sufficiently  identify  the  allegedly  perjured  statement,  is  analogous  to  the  instant  case  and
                  therefore  warrants  reversal  of  the  lower  courtÕs  decision.  See  Cutshaw,  967  S.W.2d  at  332. However,  unlike  in  the
                  instant  case,  in  Cutshaw  the  state  did  not  file  a  bill  of  particulars,  thereby  failing  to  give  the  defendant  notice  of  the
                  substance  of  his  allegedly  perjured  statement.  See  id. We  find  that  Cutshaw  is  distinguishable  from  the  instant  case  on
                  that  basis  and  therefore  find  that  its  precedent  does  not  warrant  a  reversal.

                                                                          -10- [w]e emphasized in [State v.] Hill[, 954 S.W.2d 725 (Tenn. 1997),] that Òan
                           indictment  need  not  conform  to  traditionally  strict  pleading  requirements.Ó Id.  at
                           727. Since  common  law  offenses  no  longer  exist,  Òwe  now  approach  Ôattacks  upon
                           indictments,  especially  of  this  kind,  from  the  broad  and  enlightened  standpoint  of
                           common sense and right reason rather than from the narrow standpoint of petty
                           preciosity, pettifogging, technicality or hair splitting fault finding.ÕÓ Id. at 728
                           (quoting  United  States  v.  Purvis,  580  F.2d  853,  857  (5th  Cir.1978)).
                                    In  many  decisions  since  Hill  discussing  the  sufficiency  of  indictments,  we
                           have repeatedly emphasized the relaxation of strict common law pleading
                           requirements. 
                           .  .  .
                                    Indeed,  Hill  and  its  progeny  leave  little  doubt  that  indictments  which  achieve
                           the  overriding  purpose  of  notice  to  the  accused  will  be  considered  sufficient  to  satisfy
                           both  constitutional  and  statutory  requirements.
                  Hammonds,  30  S.W.3d  at  299.
                           Looking  at  the  instant  presentment  in  the  Òenlightened  standpoint  of  common  sense  and  right
                  reason,Ó  see  id.,  we  find  that  the  bills  of  particulars  were  sufficient  to  give  the  defendant  notice  of
                  the  allegedly  false  statement  that  the  presentment  charged  as  constituting  aggravated  perjury. The
                  two  bills  set  forth  the  language  of  the  allegedly  false  statement  and  the  context  in  which  it  was  made,
                  and  defense  counsel  did  not  indicate  that  they  were  surprised  or  unprepared  at  trial. We  find  that  the
                  bills  of  particulars  conveyed  sufficient  information  for  the  defendant  to  be  able  to  identify  the  offense
                  for  which  the  defendant  was  being  prosecuted,  as  required  by  State  v.  Cutshaw,  967  S.W.2d  332
                  (Tenn.  Crim.  App.  1977).6 Accordingly,  we  find  that  because  the  defendant  was  given  adequate
                  notice  of  the  nature  of  the  charged  offense  by  the  filing  of  the  bills  of  particulars,  the  defendant  was
                  not  prejudiced  by  any  deficiencies  in  the  presentment.

                                                              Sentencing  Challenge

                           The  defendant  argues  that  the  trial  court  failed  to  give  proper  weight  to  the  enhancing  and
                  mitigating  factors  applicable  to  the  defendantÕs  case  and  improperly  sentenced  him  to  serve  five
                  years  in  confinement  as  a  Range  II  offender. ÒWhen  reviewing  sentencing  issues  .  .  .  ,  the  appellate
                  court  shall  conduct  a  de  novo  review  on  the  record  of  such  issues. Such  review  shall  be  conducted
                  with  a  presumption  that  the  determinations  made  by  the  court  from  which  the  appeal  is  taken  are



                           7        The  defendant  does  not  contest  the  propriety  of  the  enhancement  and  mitigating  factors  that  the  trial
                  court  found  applicable  to  his  case.

                                                                          -11- correct.Ó  Tenn. Code Ann. ¤ 40-35-401(d).  ÒHowever, the presumption of correctness which
                  accompanies  the  trial  court's  action  is  conditioned  upon  the  affirmative  showing  in  the  record  that
                  the  trial  court  considered  the  sentencing  principles  and  all  relevant  facts  and  circumstances.Ó State
                  v.  Ashby,  823 S.W.2d  166,  169  (Tenn.  1991). In  conducting  our  review,  we  must  consider  the
                  defendant's  potential  for  rehabilitation,  the  trial  and  sentencing  hearing  evidence,  the  pre-sentence
                  report,  the  sentencing  principles,  sentencing  alternative  arguments,  the  nature  and  character  of  the
                  offense,  the  enhancing  and  mitigating  factors,  and  the  defendant's  statements.  Tenn.  Code  Ann.  ¤¤
                  40-35-103(5),  -210(b);  Ashby,  823  S.W.2d  at  169.  We  are  to  also  recognize  that  the  defendant  bears
                  Òthe  burden  of  showing  that  the  sentence  is  improper.Ó  Ashby,  823  S.W.2d  at  169.
                           In  the  instant  case,  the  defendant  was  convicted  of  aggravated  perjury. The  trial  court  found
                  that  based  on  the  defendantÕs  criminal  history,  he  was  a  Range  II  offender  and  that  there  were  both
                  enhancement  and  mitigating  factors  that  were  applicable  to  the  defendantÕs  case.  Because  aggravated
                  perjury  is  a  Class  D  felony  and  because  the  trial  court  found  both  enhancement  and  mitigating  factors
                  to  be  applicable  to  the  sentencing  determination,  Tennessee  Code  Annotated  section  40-35-210(e)
                  directs  the  trial  court  to  start  at  the  minimum  sentence  in  the  applicable  range,  Òenhance  the  sentence
                  within  the  range  as  appropriate  for  the  enhancement  factors,  and  then  reduce  the  sentence  within  the
                  range  as  appropriate  for  the  mitigating  factors.Ó Tenn.  Code  Ann.  ¤  40-35-210(e). Accordingly,  the
                  trial  court  was  required  to  start  at  the  minimum  sentence  for  a  Range  II  Class  D  felony,  four  years,
                  see Tenn. Code Ann. ¤ 40-35-112(b)(4), enhance the sentence for  the applicable enhancement
                  factors,  and  then  reduce  the  sentence  for  the  applicable  mitigating  factors. 
                           The  trial  court  found  that  the  enhancement  factors  applicable  to  the  defendantÕs  case  were
                  the  defendantÕs  criminal  history,  his  prior  unwillingness  to  comply  with  measures  less  strict  than
                  confinement,  and  his  commission  of  the  instant  crime  while  enrolled  in  the  Community  Corrections
                  program. The  court  further  found  that  the  mitigating  factors  applicable  to  the  defendantÕs  case  were
                  the  fact  that  his  crime  neither  caused  nor  threatened  serious  bodily  injury  and  the  unlikeliness  that
                  he  committed  the  crime  with  a  sustained  intent  to  violate  the  law. The  defendant  argues  that  the  trial
                  court  improperly  weighed  these  factors  and  therefore  gave  him  an  excessive  sentence. However,  no
                  particular  weight  for  each  factor  is  prescribed  by  statute.  See  State  v.  Santiago,  914  S.W.2d  116,  125
                  (Tenn.  Crim.  App.  1995).  The  weight  given  to  each  factor  is  left  to  the  discretion  of  the  trial  court
                  as  long  as  it  comports  with  the  sentencing  principles  and  purposes  of  our  code  and  as  long  as  its
                  findings  are  supported  by  the  record.  Id. The  trial  court  properly  found  that  these  enhancement  and
                  mitigating  factors  were  applicable  to  the  defendantÕs  case,7  as  the  record  supports  the  trial  courtÕs
                  findings. Moreover,  because  the  defendant  has  not  proven  that  the  trial  court  erred  in  its  application
                  of  the  relevant  enhancement  and  mitigating  factors,  the  trial  court  is  presumed  to  have  afforded  these
                  factors an appropriate weight, and therefore this court will not re-weigh the enhancement and
                  mitigating  factors  and  accordingly  impose  a  different  sentence.
                           The defendant also challenges the trial courtÕs refusal to place the defendant Òunder
                  probationary  restraint.Ó However,  the  trial  court  was  not  required  to  presume  that  the  defendant  was
                  a  favorable  candidate  for  alternative  sentencing  because  he  is  not  an  especially  mitigated  or  standard
                  offender,  but  rather  a  Range  II  multiple  offender. See  Tenn.  Code  Ann.  ¤  40-35-102(6). Moreover,



                                                           -12- the  trial  court  properly  found  that  the  defendant  had  previously  failed  to  comply  with  measures  less
              restrictive  than  confinement,  as  the  defendant  committed  the  instant  crime  while  serving  a  sentence
              in  the  Community  Corrections  program. See  Tenn.  Code  Ann.  ¤  40-35-103(1)  (stating  that  a
              defendantÕs  history  of  violating  terms  or  conditions  of  Òmeasures  less  restrictive  than  confinementÓ
              is  a  consideration  that  may  warrant  confinement). Accordingly,  the  trial  court  found  that  the
              defendant  should  be  confined  rather  than  released  under  probationary  restraint. As  the  defendant
              was  not a suitable candidate for alternative sentencing, the trial court properly  sentenced the
              defendant  to  serve  his  term  in  confinement.

                                                       Conclusion

                     For  the  foregoing  reasons,  we  find  that  none  of  the  defendantÕs  allegations  merit  relief.
              Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.


                                                                ___________________________________ 
                                                                JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                     Assigned  on  Briefs  at  Jackson,  October  1,  2002

          STATE  OF  TENNESSEE  v.  NICOLE  BEAUDION  a/k/a  NIKKI  NAPIER

                     Appeal  from  the  Criminal  Court  for  Davidson  County
                        No.  2000-B-806  Cheryl  Blackburn,  Judge


                    No.  M2001-01560-CCA-R3-CD  -  Filed  December  13,  2002


         The  defendant,  Nicole  Beaudion,  also  known  as  Nikki  Jo  Napier,  appeals  pursuant  to  Tennessee  Rule
         of  Criminal  Procedure  35(b).  After  pleading  guilty  to  facilitation  of  especially  aggravated  robbery,
         a  Class  B  felony,  and  agreeing  to  accept  a  fifteen-year  sentence  to  be  served  in  the  Department  of
         Correction  with  a  30  percent  release  eligibility  date,  the  defendant  filed  a  timely  Rule  35(b)  motion
         to  reduce  her  sentence  to  ten  years.  The  trial  court  denied  this  motion,  and  the  propriety  of  this
         action  is  now  challenged  on  appeal.

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

         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and
         ALAN  E.  GLENN,  JJ.,  joined.
         Kirk  Vandivort,  Charlotte,  Tennessee,  for  the  Appellant,  Nicole  Beaudion  a/k/a  Nikki  Napier.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Braden  H.  Boucek,  Assistant  Attorney  General;
         Victor  S.  Johnson,  III,  District  Attorney  General;  and  Grady  A.  Moore,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                  The  defendant  and  her  co-defendants  were  charged  with  first-degree  murder,
         especially  aggravated  robbery,  and  several  counts  of  aggravated  robbery  in  connection  with  activities
         that  took  place  at  a  Harding  Road  Waffle  House  on  July  16,  1999.  The  defendant  and  the  state
         entered  into  a  plea  agreement.  The  defendant,  otherwise  a  Range  I  offender,  agreed  to  plead  guilty
         to  facilitation  of  especially  aggravated  robbery  and  to  accept  an  Òout-of-rangeÓ  sentence  of  fifteen
         years,  which  is  within  Range  II.  She  would  serve  this  sentence  as  a  Range  I,  standard  offender  for
         purposes  of  release  eligibility. The  state  agreed  to  dismiss  the  remaining  charges  against  the
         defendant.  On  February  1,  2001,  the  trial  court  accepted  the  plea  and  imposed  the  agreed-upon
         conviction  and  sentence.



                                                                -2- On  or  about  April  11,  2001,  the  defendant,  pro  se,  filed  a  Tennessee  Rule  of  Criminal
               Procedure  35(b)  motion  to  reduce  the  sentence. In  the  motion,  the  defendant  alleged  that  a  female
               co-defendant,  whose  culpability  and  actions  in  committing  the  conviction  offense  were  similar  to
               the  defendantÕs,  received  a  Range  I  sentence  of  ten  years. The  defendant  alleged  that  the  prosecutor
               told  her  that  the  two  women  would  receive  the  same  sentence. After  the  prosecutor  changed  his
               mind,  her  attorney,  she  alleged  in  her  motion,  Òused  her  youth  and  inexperience  to  have  her  accept
               a  plea  that  was  unjust  and  unfair  to  the  [defendant].Ó 
                              The  defendant  further  stated  in  her  Rule  35(b)  motion  that  she  and  the  co-defendant
               had  remained  in  the  back  seat  of  the  vehicle  when  their  companions  entered  the  Waffle  House. She
               and  the  female  co-defendant  were  unaware  of  the  impending  robbery  and  shooting.  She  alleged  that
               her  plea  was  coerced  by  her  attorney.  She  stated  she  was  20  years  of  age  at  the  time  of  the  crime
               and  had  been  confined  in  jail  for  two  years  prior  to  the  submission  of  the  plea. She  stated  that  she
               has  concerns  about  the  custody  and  welfare  of  her  six-year-old  son. She  requested  the  trial  court  to
               reduce  her  sentence  to  ten  years. 
                              On  May  31,  2001,  the  trial  court  entered  an  order  denying  the  motion. The  court
               explained  that,  because  the  defendant  moved  for  a  sentence  reduction  after  she  was sentenced
               pursuant  to  a  plea  and  sentencing  agreement,  she  was  required  to  demonstrate  that  her  agreed
               sentence  was  unjust  or  unfair  because  of  unforeseen  post-sentencing  developments.  The  court  found
               no  unforeseen  developments. It  found  that  her  concerns  about  her  son  Òreasonably  predate  her
               decision  to  enter  her  plea.Ó Accordingly,  the  court  held  that  no  reduction  in  the  sentence  was
               warranted.
                              In  the  present  case,  the  defendant  entered  into  a  plea  agreement  pursuant  to  Tennessee
               Rule  of  Criminal  Procedure  11(e)(1)(C),  which  provides:
                                      (e)  Plea  Agreement  Procedure.
                                      (1)  In  General. The  district  attorney  general  and  the  attorney
                              for  the  defendant  or  the  defendant  when  acting  pro  se  may  engage  in
                              discussions  with  a  view  toward  reaching  an  agreement  that,  upon  the
                              entering  of  a  plea  of  guilty  or  nolo  contendere  to  a  charged  offense  or
                              to  a  lesser  or  related  offense,  the  district  attorney  general  will  do  any
                              of  the  following:
                                       .  .  .
                                      (C)  agree  that  a  specific  sentence  is  the  appropriate  disposition
                               of  the  case.



                                                                -3- After  the  plea  was  approved  and  the  defendant  was  sentenced,  she  moved  to  reduce
               the  sentence  pursuant  to  Tennessee  Rule  of  Criminal  Procedure  35(b),  which  provides:
                              (b)  Reduction  of  Sentence. The  trial  court  may  reduce  a  sentence
                              upon  application  filed  within  120  days  after  the  date  the  sentence  is
                              imposed  or  probation  is  revoked. No  extensions  shall  be  allowed  on
                              the  time  limitation. No  other  actions  shall  toll  the  running  of  this
                              time  limitation. A  motion  for  reduction  of  sentence  under  this  rule
                              may  be  denied  by  the  trial  judge  without  a  hearing.  If  the  application
                              is  denied,  the  defendant  may  appeal  but  the  defendant  shall  not  be
                              entitled  to  release  on  bond  unless  the  defendant  is  already  under  bond.
                              If the sentence is modified, the state may appeal as otherwise
                              provided  by  law. A  modification  can  only  be  as  to  any  sentence  the
                              court  could  have  originally  imposed.
                              Appellate review of Rule 35(b) rulings is governed by the abuse of  discretion
               standard. State  v.  Irick,  861  S.W.2d  375,  376  (Tenn.  Crim.  App.  1993). 
                              In  denying  the  motion,  the  trial  court  relied  upon  State  v.  McDonald,  893  S.W.2d  945
               (Tenn.  Crim.  App.  1994). In  McDonald,  this  court  stated  that  ÒÔthe  scope  of  Rule  35(b)  is  limited
               in  those  cases  in  which  the  defendant  has  pleaded  guilty  by  agreement  with  the  state,  in  exchange
               for a specific sentence.ÕÓ  Id. at 947 (citation omitted).   The McDonald court noted that an
               Òalteration  of  a  defendant's  sentence  is  generally  prohibited  if  it  violates  the  plea  agreement  entered
               into  under  Rule  11(e)(1)(C).Ó  Id.;  see  Tenn.  R.  Crim.  P.  11(e)(1)(C). However,  the  McDonald  court
               declined  to  hold  that  a  defendant  who  pleaded  guilty  pursuant  to  Rule  11(e)(1)(C)  thereby  waived

               a  proceeding  pursuant  to  Rule  35(b).  McDonald,  893  S.W.2d  at  947.  ÒFor  example,Ó  the  court  said,
               Òa  situation  may  arise  where  unforeseen,  post-sentencing  developments  would  permit  modification
               of a sentence in the interest of justice.Ó   Id.; see also  State  v. Frank Tate, No.
               W1999-01068-CCA-R3-CD  (Tenn.  Crim.  App.,  Jackson,  June  20,  2000).
                              The McDonald strictures on utilizing Rule 35(b) apply in  the present case; the
               defendant  was sentenced pursuant to a  Rule 11(e)(1)(C) plea agreement.  After reviewing the
               defendantÕs  Rule  35(b)  motion  and  the  trial  courtÕs  May  31,  2001  order, we  find  no  abuse  of
               discretion;  we  discern  no  post-sentencing  developments  that  should  be  addressed  in  the  interest  of
               justice. We  are  aware  that  the  defendant  alleged  that  her  plea  was  coerced,  but  we  are  also  aware
               that  she  could have  Ð  and perhaps  has  Ð  addressed  an  involuntary  plea  via  a  petition  for  post-conviction 
                          relief.  See  Tenn.  Code  Ann.  ¤  40-30-201  through  222  (1997);  see  generally,  e.g.,  Powers
               v.  State, 942  S.W.2d  551  (Tenn.  Crim.  App.  1996).
                              We  hold  there  was  no  abuse  of  discretion  in  denying  the  defendantÕs  Rule  35(b)
               motion,  and  we  affirm  the  lower  courtÕs  action. 



                                                                -4-  ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                           Assigned  on  Briefs  May  8,  2002

                FREDERICK  BEAUREGARD  v.  STATE  OF  TENNESSEE

                   Direct  Appeal  from  the  Circuit  Court  for  Hardeman  County
                         No.  5990  Jon  Kerry  Blackwood,  Judge


                      No.  W2001-02546-CCA-R3-PC  -  Filed  June  5,  2002


         The  Appellant,  Frederick  Beauregard,  appeals  from  the  Hardeman  County  Circuit  CourtÕs  denial  of
         his  petition  for  post-conviction  relief.  In  May  of  1997,  Beauregard  was  convicted  of  the  rape  and
         incest  of  his  thirteen-year-old  daughter.  He  received  an  effective  sentence  of  nine  years  for  the
         convictions.  BeauregardÕs  convictions  and  sentences  were  later  affirmed  on  direct  appeal.  See  State
         v.  Beauregard,  32  S.W.3d  681  (Tenn.  2000).  On  February  13,  2001,  Beauregard  timely  filed  his  pro
         se  petition  for  post-conviction  relief  which  was  amended  following  appointment  of  counsel.
         Following  a  hearing  on  the  merits,  the  trial  court  denied  BeauregardÕs  petition. 
         From  this  denial,  Beauregard  now  appeals  asserting  that  he  received  ineffective  assistance  of  trial
         counsel  in  the  following  respects:  (1)  trial  counsel  was  inadequately  prepared  for  trial;  (2)  trial
         counsel  failed  to  properly  investigate,  interview  or  call  material  witnesses  at  trial;  (3)  trial  counsel
         failed  to  discuss  trial  strategy  or  the  theory  of  the  case  with  Beauregard;  (4)  trial  counsel  failed  to
         review  the  jury  list  with  Beauregard;  (5)  trial  counsel  failed  to  develop  testimony  with  regard  to  the
         chain  of  custody  of  the  rape  kit  and  its  reliability;  and  (6)  trial  counsel  failed  to  provide  expert  proof
         to  rebut  the  StateÕs  DNA  expert.  After  review,  we  find  no  error  and  affirm  the  judgment  of  the  post-conviction 
                court.

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

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  ALAN  E.
         GLENN,  JJ.,  joined.
         Harriet  S.  Thompson,  Bolivar,  Tennessee,  for  the  Appellant,  Frederick  Beauregard.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  J.  Ross  Dyer,
         Assistant  Attorney  General;  Elizabeth  T.  Rice,  District  Attorney  General;  and  James  Walter
         Freeland,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.



                                                                -2- OPINION
                                                      Factual  Background

                       The underlying  facts relative to this post-conviction petition were summarized by the
               supreme  court  on  direct  appeal  as  follows:
                       [The  Appellant]  was  charged  in  a  two-count  indictment  with  rape  and  incest  of  his
                       thirteen-year-old daughter, S.J.  On the day in question, S.J. was visiting her
                       grandmotherÕs  home,  where  her  father,  [the  Appellant],  resided.  S.J.  was  lying  down
                       in  a  bedroom  when  [the  Appellant]  entered  the  room  and  sat  down  on  the  bed  next
                       to  her.
                       [The  Appellant]  asked  S.J.  if  she  knew  how  to  ÒnutÓ  and  whether  S.J.  had  ever  had
                       sex. When  [the  Appellant]  then  began  feeling  her  breasts,  S.J.  unsuccessfully  tried
                       to  push  [the  Appellant]  away.  [The  Appellant]  pulled  S.J.Õs  jeans  and  panties  down
                       to  her  knees  and  Òstuck  his  penisÓ  in  her  genital  area.  [The  Appellant]  stopped  when
                       the  telephone  in  the  living  room  rang  and  he  went  to  answer  it.  When  [the  Appellant]
                       left  the  room,  S.J.  put  her  clothes  back  on  and  used  the  bedroom  telephone  to  call  a
                       friend  of  her  motherÕs  and  ask  the  friend  to  pick  her  up. S.J.  then  locked  herself  in
                       the  bathroom  and  remained  there  until  she  heard  a  car  pull  up  to  the  house  and  the
                       horn  blow.
                       S.J.  was  later  examined  at  a  hospital  [where  doctors]  found  seminal  fluid  at  the
                       entrance  to  S.J.Õs  vagina  and  completed  a  sexual  assault  kit.  Sherri  Harrell,  a  forensic
                       serologist,  tested  the  items  from  S.J.Õs  assault  kit  and  found  semen  and  spermatozoa
                       on  the  slides.  Joe  Minor,  a  forensic  scientist,  conducted  further  tests  and  testified  that
                       [the  Appellant]  could  not  be  excluded  as  the  source  of  the  semen.  Minor  opined  that
                       the  semen  was  from  [the  Appellant]  or  a  close  relative.

               State  v.  Beauregard,  32  S.W.3d  at  682.

                                                           ANALYSIS
                                            Ineffective  Assistance  of  Trial  Counsel

                       The  Appellant  bears  the  burden  of  establishing  his  allegations  contained  in  the  petition  by
               clear  and  convincing  evidence. Tenn.  Code  Ann.  ¤  40-30-210(f). Findings  of  fact  and  conclusions
               of  law  made  by  a  post-conviction  court  are  given  the  weight  of  a  jury  verdict. Davis  v.  State,  912
               S.W.2d  689,  697  (Tenn.  1995). Unless  evidence  contained  in  the  record  preponderates  against  the
               judgment,  this  court  is  bound  by  those  findings  on  appeal. Id. This  court  may  not  reweigh  or
               reevaluate  the  evidence  or  substitute  its  inferences  for  those  drawn  by  the  trial  court.  Black  v.  State,

               794  S.W.2d  752,  755  (Tenn.  Crim.  App.  1990).  The  issues  of  deficient  performance  by  counsel  and



                                                                -3- possible  prejudice  to  the  defense  are  mixed  questions  of  law  and  fact;  thus,  our  review  of  this  case
               is  de  novo. State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999).  Furthermore,  to  succeed  in  a  challenge
               for  ineffective  assistance  of  counsel,  the  Appellant  must  demonstrate  that  counselÕs  representation
               fell  below  the  range  of  competence  demanded  of  attorneys  in  criminal  cases. Baxter  v.  Rose,  523
               S.W.2d  930,  936  (Tenn.  1975). Under  Strickland  v.  Washington,  466  U.S.  668,  686,  104  S.  Ct.
               2052,  2064  (1984),  the  Appellant  must  establish:  (1)  deficient  representation;  and  (2)  prejudice
               resulting  from  the  deficiency.

                                                   A. Pre-Trial  Preparation

                       First,  the  Appellant  argues  that  trial  counselÕs  Òfew  visitsÓ  with  the  Appellant  prior  to  trial
               resulted  in  inadequate  representation. The  Appellant  was  released  on  bond  several  months  prior  to
               the  trial. Although  trial  counsel  testified  at  the  post-conviction  hearing  that  he  felt  adequately
               prepared  for  trial,  nonetheless,  he  discussed  his  frustrations  in  maintaining  contact  with  the  Appellant
               prior  to  trial:
                       One  of  the  problems  I  had  with  [the  Appellant]  is,  he  didnÕt  make  an  effort  to  stay  in
                       touch  with  me. I  think  we  made  several  telephone  calls  trying  to  get  [the  Appellant]
                       to  come  to  the  office,  and  I  ended  up  having  to  go  to  his  house. And  whatever
                       interviews  we  did  were  at  his  house. I  donÕt  recall  him  coming  to  my  office  any  .  .
                       .  I  went  to  .  .  .  his  house  three,  four,  maybe  five  occasions.
               Trial  counsel  further  testified  that  the  Appellant  would  not  answer  his  phone  and  that  he  had  visited
               the  AppellantÕs  home  on  other  occasions  to  prepare  for  trial,  only  to  find  that  the  Appellant  was
               away. As  explained  by  trial  counsel  at  the  post-conviction  hearing,  ÒIf  I  hadnÕt  gone  to  see  him,  we
               would  have  shown  up  in  court  and  not  been  ready  to  do  anything. So,  if  I  didnÕt  make  house  calls,
               we  wouldnÕt  have  known  anything.Ó The  Appellant  admits  that  trial  counsel  did,  in  fact,  visit  him
               at  his  residence  once  or  twice  and  that  he  made  no  effort  to  contact  trial  counsel  himself  prior  to  trial.
                       With respect to this issue, the trial court concluded that trial counsel Òmet with [the
               Appellant]  on  sufficient  occasions  to  present  an  adequate  defense.Ó We  agree. We  find  nothing  in
               the record to support the assertion that trial counsel was inadequately prepared for trial
               notwithstanding  the  AppellantÕs  lack  of  cooperation  in  assisting  in  his  own  defense. It  cannot  be
               said  that  counselÕs  performance  in  this  respect  was  deficient. Because  we  find  no  such  deficiency,
               we  need  not  address  the  prejudice  prong  of  Strickland.

                                                    B. Additional  Witnesses

                       The  Appellant  next  contends  that  trial  counsel  was  ineffective  for  failing  to  investigate,
               interview  or  call  certain  witnesses  at  trial. He  asserts  that  this  alleged  error  was  highly  prejudicial
               and  effected  the  outcome  of  his  trial.



                                                                -4- First,  he  argues  that  trial  counsel  erred  by  failing  to  interview  and  call  witnesses  Elton
               Morrow  and  Jerry  Jones  to  testify  at  trial.  The  Appellant  maintains  that  his  daughter  had  given  both
               Morrow  and  Jones  pictures  to  pass  along  to  the  Appellant  after  the  date  of  the  rape. According  to
               the  Appellant,  this  testimony  would  have  helped  the  jury  realize  that  his  daughter  still  wanted  to  have
               contact with him.  Trial counsel testified that he did interview both Morrow and Jones but
               determined  that  Òthey  didnÕt  have  anything  to  say  that  would  help  [the  Appellant].Ó 
                       Second,  the  Appellant  asserts  that  trial  counsel  was  ineffective  for  failing  to  call  as  a  witness
               the  nurse who assisted in examining the victim at the hospital on the night of the rape.  The
               Appellant  explained  that  he  wanted  the  nurse  to  testify  in  the  event  she  could  rebut  the  testimony  of
               the  examining  doctor  who  testified  that  the  victim  stated  her  father  raped  her.  The  Appellant  admits
               that  he  does  not  know  what  the  nurseÕs  testimony  would  have  been  but  maintains  that  she  should
               have  been  called  to  testify  in  the  event  Òthe  victim  made  statements  exoneratingÓ  him  at  the  hospital
               that night.  The Appellant acknowledged that he never discussed the possibility  of the nurse
               testifying  with  trial  counsel. 
                       Third,  the  Appellant  argues  that  trial  counsel  was  ineffective  for  failing  to  call  Lisa  Nunn,
               who  is  employed  with  the  Department  of  ChildrenÕs  Services,  to  testify  on  his  behalf  at  trial. Nunn
               interviewed  the  victim  after  the  rape  and  tape-recorded  the  conversation. At  the  post-conviction
               hearing,  Nunn  testified  that  she  no  longer  had  the  tape  or  her  case  notes  and  did  not  recall  the
               particular  facts  of  the  case  since  it  had  been  some  time  since  the  incident  occurred. The  Appellant
               argues  that  a  Òlack  of  investigationÓ  on  the  part  of  trial  counsel  can  be  inferred  from  her  testimony
               since  the  case  file  and  her  notes  were  not  subpoenaed  until  the  post-conviction  hearing. Trial
               counsel,  however,  testified  that  he  still  possessed  a  copy  of  the  tape-recorded  interview. In  the
               interview,  the  victim  clearly  stated  that  her  father  raped  her. Trial  counsel  felt  there  was  no  need  to
               have  Nunn  testify  about  the  contents  of  the  tape  when  there  were  no  conflicting  statements  made  by
               the  victim.
                       We  note  that  the  Appellant  failed  to  call  Jones,  Morrow,  or  the  nurse  to  testify  at  the  post-conviction 
                          hearing.  This  court  refuses  to  speculate  on  the  question  of  whether  further  investigation
               of  a  witness  or  failure  to  call  a  witness  would  have  produced  evidence  favorable  to  the  AppellantÕs
               case. Black  v.  State,  794  S.W.2d  752,  757  (Tenn.  Crim.  App.  1990). The  Appellant  has  simply
               failed  to  meet  his  burden  of  proof  with  respect  to  these  potential  witnesses.  With  respect  to  Nunn,
               who  did  testify  at  the  post-conviction  hearing,  we  conclude  that  her  testimony  in  no  way  supports
               the  AppellantÕs  argument,  as  she  simply  testified  that  she  was  unable  to  recall  the  particular  facts  of
               the  case  and  no  longer  had  access  to  information  about  that  case. Because  the  Appellant  has  failed
               to  show  how  the  absence  of  these  witnesses  was  prejudicial,  these  issues  are  without  merit.

                                                       C. Trial  Strategy 

                       The  Appellant  also  argues  that  trial  counsel  failed  to  discuss  trial  strategy  or  a  theory  of  the
               case  with  him. He  makes  no  further  argument  in  this  regard. Trial  counsel  testified  that  he  did
               discuss  the  theory  of  the  case  with  the  Appellant. Because  the  Appellant  makes  no  mention  of  how



                                                                -5- this  alleged  failure  prejudiced  the  case,  we  accredit  trial  counselÕs  testimony  and  find  this  issue  to
               be  without  merit.

                                                          D. Jury  List

                       The  Appellant  argues  that  trial  counsel  Òdid  not  provide  a  list  for  the  appellant  to  review  for
               jury  selection.Ó At  the  post-conviction  hearing,  trial  counsel  testified  that  he  did  not  recall  if  they
               reviewed  the  names  of  prospective  jurors  prior  to  trial. Again,  because  the  Appellant  has  failed  to
               show  how  such  alleged  error  affected  the  outcome  of  this  case,  we  find  no  merit  in  this  issue.

                                                      E. Chain  of  Custody

                       The  Appellant  next  maintains  that  trial  counsel  was  ineffective  because  he  Òfailed  to  exert
               every  reasonable  effort  on  behalf  of  the  appellant  in  the  trial  on  the  issue  of  chain  of  custodyÓ
               regarding evidence which was developed from the rape kit.  More specifically, the Appellant
               contends  that  trial  counsel  Òwas  remiss  in  not  developing  and  vigorously  challenging  the  chain  of
               custody  issue  which  would  have  been  highly  beneficial  to  the  defense.Ó
                       At  the  post-conviction  hearing,  trial  counsel  testified  that  he  did  feel  there  was  a  problem
               with  the  chain  of  custody  of  various  items  of  evidence  introduced  from  the  rape  kit and  objected  to
               their  admission  at  trial.  After  his  objection  was  overruled,  he  decided  not  to  further  pursue  the  issue
               because  he  felt  calling  additional  witnesses  would Òfirm  the  chain  of  custody  up.Ó Trial  counselÕs
               decision  was  a  tactical  one.  Assuming  adequate  investigation,  the  fact  that  a  strategy  or  tactic  failed
               or  hurt  the  defense  does  not  alone  support  an  ineffective  assistance  of  counsel  claim. Thompson  v.
               State,  958  S.W.2d  156,  165  (Tenn.  Crim.  App.  1997). After  reviewing  the  record,  we  cannot
               conclude  that  trial  counselÕs  decision  was  ineffective. He  objected  to  the  chain  of  custody. Once
               overruled,  he  made  a  tactical  decision  to  leave  the  issue  alone. This  court  does  not  sit  to  second-guess 
                     strategic  and  tactical  choices  made  by  trial  counsel. Hellard  v.  State,  629  S.W.2d  4,  9  (Tenn.
               1982). Such  performance  on  the  part  of  trial  counsel  was  not  deficient. This  issue  is  also  without
               merit.

                                                     F. Expert  DNA  Proof

                       Lastly,  the  Appellant  contends  that  trial  counsel  was  ineffective  for  failing  to  obtain  and
               provide  expert  testimony  concerning  the  similarity  of  DNA  between  relatives. Specifically,  the
               Appellant  argues  that  trial  counsel  should  have  defended  under  the  theory  that  AppellantÕs  brother
               actually  committed  the  rape.
                       At  trial,  Joe  Minor,  a  forensic  scientist,  testified  that  he  had  examined  the  DNA  from  semen
               taken  from  the  victimÕs  vagina  after  the  rape. Minor  concluded  that  the  Appellant  could  not  be
               excluded  as  being  the  source  of  the  semen. However,  Minor  also  testified  that  the  semen  was  either
               from  the  Appellant  or  a  close  relative. At  the  post-conviction  hearing,  trial  counsel  testified  that
               there  were  no  funds  available  to  hire  an  expert  and  that  the  court  would  not  have  allocated  the  money
               anyway. Moreover,  trial  counsel  testified  that  a  theory  that  the  AppellantÕs  brother  committed  the



                                                                -6- rape  was  contradictory  to  the  other  evidence  presented  at  trial. Trial  counsel  explained  the  defense
               pursued  at  trial:
                       Basically,  the  theory  would  be  that  [the  victim]  came  out  to  [the  AppellantÕs]  house,
                       visited  there,  left. She  came  back,  basically  called  someone  and  said  she  was  raped
                       .  .  .  there  was  a  DNA  test  taken. Our  theory  included  the  fact  that  the  DNA  analysis,
                       the  serial  was  tampered. It  was  flawed.
               The  theory  developed  at  trial  did  not  include  the  implication  of  relatives  with  similar  DNA  having
               sexual  contact  with  the  victim  at  the  home.  Rather,  the  theory  was  that  the  AppellantÕs  daughter  left
               the  home,  came  back,  and  said  she  had  been  raped. We  fail  to  see  how  trial  counselÕs  failure  to
               introduce  expert  rebuttal  testimony  concerning  the  DNA  test  results  was  deficient,  as  such  testimony
               would  have  completely  contradicted  the  AppellantÕs  theory  of  the  case  at  trial.  This  issue  is  without
               merit.


                                                        CONCLUSION

                       After  review,  we  find  that  the  Appellant  has  failed  to  meet  his  burden  of  proving,  through
               clear  and  convincing  evidence,  that  trial  counselÕs  performance  was  ineffective. Therefore,  we
               affirm  the  Hardeman  County  Circuit  CourtÕs  denial  of  the  AppellantÕs  petition  for  post-conviction
               relief.



                                                                     ___________________________________ 
                                                                     DAVID  G.  HAYES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  April  9,  2002

           STATE  OF  TENNESSEE  v.  MATRIN  BECTON  &  ANTONIO  SYKES

                      Appeal  from  the  Criminal  Court  for  Shelby  County
                        No.  98-02267-70  Joseph  B.  Dailey,  Judge


                     No.  W1999-00581-CCA-R3-CD  -  Filed  June  19,  2002


         The  Defendants,  Matrin  Becton  and  Antonio  Sykes,  were  convicted  by  a  jury  of  first  degree
         premeditated  murder,  especially  aggravated  robbery,  and  two  counts  of  especially  aggravated
         kidnapping. Both  defendants  were  sentenced  by  the  same  jury  to  life  without  the  possibility  of
         parole  for  the  first  degree  murder. After  a  sentencing  hearing,  the  trial  court  sentenced  both
         defendants  to  twenty-five  (25)  years  for  each  of  the  remaining  counts  and  ordered  all  the  sentences
         to  run  consecutively,  for  effective  sentences  of  life  without  parole  plus  seventy-five  (75)  years.  On
         appeal,  Defendant  Sykes  contends  that  the  evidence  is  insufficient  to  support  the  juryÕs  verdict  and
         that  the  trial  court  erred  in  allowing  testimony  concerning  a  statement  made  by  the  victim  prior  to
         his  death.  Defendant  Becton  argues  that  the  trial  court  improperly  denied  his  motion  to  sever,  erred
         in  allowing  certain  photographs  into  evidence,  erred  in  charging  the  jury  both  in  the  guilt  and
         sentencing  phases,  and  erred  in  imposing  consecutive  sentences.  We  affirm  the  judgments  of  the
         trial  court.


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

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  James  Curwood  Witt,  Jr.,J.,
         joined.  DAVID  G.  HAYES  ,  J.,  filed  a  concurring  opinion.
         Michael  Scholl,  Memphis,  Tennessee,  for  the  appellants,  Matrin  Becton  and  Antonio  Sykes.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  P.  Robin  Dixon,  Jr.,  Assistant  Attorney  General;
         William  L.  Gibbons,  District  Attorney  General;  and  Lorraine  Craig  and  Terry  Harris,  Assistant
         District  Attorneys  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             On  August  29,  1997,  Veronica  Johnson  was  celebrating  her  birthday  at  the  L  &  B  Lounge
         in  Memphis.  Ms.  Johnson  testified  that  nine  or  ten  members  of  theÒGangster  DisciplesÓ  forced
         Devin  Haywood,  a  mentally  challenged  man,  to  his  knees  at  gunpoint  and  began  to  beat  him.



                                                                -2- Marshall  Shipp,  the  victim  in  this  case,  pushed  the  gang  members  away  from  Mr.  Haywood  and  told
               them  to  leave  him  alone.  The  gang  members  and  the  victim,  who  was  also  a  member  of  the  Gangster
               Disciples,  began  to  argue. Ms.  Johnson  testified  that  the  victim  was  told  that  he  was  Òno  longer  a
               Gangster  DiscipleÓ  and  that  he  had  Òsigned  his  death  certificate.Ó
                       Cheryl  Patrick,  the  victimÕs  girlfriend,  testified  that  on  September  15,  1997,  the  victim  came
               to  her  house  and  together  they  went  to  a  Laundromat  on  Third  Street  and  then  to  the  L  &  B  Lounge.
               At  the  L  &  B  Lounge  the  victim  and  Ms.  Patrick  were  confronted  by  13  to  20  men. The  men  told
               the  victim  that  they  needed  to  talk  with  him  in  private  and  that  he  should  come  with  them. The
               victim  offered  to  follow  the  men  in  his  car,  but  they  insisted  that  one  of  their  own  ride  in  the  victimÕs
               car  with  him  and  Ms.  Patrick. Ms.  Patrick  testified  that  one  of  the  men  who  confronted  the  victim
               was  the  Defendant  Becton. Ms.  Patrick  further  stated  that  Defendant  Becton  was  armed  with  a
               black,  semi-automatic  pistol. The  victim,  Ms.  Patrick,  and  one  of  the  gang  members  got  into  the
               victimÕs  car. The  victim  then  took  Ms.  Patrick  home  and  followed  the  Defendant  Becton  and  the
               rest  of  the  men.
                       Ricky  Aldridge,  the  victimÕs  cousin  and  also  a  Gangster  Disciple,  testified  that  members  of
               the  gang  were  required  to  follow  certain  rules  or  be  punished. Some  of  the  punishments  included
               3  minute  beatings,  6  minute  beatings,  and  death. Ricky  Aldridge  stated  that  the  victim,  while  a
               member  of  the  gang,  did  not  participate  in  gang  activities. Ricky  Aldridge  further  stated  that  on
               September  15  several  members  of  the  Gangster  Disciples  inquired  as  to  the  whereabouts  of  the
               victim. He  testified  that  the  gang  members  were  considering  putting  both  he  and  the  victim  on
               ÒviolationÓ  for  a  previous  incident. Eventually,  several  gang  members  approached  Ricky  Aldridge
               and  his  brother  Timothy  Aldridge. The  gang  members  took  them  to  the  apartment  of  a  man  called
               ÒTombstone,Ó  the  ÒgovernorÓ  of  a  Memphis  sect  of  the  Gangster  Disciples.  Ricky  Aldridge  testified
               that  he  went  with  the  gang  members  because  he  feared  for  the  safety  of  his  family  if  he  refused. The
               victim  was  in  the  apartment  when  Ricky  Aldridge  arrived,  along  with  some  twenty  members  of  the
               Gangster  Disciples,  several  of  whom  were  armed  with  automatic  weapons.
                       The  gang  members  discussed  the  punishments  to  be  given  to  the  victim  and  Ricky  Aldridge.
               Tombstone  told  the  Defendant  Becton  to  decide  on  and  inflict  a  punishment.  Defendant  Becton  then
               ordered  all  of  the  gang  members,  the  victim,  and  Ricky  Aldridge  into  three  waiting  vehicles. The
               vehicles  drove  through  several  neighborhoods,  eventually  stopping  at  a  gas  station  where  Ricky
               Aldridge  was  approached  by  Defendant  Sykes  and  told  to  empty  his  pockets. Ricky  Aldridge  gave
               Defendant  Sykes  approximately  twenty  dollars  and  noticed  that  Defendant  Sykes  was  wearing  a  gold
               herring-bone  necklace  and  coin  ring  that  the  victim  had  previously  been  wearing.  The  vehicles  were
               then  driven  to  DeSoto  Park  where  the  victim  and  Ricky  Aldridge  were  grabbed  by  the  back  of  the
               pants  and  forced  to  walk  up  a  steep  hill.
                       Once  on  top  of  the  hill,  the  gang  members,  including  both  Defendants,  encircled  the  victim
               and  began  to  beat  him  with  their  fists. The  gang  members  beat  the  victim  for  fifteen  minutes.
               Eventually, the gang members began  using a baseball bat and a tire iron  to beat the victim.
               Specifically,  Ricky  Aldridge  testified  that  Defendant  Sykes  beat  the  victim  with  a  baseball  bat  until



                                                                -3- Defendant  Becton  took  the  bat  from  him,  told  him  he  was  not  using  it  properly,  and  then  Defendant
               Becton  began  to  beat  the  victim  around  the  head  with  the  bat.  The  victim  was  rendered  unconscious
               early  in  the  assault  and  lay  motionless  as  the  gang  members  continued  to  beat  him. When  the  gang
               members  finished  with  the  victim,  they  turned  to  Ricky  Aldridge  and  beat  him  with  their  fists  for
               approximately  six  minutes. After  beating  Ricky  Aldridge,  Defendant  Sykes  once  again  turned  his
               attention  to  the  victim,  stripping  the  victim  of  his  pants  and  underwear.  Ricky  Aldridge  then  noticed
               that  Defendant  Sykes  had  a  gun.  Shortly  thereafter,  as  Ricky  Aldridge  was  being  helped  back  down
               the  hill,  he  heard  a  gunshot  on  the  hill  from  the  direction  where  the  victim  lay. Immediately  after
               the  gunshot,  the  Defendants  came  from  the  direction  of  the  gunshot  and  began  walking  down  the  hill.
               Ricky  Aldridge  testified  that  the  Defendants  were  the  only  people  in  the  area  from  which  the  gunshot
               came,  and  Defendant  Sykes  had  a  gun  in  his  hand  moments  after  the  shot  was  fired.  Ricky  Aldridge
               and  the  gang  members  then  left  the  scene.
                       Ricky  Aldridge  returned  later  with  Patrick  Owen  to  find  the  victim  severely  injured,  but  still
               alive. They  placed  the  victim  in  the  backseat  of  Patrick  OwenÕs  girlfriendÕs  car. Patrick  OwenÕs
               girlfriend,  Sharon  Grafton,  then  called  police  and  medical  personnel.  Ms.  Grafton  testified  that  the
               victim  had  been  beaten  severely  and  was  bleeding  profusely. She  also  testified  that  the  victim  was
               naked  from  the  waist  down. Ms.  Grafton  also  testified  that  the  victim  had  previously  told  her  that
               he  wanted  to  disassociate  himself  from  the  gang.
                       Timothy  Aldridge,  the  brother  of  Ricky  Aldridge,  cousin  of  the  victim,  and  also  a  Gangster
               Disciple, testified that he accompanied Ricky Aldridge to the gang meeting at the home of
               ÒTombstone.Ó Timothy  Aldridge  testified  that  both  Defendants  were  present  at  the  meeting,  and
               Defendant  Sykes  was  armed  with  a  .45  caliber  pistol.  Timothy  Aldridge  further  testified  that  at  the
               conclusion  of  the  meeting  Defendant  Becton  announced  that  he  would  handle  the  punishments  of
               the  victim  and  Ricky  Aldridge.  Timothy  Aldridge  stated  that  he  rode  to  DeSoto  park  in  the  same  car
               as  the  victim  and  was  present  when  Defendant  Sykes  ordered the  victim  to  take  off  his  jewelry.
               Timothy  Aldridge  then  saw  Defendant  Sykes  put  on  the  jewelry.
                       Timothy  Aldridge  continued  to  testify  about  the  severe  beating  incurred  by  the  victim,  and
               he  admitted  that,  because  of  his  fear  of  the  other  gang  members,  he  feigned  participation  in  the  attack
               by  ÒpretendingÓ  to  hit  the  victim. Timothy  Aldridge  was  helping  his  brother  back  to  the  vehicles
               when  he  heard  a  gunshot  from  the  location  of  the  victim. Timothy  Aldridge  further  stated  that  the
               Defendants  were  the  only  people  in  the  area  from  which  the  gunshot  came.
                       Officer  William  Poteet  of  the  Memphis  Police  Department  responded  to  a  dispatch  call  at
               approximately  1:30  a.m.  on  September  15,  1997,  and  found  the  victim  in  the  back  seat  of  a  car,
               covered  in  blood  and  naked  from  the  waist  down. The  officer  stated  that  the  victimÕs  injuries  were
               so  severe  he  thought  the  victim  had  been  shot  in  the  head. Dr.  Thomas  Deering,  assistant  medical
               examiner,  testified  that  the  victim  suffered  blunt  trauma  to  the  head,  multiple  skin  lacerations,
               multiple  puncture  wounds,  and  a  gunshot  wound  to  the  left  buttock. Dr.  Deering  further  stated  that
               the  blows  to  the  victimÕs  head  caused  his  skull  to  fracture  and  pieces  of  bone  to  enter  the  victimÕs



                                                                -4- brain. The  doctor  testified  that  the  victim  died  as  a  result  of  the  head  trauma  complicated  by  the
               bleeding  caused  by  the  gunshot  wound.
                       Jacqueline  Yancey,  a  former  girlfriend  of  Defendant  Sykes,  and  Arthur  Jones,  Ms.  YanceyÕs
               cousin,  both  testified  that  approximately  a  week  after  the  victimÕs  death  they  saw  Defendant  Sykes
               wearing  the  victimÕs  gold  necklace  and  ring.
                       Robert  Walker,  the  Òhead  of  securityÓ  for  the  Memphis  Gangster  Disciples,  also  testified  that
               he  was  present  when  ÒTombstoneÓ  complained  to  the  head  of  the  Memphis  gang  that  the  victim  had
               become  ÒrebelliousÓ  and  should  be  punished. Mr.  Walker  testifed  that  ÒTombstoneÓ  was  told  to
               Òtake  careÓ  of  the  victim. Mr. Walker  also  outlined  the  organizational  structure  and  forms  of
               punishment  used  by  the  gang. Specifically,  Mr.  Walker  stated  that  one  way  gang  members  would
               symbolize  their  displeasure  with  another  gang  member  while  carrying  out  a  death  punishment  would
               be  to  strip  the  person  of  his  clothes  and  shoot  him  in  the  buttocks.  Furthermore,  Walker  testified  that
               Defendant  Becton  informed  Walker  that  he  shot  the  victim.

                                                        SUFFICIENCY

                       Defendant  Sykes  first  argues  that  the  evidence  presented  at  trial  is  insufficient  to  support  the
               juryÕs  verdict. Specifically,  Defendant  Sykes  contends  that  due  to  the  emotionally  charged  nature
               of  a  Ògang  killingÓ  case  and  the  questionable  credibility  of  the  StateÕs  witnesses,  the  evidence  is
               insufficient. Tennessee  Rule  of  Appellate  Procedure  13(e)  prescribes  that  Ò[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.Ó 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. See  Jackson
               v.  Virginia,  443  U.S.  307,  319  (1979);  State  v.  Smith,  24  S.W.3d  274,  278  (Tenn.  2000).  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. See  McBee  v.  State,  372  S.W.2d  173,  176  (Tenn.  1963);  see  also  State  v.  Buggs,
               995  S.W.2d  102,  105-06  (Tenn.  1999);  State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992);  State  v.
               Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982).
                       In  its  review  of  the  evidence,  an  appellate  court  must  afford  the  State  Òthe  strongest  legitimate
               view of the evidence  as well as all reasonable and legitimate inferences that may be drawn
               therefrom.Ó Tuggle,  639  S.W.2d  at  914;  see  also  Smith,  24  S.W.3d  at  279. The  court  may  not  Òre-weigh 
                      or  re-evaluate  the  evidenceÓ  in  the  record  below. Evans,  838  S.W.2d  at  191;  see  also  Buggs,
               995  S.W.2d  at  105. 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. See
               Tuggle,  639  S.W.2d  at  914. All  questions  involving  the  credibility  of  witnesses,  the  weight  and
               value  to  be  given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact,  not  the  appellate
               courts. See  State  v.  Morris,  24  S.W.3d  788,  795  (Tenn.  2000); State  v.  Pappas,  754  S.W.2d  620,
               623  (Tenn.  Crim.  App.  1987).



                                                                -5- Defendant  Sykes  was  convicted  of  the  first  degree  premeditated  murder  of  Marshall  Shipp,
               the especially aggravated kidnapping of Marshall Shipp, the especially aggravated robbery of
               Marshall  Shipp,  and  the  especially  aggravated  kidnapping  of  Ricky  Aldridge.
                       First  degree  murder  is  the  premeditated  and  intentional  killing  of  another. See  Tenn.  Code
               Ann.  ¤  39-13-202(a)(1).  Premeditation  is  an  act  done  after  Òthe  exercise  of  reflection  and  judgment.Ó
               Tenn.  Code  Ann.  ¤  39-13-202(d). The  StateÕs  evidence  established  that  Defendant  Sykes  was
               present  and  armed  at  the  meeting  at  a  gang  leaderÕs  home  where  the  punishment  of  the  victim  was
               discussed. Defendant  Sykes,  along  with  other  gang  members,  then  led  the  victim  to  a  secluded  area
               and  beat  him  to  death. Ricky  and  Timothy  Aldridge  both  testified  that  Defendant  Sykes  repeatedly
               struck  the  victim  in  the  head  with  a  baseball  bat. Furthermore,  both  Ricky  and  Timothy  Aldridige
               testified  that  they  saw  Defendant  Sykes  with  a  gun  immediately  after  a  gunshot  was  heard  in  the  area
               where  the  victim  lay  unconscious  and  helpless. Accordingly,  we  conclude  that  the  evidence  is
               sufficient  to  establish  Defendant  SykesÕs  guilt  of  the  first  degree  murder  of  the  victim  beyond  a
               reasonable  doubt.
                       Likewise,  the  evidence  is  also  sufficient  to  establish  Defendant  SykesÕs  guilt  concerning  the
               especially  aggravated kidnappings of the victim and Ricky Aldridge.  Especially aggravated
               kidnapping is the knowing, unlawful removal or confinement of another so as to interfere
               substantially  with  the  otherÕs  liberty  where  such  removal  or  confinement  is  accomplished  with  a
               deadly  weapon  or  where  the  victim  suffers  serious  bodily  injury. See  Tenn.  Code  Ann.  ¤¤  39-13-
               302,  39-13-305(a)(1)(4).  Defendant  Sykes  was  convicted  of  especially  aggravated  kidnapping  based
               upon  serious  bodily  injury  for  the  kidnapping  of  the  murder  victim,  and  especially aggravated
               kidnapping  accomplished  with  a  deadly  weapon  for  the  kidnapping  of  Ricky  Aldridge.
                       The  StateÕs  evidence  established  that  the  victim  and  Ricky  Aldridge  were  forced  to  attend
               a  gang  meeting. Ricky  and  Timothy  Aldridge  both  testified  that,  at  the  conclusion  of  the  meeting,
               the  victim  and  Ricky  Aldridge  were  forced  by  Defendant  Sykes  and  other  gang  members  into  waiting
               cars and taken to a secluded area and beaten.  Ricky and Timothy  Aldridge both stated that
               Defendant  Sykes  was  armed. Furthermore,  the  victim  suffered  a  gunshot  wound  and  blunt  head
               trauma  that  eventually  led  to  his  death. Accordingly,  we  conclude  that  the  evidence  is  sufficient  to
               support  the  juryÕs  verdicts  for  the  especially  aggravated  kidnappings  of  the  murder  victim  and  Ricky
               Aldridge.
                       Finally,  Defendant  Sykes  was  also  convicted  of  especially  aggravated  robbery. Especially
               aggravated  robbery  is  the  intentional or knowing  theft  of  property  from  the  person  of  another
               accomplished  with  a  deadly  weapon  and  where  the  victim  suffers  serious  bodily  injury. See  Tenn.
               Code  Ann.  ¤¤  39-13-401,  39-13-403(a). Defendant  Sykes  was  armed  with  both  a  pistol  and  a
               baseball  bat  during  the  kidnapping  and  murder  of  the  victim. Timothy  Aldridge  testified  that
               Defendant  Sykes  ordered  the  victim  to  give  him  his  jewelry. Ricky  and  Timothy  Aldridge  both
               witnessed  Defendant  Sykes  strip  the  victim  of  his  pants,  shoes,  and  underwear  after  beating  him
               repeatedly  with  the  baseball  bat.  Ricky  Aldridge,  Jacqueline  Yancey,  and  Arthur  Jones  both  testified
               that  they  saw  Defendant  Sykes  wearing  the  victimÕs  jewelry. Accordingly,  we  conclude  that  the



                                                                -6- evidence  is  sufficient  to  support  the  juryÕs  verdict  of  guilt  of  especially  aggravated  robbery  beyond
               a  reasonable  doubt.
                       Furthermore,  we  note  that  the  juryÕs  verdict  resolved  any  question  concerning  the  credibility
               of  the  StateÕs  witnesses  in  favor  of  the  State. This  issue  is  without  merit.

                                        HEARSAY  STATEMENT  OF  THE  VICTIM

                       Defendant  Sykes  next  challenges  the  trial  courtÕs  admission  of  testimony  from  Ms.  Grafton
               that  the  victim  told  her,  prior  to  his  death,  that  he  wanted  to  disassociate  himself  from  the  Gangster
               Disciples. Specifically,  the  witness  testified  that  the  victim  Òjust  basically  stated  that  he  was  tired
               of  the  lifestyle,  being  in  that  environment,  and  he  didnÕt  want  to  be  a  part  of  it  anymore.Ó  Tennessee
               Rule  of  Evidence  801  (c)  defines  hearsay  as  Òa  statement,  other  than  one  made  by  the  declarant  while
               testifying  at  the  trial  or  hearing,  offered  in  evidence  to  prove  the  truth  of  the  matter  asserted.Ó Such
               a  statement  is  inadmissible  during  a  trial  unless  it  falls  under  a  hearsay  exception  set  forth  in
               Tennessee  Rule of  Evidence  803. See  Tenn.  R.  Evid.  802. Defendant  Sykes  argues  that  Ms.
               GraftonÕs  testimony  was  hearsay,  and,  even  if  admissible  under  a  hearsay  exception,  was  irrelevant.
               We  believe  the  statement was  hearsay,  because  it  was  offered  to  prove  the  truth  of  the  matter
               asserted:  that  the  victim  did  not  want  to  continue  his  association  with  the  gang.
                       Tennessee  Rule  of  Evidence  803(3)  provides  that  a  statement  is  not  excluded  by  the  hearsay
               rule  if  it  is
                       [a] statement of the declarantÕs existing state of mind, emotion, sensation , or
                       physical  condition  (such  as  intent,  plan,  motive,  design,  mental  feeling,  pain  and
                       bodily  health),  but  not  including  a  statement  of  memory  or  belief  to  prove  the  fact
                       remembered  or  believed  unless  it  relates  to  the  execution,  revocation,  identification,
                       or  terms  of  declarantÕs  will.
               In  admitting  Ms.  GraftonÕs  testimony,  the  trial  court  found  that  the  statement  was  evidence  of  the
               victimÕs  existing  state  of  mind  with  regard  to  the  gang. Additionally,  due  to  the  StateÕs  theory  that
               the  assault  on  the  victim  was  a  form  of  punishment  for  actions  taken  detrimental  to  the  gang,  the
               statement  was  relevant  to  explaining  the  motive  for  the  attack  on  the  victim.  We  find  no  error  in  the
               trial  courtÕs  ruling. Accordingly,  this  issue  is  without  merit.

                                                     MOTION  TO  SEVER

                       Defendant  Becton  first  contends  that  the  trial  court  erred  in  denying  his  motion  to  sever  his
               trial  from  the  trial  of  Defendant  Sykes. Defendant  Becton  contends  that  he  was  prejudiced  by  the
               admission of testimony that Defendant SykesÕs nickname was ÒT-Murda,Ó and, due to this
               prejudicial  testimony,  Defendant  Becton  did  not  receive  a  fair  trial.
                       A  defendant  is  entitled  to  a  severance  if  the  trial  court  deems  it  necessary  to  promote  a  fair
               determination  of  the  guilt  or  innocence  of  one  or  more  defendants.  See  Tenn.  R.  Crim.  P.  14(c)(2)(i).
               A  trial  courtÕs  denial  of  a  motion  to  sever  is  reviewed  for  an  abuse  of  discretion. See  State  v.  Little,
               854  S.W.2d  643,  648  (Tenn.  Crim.  App.  1992). Absent  an  affirmative  showing  of  prejudice,  this



                                                                -7- Court  will  not  reverse  the  trial  courtÕs  exercise  of  sound  discretion.  See  State  v.  Ensley,  956  S.W.2d
               502,  508  (Tenn.  Crim.  App.  1996). Our  supreme  court  held  in  Woodruff  v.  State,  164  Tenn.  530,
               538-39,  51  S.W.2d  843,  845  (Tenn.  1932),  that
                       [t]he  state,  as  well  as  the  persons  accused,  is  entitled  to  have  its  rights  protected,  and
                       when  several  persons  are  charged  jointly  with  a  single  crime,  we  think  the  state  is
                       entitled  to  have  the  fact  of  guilt  determined  and  punishment  assessed  in  a  single  trial,
                       unless  to  do  so  would  unfairly  prejudice  the  rights  of  the  defendant.
               The  defendant  bears  the  burden  of  showing  clear  prejudice. See  Parham  v.  State,  885  S.W.2d  375,
               383  (Tenn.  Crim.  App.  1994).
                       In  denying  the  motion  for  severance,  the  trial  court  acknowledged  that  several  witnesses  only
               knew  the  Defendants  by  their  nicknames  and  stated
                       Maybe  itÕs  a  bad  choice  of  nicknames,  given  the  fact  that  theyÕre  .  .  .  facing  murder
                       charges  now;  but  if  thatÕs  what  the  facts  are  -  I  mean  if  people  arenÕt  just  making  this
                       up,  and  if  thatÕs  indeed  what  their  nicknames  were  and  are,  then  thatÕs  the  reality  of
                       the  situation,  and  it  cannot  be  avoided. And  I  donÕt  think  that  that  fact  alone  is
                       sufficient  to  warrant  a  severance  because  even  if  it  were  severed,  and  your  client  was
                       tried  alone,  those  nicknames  would  still  be  referred  to  by  the  witnesses,  and  your
                       clientÕs  affiliation  with  and  association  with  these  individuals  would  still  be  testified
                       to.  .  .  And  so  that  connection  would  still  be  there  whether  all  fifteen  defendants  were
                       on  the  second  row  during  this  trial  or  just  the  two  of  them  that  we,  in  fact  are  going
                       on.
               We  find  no  error  in  the  trial  courtÕs  ruling. Defendant  Becton  has  failed  to  show  any  prejudice  that
               would  have  been  avoided  with  the  grant  of  a  severance. Accordingly,  this  issue  is  without  merit.

                                                       PHOTOGRAPHS

                       Defendant  Becton  next  challenges  the  admission  of  several  photographs.  Defendant  Becton
               contends  that  a  photograph  of  the  victim  prior  to  his  murder  was  inflammatory  and  irrelevant,  and
               that  several  pictures  of  the  crime  scene  were  unfairly  prejudicial  due  to  their  gruesome  nature. The
               defendant  argues  that  the  trial  court  did  not  properly  weigh  the  photographsÕ  probative  value  against
               the  danger  of  unfair  prejudice.
                       The  admissibility  of  photographs  is  an  issue  left  to  the  sound  discretion  of  the  trial  court.  See
               State  v.  Banks,  564  S.W.2d  947,  949  (Tenn.  1978). A  trial  courtÕs  ruling  will  be  overturned  only
               upon  a  clear  showing  of  an  abuse  of  discretion. Id. Before  a  photograph  may  be  admitted  into
               evidence,  the  photograph  must  be  relevant  to  an  issue  to  be  decided  by  the  jury,  and  its  probative
               value  must  outweigh  any  prejudicial  effect  the  photograph  may  have  on  the  trier  of  fact. See  State
               v.  Braden,  867  S.W.2d  750,  758  (Tenn.  Crim.  App.),  perm.  to  appeal  denied  (Tenn.  1993).
               Photograph  of  Victim



                           1  Fifteen  defendants  were  indicted  for  the  murder,  kidnapping,  and  robbery  of  the  vict  im.

                                                                          -8- The  State  introduced  into  evidence  a  photograph  of  the  victim  prior  to  his  murder.  The
                  photograph  shows  the  victim  wearing  a  yellow  shirt  and  jewelry,  smiling. The  Defendant  contends
                  that  because  the  identity  of  the  Defendant  was  not  in  dispute,  the  photograph  was  irrelevant  and  only
                  served  to  evoke  the  sympathy  of  the  jury. The  trial  court  found  that  the  photograph  was  relevant  for
                  identification purposes due to the large number of criminal actors in the cases,1 as well as, the
                  extensive  use  of  nicknames  by  the  StateÕs  witnesses. We  conclude  that  the  trial  court  did  not  abuse
                  its  discretion  in  admitting  the  photograph  for  that  purpose. However,  even  if  the  trial  court  was  in
                  error,  the  admission  of  the  picture  into  evidence  had  no  prejudicial  effect  on  the  juryÕs  determination
                  of  guilt. See  Tenn.  R.  Crim.  P.  52(a). Accordingly,  this  issue  is  without  merit.
                  Crime  Scene  Photographs
                           Defendant  Becton  also  contends  that  the  trial  court  erred  in  failing  to  weigh  the  probative
                  value  of  crime  scene  photographs  depicting  blood  stains  and  smears  against  their  prejudicial  impact
                  on  the  jury. While  not  stating  on  the  record  that  the  probative  value  of  the  photographs  outweighs
                  their  prejudicial  impact,  the  trial  court  found  that  the  pictures  were  not  Òunduly  prejudicialÓ  and
                  Òaccurately  depictedÓ  the  crime  scene.  After  a  review  of  the  photographs,  which  contain  blood  stains
                  to  the  interior  and  a  blood  smear  on  the  rear  window  of  the  car  into  which  the  victim  was  placed  after
                  being beaten, we also conclude that the photographsÕ prejudicial impact does not outweigh the
                  probative  value  of  accurately  depicting  the  crime  scene  and  corroborating  testimony  concerning  the
                  extent  of  the  injuries  to  the  victim. Accordingly,  this  issue  is  without  merit.

                                                                 JURY  CHARGE

                           Defendant  Becton  also  argues  that  the  trial  judge  made  several  errors  while  charging  the  jury
                  in  both  the  guilt  and  sentencing  phases  of  his  trial. The  United  States  and  Tennessee  Constitutions
                  provide  defendants  with  a  constitutional  right  to  trial  by  jury,  requiring  all  issues  of  fact  to  be  tried
                  and  determined  by  the  jury. See  U.S.  Const.  amend  VI;  Tenn.  Const.  Art.  1  ¤  6;  see  also  State  v.
                  Bobo,  814  S.W.2d  353,  356  (Tenn.  1991). Pursuant  to  the  right  to  trial  by  jury,  a  defendant  has  a
                  right  to  a  correct  and  complete  charge  of  the  law. See  State  v.  Teel,  793  S.W.2d  236,  249  (Tenn.
                  1990). The  trial  court,  therefore,  has  a  duty  Òto  give  a  complete  charge  of  the  law  applicable  to  the
                  facts  of  the  case.Ó State  v.  Harbison,  704  S.W.2d  314,  319  (Tenn.  1986);  see  also  Tenn.  R.  Crim.
                  P.  30. The  elements  of  each  offense  must  be  described  and  defined  in  connection  with  that  offense.
                  See  State  v.  Cravens,  764  S.W.2d  754,  756  (Tenn.  1989). When  there  is  an  error  in  the  jury  charge,
                  reversal  is  required  unless  the  error  is  harmless  beyond  a  reasonable  doubt. See  State  v.  Ely,  48
                  S.W.3d  710,  727  (Tenn.  2001).
                  Accomplice  Instruction
                           Defendant  Becton  contends  that  the  trial  court  erred  in  not  giving  an  accomplice  instruction
                  to  the  jury  concerning  the  testimony  of  Robert  Walker. The  trial  court  instructed  the  jury  with  an
                  accomplice  charge  for  the  testimony  of  Timothy  Aldridge  but  found  no  evidence  to  support  a  similar
                  charge  regarding  Mr.  WalkerÕs  testimony. An  accomplice  is  one  who  knowingly,  voluntarily  and



                                                                -9- with  common  intent  unites  with  the  principal  offender  in  the  commission  of  the  crime. See  State  v.
               Lawson,  794  S.W.2d  363,  369  (Tenn.  Crim.  App.  1990).
                       Mr.  Walker  was  the  Òhead  of  securityÓ  for  the  Memphis  Gangster  Disciples  and  overheard
               several  conversations  concerning  the  upcoming  ÒpunishmentÓ  of  the  victim  for  violating  gang  rules.
               However, Mr. Walker did not take part in the meeting which decided the form the victimÕs
               ÒpunishmentÓ  would  take. Nor  was  Mr.  Walker  present  when  the  victim  was  beaten,  robbed,  and
               killed.  The  extent  of  Mr.  WalkerÕs  involvement  in  the  killing  of  the  victim  consists  of  conversations
               Mr.  Walker  overheard  prior  to  the  death  of  the  victim. This  evidence  does  not  establish  Mr.  Walker
               as an  accomplice. Accordingly, the trial court properly denied the request for an accomplice
               instruction  with  regard  to  Mr.  Walker. This  issue  is  without  merit.
               Flight  Instruction
                       Next,  the  Defendant  Becton  argues  that  the  trial  court  erred  in  instructing  the  jury  that  flight,
               if  found  beyond  a  reasonable  doubt,  may  be  considered  in  determining  the  guilt  or  innocence  of  the
               Defendants.  No  evidence  of  flight  existed  in  regards  to  Defendant  Becton,  however,  evidence  was
               presented  that  Defendant  Sykes  attempted  to  flee.
                       In  denying  the  DefendantÕs  request  for  an  instruction  limiting  the  flight  instruction  to  his  co-defendant, 
                           the  trial  court  stated  that,  due  to  the  complete  lack  of  evidence  of  flight,  it  would  be
               obvious  to  the  jury  that  the  flight  instruction  was  inapplicable  to  Defendant  Becton. Furthermore,
               the  trial  court  feared  that  giving  a  limiting  instruction  would  amount  to  a  comment  on  the  evidence
               of  flight  concerning  Defendant  Sykes. The  trial  courtÕs  instruction  clearly  instructed  the  jury  that
               flight  could  not  be  considered  against  either  Defendant  without  proof  of  flight  beyond  a  reasonable
               doubt. Accordingly,  we  find  no  error  in  the  trial  courtÕs  flight  instruction  and  his  refusal  to  give  a
               limiting  instruction. This  issue  is  without  merit.
               Duress  Instruction
                       Defendant  Becton  requested  that  the  jury  be  instructed  as  to  the  defense  of  duress,  and  now
               alleges  that  the  trial  court  erred  in  denying  that  request. Tennessee  Code  Annotated  section  35-11-
               504  provides  that
                       (a)  Duress  is  a  defense  to  prosecution  where  the  person  or  a  third  person  is  threatened
                       with  harm  which  is  present,  imminent,  impending  and  of  such  a  nature  to  induce  a
                       well-grounded  apprehension  of  death  or  serious  bodily  injury  if  the  act  is  not  done.
                       The threatened harm must be continuous throughout the time the act is being
                       committed,  and  must  be  one from  which  the  person  cannot  withdraw in  safety.
                       Further,  the  desirability  and  urgency  of  avoiding  the  harm  must  clearly  outweigh,
                       according  to  ordinary  standards  of  reasonableness,  the  harm  sought  to  be  prevented
                       by  the  law  proscribing  the  conduct.
                       (b) This defense is unavailable to a person who intentionally, knowingly, or
                       recklessly  becomes  involved  in  a  situation  in  which  it  was  probable  that  the  person
                       would  be  subjected  to  compulsion.



                                                           -10- Defendant Becton contends that he is entitled to a duress instruction because, if he had not
              participated  in  the  killing  of  the  victim,  he  would  have  been  killed  for  violating  gang  rules.
                     While  some  evidence  exists,  through  the  testimony  of  Mr.  Walker  and  Timothy  Aldridge,
              from  which  the  jury  could  infer  that  refusing  to  participate  in  the  attack  on  the  victim  could  have
              resulted  in  Defendant  Becton  being  punished,  no  evidence  suggests  that  the  nature  of  that  threat  was
              imminent  and  impending.  Furthermore,  in  denying  Defendant  BectonÕs  request,  the  trial  court  stated
              that  the  proof  in  the  record  suggested  that  Òthese  two  [defendants]  acted  actively  and  willingly  and
              were  not  under  any  sort  of  duress  in  the  conduct  in  which  they  engaged  that  night.Ó  We  find  no  error
              in  the  trial  courtÕs  ruling. This  issue  is  without  merit.
              Mitigating  Factors
                     Defendant  Becton  also  contends  that  the  trial  court  erred  in  not  charging  the  jury  with  two
              mitigating  factors  during  the  sentencing  phase  of  his  trial. Specifically,  Defendant  Becton  argues
              that  the  trial  court  should  have  instructed  the  jury  to  consider  in  mitigation  of  his  sentence  that
                     (2)  the  murder  was  committed  while  the  defendant  was  under  the  influence  of
                     extreme  mental  or  emotional  disturbance;  and
                     (3)  the  victim  was  a  participant  in  the  defendantÕs  conduct  or  consented  to  the  act.
              Tenn.  Code  Ann.  ¤  39-13-204(j)(2),  (3). A  trial  court  must  instruct  a  sentencing  jury  to  weigh  and
              consider  any  mitigating  circumstances  raised  by  the  evidence.  See  Tenn.  Code  Ann.  ¤  39-13-204(e).
              Accordingly,  the  defendant  is  entitled  to  have  the  jury  consider  any  mitigating  circumstances  fairly
              raised  by  the  evidence.
                     In  the  present  case,  no  evidence  was  presented  that  Defendant  Becton  acted  under  the
              influence  of  extreme  mental  or  emotional  disturbance.  Defendant  Becton  presented  evidence  at  the
              sentencing  hearing  that  he  has  a  below  average  I.Q.;  however,  that  alone  will  not  support  the
              consideration  of  this  mitigating  factor. We  conclude  that,  because  no  evidence  was  presented  from
              which  the  jury  could  infer  that  the  Defendant  acted  under  the  influence  of  extreme  mental  or
              emotional  disturbance,  this  issue  was  not  fairly  raised  by  the  evidence.
                     Defendant  BectonÕs  second  contention  with  regard  to  mitigating  factor  (3)  is  also  without
              merit. Defendant  BectonÕs  argument  that  the  victim  consented  to  his  kidnapping,  robbery,  and
              murder  by  virtue  of  membership  in  the  gang  is  meritless. The  victim  was  taken  by  force  to  a
              secluded  area.  He  was  robbed  and  beaten.  The  victimÕs  attempts  to  fight  back  were  quickly  quashed
              when  he  was  rendered  unconscious  by  one  of  several  blows  to  the  head  with  a  baseball  bat  and  a  tire
              iron.  We  conclude,  therefore,  that  the  trial  court  did  not  err  in  refusing  to  instruct  the  jury  regarding
              this  mitigating  factor.
                     Mitigating  factors  (2)  and  (3)  were  not  fairly  raised  by  the  evidence,  and  the  trial  court  did
              not  err  in  denying  DefendantÕs  request  for  their  instruction.  Accordingly,  this  issue  is  without  merit.
              Tennessee  Code  Annotated  section  39-13-204(f)(2)



                                                           -11- Defendant  Becton  next  argues  that  the  trial  court  should  have  instructed  the  jury  that  it  must
              find that the statutory aggravating circumstances outweighed the mitigating factors beyond a
              reasonable  doubt  before  sentencing  the  Defendant  to  life  imprisonment  without  possibility  of  parole.
              The  trial  court  instructed  the  jury  according  to  the  mandate  of  Tennessee  Code  Annotated  section
              39-13-204(f)(2)  which  states,  in  part,  that
                     [t]he  trial  judge  shall  instruct  the  jury  that,  in  choosing  between  the  sentences  of
                     imprisonment  for  life  without  possibility  of  parole  and  imprisonment  for  life,  the  jury
                     shall  weigh  and  consider  the  statutory  aggravating  circumstance  or  circumstances
                     proven  by  the  state  beyond  a  reasonable  doubt  and  any  mitigating  circumstance.
              Defendant  Becton  now  asks  this  Court  to  ignore  section  39-13-204(f)(2)  and  require  juries  to  find
              that  the  aggravating  circumstances  proven  by  the  State  outweigh  any  mitigating  circumstances
              beyond  a  reasonable  doubt  before  sentencing  a  defendant  to  life  without  possibility  of  parole.  This
              Court  has  consistently  held  in  compliance  with  section  39-13-204(f)(2)  that  there  is  no  requirement
              that  a  sentencing  jury  make  such  a  determination. See  State  v.  Kelvin  Anthony  Lee,  No.  02C01-
              9603-CC-00085,  1997  Tenn.  Crim.  App.  LEXIS  1132,  *29  (Jackson,  Nov.  5,  1997)  (requested
              instruction stating that jury must find that aggravating circumstances outweigh mitigating
              circumstances  beyond  a  reasonable  doubt  before  sentencing  defendant  to  life  without  possibility  of
              parole  was  not  in  conformity  with  the  law  and  properly  rejected  by  the  trial  court);  State  v.  Antonio
              M.  Byrd,  No.  02C01-9508-CR-00232,  1996  Tenn.  Crim.  App.  LEXIS  809,  *59  (Jackson,  Dec.  30,
              1996)  (no  requirement  that  aggravating  circumstances  outweigh  mitigating  circumstances  beyond
              a  reasonable  doubt  in  sentencing  to  life  without  possibility  of  parole). Accordingly,  the  trial  court
              did  not  err  in  rejecting  Defendant  BectonÕs  proposed  supplemental  instruction.  This  issue  is  without
              merit.

                                            CONSECUTIVE  SENTENCES

                     Finally,  Defendant  Becton  challenges  the  trial  courtÕs  decision  to  run  the  sentences  for  all  his
              convictions  consecutively.  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. See  Tenn.  Code  Ann.  ¤  40-35-401(d). This
              presumption is Òconditioned upon the affirmative showing in the record that the trial court
              considered  the  sentencing  principles  and  all  relevant  facts  and  circumstances.Ó  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. See  Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;  State  v.  Brewer,  875
              S.W.2d  298,  302  (Tenn.  Crim.  App.  1993);  State  v.  Thomas,  755  S.W.2d  838,  844  (Tenn.  Crim.
              App.  1988).



                                                           -12- 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  courtÕs  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. See  State  v.  Pike,  978  S.W.2d  904,  926-27  (Tenn.  1998);  State  v.
              Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991).
                     Tennessee  Code  Annotated  section  40-35-115  provides  that  the  trial  court  may  impose
              consecutive  sentences  upon  a  defendant  convicted  of  multiple  criminal  offenses  if  it  finds  that  a
              preponderance  of the evidence establishes that the defendant falls into at least one of seven
              categories. Two  of  those  categories  are:
                     a) the  defendant  is  an  offender  whose  record  of  criminal  activity  is  extensive;  and
                     b)  the  defendant  is  a  dangerous  offender  whose  behavior  indicates  little  or  no  regard
                     for  human  life,  and  no  hesitation  about  committing  a  crime  in  which  the  risk  to
                     human  life  is  high.
              Tenn.  Code  Ann.  ¤  40-35-115  (2),  (4).
                     The  presentence  reports  reflects  that,  at  the  time  of  sentencing,  Defendant  Becton  was  a
              twenty-four  year  old,  single  male  with  an  extensive  criminal  record  including  several  misdemeanor
              drug  and  weapon  offenses  and  one  felony  drug  conviction.  Defendant  Becton  is  physically  disabled
              as  a  result  of  a  previous  gunshot  wound  and  has  a  low  average  to  below  average  I.Q.
                     In  imposing  consecutive  sentences,  the  trial  court  found  that  Defendant  Becton  had  an
              extensive  criminal  history  and  that  he  was  a  dangerous  offender. The  trial  court  emphasized  that,
              due  to  the  brutality  and  Òunspeakable  crueltyÓ  of  the  attack  on  the  victim,  the  Defendant  should  not
              ever  be  allowed  back  into  the  community,  and  it  found  that  the  sentence  was  proportional  to  the
              offense  committed  by  Defendant  Becton.  The  record  supports  the  trial  courtÕs  findings.  Consecutive
              sentences  are  warranted. This  issue  is  without  merit.

                                                     CONCLUSION

                     For  the  foregoing  reasons,  we  AFFIRM  the  judgments  of  the  trial  court.




                                                                ___________________________________ 
                                                                DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

           STATE  OF  TENNESSEE  v.  MATRIN  BECTON  &  ANTONIO  SYKES

                           Criminal  Court  for  Shelby  County
                                 No.  98-02267-70


                     No.  W1999-00581-CCA-R3-CD  -  Filed  June  19,  2002



         David  G.  Hayes,  J.,  separate  concurring.
             I  join  with  the  majority  on  all  issues  with  the  exception  of  their  holding  that  the  hearsay
         statement  of  the  victim  was  admissible.  The  majority  finds  that  the  deceased  victim's  statement  "that
         he  was  tired  of  the  lifestyle,  being  in  that  environment,  and  he  didn't  want  to  be  a  part  of  it  anymore"
         was  admissible  to  establish  the  victim's  existing  state  of  mind.
             First,  I  find  the  victim's  statement  is  not  relevant  as  the  statement  has  no  bearing  upon  any
         factual  issue  that  was  "of  consequence  to  the  determination  of  the  action."  Tenn.  R.  Evid.  401.  The
         statement  asserts  no  proof  of  intent,  plan,  motive,  or  mental  feeling  relevant  to  the  homicide.  See

         Tenn.  R.  Evid.  803(3). Moreover,  as  the  opinion  states,  "the  assault  on  the  victim  was  a  form  of
         punishment  for  actions  taken  detrimental  to  the  gang." Clearly,  the  motive  for  the  murder  was
         disciplinary  in  nature  and  had  nothing  to  do  with  the  victim's  dissatisfaction  with  the  gang  lifestyle.
         Although  I  find  admission  of  the  hearsay  statement  error,  I  find  the  error  harmless.  Tenn.  R.  Crim.
         P.  52(a).


                                         ___________________________________
                                         David  G.  Hayes,  Judge



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  November  28,  2001

               STATE  OF  TENNESSEE  v.  MICHAEL  WAYNE  BELCHER

                   Direct  Appeal  from  the  Criminal  Court  for  Carter  County
                          No.  S15009  Robert  E.  Cupp,  Judge


                     No.  E2001-00515-CCA-R3-CD Filed  April  22,  2002


         The  defendant  appeals  his  convictions  for  aggravated  burglary  and  possession  of  burglary  tools.
         After  a  review  of  the  record,  we  conclude  that  the  defendant  was  not  prejudiced  by  the  StateÕs
         failure  to  redact  an  obscure  reference  to  the  defendantÕs  probation  status  from  an  audio  taped
         statement  that  was  played  at  trial. However,  we  are  unable  to  find  sufficient  evidence  to
         establish  that  the  defendant  had  a  hammer  and  screwdriver  in  his  automobile  with  the  intent  to
         commit  burglary.  Therefore,  the  defendantÕs  conviction  for  possession  of  burglary  tools,  a  Class
         A  misdemeanor,  is  reversed  and  dismissed.  The  aggravated  burglary  conviction  is  affirmed. 

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

         JOHN  EVERETT  WILLIAMS,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
         ALAN  E.  GLENN,  JJ.,  joined.
         H.  Randy  Fallin,  Mountain  City,  Tennessee,  for  the  appellant,  Michael  Wayne  Belcher.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Thomas  E.  Williams  III,  Assistant  Attorney
         General;  Joe  C.  Crumley,  Jr.,  District  Attorney  General;  and  Dennis  D.  Brooks,  Assistant
         District  Attorney  General,  for  the  appellee,  State  of  Tennessee. 


                                   OPINION

             The  defendant,  Michael  Wayne  Belcher,  was  indicted  for  aggravated  burglary  and
         possession  of  burglary  tools.  Following  a  jury  trial,  the  defendant  was  convicted  of  both  counts.
         The  defendant  was  sentenced  as  a  Range  III  persistent  offender  to  fifteen  years  for  the
         aggravated  burglary  conviction  and  eleven  months  and  twenty-nine  days  for  the  possession  of
         burglary  tools  conviction,  to  be  served  concurrently. In  addition,  the  defendant  was  ordered  to
         pay  a  fine  of  $5000.00  for  the  aggravated  burglary  conviction  and  $2500.00  for  the  possession  of
         burglary  tools  conviction.  Following  the  denial  of  his  motion  for  new  trial,  the  defendant  filed  a
         timely  notice  of  appeal.  The  defendant  presents  two  issues  for  review  in  this  appeal:  1.)  whether



                                                                -2- there was sufficient evidence to support the possession of burglary tools conviction, and 2.)
               whether he is entitled to a new trial based upon the StateÕs failure to redact prejudicial
               information  contained  in  the  defendantÕs  taped  statement,  which  was  admitted  into  evidence.

                                                             FACTS

                       Joseph Owens testified that he and his wife, Faye Owens, operate a business, FayeÕs
               Ceramics. There is an area in the business that has a pullout bed, television, refrigerator,
               microwave,  and  clothing  where  the  Owenses  sleep  ninety  percent  of  the  time. They  do  not  have
               a  residence  outside  of  the  business  but  do  visit  their  daughterÕs  nearby  home  to  bathe  because
               there  is  not  a  shower  or  bathtub  in  the  business.  There  is  a  bathroom  in  the  business,  which  has
               a  sink  and  toilet.
                       On  April  27,  2000, Mr.  and  Mrs.  Owens  returned  home  from  a  revival  service  at  their
               church around ten oÕclock p.m.  They entered the business through the front door, and the
               telephone  was  ringing. Mrs.  Owens  answered  the  telephone. While  she  was  on  the  telephone,
               Mr. Owens motioned to her that he was going to the workshop located in the back of the
               business  to  do  some  work. Upon  entering  the  workshop,  Mr.  Owens  noticed  that  a  man,  who  he
               later identified to be the defendant, was standing near the back door, which was closed and
               locked. Mr.  Owens  repeatedly  asked  the  defendant  what  he  was  doing  but  received  no  verbal
               response. Mr.  Owens  began  shouting  for  his  wife  to  call  the  police. According  to  his  testimony,
               Mr. Owens observed the defendant for four  or five minutes.  All the lights were on, and the
               defendant  was standing  approximately  fifty  feet  away  from  him. After  instructing  his  wife  to
               call  the police, Mr. Owens pretended to reach for a weapon, and the  defendant  responded by
               starting  to  unlock  the  back  door,  which  was  secured  by  a  bar  across  it  and  two  deadbolt  locks.
               After  removing  the  bar  and  unlocking  the  locks,  the  defendant  opened  the  door  and  ran  down  the
               alley  behind the  building  toward  a  parking  lot  located  at  the  end  of  the  building. Mr.  Owens
               followed  the  defendant  to  the  parking  lot  and  observed  him  get  into  the  driverÕs  side  of  a  white
               car  and  drive  away. Mr.  Owens  was  able  to  observe  the  defendant  as  he  ran  down  the  alley,  and
               the  defendant  did  not  appear  to  have  any  problems  running. He  also  testified  that  the  defendant
               did  not  have  anything  in  his  hands  during  the  time  that  he  observed  him. 
                       When  the  police arrived  at  FayeÕs  Ceramics,  Mr.  Owens  described  the  man  he  saw  as
               approximately  six  feet  tall  and  a  little  under  two  hundred  pounds,  wearing  a  green  windbreaker,
               tan pants and  round eyeglasses.  A few minutes later, he  was driven to a nearby  location  to
               identify  the  defendant,  who  had  been  stopped  by  police  and  fit  the  description  Mr.  Owens  had
               given  the  police. The  defendant  was  standing  with  several  police  officers  on  the  side  of  the  road.
               Mr.  Owens  immediately  identified  the  defendant  as  the  person  he  saw  inside  his  residence. Mr.
               Owens testified that he did not get a Òreal goodÓ look at the personÕs facial features and
               identified  the  defendant  based  on  his  height,  build  and  eyeglasses.
                       Mr. Owens testified that the defendant entered his residence by crawling through an
               opening located above the back door.  Because the business produced a great deal of white
               ceramic  dust,  the  Owenses  fashioned  a  vent  with  a  fan  to  blow  the  dust  out  the  opening. The
               opening  was  covered  by  a  board  on  the  outside,  which  could  be  opened  to  allow  the  air  and  dust



                                                                -3- out. There  was  also  a  screen  behind  the  board  that  covered  the  opening.  On  the  inside  of  the
               building,  the  Owenses  had  used  paneling  to  construct  a  tunnel  from  the  opening  to  a  fan. The
               tunnel  was  a  few  feet  long. Mr.  Owens  testified  that  the  board  and  screen  covering  the  opening
               had  been  pried  open. There  was  also  a  hole  in  the  paneling  where  someone  appeared  to  have
               jumped  down  from  the  tunnel  to  the  floor  below. Nothing  was  taken  from  the  business  during
               the  break-in  and  the  only  damage  was  to  the  opening  and  tunnel. 
                       Officer  Jason  Shaw  testified  that  he  was  on  patrol  in  the  area  near  FayeÕs  Ceramics  on  the
               night  of  the  break-in. Shortly  after  ten  oÕclock  p.m.,  Officer  Shaw  noticed  a  white  car  pull  out  of
               a parking lot a few blocks up from the direction he was driving his police car.  The carÕs
               taillights were not on, and it pulled onto the street at a high rate of speed.  Officer Shaw
               responded by accelerating to catch up with the car.  As he was accelerating, the dispatcher
               radioed that there was a break-in in progress at FayeÕs Ceramics. Officer Shaw immediately
               radioed  and  informed  the  dispatcher  that  he  was  following  a  potential  suspect.  Officer  Shaw
               then  proceeded  to  pull  the  car  over  and  order  the  driver  to  exit  the  car. The  driver  of  the  car  was
               the  defendant. He  was  wearing  a  grey  jacket  and  light  tan  pants,  which  were  covered  with  a  light
               colored  dust. He  also  had  on  round  eyeglasses. 
                       While  the  defendant  was  being  detained  by  Officer  Shaw  on  the  side  of  the  road,  another
               officer  drove  by  with  Mr.  Owens. As  the  officer  drove  by,  he  shone  a  spotlight  on  the  defendant
               to  prevent  him  from  seeing  Mr.  Owens  inside  the  police  car. Mr.  Owen  identified  the  defendant
               as  the  man  who  broke  into  his  residence. Thereafter,  the  defendant  was  placed  under  arrest. A
               search  of  his  car  revealed  a  hammer  and  screwdriver  under  the  driverÕs  seat  and  a  pair  of  brown
               work  gloves  beside  the  seat. The  gloves  were  also  covered  with  a  light  colored  dust.
                       The  defendant  gave  an  audio  taped statement at  the  police  station  after  his  arrest. He
               denied  breaking  into  the  victimsÕ  home. He  told  police  officers  that  he  had  been  playing  golf
               earlier  that  day. He  also  claimed  that  he  had  car  trouble  and  had  worked  on  his  car  prior  to  being
               stopped  by  Officer  Shaw. 
                       Officer  John  Ramsey  testified  that  he  responded  to  a  call  reporting  a  break-in  at  FayeÕs
               Ceramics. Upon  arrival,  he  found  signs  of  forced  entry  through  the  transom  over  the  back  door.
               The entrance to the back door was located in the alley behind the building. Officer Ramsey
               introduced  photographs  of  the  back  door,  which  depicted  the  opening  that  had  been  forced  open
               above the door.  Covering the opening was a board that appeared to have been pried open.
               Officer  Ramsey  opined  that  the  defendant  climbed  through  the  hole  above  the  door  and  dropped
               down into the building on the other side. Another photograph depicted a concrete pillar
               approximately  three  and  a  half  feet  high  that  was  located  to  the  right  of  the  back  door. Officer
               Ramsey  indicated  that  the  defendant  could  have  stood  with  one  foot  atop  the  pillar  and  hoisted
               himself  up  and  into  the  opening. Officer  Ramsey  testified  that  he  did  not  observe  anything  on
               the floor near the entryway inside the building.  He also indicated that the board over the
               opening  was  not  taken  off  completely  but  just  pulled  loose  at  the  bottom  of  the  opening  so  that  a
               person could crawl under it.  He could not tell what was used to pry the board loose and
               indicated that someone could have used their hands to do it. Officer Ramsey  testified that he
               observed a light colored dust in the opening above the back door as well as throughout the



                                                                -4- workshop area of the business.  The dust was similar to the dust found on the defendantÕs
               clothing. 
                       After  inspecting  the  Owens  residence,  Officer  Ramsey  drove  Mr.  Owens  by  the  location
               where  the  defendant  was  being  detained  by  Officer  Shaw. The  defendant  was  standing  outside
               his  car  with  several  police  officers. Officer  Ramsey  illuminated  the  defendant  with  his  spotlight
               as  they  drove  by,  and  Mr.  Owens  immediately  identified  the  defendant  as  the  man  he  saw  inside
               his  residence. Officer  Ramsey  also  noticed  that  the  defendant  was  covered  with  a  light  colored
               dust.
                       The  defendantÕs  mother  and  an  officer  at  the  jail  where  the  defendant  was  housed  after
               his arrest testified for the defense. Officer Pemberton testified that a few weeks after the
               defendantÕs  arrest,  he  transported  the  defendant  to  a  doctor  on  at  least  two  occasions. Officer
               Pemberton accompanied  him  into  the  examination  room  where  he  observed  an  open  sore  on  the
               defendantÕs  leg  and  abrasions  on  his  feet. Officer  Pemberton  also  observed  that  the  defendant
               walked  with  a  limp  and  favored  one  leg  as  a  result  of  his  injuries.
                       The  defendantÕs  mother,  Ruth  Belcher,  testified  that  the  defendant  was  in  a  serious  car
               accident  exactly  a  month  before  his  arrest. As  a  result  of  his  injuries,  his  ability  to  walk  was
               impaired during the time that he was arrested.  Ms. Belcher also testified that the car the
               defendant was driving when he was arrested had peeling paint.  She attempted to cover the
               peeling paint by spraying white spray paint on the car.  The spray paint was not car paint,
               however,  and  would  rub  off  if  touched  leaving  a  white  dust  on  anything  that  came  in  contact
               with  it. She  verified  the  car  also  had  some  mechanical  problems. Finally,  Ms.  Belcher  indicated
               that she and defense  counsel had taken  measurements of the opening above the back door at
               FayeÕs  Ceramics. It  was  seven  feet  from  the  ground  to  the  bottom  of  the  opening. The  opening,
               which  was  shaped  like  the  letter  ÒT,Ó  was  fifteen  inches  tall,  thirty-four  inches  wide  at  the  top,
               and  twenty-seven  inches  wide  at  the  bottom.

                                                           ANALYSIS

                       The defendant challenges the sufficiency  of the evidence to support his conviction for
               possession  of  burglary  tools,  a  Class  A  misdemeanor. In  addition,  the  defendant  alleges  that  he
               was unfairly prejudiced by the admission of a taped statement containing a reference to his
               parole  status  at  the  time  the  instant  offense  was  committed  and  is,  therefore,  entitled  to  a  new
               trial. 
                                                     Sufficiency  of  Evidence
                       The  defendant  asserts  that  there  was  no  evidence  to  establish  that  he  possessed  tools  with
               the  intent  to  use  them  or  allow  them  to  be  used  to  commit  a  burglary,  which  is  an  element  of
               possession of burglary  tools.  We agree.  When an accused challenges the sufficiency  of the
               convicting evidence, the standard is whether, 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,  61  L.  Ed.  2d  560,



                                                                -5- 99  S.  Ct.  2781  (1979).  On  appeal,  the  State  is  entitled  to  the strongest  legitimate  view  of  the
               evidence and all reasonable inferences therefrom.  State v. Cabbage, 571 S.W.2d 832, 835
               (Tenn.  1978). Because  a  verdict  of  guilt  removes  the  presumption  of  innocence  and  replaces  it
               with a presumption of guilt, the accused has the burden in this Court of illustrating why the
               evidence  is  insufficient  to  support  the  verdict  returned  by  the  trier  of  fact. State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982);  State  v.  Grace,  493  S.W.2d  474,  476  (Tenn.  1973). 
                       Questions  concerning  the  credibility  of  witnesses,  the  weight  and  value  to  be  given  the
               evidence,  as  well  as  all  factual  issues  raised  by  the  evidence,  are  resolved  by  the  trier  of  fact,  not
               this  Court.  State  v.  Pappas,  754  S.W.2d  620,  623  (Tenn.  Crim.  App.  1987). Nor  may  this  Court
               reweigh  or  reevaluate  the  evidence. Cabbage,  571  S.W.2d  at  835. A  jury  verdict  approved  by
               the trial judge accredits the State's witnesses and resolves all conflicts in favor of the State.
               Grace,  493  S.W.2d  at  476. 
                       The  indictment  in  the  instant  case  alleges  that  the  defendant  committed  Òthe  offense  of
               possession of burglary tools by knowingly possessing a screwdriver and a hammer with the
               intent to use it or allow it to be used to commit burglary  . . . .Ó  Tennessee Code Annotated
               section  39-14-701  provides  that  Ò[a]  person  who  possesses  any  tool,  machine  or  implement  with
               intent  to  use  the  same,  or  allow  the  same  to  be  used,  to  commit  any  burglary,  commits  a  Class  A
               misdemeanor.Ó The  evidence  viewed  in  the  light  most  favorable  to  the  State  established  that  the
               defendant forcibly entered the victimsÕ residence/business by crawling through an opening
               directly  over the back door.  The opening was seven feet from  the ground and  covered by  a
               board. The  proof  established  that  the  defendant  would  have  had  to  stand  with  one  foot  on  top  of
               a  three  and  one  half  foot  concrete  post  located  about  two  feet  to  the  right  of  the  opening  and  pry
               the  board  open. There  was  a  screen  behind  the  board,  which  was  also  torn  open. Thereafter,  the
               defendant  would  have  had  to  hoist  himself  up  and  into  the  opening  and  then  drop  down  into  the
               building. In  addition,  the  evidence  established  that  the  defendant  was  apprehended  in  his  car  a
               few  miles from the victimÕs business/residence.  An inventory  search of the car revealed that
               there  was  a  hammer,  a  screwdriver,  and  a  pair  of  gloves  beside  the  seat. 
                       The State asserts that the aforementioned evidence was sufficient to support the
               defendantÕs  conviction  for  possession  of  burglary  tools. Specifically,  the  State  maintains  that  the
               jury  could  clearly  infer  from  such  facts  that  the  defendant  Òwore  the  gloves  and  used  the  hammer
               and screwdriver to pry open the boarded vent, tear through the wire screen and enter the
               [victimsÕ]  habitation.Ó We  disagree. We  first  note  that  the  gloves  may  not  be  used  to  establish
               the crime because they  were not alleged in the indictment; therefore, the defendant was not
               provided  his  constitutional  right  to  notice  that  he  would  be  required  to  defend  the  charge  based
               upon his possession of the gloves.  Thus, the defendantÕs conviction must be supported by
               evidence  that  the  screwdriver  and/or  hammer  were  burglary  tools. 
                       We  acknowledge  that  the  jury  could  have  reasonably  inferred  that  the  defendant  Òused
               the  hammer  and  screwdriver  to  pry  open  the  boarded  vent,  tear  through  the  wire  screen  and  enter
               the [victimsÕ] habitationÓ based upon the evidence cited by the State.  However, the record
               contains  other  evidence  not  cited  by  the  State  that  established  that  the  defendant  did  not  use  the
               hammer  or  the  screwdriver  to  gain  entry  to  the  victimÕs  home. To  begin  with,  the  tools  were



                                                                -6- recovered from the defendantÕs car, not his person.   The evidence established that the
               defendantÕs  car  was  parked  in  a  parking  lot  around  the  corner  of  the  building  during  the  burglary
               and  that  he  had  to  run  down  an  alley  past  two  other  businesses  in  order  to  get  to  his  car. 
                       The  victim  testified  that  he  observed  the  defendant  in  a  well-lighted  room  for  four  to  five
               minutes  and  described  what  he  was  wearing  and  his  approximate  height  and  weight. In  addition,
               the victim testified that the defendant did not have anything in his hands during this time.
               According to the victim, the  defendant  escaped  from the  building  through the  back  door.  In
               order to open the door, the defendant had to first remove a pipe  fashioned across the doorÕs
               opening  and  then  unlock  two  deadbolts. After  he  exited,  the  victim  followed  the  defendant  as  he
               ran  down  the  alley  around  the  corner  to  his  car  and  watched  as  he  drove  away. The  defendant
               did  not  stop  and  pick  up  anything  from  the  ground  on  his  way  to  the  car. 
                       The investigating police officer, Officer Ramsey, testified that he could not tell by
               examining  the  board  and  screen  what  was  used  to  pry  them  open. He  further  testified  that  it  was
               possible  that  the  intruder  ripped  them  open  with  his  hands. Finally,  there  was  no  other  evidence
               presented  to  suggest  that  the  tools  were  used  to  pry  open  the  board  and  rip  the  screen. 
                       We  conclude  that  there  is  insufficient  evidence  to  establish  that  the  defendant  possessed
               the screwdriver and hammer with intent to use them to commit burglary. Based upon all the
               evidence  contained  in  the  record,  viewed  in  the  light  most  favorable  to  the  State,  the  defendant
               did  not  use  the  screwdriver  or  hammer  to  forcibly  enter  the  victimsÕ  home. To  the  contrary,  the
               evidence  indicates  that  the  tools  were  in  the  defendantÕs  car  during  the  burglary. Furthermore,  a
               screwdriver  and  hammer  are  innocent  tools  in  and  of  themselves.  Therefore,  possession  of  them
               by  a  burglar  without  more  is  not  sufficient  to  establish  that  they  are  burglary  tools. See  State  v.
               Cox,  644  S.W.2d  692  (Tenn.  Crim.  App.  1982)  (finding  evidence  sufficient  where  defendantÕs
               accomplice  had  two  screwdrivers  and  a  pair  of  pliers  in  his  pocket  and  a  tire  iron  was  found  on
               ground  near  the  defendant);  State  v.  Rice,  973  S.W.2d  639  (Tenn.  Crim.  App.  1997) (finding
               sufficient  evidence  where  defendant  had  a  pair  of pliers,  a  screwdriver  and  a  flashlight  on  his
               person  and  admitted  that  he  had  the  tools  with  him  so  that  he  could  steal  a  headlight);  State  v.
               Morgan, 929 S.W.2d 380 (Tenn. Crim. App. 1996) (finding sufficient evidence where three
               flashlights,  three  pairs  of  wire  cutters,  two  pairs  of  pliers,  one  screwdriver,  three  tire  tools  and
               various  other  tools  were  found  in  defendantÕs  car  and  evidence  introduced  that  paint  on  one  of
               opaque  tire  tools  matched  paint  from  door  that  was  forcibly  opened  during  a  recent  burglary).
               Because  there  is  no  evidence  from  which  a  jury  could  reasonably  find  that  the  defendant  used  the
               tools  to  commit  the  burglary  of  the  victimsÕ  home  nor  other  evidence  that  the  defendant  had  the
               otherwise innocuous tools in his car with the intent to commit burglary, the defendantÕs
               conviction  for  possession  of  burglary  tools  must  be  reversed  and  dismissed. 
                                        Erroneous  Admission  of  Prejudicial  Information 
                       The defendant alleges that he was unfairly prejudiced by the admission of a taped
               statement that contained information about his parole status.  At the time of his arrest, the
               defendant  was  on  probation/parole  for  an  offense  he  committed  in  Florida. He  told  investigators
               about  his  probation  status  during  the  taped  interview  conducted  after  his  arrest. The  audiotape  of



                                                                -7- this  interview  was  admitted  as  evidence  at  trial,  played  to  the  jury,  and  made  available  to  the  jury
               during  their  deliberations. According  to  the  record,  the  State  and  the  defendant  believed  that  all
               references  to  the  defendantÕs  prior  criminal  history  had  been  redacted  from  the  tape  before  it  was
               played  to  the  jury. However,  the  question  ÒDoes  your  probation  officer  know  youÕre  up  here?Ó
               remained  on  the  audio  taped  statement. The  defendant  requested  a  mistrial  after  the  tape  was
               played,  which  was  denied  by  the  trial  court.
                       According to the record, the quality of the tape was poor.  As a result, it was very
               difficult to discern  what  was being  said.  Although the  defense attorney  heard the challenged
               statement, neither the trial judge nor the prosecutor heard the statement.  In denying the
               defendantÕs  motion  for  a  mistrial,  the  trial  judge  found  that  the  jury  did  not  hear  the  statement,
               pointing out that he did not hear it and he was positioned closer to the tape than the jury.
               Assuming  that  the  jury  did  not  hear  the  challenged  statement,  the  trial  court  found  that  it  would
               be  better  to  Òleave  it  aloneÓ  rather  than  instruct  the  jury  on  it. The  trial  court  instructed  the  State
               to  redact  the  challenged  portion  of  the  tape  before  it  was  submitted  to  the  jury  for  deliberation.
               The  trial  court  further  assumed  that  if  any  of  the  jurors  heard  the  statement  when  it  was  played  at
               trial,  he  or  she  would  know  why  it  had  been  removed  and  disregard  the  statement  during  their
               deliberation  of  the  defendantÕs  guilt.
                       Both  parties agree that information about the defendantÕs probation  or parole status in
               Florida was erroneously admitted.   However, violation of an evidentiary rule does not
               necessarily mandate reversal of the case but is subject to harmless error analysis.  State v.
               Martin, 964 S.W.2d 564, 568 (Tenn. 1998).  Therefore, such error does not require reversal
               unless  it  Òaffirmatively  appear(s)  to  have  affected  the  result  of  the  trial  on  the  merits.Ó Tenn.  R.
               Crim.  P.  52(a). Based  upon  our  review  of  the  record,  we  conclude  that  the  prejudicial  effect  of
               the  evidence  that  the  defendant  was  on  probation  in  Florida  was  slight. First,  it  is  highly  unlikely
               that any of jurors heard the statement.  Neither the trial judge nor the prosecutor heard the
               statement when the tape was played at the trial.  It was only after the tape was played in
               chambers  that  the  trial  judge  and  prosecutor  were  able  to  discern  the  obscure  reference  to  the
               defendantÕs  probation  status  on  the  tape.  Furthermore,  the  statement  was  redacted  prior  to  being
               submitted to the jury for deliberation. We, therefore, conclude that the reference to the
               defendantÕs  probation  status  was  not  prejudicial  considering  the  circumstances  surrounding  its
               admission  and  the  overwhelming  evidence  of  the  defendantÕs  guilt. This  issue  is  without  merit.

                                                        CONCLUSION

                       For  the  foregoing  reasons,  the  defendantÕs  conviction  for  possession  of  burglary  tools  is
               reversed  and  dismissed. The  aggravated  burglary  conviction  is  affirmed. 




                                                                     ___________________________________ 
                                                                     JOHN  EVERETT  WILLIAMS,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                        Assigned  on  Briefs  September  19,  2001

                    STATE  OF  TENNESSEE  v.  ANNETTA  BELL

                     Appeal  from  the  Circuit  Court  for  Williamson  County
                         No.  I-13-100  Donald  P.  Harris,  Judge


                    No.  M2001-00771ÐCCA-R3-CD  -  Filed  February  15,  2002


         The  defendant,  Annetta  Bell,  was  convicted  after  a  bench  trial  of  theft  of  property  having  a  value  less
         than  $500.00.  The  trial  court  imposed  a  sentence  of  11  months  and  29  days.  All  but  six  months  was
         suspended.  In  this  appeal  as  of  right,  the  defendant  contends  that  the  evidence  was  insufficient  to
         support  her  conviction. 

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

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  JERRY  L.
         SMITH,  JJ.,  joined.
         James  O.  Martin,  III  (on  appeal),  and  George  J.  Duzane  (at  trial),  Nashville,  Tennessee,  for  the
         appellant,  Annetta  Bell. 
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Elizabeth  B.  Marney,  Assistant  Attorney  General;
         and  Sharon  Guffey,  Assistant  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             At  approximately  8:00  P.M.  October  14,  1999,  Tokeisha  Morton,  the  manager  on  duty  at  the
         Lady  Foot  Locker  store  located  at  the  Cool  Springs  Galleria  Mall  in  Williamson  County,  observed
         the  defendant  enter  her  store  carrying  a  Dillard's  shopping  bag.  While  Ms.  Morton  waited  on  another
         customer  at  the  cash  register,  she  observed  the  defendant  pick  up  one  jacket  with  her  right  hand
         while  she  took  a  second  jacket,  a  Navy  blue  and  yellow  windbreaker  with  a  retail  value  of  $65.00
         and  on  sale  for  $39.99,  with  her  left  hand.  She  suspected  that  the  defendant  placed  the  second  jacket
         in  her  Dillard's  bag.  According  to  Ms.  Morton,  the  defendant  then  selected  a  tee  shirt,  paid  for  it,
         and  left  the  store.  Ms.  Morton  then  called  mall  security  and  provided  a  description  of  the  defendant.
         Shortly  thereafter,  security  returned  the  call,  informing  Ms.  Morton  that  they  had  found  the  defendant
         at  Finish  Line,  another  store  in  the  mall.



                                                                -2- Ms.  Morton,  accompanied  by  Lt.  Debbie  James  of  the  Cool  Springs  Galleria  security  detail,
               confronted  the  defendant  and  asked  to  look  in  her  bag. The  defendant  said,  "Why? I  don't  have  to
               steal  anything.  We  can  go  back  to  the  store."  She  then  opened  and  closed  the  bag  very  quickly.  Ms.
               Morton  observed  the  missing  jacket.  The  defendant  initially  walked  in  the  direction  of  the  Lady  Foot
               Locker  and  then,  according  to  Ms.  Morton,  "[took]  off  in  the  opposite  [direction]  and  head[ed]  closer
               to  Proffitt's." As  the  defendant  walked  toward  the  steps,  she  called,  "Let's  go,  let's  go,"  to  three
               children,  estimated  to  be  between  10  and  12  years  of  age,  who  were  with  her. According  to  Ms.
               Morton,  the  defendant  ran  out  the  lower  level  of  Proffitt's.
                       The  three  children  stayed  behind  with  Ms.  Morton  and  mall  security  as  the  defendant  fled.
               Ms.  Morton  did  not  immediately  follow  the  defendant. Because  it  was  nearing  closing  time  for  the
               mall,  they  walked  outside  expecting  the  defendant  to  return  for  the  children. Ms.  Morton  saw  the
               defendant  in  the  passenger's  seat  of  a  white  Acura. Someone  else  was  driving  the  vehicle. The
               police  pursued  the  vehicle  "up  a  hill  and  all  the  way  round  the  mall"  before  the  stop  could  be
               accomplished. 
                       Security  cameras  were  located  throughout  the  mall.  A  video  tape  showing  the  confrontation
               Ms.  Morton  and  Lt.  James  had  with  the  defendant  was  shown  to  the  jury. 
                       Troy  Word,  age  13  at  the  time  of  trial,  was  a  defense  witness. He  testified  that  he  went  to
               the  mall  with  his  cousin  Anthony,  the  defendant,  and  the  defendant's  son  Michael. He  recalled  that
               he  and  his  two  friends  had  separated  from  the  defendant  just  before  she  entered  the  Lady  Foot  Locker
               but had reconvened just before Ms. Morton approached the defendant.  He testified that the
               defendant  opened  the  bag  when  requested  to  do  so  by  Ms.  Morton  and  said,  "I  ain't  got  to  steal,"
               before  walking  quickly  away. Word  testified  that  he  was  unable  to  see  what  was  inside  the  bag. 
                       Michael  Bell,  the  defendant's  son,  testified  that  the  defendant,  after  being  confronted  by  Ms.
               Morton,  denied  stealing  anything. He  recalled  his  mother  saying, "I don't know  why  they  are
               following  me,"  and  then  asking,  "Why  are  you  all  harassing  me?" Michael  Bell  claimed  that  after
               the  bag  had  been  inspected,  the  security  guard  told  them  that  it  was  okay  to  leave. 
                       The  defendant's twin sister, Anita Ann Bell, drove to the police  station to pick up the
               defendant. Anita Bell, who  admitted  that  she  had  been  convicted  of  shoplifting  on  two  prior
               occasions,  claimed  that  the  police  returned  two  bags,  one  containing  a  white  shirt  and  another
               containing  a  blue  shirt. 
                       In  her  challenge  to  the  sufficiency  of  the  evidence,  the  defendant  claims  that  the  testimony
               of  Ms.  Morton  was  inconsistent. She  contends  that  Ms.  Morton's  assertion  that  she  knew  the
               merchandise  had  been  taken  and  that  she  had  seen  the  jacket  through  the  bag  was  not  credible. She
               asserts  that  Ms.  Morton  suspected  something  had  been  taken  only  because  she  noticed  an  empty
               hanger  with  a  sales  tag  at  the  time  she  left  the  store.  The  defendant  argues  that  Ms.  Morton  changed
               her  testimony  when  she  asserted  on  rebuttal  that  she  had  actually  seen  the  defendant  place  the  jacket
               into  the  shopping  bag. 



                                                                -3- On  appeal,  of  course,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence  and
               all  reasonable  inferences  which  might  be  drawn  therefrom.  State  v.  Cabbage,  571  S.W.2d  832,  835
               (Tenn.  1978). The  credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and  the
               reconciliation  of  conflicts  in  the  proof  are  matters  entrusted  to  the  jury  as  the  trier  of  fact. Byrge  v.
               State,  575  S.W.2d  292,  295  (Tenn.  Crim.  App.  1978). When  the  sufficiency  of  the  evidence  is
               challenged,  the  relevant  question  is  whether,  after  reviewing  the  evidence  in  the  light  most  favorable
               to  the  state,  any  rational  trier  of  fact  could  have  found  the  essential  elements  of  the  crime  beyond  a
               reasonable  doubt. Tenn.  R.  App.  P.  13(e);  State  v.  Williams,  657  S.W.2d  405,  410  (Tenn.  1983).
               Questions  concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well
               as  all  factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact.  Liakas  v.  State,  199  Tenn.
               298,  286  S.W.2d  856,  859  (1956). Because  a  verdict  of  guilt  against  a  defendant  removes  the
               presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal  defendant  bears
               the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty  verdict. State  v.
               Evans,  838  S.W.2d  185,  191  (Tenn.  1992).
                       Tennessee  Code  Annotated  section  39-14-103  defines  theft  of  property  as  occurring  "if,  with
               intent  to  deprive  the  owner  of  property,  the  person  knowingly  obtains  or  exercises  control  over  the
               property  without  the  owner's  effective  consent." In  this  bench  trial,  the  trial  judge  accredited  the
               testimony  of  Ms.  Morton,  the  manager  on  duty  at  the  Lady  Foot  Locker.  While  the  testimony  of  Ms.
               Morton  was,  in  fact,  equivocal  in  regard  to  whether  she  actually  saw  the  defendant  place  the  jacket
               in  the  Dillard's  bag,  she  unequivocally  asserted  that  she  had  seen  the  stolen  jacket  in  the  bag  minutes
               after  the  theft. Possession  of  recently  stolen  property  implies  participation  in  the  theft. Barnes  v.
               United  States,  412  U.S.  837,  846-48  (1973). That  the  defendant  fled  from  the  scene,  leaving  the
               three  young  men  in  her  charge,  also  allows  an  inference  of  guilt.  State  v.  Zagorski,  701  S.W.2d  808,
               313  (Tenn.  1985). In  our  view,  a  rational  trier  of  fact  could  have  found  the  essential  elements  of  the
               crime.
                       Accordingly,  the  judgment  is  affirmed. 


                                                                     ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                             February  26,  2002  Session

               STATE  OF  TENNESSEE  v.  CHRISTOPHER  GLENN  BELL

                  Direct  Appeal  from  the  Criminal  Court  for  Anderson  County
                         No.  91CR0406  James  B.  Scott,  Judge


                            No.  E2001-01243-CCA-R3-CD 
                                  April  17,  2002

         In  1992,  pursuant  to  a  plea  agreement,  the  Defendant  pleaded  guilty  to  possession  with  intent  to  sell
         a  Schedule  I  controlled  substance,  received  an  eight-year  sentence,  and  was  granted  full  probation.
         In  1998,  the  trial  court  revoked  the  DefendantÕs  probation  and  ordered  the  Defendant  to  serve  the
         eight-year  sentence  in  the  Tennessee  Department  of  Correction. The  Tennessee  Department  of
         Correction  subsequently  placed  the  Defendant  in  the  special  alternative  incarceration  unit  program,
         and  upon  the  DefendantÕs  successful  completion  of  the  boot  camp  program,  released  the  Defendant
         on  supervision. A  warrant  was  issued  on  September  6,  2000,  alleging  that  the  Defendant  had
         violated  the  terms  of  his  release.  The  trial  court  revoked  the  DefendantÕs  release  and  ordered  the
         Defendant  to  serve  the  remainder  of  his  sentence  in  the  Tennessee  Department  of  Correction.  The
         Defendant  now  appeals,  arguing  that  because  more  than  eight  calendar  years  had  passed  from  the
         date  of  his  original  sentence  on  July  10,  1992  to  the  date  of  the  violation  of  probation  warrant  that
         was  filed  on  September  6,  2000,  the  original  eight-year  probated  sentence  had  expired.  We  conclude
         that  because  the  service  of  the  DefendantÕs  eight-year  sentence  began  on  April  3,  1998,  when  his
         probation  was  revoked  and  he  was  ordered  to  serve  the  sentence,  the  sentence  had  not  expired,  and
         the  September  6  warrant  was  thus  timely.  Therefore,  we  affirm  the  judgment  of  the  trial  court.

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  JAMES
         CURWOOD  WITT,  JR.,  JJ,  joined.
         Billy  P.  Sams,  Oak  Ridge,  Tennessee,  for  the  Appellant,  Christopher  Glenn  Bell.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Mark  A.  Fulks,  Assistant  Attorney  General;
         James  N.  Ramsey,  District  Attorney  General;  and  Janice  G.  Hicks,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION
                                    I.  Facts



                                                                -2- On  April  27,  1992,  the  Defendant  pleaded  guilty  to  possession  with  intent  to  sell  lysergic  acid
               diethylamide  (LSD). Pursuant  to  a  plea  agreement,  the  Defendant  received  an  eight-year  sentence,
               and  the  State  dismissed  two  other  felony  drug  charges  against  the  Defendant.  Judgment  was  entered
               against  the  Defendant  on  July  10,  1992,  imposing  an  eight-year  probated  sentence. Over  the  next
               six  years,  four  warrants  were  issued  against  the  Defendant  alleging  that  he  had  violated  the  terms  of
               his  probation. The  first  three  warrants,  which  were  filed  on  July  6,  1993,  April  15,  1996,  and
               September  9,  1997,  respectively,  alleged  that  the  Defendant  had  failed  to  report  to  his  probation
               officer  and  had  failed  to  pay  his  probation  fees  in  a  timely  fashion. The  trial  court  disposed  of  each
               of  the  first  three  probation  violation  warrants  by  allowing  the  Defendant  to  remain  on  probation,
               although  the  1996  warrant  resulted  in  the  Defendant  serving  sixty  days  in  jail  prior  to  returning  to
               probation, and the 1997 warrant resulted in the DefendantÕs transfer to intensive probation.
               Subsequently,  a  fourth  warrant  against  the  Defendant  was  issued  alleging  that  the  Defendant  had
               failed  to  report,  had  failed  to  pay  probation  fees,  and  had  tested  positive  for  marijuana  use. The
               Defendant  admitted  that  these  allegations  were  true,  and  on  April  3,  1998,  the  trial  court  ordered  the
               Defendant  to  serve  his  original  eight-year  sentence  in  the  Tennessee  Department  of  Correction.
                       On  November 5, 1998, the Defendant successfully completed the special alternative
               incarceration  program,  commonly  referred  to  as  Òboot  campÓ  in  the  Tennessee  Department  of
               Correction  and  was  again  released  on  probation. Less  than  two  years  later,  on  September  5,  2000,
               yet  another  violation  of  probation  warrant  was  issued  against  the  Defendant  alleging  that  he  had
               twice  refused  drug  screens  and  was  behind  on  community  service  work. On  May  15,  2001,  the  trial
               court  entered an ÒAMENDED JUDGMENTÓ against the Defendant revoking the DefendantÕs
               probation  and  ordering  the  Defendant  to  serve  his  eight-year  sentence  in  the  Tennessee  Department
               of  Correction.
                       In  this  appeal,  the  Defendant  alleges  that  on  September  5,  2000,  the  trial  court  was  without
               jurisdiction  to  order  the  Defendant  to  serve  the  eight-year  sentence  in  confinement  because  more
               than  eight  calendar  years  had  passed  since  July  10,  1992,  the  date  the  eight-year  probative  sentence
               was  entered. We  respectfully  disagree  and  affirm  the  judgment  of  the  trial  court.

                                                           II. Analysis

                       As  the  State  points  out  in  its  brief,  when  probation  is  revoked,  Òthe  original  judgment  so
               rendered  by  the  trial  judge  shall  be  in  full  force  and  effect  from  the  date  of  the  revocation  of  such
               suspension  .  .  .  .Ó Tenn.  Code  Ann.  ¤  40-35-310. In  the  present  case,  the  Òdate  of  the  revocation  of
               such  suspensionÓ  is  April  3,  1998,  when  the  trial  court  revoked  the  DefendantÕs  probation  pursuant
               to  the  fourth  violation  of  probation  warrant  issued  against  the  Defendant.  Id.  The  Defendant  began
               serving the eight-year sentence  in the Tennessee Department of Correction on  April 3, 1998.
               Logically,  the  expiration  date  of  the  DefendantÕs  sentence  would  therefore  be  April  3,  2006.
                       Pursuant to Tennessee Code Annotated ¤ 40-20-201, the Tennessee Department of
               Correction  is  authorized  to  utilize  a  Òspecial  alternative  incarceration  unit.Ó It  may  then  release
               defendants  on  ÒsupervisionÓ  if  the  defendants  successfully  complete  the  Òboot  campÓ  program.



                                                                -3- Tenn.  Code  Ann.  ¤  40-20-206. Trial  courts  are  authorized  to  revoke  a  defendantÕs  release  if  the
               defendant  fails  to  comply  with  the  terms  and  conditions  of  the  release. Id.
                       On  September  5,  2000,  when  the  warrant  was  issued  alleging  that  the  Defendant  had  failed
               to  comply  with  the  terms  and  conditions  of  his  release  on  supervision  following  his  successful
               completion  of  the  Òboot  campÓ  program,  more  than  five  years  remained  of  the  DefendantÕs  eight-year 
                    sentence  that  went  into  affect  on  April  3,  1998. Additionally,  the  Defendant  clearly  had  not
               completed  eight  years  of  probation  between  July  10,  1992  and  September  5,  2000. Even  if  the
               Defendant  is  deemed  to  have  been  serving  his  probated  sentence  (while  not  incarcerated),  the  period
               of  time  from  July  10,  1992  to  April  3,  1998  (less  sixty  days  of  incarceration  in  1996),  plus  the  period
               of  time  from  November  5,  1998  to  September  5,  2000,  does  not  total  eight  calendar  years.  The  State
               asserts  in  its  brief  that  the  DefendantÕs  sentence  was  in  full  force  and  effect  when  he  violated  the
               terms  of  his  supervised  release  following  Òboot  campÓ  and  when  the  trial  court  subsequently  revoked
               probation. We  agree.
                       Accordingly,  the  judgment  of  the  criminal  court  is  AFFIRMED.


                                                                     ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  February  5,  2002

                  DALE  WESLEY  BELL  v.  STATE  OF  TENNESSEE

                   Direct  Appeal  from  the  Circuit  Court  for  McNairy  County
                         No.  1189  Jon  Kerry  Blackwood,  Judge


                      No.  W2001-02509-CCA-R3-PC  -  Filed  April  4,  2002


         The  Appellant,  Dale  Wesley  Bell,  appeals  from  the  dismissal  of  his  petition  for  post-conviction
         relief.  In  1999,  Bell  pled  guilty  to  nine  counts  of  aggravated  burglary  and  one  count  of  theft  in
         excess  of  $10,000.  Bell,  a  Range  III  Persistent  Offender,  received  an  effective  fifteen-year  sentence
         to  be  served  in  the  Department  of  Correction.  On  appeal,  Bell  challenges  the  validity  of  his  guilty
         plea  upon  grounds  of:  (1)  voluntariness  and  (2)  ineffective  assistance  of  counsel.  After  review,  we
         affirm  the  judgment  of  the  McNairy  County  Circuit  Court  dismissing  the  petition. 

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

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  ROBERT  W.
         WEDEMEYER,  JJ.,  joined.
         William  Ken  Seaton,  Selmer,  Tennessee,  for  the  Appellant,  Dale  Wesley  Bell.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  Braden  H.
         Boucek,  Assistant  Attorney  General;  Elizabeth  T.  Rice,  District  Attorney  General;  and  Jerry  W.
         Norwood,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.


                                   OPINION
                                Factual  Background

             Following  a  series  of  residential  burglaries  in  McNairy  County  in  December  of  1998,  the
         Appellant  was  eventually  apprehended  and  charged  with  sixteen  offenses:  eleven  counts  of
         aggravated  burglary,  class  D  felony  theft,  class  C  felony  theft,  evading  arrest,  possession  of  a
         Schedule  III  controlled  substance,  and  possession  of  a  Schedule  IV  controlled  substance.  On  two
         separate  occasions,  the  Appellant  was  able  to  elude  law  enforcement  officers  in  multi-county
         pursuits,  after  sheriffÕs  department  deputies  were  dispatched  to  investigate  reports  of  a  suspicious



                                                                -2- person  at  two  residences  in  the  county.  The  Appellant  was  identified  on  both  occasions  as  the  driver
               of  the  stolen  vehicles,  before  the  vehicles  were  wrecked  in  the  chase  and  abandoned. Following
               abandonment of the wrecked vehicle in the second chase, the Appellant was captured after
               attempting  escape  in  another  stolen  vehicle.  During  an  inventory  of  the  first  wrecked  vehicle,  items
               taken  during  four  aggravated  burglaries  were  found.  Inventory  of  the  second  wrecked  vehicle  again
               revealed  items  taken  during  additional  burglaries. 
                       In  view  of  the  AppellantÕs  indigency  status,  the  public  defenderÕs  office  was  appointed  to
               represent  the  Appellant.  On  the  scheduled  morning  of  trial,  the  Appellant  requested  discharge  of  his
               appointed  counsel. This  request  was  granted  and  the  Appellant  was  permitted  to  proceed  pro  se.

               After  the  jury  was  selected,  the  Appellant,  following  plea  negotiations,  entered  guilty  pleas  to  nine
               counts  of  aggravated  burglary  and  one  count  of  class  C  felony  theft,  and  received,  under  the  terms
               of  the  plea  agreement,  an  effective  fifteen-year  sentence. 

                                                           ANALYSIS

                       In  order  to  succeed  on  a  post-conviction  claim,  the  Appellant  bears  the  burden  of  showing
               by  clear  and  convincing  evidence,  the  allegations  set  forth  in  his  petition.  Tenn.  Code  Ann.  ¤  40-30-
               210(f)  (1997). The  AppellantÕs  claim  of involuntariness  of  his  guilty  plea,  as  set  forth  in  his
               petition,  stems  from  the  following  allegations:
                       (1)  the  trial  courtÕs  unwillingness  to  grant  a  continuance; 
                       (2)  the  trial  courtÕs  statements  to  the  defendant  regarding  the  potential  sentence  he
                       would  receive  should  he  be  convicted;  and 
                       (3)  the  attorney  who  represented  the  defendant  prior  to  the  defendant  being  allowed
                       to  represent  himself,  provided  ineffective  assistance  of  counsel  prior  to  the  trial. 
               In  sum,  the  Appellant  contends  that  based  upon  trial  counselÕs  deficient  pre-trial  representation, he
               felt  compelled  to  request  discharge  of  counsel  and  after  being  advised  by  the  trial  court  of  the
               potential  sentence  he  would  receive  and  because  the  trial  court  denied  a continuance,  he  was  forced
               to  enter  guilty  pleas  because  he  felt  Òhelpless.Ó  We,  in  turn,  examine  the  AppellantÕs  issue  of  failure
               to grant a continuance, the trial courtÕs alleged statements regarding potential sentence, and
               ineffective  assistance  of  counsel.
                       In  evaluating  the  knowing  and  voluntary  nature  of  a  guilty  plea,  the  United  States  Supreme
               Court  held,  "[t]he  standard  was  and  remains  whether  the  plea  represents  a  voluntary  and  intelligent
               choice  among  the  alternative  courses  of  action  open  to  the  defendant  ." North  Carolina  v.  Alford,

               400  U.S.  25,  31,  91  S.Ct.  160,  164  (1970). In  making  this  determination,  the  reviewing  court  must
               look  to  the  totality  of  the  circumstances. State  v.  Turner,  919  S.W.2d  346,  353  (Tenn.  Crim.  App.
               1995);  see  also  Chamberlain  v.  State,  815  S.W.2d  534,  542  (Tenn.  Crim.  App.  1990). Indeed,  a
               "court  charged  with  determining  whether  .  .  .  pleas  were  'voluntary'  and  'intelligent'  must  look  to



                                                                -3- various  circumstantial  factors,  such  as  the  relative  intelligence  of  the  defendant;  the  degree  of  his
               familiarity  with  criminal  proceedings;  whether  he  was  represented  by  competent  counsel  and  had
               the  opportunity  to  confer  with  counsel  about  the  options  available  to  him;  the  extent  of  advice  from
               counsel  and  the  court  concerning  the  charges  against  him;  and  the  reasons  for  his  decision  to  plead
               guilty,  including  a  desire  to  avoid  a  greater  penalty  that  might  result  from  a  jury  trial." Blankenship
               v.  State,  858  S.W.2d  897,  904  (Tenn.  1993).

                                              I. Refusal  to  Grant  a  Continuance

                       The  Appellant  argues  that  his  plea  was  involuntarily  entered  because  the  trial  court  refused
               to grant a continuance after the Appellant discharged his attorney and new counsel was not
               appointed,  thereby  requiring  the  Appellant  to  proceed  pro  se.  Specifically,  he  contends  that  his  state
               of  mind  was  such  that  he  Òfelt  helplessÓ  after  being  forced  to  represent  himself.
                       It  is  well-established  that  the  decision  whether  to  grant  a  continuance  rests  within  the  sound
               discretion  of  the  trial  court. State  v.  Hines,  919  S.W.2d  573,  579  (Tenn.  1995),  reh'g  denied,  No.
               01-S-01-9303-CC-00052  (Tenn.  at  Nashville,  Mar.  11,  1996),  cert.  denied,  519  U.S.  847,  117  S.Ct.
               133  (1996). Moreover,  the  denial  of  a  continuance  will  not  be  disturbed  unless  it  appears  that  the
               trial  court  abused  its  discretion  and  prejudice  resulted  to  the  accused  as  a  direct  result  of  the  court's
               denial. Id. Additionally,  in  order  to trigger  post-conviction  relief,  the  denial  of  a  motion  for
               continuance  must  implicate  a  constitutional  right. Harris  v.  State,  947  S.W.2d  156,  174  (Tenn.
               Crim.  App.  1996),  perm.  to  appeal  denied  (Tenn.  1997). ÒThus,  the  petitioner  must  demonstrate,
               first, that the court abused its discretion and, second, that its action rendered the  proceeding
               fundamentally  unfair." Id.  (citation  omitted). Rarely  does  a  grant  or  refusal  of  a  continuance  reach
               constitutional  proportions. Id.  (citing  Knighton  v.  Maggio,  740  F.2d  1344,  1351  (5  th  Cir.),  cert.
               denied,  469  U.S.  924,  105  S.Ct.  306  (1984)).
                       We  are  not  persuaded  by  the  facts  presented  that  the  denial  of  AppellantÕs  request  for  a
               continuance  implicates  a  constitutional  right. Unless  an  Appellant  can  show  that  his  substantial
               rights  were  prejudiced  by  reason  of  the  denial  of  his  request  for  continuance,  the  appellate  court  will
               conclude  that  there  was  no  abuse  of  discretion  by  the  trial  court  in  denying  the  request. In  this  case,
               the  Appellant  was  declared  indigent,  and  the  public  defenderÕs  office  was  appointed  to  represent  him.
               After  conflicts  arose  between  the  Appellant  and  his  attorney,  the  Appellant,  on  the  day  of  trial,
               requested  that  his  attorney  be  discharged  and  another  lawyer  be  appointed  to  represent  him.  The  trial
               court  refused  to  discharge  the  AppellantÕs  attorney. The  Appellant  then  requested  to  represent
               himself. The  trial  court,  after  advising  the  Appellant  of  the  dangers  of  self-representation,  granted
               this  request,  but  refused  to  allow  a  continuance  of  the  case. 
                              Both  the  United  States  and  Tennessee  Constitutions  guarantee  an  indigent
                       criminal  defendant  the  right  to  assistance  of  appointed  counsel  at  trial.  See  U.S.
                       Const.  amend.  VI;  Tenn.  Const.  art.  I,  ¤  9. The  right  of  an  accused  to  assistance  of
                       counsel,  however,  does  not  include  the  right  to  appointment  of  counsel  of  choice,  or
                       to  special  rapport,  confidence,  or  even  a  meaningful  relationship  with  appointed



                                                                -4- counsel. See  Morris  v.  Slappy,  461  U.S.  1,  13-14,  103  S.  Ct.  1610,  1617-18  (1983).
                       The  essential  aim  of  the  Sixth  Amendment  is  to  guarantee  an  effective  advocate,  not
                       counsel  preferred  by  the  defendant. See  Wheat  v.  United  States,  486  U.S.  153,  159,
                       108  S.  Ct.  1692,  1697  (1988). 
                              Ordinarily,  waiver  of  the  right  to  counsel  must  be  voluntary,  knowing,  and
                       intelligent.  See Johnson v. Zerbst, 304 U.S.  458, 464-65, 58 S. Ct. 1019, 1023
                       (1938).  Typically,  such  a  waiver  occurs  only  after  the  trial  judge  advises  a  defendant
                       of the dangers and disadvantages of self-representation and determines that the
                       defendant  "knows  what  he  is  doing  and  his  choice  is  made  with  eyes  open." Adams
                       v.  United  States  ex  rel.  McCann,  317  U.S.  269,  279,  63  S.  Ct.  236,  242  (1942).  Many
                       courts,  however,  have  recognized  that  the  right  to  counsel  is  not  a  license  to  abuse
                       the  dignity  of  the  court  or  to  frustrate  orderly  proceedings. Accordingly,  several
                       courts  have  acknowledged  that,  like  other  constitutional  rights,  the  right  to  counsel
                       can  be  implicitly  waived  or  forfeited  if  a  defendant  manipulates,  abuses,  or  utilizes
                       the  right  to  delay  or  disrupt  a  trial. 

               State  v.  Carruthers,  35  S.W.3d  516,  546-47  (Tenn.  2000)  (some  citations  omitted). With  these
               criteria considered, we find that the Appellant has not shown  that his substantial rights were
               prejudiced  by  reason  of  the  denial  of  his  request  for  continuance. The  trial  court  found  that  the
               Appellant  was  Òplaying  the  systemÓ  by  firing  his  attorney  and  requesting  a  continuance. Also,  the
               Appellant  testified  at  the  guilty  plea  hearing  that  he  was  not  ÒforcedÓ  to  represent  himself. He  has
               failed to identify any prejudice affecting his conviction or sentence, which he authored.
               Accordingly,  we  conclude  that  the  post-conviction  court  did  not  abuse  its  discretion  in  denying  the
               AppellantÕs  motion  for  a  continuance.

                                                  II. Sentencing  Information

                       The  Appellant  contends  that  his  Òstate  of  mind  was  such  that  he  could  not  make  a  voluntary,
               knowing,  and  intelligent decision  with  regard  to  his  guilty  pleaÓ  based  upon  Òthe  trial  courtÕs
               statements  to  the  [Appellant]  regarding  the  potential  sentence  he  would  receive.Ó At  the  post-conviction 
                           hearing,  the  Appellant  testified  that, 
                       Judge  Blackwood  advised  me  that  if  I  proceeded  to  trial  that  morning,  I  was
                       facing  upwards  of  150  years,  and  that  it  might  not  be  the  CourtÕs  position  to
                       impose  a  150-year  sentence  on  it,  but  it  would  be  the  CourtÕs  position  to  run
                       consecutive  sentences  if  I  was  found  guilty  that  morning  of  trial. 
               By  this  statement,  the  Appellant  asserts  that  Òthe  Court  was  trying  to  encourage  him  to  plead  guilty.Ó
                       We  conclude  that  the  record  establishes  that  the  Appellant's  plea  of  guilty  was  entered
               voluntarily  and  knowingly  and  with  full  awareness  of  his  constitutional  rights.  The  transcript  of  the
               guilty  plea  hearing  reveals  that  the  trial  court  questioned  the  Appellant  extensively  as  to  whether  his



                                                                -5- plea  was  made  with  knowledge  and  understanding. Additionally,  the  transcript  of  the  hearing
               establishes  that  the  trial  court  informed  the  Appellant  of  Òthe  minimum  and  maximum  punishment
               for  these  offenses.Ó Moreover,  the  Appellant  indicated  to  the  trial  court  that  it  was  his  Òdesire  to
               pursue  a  negotiated  settlement  of  the  case.Ó Thus,  the  record  supports  the  post-conviction  court's
               conclusion  that  the  Appellant's  guilty  plea  was  entered  into  voluntarily  and  knowingly. Therefore,
               this  issue  is  without  merit.

                                             III. Ineffective  assistance  of  counsel

                       Once  a  guilty  plea  has  been  entered,  effectiveness  of  counsel  is  relevant  only  to  the  extent
               that  it  affects  the  voluntariness  of  the  plea. In  this  respect,  such  claims  of  ineffective  assistance
               necessarily  implicate  the  principle  that  guilty  pleas  be  voluntarily  and  intelligently  made. Hill  v.
               Lockhart,  474  U.S.  52,  56,106  S.Ct.  366,  369  (1985)  (citing  North  Carolina  v.  Alford,  400  U.S.  at
               31,  91  S.Ct.  at  164).
                       To succeed in a challenge for ineffective assistance of counsel, the Appellant must
               demonstrate  that  counselÕs  representation  fell  below  the  range  of  competence  demanded  of  attorneys
               in criminal cases.  Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).  Under Strickland v.
               Washington,  466  U.S.  668,  687,  104  S.  Ct.  2052,  2064  (1984),  the  Appellant  must  establish  (1)
               deficient  representation  and  (2)  prejudice  resulting  from  the  deficiency. In  the  context  of  a  guilty
               plea,  to  satisfy  the  second  prong  of  Strickland,  the  Appellant  must  show  that  Òthere  is  a  reasonable
               probability  that,  but  for  counselÕs  errors,  he  would  not  have  pleaded  guilty  and  would  have  insisted
               on  going  to  trial.Ó Hill  v.  Lockhart,  474  U.S.  at  59,  106  S.  Ct.  at  370;  Walton  v.  State,  966  S.W.2d
               54,  55  (Tenn.  Crim.  App.  1997). 
                       The  issues  of  deficient  performance  by  counsel  and  possible  prejudice  to  the  defense  are
               mixed  questions  of  law  and  fact. State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999). ÒA  trial  courtÕs

               findings  of  fact  underlying  a  claim  of  ineffective  assistance  of  counsel  are  reviewed  on  appeal  under
               a  de  novo  standard,  accompanied  with  a  presumption  that  those  findings  are  correct  unless  the
               preponderance  of  the  evidence  is  otherwise.Ó Fields  v.  State,  40  S.W.3d  450,  458  (Tenn.  2001)
               (citing  Tenn.  R.  App.  P.  13(d));  Henley  v.  State,  960  S.W.2d  572,  578  (Tenn.  1997). However,

               conclusions of law are reviewed under a purely de novo standard, with no presumption of
               correctness. Fields,  40  S.W.3d  at  458. 
                       In  his  brief,  the  Appellant  focuses  on  two  areas  of  ineffectiveness:  (1)  trial  counselÕs  failure
               to adequately address the issues related to the  credibility of key state witnesses, and (2) trial
               counselÕs  Òaggressive  efforts  to  convince  the  defendant  to  plead  guilty.Ó In  the  present  case,  the
               post-conviction  court  concluded  that  the  Appellant  received  the  competent  assistance  of  counsel,  and
               consequently,  entered  his  plea  knowingly  and  voluntarily. The  proof  does  not  preponderate  against
               these  findings. 
                       As  stated  earlier,  at  the  guilty  plea  hearing,  the  Appellant  indicated  to  the  trial  court  that  it
               was  his  Òdesire  to  pursue  a  negotiated  settlement  of  the  caseÓ  without  the  assistance  of  counsel.  The



                           1  The  Assistant  District  Attorney  stated  that, 

                           there  were  certain  counts  that  he  didnÕt  want  to  plead  guilty  to  on  account  of  there  was  some  evidence
                           involved  in  some  pending  cases  in  the  other  courts.  .  .  .  [I]t  was  just  like  talking  to  another  attorney.
                           .  .  .  I  mean,  he  knew  what  he  wanted  done,  and  with  some  reluctance,  the  State  dismissed  the  charges
                           that  he  was  insisting  on.

                                                                          -6- Appellant later testified that he was not Òforced to represent himself.Ó  At the post-conviction
                  hearing, trial counsel testified that he did not pressure the Appellant to enter into a plea.
                  Furthermore, the Assistant District Attorney noted that the Appellant was Òdoing good
                  negotiations.Ó1 As  observed  by  the  AppellantÕs  sentencing  classification  as  a  career  offender,  he  is
                  no  novice  to  the  criminal  justice  system. The  AppellantÕs  criminal  history  reflects  sixteen  prior
                  felony  convictions  beginning  in  1979  and  spanning  three  states. Moreover,  the  terms  of  the  guilty
                  plea  were  favorable  to  the  Appellant. The  Appellant  was  indicted  on  sixteen  offenses,  and  received
                  only  an  effective  fifteen-year  sentence.  Regarding  the  witness  credibility  issue,  trial  counsel  testified
                  that  he  had  a  tape  player  in  his  office,  and  therefore,  if  the  Appellant  wanted  to  listen  to  the  tapes,
                  then  there  would  have  been  no  Òproblem  with  getting  him  the  tapes  or  letting  him  listen  to  them.Ó
                  Accordingly,  we find  that  the  Appellant  has  not  proven  by  clear  and  convincing  evidence  that  trial
                  counselÕs  performance  was  not  within  the  range  of  competence  demanded  of  attorneys  in  criminal
                  cases.  The  Appellant  certainly  has  provided  no  evidence  that  Òbut  for  counselÕs  errors,  he  would  not
                  have  pleaded  guilty  and  would  have  insisted  on  going  to  trial.Ó In  sum,  the  Appellant  has  failed  to
                  show  ineffective  assistance  of  counsel.
                           For  the  foregoing  reasons,  we  deny  post-conviction  relief  and  affirm  the  judgment  of  the
                  Circuit  Court  of  McNairy  County.

                                                                  CONCLUSION

                           Based  upon  the  foregoing,  we  find  that  the  post-conviction  court  did  not  err  in  ruling  that  the
                  AppellantÕs plea was knowingly, intelligently, and voluntarily entered or that he received the
                  effective  assistance  of  counsel. Accordingly,  the  judgment  of  the  post-conviction  court  is  affirmed.



                                                                                 ___________________________________ 
                                                                                 DAVID  G.  HAYES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                          Assigned  on  Briefs  March  19,  2002

                WILLIAM  BRIAN  BELSER  v.  STATE  OF  TENNESSEE

                      Appeal  from  the  Criminal  Court  for  Knox  County
                           No.  70981  Ray  L.  Jenkins,  Judge


                            No.  E2001-01541-CCA-R3-CD
                                  July  9,  2002

         The  petitioner,  William  Brian  Belser,  appeals  the  trial  courtÕs  denial  of  his  petition  for  post-conviction 
               relief.  In  this  appeal,  the  petitioner  asserts  that  he  was  denied  the  effective  assistance  of
         counsel  at  trial.  The  judgment  of  the  trial  court  is  affirmed.

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

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  ROBERT
         W.  WEDEMEYER,  JJ.,  joined.
         Albert  J.  Newman,  Jr.,  Knoxville,  Tennessee,  for  the  appellant,  William  Brian  Belser.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         and  Robert  L.  Jolley,  Assistant  District  Attorney  General,  for  the  appellee,  the  State  of  Tennessee.

                                   OPINION

             The  petitioner  was  convicted  of  second  degree  murder  for  the  1993  shooting  death  of  Brian
         Shaver.  Because  the  trial  court  failed  to  instruct  the  jury  on  the  lesser  included  offense  of  voluntary
         manslaughter,  this  court  reversed  the  petitionerÕs  conviction  and  remanded  the  cause  for  a  new  trial.
         See  State  v.  Belser,  945  S.W.2d  776  (Tenn.  Crim.  App.  1996).  On  retrial,  the  petitioner  was  again
         convicted  of  second  degree  murder  and  was  sentenced  to  a  term  of  25  years.  The  conviction  and
         sentence  were  affirmed  by  this  court.  See  State  v.  William  Brian  Belser,  No.  03C01-9803-CR-00110
         (Tenn.  Crim.  App.,  at  Knoxville,  Feb.  25,  1999).  The  petitioner  then  filed  a  timely  petition  for  post-conviction 
               relief  alleging  that  his  trial  counsel  was  ineffective  for  advising  him  against  testifying  on
         his  own  behalf;  failing  to  adequately  consult  with  him  prior  to  trial;  failing  to  call  Angela  Barbeau,
         who  had  testified  at  the  first  trial,  as  a  witness  in  the  second  trial;  and  failing  to  effectively  cross-examine 
              witnesses  for  the  state.
             At  the  evidentiary  hearing,  the  petitioner  testified  that  his  trial  counsel,  Thomas  Slaughter,
         consulted  with  him  for  only  seven  hours  prior  to  trial.  The  petitioner  explained  that  prior  to  his



                                                                -2- second  trial,  he  was  incarcerated  in  a  federal  penitentiary  in  Atlanta.  According  to  the  petitioner,  his
               trial  counsel  visited  him  once  in  Atlanta  for  approximately  two  hours. After  the  petitioner  was
               transferred  to  Knoxville  for  trial,  trial  counsel  visited  him  twice  for  a  total  of  four  or  five  hours. 
                       The  petitioner  also  claimed  that,  while  he  expected  to  testify  on  his  own  behalf  as  he  had  at
               the  first  trial,  his  trial  counsel  advised  him  against  testifying. According  to  the  petitioner,  trial
               counsel  believed  that  the  state,  at  the  close  of  its  proof,  had  failed  to  demonstrate  the  petitionerÕs
               guilt  beyond  a  reasonable  doubt  and  that  the  best  course  of  action  would  be  to  present  no  proof.  The
               petitioner  stated  that  he  agreed  with  his  trial  counselÕs  assessment  of  the  case  at  that  point,  explaining
               that  they  both  believed  that  the  state  had,  at  most,  established  a  voluntary  manslaughter. The
               petitioner recalled that his trial counsel informed him that if he chose to testify, he could be
               impeached  with  the  prior  inconsistent  statements  he  gave  to  police  after  his  arrest,  his  testimony  at
               the  first  trial,  and  the  two  felony  convictions  he  had  received  since  the  first  trial. The  petitioner
               stated  that  while  he  wanted  to  testify,  he  left  the  decision  up  to  his  trial  counsel.
                       Finally,  the  petitioner  claimed  that  his  trial  counsel  was  ineffective  for  failing  to  cross-examine 
                        certain  witnesses  for  the  state  with  their  reported  testimony  from  the  first  trial. According
               to  the  petitioner,  even  though  he  had  pointed  out  to  his  trial  counsel  inconsistencies  in  the  testimony
               of  several  witnesses,  counsel  failed  to  question  the  witnesses  regarding  the  inconsistencies. Trial
               counsel  explained  that  the  inconsistencies  referred  to  by  the  petitioner  were  not  damaging  to  the
               defense. It  was  his  view  that  he  adequately  cross-examined  each  of  the  stateÕs  witnesses.
                       Trial  counsel  testified  at  the  evidentiary  hearing  that  because  he  had  access  to  the  record  from
               the  petitionerÕs  first  trial,  it  was  not  necessary  that  he  consult  with  the  petitioner  for  a  greater  length
               of  time. While  acknowledging  that  he  would  have  liked  more  time  to  consult  with  the  petitioner
               prior  to  trial,  he  contended  that  the  brevity  of  their  pretrial  contact  did  not  adversely  affect  his  ability
               to  effectively  represent  the  petitioner. Trial  counsel  also  testified  that  he  advised  the  petitioner
               against  testifying  at  trial  due  to  his  prior  convictions. He  expressed  concern  that  the  petitionerÕs
               testimony  at  the  first  trial  was  inconsistent  with  a  theory  of  self-defense  or  defense  of  a  third  party,
               which  was the theory  that was relied on at the second trial.  Trial counsel explained that the
               petitioner  had  testified  at  the  first  trial  that  he  was  neither  angry  at  the  victim  nor  fearful  of  him  on
               the  night  of  the  shooting.  Moreover,  the  petitioner  had  demonstrated  to  the  jury  in  the  first  trial  how
               he  had  held  the  gun  with  both  hands  and  used  the  laser  sight  to  aim  at  the  victim,  testimony  that  trial
               counsel  believed  was  particularly  damaging. Trial  counsel  further  stated  that  while  it  was  difficult
               to  present  a  theory  of  self-defense  without  the  petitionerÕs  testimony,  he  believed  that  the  testimony
               would  have  been  more  detrimental  than  helpful. Trial  counsel  specifically  denied  refusing  the
               petitioner  the  right  to  testify. He  conceded  that  some  of  his  clients  had  taken  the  stand  against  his
               advice. Trial  counsel  could  not  recall  precisely  the  exchange  he  had  with  the  petitioner,  but  did
               remember  that  the  petitioner  did  not  insist  on  taking  the  stand.
                       The  petitioner  argued  that  his  trial  counsel  was  ineffective  for  failing  to  call  Angela  Barbeau
               as  a  witness. According  to  the  petitioner,  Ms.  Barbeau  was  the  only  witness  to  the  shooting. He
               stated  that  he  had  killed  the  victim  to  protect  Ms.  Barbeau. The  petitioner  conceded  that  Ms.



                                                                -3- Barbeau  had  given  numerous,  inconsistent  statements  regarding  the  shooting  but  insisted  that  her
               testimony  supported  his  theory  of  defense. Trial  counsel  testified  that  he  did  not  call  Ms.  Barbeau
               as  a  witness  because  she  had  been  a  terrible  witness  at  the  petitionerÕs  first  trial. He  contended  that
               her  testimony  did  not  support  either  a  theory  of  defense  of  a  third  person  or  an  accidental  shooting,
               which  was  the  petitionerÕs  theory  of  defense  at  the  first  trial.
                       At  the  conclusion  of  the  hearing,  the  trial  court  denied  the  petition  for  post-conviction  relief,
               finding  that  the  petitioner  had  failed  to  prove  his  allegations  by  clear  and  convincing  evidence.  First,
               the  trial  court  specifically  accredited  the  testimony  of  trial  counsel  and  determined  that  he  had  not
               deprived  the  petitioner  of  his  right  to  testify.  Secondly,  the  trial  court  determined  that  trial  counselÕs
               decision  to  present  no  proof  qualified  as  a  sound  trial  strategy.  Finally,  the  trial  court  found  that  trial
               counselÕs  decision  not  to  cross-examine  the  stateÕs  witnesses  with  minor  inconsistencies  from  the
               first  trial  was  a  tactical  decision. 
                       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
               counsel,  he  must  first  establish  that  the  services  rendered  or  the  advice  given  were  below  "the  range
               of  competence  demanded  of  attorneys  in  criminal  cases." Baxter  v.  Rose,  523  S.W.2d  930,  936
               (Tenn.  1975). Second,  he  must  show  that  the  deficiencies  "actually  had  an  adverse  effect  on  the
               defense." Strickland v. Washington, 466 U.S. 668, 693 (1984).  Should the petitioner fail to
               establish  either  factor,  he  is  not  entitled  to  relief.  Our  supreme  court  described  the  standard  of  review
               as  follows: 
                              Because  a  petitioner  must  establish  both  prongs  of  the  test,  a  failure  to  prove
                       either deficiency or prejudice provides a sufficient basis to deny relief on the
                       ineffective  assistance  claim.  Indeed,  a  court  need  not  address  the  components  in  any
                       particular  order  or  even  address  both  if  the  defendant  makes  an  insufficient  showing
                       of  one  component.
               Goad  v.  State,  938  S.W.2d  363,  370  (Tenn.  1996). On  claims  of  ineffective  assistance  of  counsel,
               the  petitioner  is  not  entitled  to  the  benefit  of  hindsight,  may  not  second-guess  a  reasonably  based  trial
               strategy,  and  cannot  criticize  a  sound,  but  unsuccessful,  tactical  decision  made  during  the  course  of
               the  proceedings. Adkins  v.  State,  911  S.W.2d  334,  347  (Tenn.  Crim.  App.  1994). Such  deference
               to  the  tactical  decisions  of  counsel,  however,  applies  only  if  the  choices  are  made  after  adequate
               preparation  for  the  case. Cooper  v.  State,  847  S.W.2d  521,  528  (Tenn.  Crim.  App.  1992).
                       Under  our  statutory  law,  the  petitioner  bears  the  burden  of  proving  his  allegations  by  clear
               and  convincing  evidence.  Tenn.  Code  Ann.  ¤  40-30-210(f).  On  appeal,  the  findings  of  fact  made  by
               the  trial  court  are  conclusive  and  will  not  be  disturbed  unless  the  evidence  contained  in  the  record
               preponderates  against  them. Brooks  v.  State,  756  S.W.2d  288,  289  (Tenn.  Crim.  App.  1988). The
               burden  is  on  the  petitioner  to  show  that  the  evidence  preponderated  against  those  findings. Clenny
               v.  State,  576  S.W.2d  12,  14  (Tenn.  Crim.  App.  1978).



                                                                -4- As  to  the  petitioner's  primary  complaint,  that  he  was  deprived  of  the  opportunity  to  testify,
               it  is  well  established  that  a  criminal  defendant  has  a  constitutional  right  to  give  testimony  under  both
               the  state  and  federal  constitutions. Momon  v.  State,  18  S.W.3d  152,  157  (Tenn.  1999). Article  I,
               section 9 of the Tennessee Constitution has been interpreted to require that Òin all criminal
               prosecutions  the  accused  has  the  right  to  testify  as  a  witness  in  his  own  behalf  and  to  be  represented
               by  counsel.Ó  Id.  (citing  State  v.  Burkhart,  541  S.W.2d  365,  371  (Tenn.  1976)).  In  Rock  v.  Arkansas,
               483  U.S.  44,  50  (1987),  the  United  States  Supreme  Court  declared  that  the  right  of  a  criminal
               defendant  to  testify  in  his  own  behalf  was  essential  to  the  due  process  of  law. Because  the  right  to
               testify  is  fundamental,  it  may  only  be  waived  by  the  defendant. Momon,  18  S.W.3d  at  161  (citing
               Jones  v.  Barnes,  463  U.S.  745  (1983);  State  v.  Blackmon,  984  S.W.2d  589,  591  (Tenn.  1998);  and
               Vermilye  v.  State,  754  S.W.2d  82,  88  (Tenn.  Crim.  App.  1987)).
                       In Momon, our supreme court held that as a procedural safeguard, the waiver of the
               defendantÕs  right  to  testify  should  be  attained  through  a  voir  dire  of  the  defendant  in  open  court.
               Momon,  18  S.W.3d  at  162. The  court  noted,  however,  that  Òneither  the  right  to  testify  discussed
               herein,  nor  the  procedural  protections  adopted  to  preserve  that  right  are  new  constitutional  rules
               which  must  be  retroactively  applied.Ó Id.  at  162-63. Moreover,  our  high  court  stated  that  the
               safeguards  announced  in  Momon  were  prophylactic  in  nature  and  not  constitutionally  required.  Id.
                       The  petitionerÕs  second  trial  occurred  in  1997,  some  two  years  before  the  supreme  courtÕs
               decision  in  Momon.  At  that  time,  a  voir  dire  of  the  defendant  regarding  his  waiver  of  the  right  to
               testify  was  not  required. Prior  to  the  supreme  courtÕs  holding  in  Momon,  a  petitionerÕs  claim  that
               his  counsel  prevented  him  from  testifying  in  his  own  behalf  was  treated  like  any  other  ground
               asserted for a claim of ineffective assistance of counsel. See, e.g., Shone King  v. State, No.
               01C01-9709-CR-00408  (Tenn.  Crim.  App.,  at  Nashville,  Dec.  30,  1998).
                       Here,  the  trial  court  accredited  the  testimony  of  the  petitionerÕs  trial  counsel  and  determined
               that  the  petitioner  agreed  to  follow  counselÕs  advice  against  testifying  in  his  own  behalf. The
               petitioner  acknowledged  that  trial  counsel  explained  his  right  to  testify  but  advised  him  against
               taking  the  stand  due  to  the  likelihood  that  he  would  be  impeached  with his prior  inconsistent
               statements. Further,  he  had  been  convicted  of  two  crimes  since  the  first  trial. It  is  undisputed  that
               the  petitioner  had  committed  two  felonies,  including  the  illegal  purchase  of  a  weapon,  while  awaiting
               his  first  trial. In  addition,  the  petitionerÕs  testimony  at  his  first  trial  was  not  consistent  with  the
               theory  of  defense  presented  at  the  second  trial. While  the  defendant  contended  that  he  shot  the
               victim  in  self-defense,  he  had  demonstrated  to  the  jury  at  the  first  trial  how  he  held  the  gun  with  both
               hands  and  used  the  laser  sight  to  aim  at  the  victim.  Under  these  circumstances,  counselÕs  advice  that
               the  petitioner  refrain  from  taking  the  stand  did  not  render  his  performance  deficient. Moreover,  the
               petitioner  failed  to  show  that  counsel  unilaterally  deprived  him  of  the  right  to  testify. See  Gregory
               Morgan  v.  State,  No.  03C01-9611-CR-00404  (Tenn.  Crim.  App., at  Knoxville,  Jan.  15,  1999)
               (holding  that  petitioner  was  not  entitled  to  post-conviction  relief  where  his  trial  counsel  advised  him
               against,  but  did  not  prohibit  him  from,  testifying  in  his  own  behalf).



                                                                -5- While  the  petitioner  asserts  that  the  outcome  of  his  trial  would  have  been  different  if  Ms.
               Barbeau  had  testified,  he  did  not  call  her  as  a  witness  at  the  post-conviction  hearing  or  make  any
               assertion of what her testimony might have been.  It was uncontroverted that Ms. BarbeauÕs
               testimony  at  the  petitionerÕs  first  trial  was  more  damaging  than  favorable  to  the  defense:
                              On  cross-examination,  Ms.  Barbeau  admitted  threatening  to  have  the  victimÕs
                       Òass  kicked.Ó She  also  conceded  that  after  she  argued  with  the  victim  sometime
                       earlier,  an  acquaintance  of  the  defendantÕs  had  threatened  to  beat  the  victim. Ms.
                       Barbeau  also  acknowledged  several  inconsistencies  between  her  trial  testimony  and
                       her  pretrial  statements  to  police. She  conceded  that  the  defendant  was  angry  when
                       they went to the victimÕs condo that evening and that she had overheard the
                       defendant  make  other  threats  against  the  victim.
               Belser,  945  S.W.2d  at  781. Under  these  circumstances,  trial  counselÕs  decision  not  to  call  Ms.
               Barbeau  as  a  witness  was  a  sound  tactical  one  and  cannot  serve  as  a  basis  for  post-conviction  relief.
               See  Adkins,  911  S.W.2d  at  347.
                       Finally,  the  petitioner  has  failed  to  show  that  he  was  prejudiced,  in  any  way,  by  the  cross-examination 
                            of  the  witnesses  for  the  state  or  how  any  further  preparation  may  have  caused  a  different
               result. In  summary,  the  evidence  does  not  preponderate  against  the  trial  courtÕs  findings.
                       Accordingly,  the  judgment  of  the  trial  court  is  affirmed.


                                                                        _________________________________ 
                                                                        GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                        Assigned  on  Briefs  September  19,  2001

                  STATE  OF  TENNESSEE  v.  TOMMY  G.  BENHAM

                     Appeal  from  the  Criminal  Court  for  Davidson  County
                       No.  98-C-2234  J.  Randall  Wyatt,  Jr.,  Judge


                     No.  M2000-02357-CCA-R3-CD  -  Filed  March  19,  2002

         The  defendant,  Tommy  G.  Benham,  was  convicted  of  two  counts  of  attempted  aggravated  robbery,
         a  Class  C  felony.  The  trial  court  sentenced  the  defendant  as  a  Range  III,  persistent  offender  to  eleven
         years  on  each  count,  to  be  served  concurrently.  In  this  appeal  of  right,  the  defendant  argues  that  the
         state  failed  to  provide  notice  that  it  would  seek  enhanced  punishment,  as  required  by  Tennessee  Code
         Annotated  section  40-35-202(a).  The  judgments  of  the  trial  court  are  affirmed.

                   Tenn.  R.  App.  P.  3;  Judgments  of  the  Trial  Court  Affirmed

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  J.,  joined.  JERRY
         L.  SMITH,  J.,  filed  a  dissenting  opinion.
         Jodie  A.  Bell  (at  trial)  and  Jeffrey  A.  DeVasher  (on  appeal),  Assistant  Public  Defenders,  for  the
         appellant,  Tommy  G.  Benham.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         and  Eric  Herbert,  Assistant  District  Attorney  General,  for  the  appellee,  the  State  of  Tennessee.

                                   OPINION

             On  July  6,  1999,  Bobby  Raymer,  Jr.,  was  working  as  an  attendant  at  the  Swifty  Oil  service
         station  on  Gallatin  Road  in  Nashville. At  approximately  4:40  P.M.,  the  defendant  approached
         Raymer,  put  Òa  little  paring  knifeÓ  to  his  throat,  and  demanded  money  and  cigarettes.  The  defendant
         threatened  to  kill  Raymer  if  he  did  not  comply.  When  Raymer  slapped  the  defendantÕs  hand,  the
         knife  scratched  the  back  of  his  arm.  Raymer  ran,  warning  the  manager  of  the  service  station,  Joe
         Redd,  to  watch  out  for  the  defendant.  The  defendant  stabbed  Redd  in  the  chest  with  the  knife.  A
         button  on  ReddÕs  shirt  prevented  the  knife  from  penetrating  his  chest. Redd  then  grabbed  the
         defendant  by  the  arm  and  forced  him  to  drop  the  knife.  When  Redd  picked  up  a  windshield  cleaner
         and  swung  at  the  defendant,  the  defendant  fled.



                                                                -2- As  the  defendant  ran  away,  he  was  pursued  by  three  men  who  had  witnessed  the  altercation.
               The  men  eventually  caught  the  defendant  and  a  struggle  ensued. The  defendant  received  injuries  to
               his  face  and  was  hospitalized  for  several  days.
                       At  the  sentencing  hearing,  the  defendant  argued  that  he  should  be  sentenced  as  a  Range  I,
               standard  offender  because  the  state  had  failed  to  provide  notice  of  its  intent  to  seek  enhanced
               punishment. The  state  argued  that  its  response  to  the  defendantÕs  request  for  discovery  served  as
               notice  that  the  state  intended  to  seek  punishment  in  excess  of  Range  I.
                       Approximately  two  weeks  later,  the  trial  court  ruled  that  the  state  would  be  allowed  to
               introduce  proof  that  the  defendant  qualified  as  a  Range  III,  persistent  offender. When  the  hearing
               resumed,  Deputy  Criminal  Court  Clerk  Barbara  Wise  testified  that  the  defendant  had  been  convicted
               in  November  of  1996  of  three  counts  of  theft  over  $1,000. Further,  Ms.  Wise  testified  that  the
               defendant  was  convicted  of  four  counts  of forgery  in  December  of  1991,  a  weapons  charge  in
               December  of  1989,  grand  larceny  in  August  of  1988,  and  burglary  in  February  of  1987. All  of  the
               convictions  were  felonies.
                       Based  on  the  defendantÕs  criminal  history,  the  trial  court  concluded  that  he  was  a  Range  III,
               persistent  offender  and  found  that  enhancement  factor  (1),  that  the  defendant  had  a  previous  history
               of criminal behavior  greater than that necessary to qualify  him as a Range III offender, was
               applicable. See  Tenn.  Code  Ann.  ¤  40-35-114(1). The  defendantÕs  history  of  substance  abuse  and
               his  remorse  for  the  crimes  were  deemed  mitigating  factors. The  trial  court  imposed  a  sentence  of
               eleven  years,  one  year  greater  than  the  minimum,  for  each  count  and  ordered  that  the  sentences  be
               served  concurrently.
                       In  this  appeal,  the  defendant  contends  that  the  trial  court  erred  by  sentencing  him  as  a  Range
               III,  persistent  offender  because  the  state  failed  to  provide  notice  of  its  intent  to  seek  enhanced
               punishment  in  compliance  with  Tennessee  Code  Annotated  section  40-35-202(a).  The  defendant
               does  not,  however,  contend  that  he  would  not  otherwise  qualify  for  Range  III  sentencing. The  state
               argues  that  its  response  to  the  request  for  discovery,  which  included  the  defendantÕs  prior  criminal
               history,  placed  the  defendant  on  notice  that  his  prior  convictions  would  be  used  for  enhancement
               purposes.
                       When  there  is  a  challenge  to  the  length,  range,  or  manner  of  service  of  a  sentence,  it  is  the
               duty  of  this  court  to  conduct  a  de  novo  review  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);  see  State  v.
               Jones, 883  S.W.2d  597,  600 (Tenn.  1994). "If the trial court applies inappropriate factors or
               otherwise  fails  to  follow  the  1989  Sentencing  Act,  the  presumption  of  correctness  falls." State  v.
               Shelton,  854  S.W.2d  116,  123  (Tenn.  Crim.  App.  1992). The  Sentencing  Commission  Comments
               provide  that  the  burden  is  on  the  defendant  to  show  the  impropriety  of  the  sentence. Tenn.  Code
               Ann.  ¤  40-35-401,  Sentencing  Commission  Comments.



                                                                -3- Our  review  requires  an  analysis  of  (1)  the  evidence,  if  any,  received  at  the  trial  and  sentencing
               hearing;  (2)  the  presentence  report;  (3)  the  principles  of  sentencing  and  the  arguments  of  counsel
               relative  to  sentencing  alternatives;  (4)  the  nature  and  characteristics  of  the  offense;  (5)  any  mitigating
               or  enhancing  factors;  (6)  any  statements  made  by  the  defendant  in  his  own  behalf;  and  (7)  the
               defendant's  potential  for  rehabilitation  or  treatment. Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;
               State  v.  Smith,  735  S.W.2d  859,  863  (Tenn.  Crim.  App.  1987). 
                       In  calculating  the  sentence  for  a  Class  C  felony  conviction,  the  presumptive  sentence  is  the
               minimum  in  the  range  if  there  are  no  enhancement  or  mitigating  factors. Tenn.  Code  Ann.  ¤  40-35-
               210(c).  If  there  are  enhancement  but  no  mitigating  factors,  the  trial  court  may  set  the  sentence  above
               the  minimum,  but  still  within  the  range. Tenn.  Code  Ann.  ¤  40-35-210(d). A  sentence  involving
               both enhancement and mitigating factors requires an assignment of relative weight for the
               enhancement  factors  as  a  means  of  increasing  the  sentence. Tenn.  Code  Ann.  ¤  40-35-210(e). The
               sentence  must  then  be  reduced  within  the  range  by  any  weight  assigned  to  the  mitigating  factors
               present. Id.
                       If  the  trial  court's  findings  of  fact  are  adequately  supported  by  the  record,  this  court  may  not
               modify  the  sentence  even  if  it  would  have  preferred  a  different  result.  State  v.  Fletcher,  805  S.W.2d
               785  (Tenn.  Crim.  App.  1991). The  presumption  of  correctness  is,  however,  "conditioned  upon  the
               affirmative  showing  in  the  record  that  the  trial  court  considered  sentencing  principles  and  relevant
               facts  and  circumstances." State  v.  Ashby,  823  S.W.2d  166,  169  (Tenn.  1991). The  trial  court  must
               place  on  the  record  the  reasons  for  the  sentence. State  v.  Jones,  883  S.W.2d  597  (Tenn.  1994).
                       Tennessee  Code  Annotated  section  40-35-202  provides  in  pertinent  part  as  follows:
                              If  the  district  attorney  general  believes  that  a  defendant  should  be  sentenced
                       as  multiple,  persistent,  or  career  offender,  the  district  attorney  general  shall  file  a
                       statement  thereof  with  the  court  and  defense  counsel  not  less  than  ten  (10)  days
                       before  trial  or  acceptance  of  a  guilty  plea;  provided,  that  notice  may  be  waived  by  the
                       defendant  in  writing  with  the  consent  of  the  district  attorney  general  and  the  court
                       accepting  the  plea. Such  statement,  which  shall  not  be  made  known  to  the  jury
                       determining  the  guilt  or  innocence  of  the  defendant  on  the  primary  offense,  must  set
                       forth  the  nature  of  the  prior  felony  convictions,  the  dates  of  the  convictions  and  the
                       identity  of  the  courts  of  the  convictions.
               Tenn.  Code  Ann.  ¤  40-35-202(a). The  purpose  of  the  notice  requirement  is  to  provide  a  defendant
               with  "fair  notice"  that  he  is  "exposed  to  other  than  standard  sentencing." State  v.  Adams,  788
               S.W.2d  557,  558  (Tenn.  1990).  The  requirement  is  intended  to  facilitate  plea-bargaining,  to  inform
               decisions  to  enter  a  guilty  plea,  and  to  assist  with  decisions  regarding  trial  strategy. Id. When  the
               information  provided  is  incomplete  or  incorrect,  the  inquiry  is  whether  the  notice  was  "materially
               misleading." Id.  at  559. When  the  state  substantially  complies  with  the  notice  requirement,  the
               defendant  Òhas  a  duty  to  inquire  about  an  ambiguous  or  incomplete  notice  and  must  show  prejudice
               to  obtain  relief.Ó Id. In  Adams,  our  high  court  ultimately  determined  that  the  notice  given  by  the



                                                                -4- state  did  not  provide  details  of  former  judgments  and,  "[n]ot  only  was  it  inadequate  to  advise  that
               a  Range  II  sentence  was  sought,  it  was  positively  misleading,  as  it  dealt  exclusively  with  matters
               relevant  to  another  phase  of  sentencing." Id.
                       In  this  case,  the  stateÕs  discovery  response,  filed  some  eight  months  before  the  trial  date,
               contains  the  following  statement:
                       Pursuant  to  Rule  16(a)(1)(B)  Tenn.  R.  Crim.  P.,  the  defendant's  prior  record  is  as
                       follows: See  Attached. State  provided  defendantÕs  out  of  county  record  to
                       defense  earlier  in  court. The  defendant,  based  on  his  overall  record,  is  a  career
                       offender. 

                       Should  the  defendant  testify  at  trial,  the  State  intends  to  use  the  prior  criminal  record
                       during  cross-examination for impeachment purposes and enhancement purposes
                       pursuant  to  State  v.  Morgan,  541  S.W.2d  385,  Tennessee  Rules  of  Evidence,  609  and
                       405,  and  T.C.A.  ¤  40-35-202.
               The trial court concluded that the response, coupled with an attached printout detailing the
               defendantÕs  prior  convictions,  Òsubstantially  compliedÓ  with  the  notice  requirement.  It  ruled  that  the
               response  by  the  state  shifted  the  burden  to  the  defendant  to  inquire  about  any  deficiencies  in  the
               notice. 
                       In  our  view,  the  pleadings  filed  by  the  state  qualified  as  more  than  Òempty  notice.Ó See
               Adams,  788  S.W.2d  at  559. The  information  provided  by  the  state,  although  incorrect  in  that  it
               suggested  that  the  defendant  would  qualify  as  a  career  offender,  one  grade  higher  than  a  persistent
               offender,  placed  the  defendant  on  notice  that  the  state  was  seeking  enhanced  range  classification.
                       Although  not  specifically  required,  Tennessee  Code  Annotated  section  40-35-202(a)  appears
               to  contemplate  the  filing  of  a  separate  notice. The  statute  makes  reference  to  Òa  statementÓ  and
               requires  notice  of  the  nature  and  dates  of  prior  convictions,  as  well  as  the  identity  of  the  court  in
               which  the  prior  convictions  were  obtained. In  this  instance,  the  discovery  response  was  timely,  was
               filed  well  in  advance  of  trial,  and  included  the  requisite  information. To  mandate  the  filing  of  a
               separate  document  would  place  form  over  substance. See  Tenn.  Code  Ann.  ¤  40-35-202(a).
                       The  notice  was  sufficiently  clear  to  shift  the  burden  to  the  defendant  to  inquire  about  any
               ambiguities  he  perceived.  See  Adams,  788  S.W.2d  at  559. Most  importantly,  the  defendant  has  not
               demonstrated  any  prejudice  as  a  result  of  the  form  of  the  notice. See  State  v.  Debro,  787  S.W.2d
               932,  934  (Tenn.  Crim.  App.  1989). Thus,  a  reduced  sentencing  classification  is  not  warranted. Our
               supreme  court  has  held  that  absent  the  showing  of  prejudice,  a  continuance  of  the  proceedings  is  the
               defendant's  exclusive  remedy. See  Stephenson,  752  S.W.2d  at  81.
                       Accordingly,  the  judgment  of  the  trial  court  is  affirmed.



                                                                -5-  ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



                           1  Rule  16(a)(1)(B)  requires  the  State  upon  request  to  furnish  the  defendant  a  copy  of  his  prior  criminal  record. IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                Assigned  on  Briefs  September  19,  2001

                                     STATE  OF  TENNESSEE  v.  TOMMY  G.  BENHAM

                                     Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                                               No.  98-C-2234    J.  Randall  Wyatt,  Jr.,  Judge


                                         No.  M2000-02357-CCA-R3-CD  -  Filed  March  19,  2002 


                  Jerry  L.  Smith,  J.,  dissenting.
                           Because  I  believe  the  majority  opinion  essentially  reduces  the  requirements  of  Tennessee
                  Code  Annotated  section  40-35-202  (a)  to  a  superfluity,  I  must  respectfully  dissent. 
                           The majority  concludes that a discovery response provided by the State to a  defendant
                  pursuant  to  Tennessee  Rule  of  Criminal  Procedure  16(a)(1)(B)  is  sufficient  to  shift  the  burden  of
                  proof  to  a  defendant  to  make  further  inquiry  as  to  the  StateÕs  intentions  at  sentencing.1 The  majority
                  also  would  require  defendants  who  receive  such  a  discovery  response  to  demonstrate  prejudice  as
                  a result of the form of the notice in order to obtain relief on appeal.  In support of  the former
                  preposition  the  majority  relies  on  State  v.  Adams,  788  S.W.2d  557  (Tenn.  1990),  and  in  support  of
                  the  latter  State  v.  Debro,  787  S.W.2d  932,  934  (Tenn.  Crim.  App.  1989). However,  in  both  Adams
                  and  Debro  the  State  filed  the  notice  document  required  by  section  40-35-202(a). The  only  question
                  in  those  cases  was  the  adequacy  of  the  contents  of  the  document. Nothing  in  either  of  those  cases
                  permits  the  State  in  its  attempts  to  boost  the  defendantÕs  sentencing  range  to  rely  on  documents  other
                  than a section 40-35-202(a) notice, documents which themselves do not even contain all the
                  information  specified  in  section  40-35-202(a).
                           When  the  legislature  enacted  Tennessee  Code  Annotated  section  40-35-202(a),  it  presumably
                  was  aware  of  Tennessee  Rule  of  Criminal  Procedure  16(a)(1)(B). See,  State  v.  Mixon,  983  S.W.2d
                  661 (Tenn. 1999) (holding that legislature is presumed to know existing law when enacting a
                  statute);  State  v.  Levandowski,  955  S.W.2d  603  (Tenn.  1997)  (same);  Fletcher  v.  State,  951  S.W.2d
                  378  (Tenn.  1997)(same). It  is  apparent  that  body  was  of  the  opinion  that  a  more  complete  picture
                  of  a  defendantÕs  prior  criminal  background  than  that  provided  by  Rule  16(a)(1)(B)  was  necessary  for
                  fair  notice  at  sentencing. The  burden  of  providing  that  more  complete  picture  was  placed  by  the
                  legislature  on  the  prosecution  in  a  criminal  case. Yet  the  majorityÕs  opinion  reduces  section  40-35-
                  202(a) to a superfluity when the State has complied with Rule 16(a)(1)(B).  In other words,



                                                                -2- compliance  by  the  State  with  Rule  16(a)(1)(B)  will  now  shift  the  burden  to  the  defendant  to  inquire
               further  as  to  the  details  of  the  defendantÕs  prior  record  and  the  StateÕs  intention  at  sentencing,  even
               though,  as  in  the  instant  case,  the  discovery  response  does  not  fully  set  out  all  the  information
               required  by  section  40-35-202(a).
                       I  do  not  believe  that  the  legislature  intended  that  compliance  with  Rule  16(a)(1)(B)  would
               relieve  the  State  of  the  burden  of  providing  without  request  the  full  picture  of  the  defendantÕs  prior
               criminal  background  required  by  section  40-35-202(a). For  this  reason,  I  respectfully  dissent  and
               would  reverse  and  remand  this  case  for  re-sentencing  upon  the  StateÕs  compliance  with  section  40-
               35-202(a). See,  Adams,  788  S.W.2d  at  559  (holding  remand  for  re-sentencing  appropriate  remedy
               for  failure  to  comply  with  notice  requirement  of  section  40-35-202(a)).

                                                                     ___________________________________ 
                                                                     JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                           Assigned  on  Briefs  July  9,  2002

                   STATE  OF  TENNESSEE  v.  DONNA  F.  BENSON

                   Direct  Appeal  from  the  Criminal  Court  for  Shelby  County
                        Nos.  01-01216,  17  Bernie  Weinman,  Judge


                    No.  W2001-01926-CCA-R3-CD  -  Filed  October  8,  2002


         The  defendant,  a  former  employee  of  the  Shelby  County  Criminal  Court  ClerkÕs  office,  pled  guilty
         to  two  counts  of  public  servant  accepting  a  bribe,  in  violation  of  Tennessee  Code  Annotated  section
         39-16-102,  a  Class  C  felony. The  trial  court  sentenced  her  as  a  Range  I,  standard  offender  to
         concurrent  terms  of  three  years  on  each  count,  but  suspended  all  but  ninety  days  of  the  sentence,  to
         be  served  on  weekends  at  the  county  workhouse.  The  defendant  was  also  placed  on  probation  for
         three  years,  ordered  to  perform  300  hours  of  community  service,  and  assessed  a  $1000  fine  for  each
         count.  She  argues  on  appeal  that  the  trial  court  erred  in  denying  her  judicial  diversion  or  full
         probation.  After  reviewing  the  record,  we  affirm  the  judgment  of  the  trial  court.

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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and
         NORMA  MCGEE  OGLE,  JJ.,  joined.
         Lee  Wilson,  Memphis,  Tennessee,  for  the  appellant,  Donna  F.  Benson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         William  L.  Gibbons,  District  Attorney  General;  and  Camille  McMullen,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                    FACTS

             On  May  11,  2001,  the  defendant,  Donna  F.  Benson,  entered  pleas  of  guilty  to  two  counts  of
         violating  Tennessee  Code  Annotated  section  39-16-102(a),  ÒBribery  of  public  servant,Ó  for  soliciting
         and/or  accepting  bribes  from  two  separate  individuals  while  employed  as  a  counselor  at  the  Shelby
         County  Criminal  Court  ClerkÕs  Office.  However,  although  the  trial  courtÕs  order  approving  the
         guilty  pleas  is  included  in  the  record,  the  transcript  of  the  defendantÕs  guilty  plea  hearing  is  not.  In
         order  for  this  court  to  conduct  an  effective  review  of  sentencing  in  a  case  involving  a  conviction



                           1  Although  the  cover  of  the  transcript  of  the  sentencing  hearing  reflects  that  the  hearing  was  held  on  August  1,
                  2001,  which  was  a  Wednesday,  the  introductory  paragraph  states  that  the  hearing  Òcame  on  to  be  heard  and  was  heard
                  on the  1st  day  of  September,  2001,  .  .  .  .Ó Since  September  1,  2001,  was  a  Saturday  and  because  the  judgment  is  dated
                  August  1,  2001,  we  believe  the  September  date  is  obviously  an  error.

                                                                          -2- pursuant  to  a  guilty  plea,  a  transcript  of  the  guilty  plea  hearing  normally  is  necessary,  since  it  is  the
                  guilty  plea  hearing  that  usually  provides  the  facts  and  circumstances  surrounding  the  offense.  See
                  State  v.  Thomas  Leon  Lewis,  II,  No.  W2000-01740-CCA-R3-CD,  2001  Tenn.  Crim.  App.  LEXIS
                  344,  at *3  (Tenn.  Crim.  App.  May  9,  2001)  (citing  State  v.  Keen,  996  S.W.2d  842,  844  (Tenn.  Crim.
                  App.  1999)). ÒIn  the  absence  of  a  transcript  of  a  guilty  plea,  this  court  must  generally  conclude  that
                  the sentence imposed by the trial court was correct.Ó  Id. (citing Keen, 996 S.W.2d at 844).
                  Nonetheless,  we have  chosen to  review the issues  in the defendantÕs case, relying on evidence
                  presented  at  her  sentencing  hearing,  as  well  as  information  provided  in  the  presentence  report,  for
                  the  details  surrounding  the  offenses.
                           The  thirty-seven-year-old  defendant  testified  at  her  August  1,  2001,  1  sentencing  hearing  that
                  she  had  been  married  for  twelve  and  a  half  years  and  had  a  daughter  who  was  nearly  three  years  old.
                  At  the  time  of  the  offenses,  she  was  employed  as  a  counselor  at  the  Shelby  County  Criminal  Court
                  ClerkÕs  office,  where  she  had  worked  in  various  positions  for  almost  ten  years. Her  job  duties  as  a
                  counselor  included  interviewing  defendants,  calculating  their  court  costs  and  fines,  and  informing
                  them  of  the  amount  of  their  payments  and  the  dates  they  were  due. 
                           The  defendant  was  working  in  her  position  as  counselor  on  December  19,  2000,  when  Robert
                  Branch  came  in  to  make  a  payment  on  the  approximately  $1200  in  court  costs  and  fines  he  was
                  required  to  pay  before  getting  his  driverÕs  license  reinstated. During  her  conversation  with  him,  she
                  told  Branch  that  if  he  gave  her  $800,  she  would give  him the certification he needed to get his
                  driverÕs  license  back. When  Branch  returned  later  that  day,  he  was  wearing  a  recording  device,
                  although  the  defendant  did  not  know  it  at  the  time. Branch  gave  the  defendant  $800,  which  she  laid
                  on  her  desk.  The  defendant,  in  turn,  gave  Branch  his  required  certification,  indicating  that  he  had
                  paid  his  court  costs  and  fines  in  full. Thereafter,  the  defendant  was  approached  by  another  employee
                  of  the  criminal  court  clerkÕs  office,  Warren  Young,  who  took  the  money,  told  the  defendant  that  they
                  had  everything  on  tape,  and  instructed  her  to  gather  her  belongings  and  leave  the  office. 
                           The  second  incident  to  which  the  defendant  pled  guilty  involved  her  solicitation  of  a  bribe
                  from  another  individual,  Ben  Chambers,  who,  like  Branch,  was  seeking  to  have  his  driverÕs  license
                  reinstated. With respect to this incident, which occurred sometime between December 1 and
                  December  19,  2000,  the  defendant  testified: ÒMr.  Chambers  came  in  and  wanted  to  get  his  driverÕs
                  license  back,  and  I  told  him  I  would  help  him  for  a  portion  of  what  he  owed. I  donÕt  remember  what
                  was  his  total  amount,  but  I  told  him  that  he  could  pay  fifteen  hundred  (1500),  and  he  could  get  his
                  certification.Ó Chambers  told  the  defendant  that  he  would  have  to  get  the  money  from  someone  else
                  and  return  with  it  later. However,  although  the  defendant  spoke  with  Chambers  a  couple  of  times
                  after  she  made  her  proposal,  he  never  gave  her  any  money. 



                                                                -3- The  defendant  explained  her  behavior  by  testifying  that  she  had  acted  without  thinking,
               succumbing  to  the  temptation  of  obtaining  some  extra  money  for  Christmas  shopping. Since  that
               time,  she  had  thought  about  what  she  had  done  and  how  it  had  affected  her  life.  She  had  been  unable
               to  find  another  job,  and  her  family,  used  to  two  incomes,  now  had  only  one. She  had  been  unable
               to  sleep,  and  her  doctor  had  prescribed  medication  for  her  nerves  which  she  was  still  taking. The
               defendant  said  that  she  had  never  before  been  in  trouble. She  felt  that  she  had  let  down  not  only  her
               family,  friends,  and  coworkers,  but  herself  as  well. She  was  Ò[v]ery,  veryÓ  remorseful  and  deeply
               regretted  her  actions. She  had  learned  from  her  mistake,  would  never  do  anything  like  it  again,  and
               thought  that,  given  a  chance,  she  would  be  able  to  Òget  a  job  and  get  [her]  life  back  together  and  get
               back  on  track.Ó
                       On  cross-examination,  the  defendant  insisted  that  the  incident  with  Mr.  Chambers  was  the
               first  time  she  had  engaged  in  such  behavior,  and  that  the  only  other  time  she  committed  the  offense
               was  with  Mr.  Branch. She  agreed  with  the  trial  court  that  her  actions  had  undermined  our  system
               of  justice,  and  acknowledged  that  she  had  violated  a  position  of  trust. She  also  agreed  with  the
               prosecutor  that  her  actions  had  caused  the  Òeye  of  suspicionÓ  to  be  upon  the  entire  criminal  court
               clerkÕs  office.
                       The  defendantÕs  husband,  Charles  C.  Benson,  testified  that  the  incident  had  devastated  his
               wife  emotionally,  placing  her  under  tremendous  strain  and  causing  her  to  lose  her  hair. He  said  that
               other  than  caring  for  their  daughter,  she  was  unable  to  handle  her  regular  tasks  and  routines. He
               believed  that  she  was  remorseful,  and  supported  her  petition  for  judicial  diversion  and  full  probation.
               Upon  examination  by  the  trial  court,  Benson  testified  that  he  was  employed  as  a  sergeant  at  the
               Shelby  County  Correctional  Center. He  acknowledged  that  he  and  his  wife  had  had  a  decent
               combined  income,  and  that  they  could  have  afforded  to  buy  Christmas  presents. 
                       Three  other  witnesses  testified  on  the  defendantÕs  behalf,  offering  support  for  her  petition  to
               be  granted  judicial  diversion  or  full  probation.  Shelby  County  Deputy  Sheriff  Bertia  Harris  testified
               that  she  and  the  defendant  were  from  the  same  town  and  had  attended  school  together.  She  said  that
               the  defendant  had  talked  with  her  about  the  incident,  and  that  she  believed  the  defendant  understood
               the  gravity  of  her  offense  and  was  remorseful.  Retired  Shelby  County  government  employee  Edward
               L.  Stanton,  Jr.,  testified  that  he  had  been  acquainted  with  the  defendant  for  a  little  over  ten  years
               through  his  work  in  the  criminal  court  clerkÕs  office. He  had  counseled  the  defendant  about  the
               incident  in  his  position  as  associate  minister  of  his  church, and believed  that  she  was  Òdeeply
               remorseful.Ó The  defendantÕs  pastor,  Reverend  Christopher  Daniels,  Sr.,  testified  that  he  had  known
               of  the  defendant,  through  her  family  and  friends,  for  about  ten  or  twelve  years,  and  had  known  her
               personally  for  about  five  years. He  said  he  had  counseled  her  about  the  incident,  and  believed  her
               to  be  sincerely  remorseful. Reverend  Daniels  additionally  testified  that  he  was  willing  to  give  the
               defendant  a  job  as  his  administrative  assistant,  a  position  in  which  she  would  be  entrusted  with  large
               sums  of  money.
                       Finding  that  judicial  diversion  would  not  be  appropriate  under  the  facts  and  circumstances
               of  the  defendantÕs  case,  the  trial  court  sentenced  her  as  a  Range  I,  standard  offender  to  concurrent



                                                                -4- terms  of  three  years  for  each  offense,  with  ninety  nonconsecutive  days  to  be  served  in  the  county
               workhouse  on  weekends,  and  the  remainder  of  the  sentence  to  be  served  on  probation. In  addition,
               the  trial  court  imposed  $1000  fines  for  each  offense,  and  ordered  that  the  defendant  perform  300
               hours  of  community  service.  Thereafter,  the  defendant  filed  a  timely  appeal  to  this  court,  challenging
               the  trial  courtÕs  denial  of  her  request  for  judicial  diversion  or  full  probation.

                                                           ANALYSIS
                                                A. Denial  of  Judicial  Diversion

                       The  defendant  first  contends  that  the  trial  court  abused  its  discretion  in  denying  her  request
               for  judicial  diversion. Tennessee  Code  Annotated  section  40-35-313  provides  that,  following  a
               determination  of  guilt  by  plea  or  by  trial,  a  trial  court  may,  in  its  discretion,  defer  further  proceedings
               and  place  a  qualified  defendant  on  probation  without  entering  a  judgment  of  guilt.  Tenn.  Code  Ann.
               ¤  40-35-313(a)(1)(A)  (Supp.  2001). A  qualified  defendant  is  one  who  pleads  guilty  or  is  found
               guilty  of  a  misdemeanor  or  Class  C,  D,  or  E  felony;  has  not  been  previously  convicted  of  a  felony
               or  a  Class  A  misdemeanor;  and  who  is  not  seeking  deferral  for  a  sexual  offense  or  a  Class  A  or  B
               felony. Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(B)(i)  (Supp.  2001). If  the  defendant  successfully
               completes  the  period  of  probation,  the  trial  court  is  required  to  dismiss  the  proceedings,  and  the
               defendant  may  have  the  records  of  the  proceedings  expunged. Tenn.  Code  Ann.  ¤  40-35-313(a)(2),
               (b)  (Supp.  2001). 
                       Having  pled  guilty  to  two  counts  of  a  Class  C  felony,  and  having  no  prior  criminal  record,
               the  defendant  was  qualified  to  seek  judicial  diversion. However,  the  decision  to  grant  or  deny  a
               qualified  defendant  judicial  diversion  lies  within  the  sound  discretion  of  the  trial  court. State  v.
               Electroplating,  Inc.,  990  S.W.2d  211,  229  (Tenn.  Crim.  App.  1998);  State  v.  Cutshaw,  967  S.W.2d
               332,  344  (Tenn.  Crim.  App.  1997);  State  v.  Bonestel,  871  S.W.2d  163,  168  (Tenn.  Crim.  App.  1993).
               As  such,  it  will  not  be  disturbed  on  appeal  absent  an  abuse  of  discretion.  Electroplating,  990  S.W.2d
               at  229;  Cutshaw,  967  S.W.2d  at  344;  Bonestel,  871  S.W.2d  at  168. To  constitute  an  abuse  of
               discretion,  the  record  must  be  devoid  of  any  substantial  evidence  in  support  of  the  trial  courtÕs
               decision.  Cutshaw,  967  S.W.2d  at  344;  Bonestel,  871  S.W.2d  at  168;  State  v.  Anderson,  857  S.W.2d
               571,  572  (Tenn.  Crim.  App.  1992). 
                       In determining whether to grant diversion, the trial court considers (a) the accusedÕs
               amenability  to  correction,  (b)  the  circumstances  of  the  offense,  (c)  the  accusedÕs  criminal  record,  (d)
               the  accusedÕs  social  history,  (e)  the  accusedÕs  physical  and  mental  health,  (f)  the  deterrence  value
               to  the  accused  as  well  as  others,  and  (g)  whether  judicial  diversion  will  serve  the  interests  of  the
               public  as  well  as  the  accused.  Electroplating,  990  S.W.2d  at  229;  Bonestel,  871  S.W.2d  at  168. A
               trial  court  should  not  deny  judicial  diversion  without  explaining  the  factors  in  support  of  its  denial,
               and  how  those  factors  outweigh  other  factors  in  favor  of  diversion. Id. 
                       The  defendant  argues  that  the  trial  court  abused  its  discretion  by  failing  to  consider  relevant
               factors  in  favor  of  granting  her  judicial  diversion,  such  as  her  amenability  to  correction,  lack  of  a



                                                                -5- criminal  record,  physical  and  mental  health,  the  deterrence  value  to  the  defendant  as  well  as  to
               others,  and  whether  a  sentence  of  judicial  diversion  would  serve  the  best  interests  of  the  defendant
               as  well  as  the  public. The  State  concedes  that  the  trial  court  could  have  made  more  precise  findings
               on  the  record  regarding  some  of  the  above  factors,  but  argues,  nonetheless,  that  substantial  evidence
               exists  in  the  record  to  support  the  trial  courtÕs  denial  of  judicial  diversion. 
                       In  making  its  sentencing  determinations  in  this  case,  including  its decision  to  deny  the
               defendant  judicial  diversion,  the  trial  court  placed  great  emphasis  upon  the  defendantÕs  violation  of
               her  position  of  public  trust  in  the  criminal  court  clerkÕs  office,  finding  that  it  moved  her  into  Òa
               higher  categoryÓ  than  that  of  the  defendant  in  the  average  theft  case. However,  although  the  trial
               court  noted  the  defendantÕs  lack  of  a  criminal  record,  family  circumstances,  and  mental  health,  it  did
               not fully explain on the record its consideration of all relevant Bonestel factors, or how the
               circumstances  of  the  offense  outweighed  any  factors  in  favor  of  diversion.  See  Bonestel,  871  S.W.2d
               at  168. In  the  absence  of  the  required  findings  in  the  record,  this  court  must  conduct  a  de  novo

               review  Òto  determine  whether  the  trial  court  reached  the  correct  result  notwithstanding  its  failure  to
               explain  its  reasoning.Ó Electroplating,  990  S.W.2d  at  229. 
                       There  are  several  factors  in  this  case  that  weigh  in  favor  of  judicial  diversion.  The  thirty-seven-
                      year-old  defendant  has  no  prior  criminal  convictions. Prior  to  the  incident,  she  was  steadily
               employed  at  the  criminal  court  clerkÕs  office  for  approximately  ten  years. She  is  married  and  the
               mother  of  a  small  child. According  to  her  testimony,  she  feels  extreme  remorse  for  her  crime  and
               has  suffered  emotional  problems  as  a  result.  Her  husband,  friend,  former  coworker,  and  pastor  each
               testified  that  they  believed  the  defendant  was  sincere  in  her  expressions  of  remorse,  and  offered  their
               support  for  her  petition  to  be  granted  diversion  and  full  probation. Weighing  against  these  factors,
               however,  are  the  circumstances  of  the  offense  and  the  fact  that  diversion,  in  this  case,  will  not  serve
               the  best  interests  of  the  public. 
                       In  denying  judicial  diversion,  the  trial  court  emphasized  the  defendantÕs  abuse  of  her  position
               of  public  trust,  and  how  her  abuse  of  that  position  undermined  public  confidence  in  the  integrity  of
               the  criminal  justice  system. The  trial  court  explained: 
                                      And  I  think,  as  we  indicated  when  you  were  up  here,  you
                              kindÕa  [sic]  go  into  a  higher  category. A  category  --  When  we  talk
                              about  theft  cases,  you  go  up  a  step,  because  you  were  in  a  position  of
                              trust. The  county  government  placed  you  in  a  position  of  trust  right
                              here in the criminal court clerkÕs office, and people -- If the
                              community  canÕt  expect  people  working  in  the  criminal  justice  system
                              to do whatÕs right, then they canÕt expect anything from their
                              government.
                       The  defendantÕs  position  of  public  trust  was  a  part  of  the  circumstances  of  her  offense. A
               denial  of  diversion  may  be  based  solely  on  the  circumstances  of  the  offense  or  on  the  need  for
               deterrence  when  these  factors  are  ÒÔof  such  overwhelming  significanceÕÓ  as  to  outweigh  all  other



                           2  See  North  Carolina  v.  Alford,  400  U.S.  25,  37,  91  S.  Ct.  160,  167,  27  L.  Ed.  2d  162  (1970). 

                                                                          -6- factors  in  favor  of  diversion. State  v.  Washington,  866  S.W.2d  950,  951  (Tenn.  1993)  (reviewing
                  denial  of  pretrial  diversion)  (quoting  State  v.  Markham,  755  S.W.2d  850,  853  (Tenn.  Crim.  App.
                  1988));  see  also  State  v.  Kyte,  874  S.W.2d  631,  634  (Tenn.  Crim.  App.  1993)  (stating  that  Òthe
                  circumstances  of  the  offense  may  alone  serve  as  the  basis  for  denialÓ  of  judicial  diversion).
                           In  State  v.  Houston,  900  S.W.2d  712,  715  (Tenn.  Crim.  App.  1995),  this  court  concluded  that
                  a  defendantÕs  violation  of  a  position  of  public  trust  justified  the  district  attorneyÕs  denial  of  pretrial
                  diversion. The  defendant  in  Houston  was  a  Chattanooga  police  captain  who,  while  assigned  to  the
                  Chattanooga City  Court, physically  assaulted  an  employee  of  the  city  court  clerkÕs  office  in  the
                  hallway  outside  the  courtrooms. Id.  at  713. In  determining  whether  to  grant  pretrial  diversion,  the
                  district  attorney  noted  the  defendantÕs  excellent  work  and  social  history  and  lack  of  a  prior  criminal
                  record. Id.  at  714. Nonetheless,  the  district  attorney  denied  pretrial  diversion,  based  primarily  on
                  the fact that the defendant, as a police officer, had violated a position of public trust, and his
                  determination  that  the  best  interests  of  the  public  would  not  be  met  by  allowing  the  defendant  pretrial
                  diversion. Id. Observing  that  a  violation  of  a  position  of  public  trust  Òbears  directly  on  the  public
                  interest,Ó  this  court  affirmed  the  denial  of  pretrial  diversion,  concluding  that  the  circumstances  of
                  the  offense,  the  need  to  serve  the  ends  of  justice,  and  the  need  to  protect  the  interests  of  the  public
                  outweighed  the  factors  in  favor  of  diversion. Id.  at  715. 
                           Similarly,  in  a  recent  unpublished  case,  State  v.  William  Blaine  Campbell,  No.  E1999-02208-CCA-
                         R3-CD,  2000  Tenn.  Crim.  App.  LEXIS  744,  at  *9  (Tenn.  Crim.  App.  Sept.  29,  2000),  perm.
                  to  appeal  denied  (Tenn.  Apr.  23,  2001),  this  court  concluded  that  the  trial  court  did  not  abuse  its
                  discretion  in  emphasizing  a  defendantÕs  abuse  of  a  position  of  trust  in  denying  his  request  for  judicial
                  diversion. The defendant in Campbell, a school teacher who was indicted on eight counts of
                  especially  aggravated  sexual  exploitation  of  a  minor  and  one  count  of  contributing  to  the  delinquency
                  of  a  minor,  entered  an  Alford  2  guilty  plea  to  one  count  of  furnishing  alcohol  to  a  minor. Id.  at  **2-3.
                  In  denying  his  request  for  judicial  diversion,  the  trial  court  focused  upon  Òthe  abuse  of  a  position  of
                  trust  that  was  involvedÓ  in  the  crime,  and  found  that  it  was  Òin  the  strong  interests  of  the  public  not
                  to  tolerate  teachers  furnishing  alcohol  to  students.Ó Id.  at  *6. This  court  affirmed  the  denial  of
                  diversion,  concluding  that  the  trial  court  appropriately  relied  upon  the  defendantÕs  abuse  of  trust  as
                  Òrelevant  to  the  circumstances  of  the  offense.Ó  Id.  at  *8. 
                           In  the  instant  case,  the  defendantÕs  abuse  of  her  position  of  public  trust  is,  likewise,  relevant
                  both  to  the  circumstances  of  her  offense  and  to  a  determination  of  whether  the  ends  of  justice  will
                  be met by granting her judicial diversion.  We agree with the trial court that, because of the
                  defendantÕs  violation  of  her  position  of  public  trust,  both  these  factors  weigh  heavily  against  granting
                  her  judicial  diversion. 
                           The  defendant  was  entrusted  with  a  position  of  responsibility  in  the  criminal  court  clerkÕs
                  office,  assigned  to  meet  directly  with  criminal  defendants  to  counsel  them  about  their  court  costs  and
                  fines  and  the  payment  schedules  they  were  required  to  meet. In  her  role  as  a  representative  of  the



                                                                -7- office,  she  solicited  and  accepted  bribes  from  the  very  criminal  defendants  she  was  assigned  to
               counsel.  This  was  an  egregious  violation  of  a  position  of  public  trust,  which,  as  she  acknowledged,
               caused  the  Òeye  of  suspicionÓ  to  be  upon  the  entire  criminal  court  clerkÕs  office  and  the  criminal
               justice  system  itself.  To  grant  her  judicial  diversion  under  the  circumstances  of  this  case  would  serve
               neither  the  ends  of  justice  nor  the  best  interests  of  the  public. We,  therefore,  conclude  that  the  trial
               court  did  not  abuse  its  discretion  in  denying  the  defendantÕs  request  for  judicial  diversion.

                                                  B. Denial  of  Full  Probation

                       The  defendant  next  contends  that  the  trial  court  erred  in  denying  her  full  probation  based  on
               the  nature  of  her  offense. She  argues  that  the  circumstances  of  her  offense  were  not  such  as  to
               outweigh  all  other  factors  favoring  a  sentence  other  than  confinement. The  State  contends  that  the
               circumstances  of  the  defendantÕs  offense  more  than  justify  the  denial  of  full  probation. We  agree
               with  the  State. 
                       When  a  defendant  challenges  the  length  and  manner  of  service  of  a  sentence,  it  is  the  duty
               of  this  court  to  conduct  a  de  novo  review  on  the  record  with  a  presumption  that  Òthe  determinations
               made  by  the  court  from  which  the  appeal  is  taken  are  correct.Ó Tenn.  Code  Ann.  ¤  40-35-401(d).
               This  presumption  is  Òconditioned  upon  the  affirmative  showing  in  the  record  that  the  trial  court
               considered  the  sentencing  principles  and  all  relevant  facts  and  circumstances.Ó  State  v.  Ashby,  823
               S.W.2d  166,  169  (Tenn.  1991). In  conducting  a  de  novo  review  of  a  sentence,  this  court  must
               consider  (a)  any  evidence  received  at  the  trial  and/or  sentencing  hearing,  (b)  the  presentence  report,
               (c)  the  principles  of  sentencing,  (d)  the  arguments  of  counsel  relative  to  sentencing  alternatives,  (e)
               the  nature  and  characteristics  of  the  offense,  (f)  any  mitigating  or  enhancement  factors,  (g)  any
               statements  made  by  the  accused  in  his  own  behalf,  and  (h)  the  accused's  potential  or  lack  of  potential
               for  rehabilitation  or  treatment. Tenn.  Code  Ann.  ¤¤  40-35-103,  -210; State  v.  Scott,  735  S.W.2d
               825,  829  (Tenn.  Crim.  App.  1987).
                       The  burden  is  on  the  defendant  to  demonstrate  that  she  is  a  suitable  candidate for  full
               probation. State  v.  Goode,  956  S.W.2d  521,  527  (Tenn.  Crim.  App.  1997);  State  v.  Boggs,  932
               S.W.2d  467,  477  (Tenn.  Crim.  App.  1996);  see  Tenn.  Code  Ann.  ¤  40-35-303(b)  (1997). In  order
               to  meet  this  burden,  the  defendant  Òmust  demonstrate  that  probation  will  Ôsubserve  the  ends  of
               justice  and  the  best  interest  of  both  the  public  and  the  defendant.ÕÓ State  v.  Bingham,  910  S.W.2d
               448,  456  (Tenn.  Crim.  App.  1995)  (quoting  State  v.  Dykes,  803  S.W.2d  250,  259  (Tenn.  Crim.  App.
               1990)). There  is  no  bright  line  rule  for  determining  when  a  defendant  should  be  granted  probation.
               Bingham, 910 S.W.2d at 456.  Every  sentencing decision necessarily  requires a case-by-case
               analysis. Id. Factors  to  be  considered include  the  circumstances  surrounding  the  offense,  the
               defendantÕs  criminal  record,  the  defendantÕs  social  history and present  condition,  the  need  for
               deterrence,  and  the  best  interest  of  the  defendant  and  the  public. Goode,  956  S.W.2d  at  527. Also
               relevant  is  whether  a  sentence  of  probation  would  unduly  depreciate  the  seriousness  of  the  offense.
               See  State  v.  Davis,  940  S.W.2d  558,  559  (Tenn.  1997);  Bingham,  910  S.W.2d  at  456. ÒDenial  of
               probation  may  be  based  solely  upon  the  circumstances  of  the  offense  when  they  are  of  such  a  nature
               as  to  outweigh  all  other  factors  favoring  probation.Ó Id. 



                                                                -8- A  trial  court may  sentence  a  defendant  to  a  period  of  confinement  upon  a  finding  that
               confinement  Òis  necessary  to  avoid  depreciating  the  seriousness  of  the  offense  or  confinement  is
               particularly  suited  to  provide  an  effective  deterrence  to  others  likely  to  commit  similar  offenses[.]Ó
               Tenn.  Code  Ann.  ¤  40-35-103(1)(B)  (1997);  see  Ashby,  823  S.W.2d  at  169. Such  a  finding  was
               implicit  in  the  trial  courtÕs  ruling  in  this  case. The  defendant  is  correct  in  stating  that  Ò[i]n  order  to
               deny  an  alternative  sentence  based  on  the  seriousness  of  the  offense,  Ôthe  circumstances  of  the
               offense  as  committed  must  be  especially  violent,  horrifying,  shocking,  reprehensible,  offensive,  or
               otherwise  of  an  excessive  or  exaggerated  degree,Õ  and  the  nature  of  the  offense  must  outweigh  all
               factors  favoring  a  sentence  other  than  confinement.Ó Bingham,  910  S.W.2d  at  454  (quoting  State
               v.  Hartley,  818  S.W.2d  370,  374-75  (Tenn.  Crim.  App.  1991)). However,  Òcircumstances  that  do
               not  rise  to  the  level  required  to  justify  a  denial  of  any  alternative  sentence  may  nevertheless  justify
               a  denial  of  full  probation.Ó  State  v.  Thomas  Wayne  Shields,  No.  W2000-01524-CCA-R3-CD,  2002
               Tenn.  Crim.  App.  LEXIS  18,  at  *29  (Tenn.  Crim.  App.  Jan.  4,  2002)  (citing  Bingham,  910  S.W.2d
               at  454). Weighing  against  the  defendantÕs  lack  of  a  prior  criminal  record,  work  history,  family
               situation,  expressed  remorse,  and  emotional  state  was  the  fact  that  she  violated  a  position  of  public
               trust  in  the  criminal  court  clerkÕs  office  to  solicit  and  accept  bribes  from  individuals  who  were
               attempting  to  pay  their  court  costs  and  fines  in  order  to  get  their  driverÕs  licenses  reinstated. Under
               the  circumstances  presented  by  this  case,  we  cannot  conclude  that  the  trial  court  erred  in  denying  the
               defendant  full  probation. 

                                                        CONCLUSION

                       We  conclude  that  the  trial  court  did  not  abuse  its  discretion  in  determining  that  judicial
               diversion  would  be  inappropriate  in  this  case.  We  further  conclude  that,  in  light  of  the  serious  nature
               of  her  offense,  the  defendant  failed  to  meet  her  burden  of  demonstrating  her  suitability  for  full
               probation. Accordingly,  we  affirm  the  judgment  of  the  trial  court. 


                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                          Assigned  on  Briefs  June  19,  2002

                 JOHN  ROBERT  BENSON  v.  STATE  OF  TENNESSEE

                    Direct  Appeal  from  the  Circuit  Court  for  Bedford  County
                            No.  8659  Charles  Lee,  Judge


                    No.  M2001-02510-CCA-R3-PC  -  Filed  December  12,  2002


         The  petitioner  was  convicted  of  two  counts  of  attempted  first  degree  murder  and  three  counts  of
         reckless  endangerment  and  received  an  effective  sentence  of  thirty  years.  On  direct  appeal,  this  court
         affirmed  the  petitionerÕs  convictions  and  sentence.  The  petitioner  now  contends  that  his  trial  counsel
         provided  ineffective  representation.  After  reviewing  the  record,  we  conclude  that  the  petitioner  has
         failed  to  meet  his  burden  of  demonstrating  that  his  trial  counsel  provided  ineffective  assistance.
         Accordingly,  we  affirm  the  denial  of  the  petition  for  post-conviction  relief.

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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  ROBERT  W.
         WEDEMEYER,  JJ.,  joined.
         Larry  F.  Wallace,  Jr.,  Shelbyville,  Tennessee,  for  the  appellant,  John  Robert  Benson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  John  H.  Bledsoe,  Assistant  Attorney  General;
         William  Michael  McCown,  District  Attorney  General;  and  Robert  Crigler,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee. 

                                   OPINION
                                    FACTS

             On  March  7,  1998,  the  petitioner,  John  Robert  Benson,  was  convicted  by  a  jury  of  two  counts
         of  attempted  first  degree  murder  and  three  counts  of  reckless  endangerment.  On  April  20,  1998,  the
         trial  court  sentenced  him  as  a  Range  I  offender  to  concurrent  sentences  of  twenty-two  years  for  the
         attempted  first  degree  murder  convictions,  and  as  a  Range  II,  multiple  offender  to  four  years  for  each
         reckless  endangerment  conviction.  The  petitioner  received  concurrent  terms  for  two  of  the  three
         reckless  endangerment  convictions,  and  was  ordered  to  serve  the  reckless  endangerment  sentences
         consecutively  to  the  attempted  first  degree  murder  sentences,  for  an  effective  sentence  of  thirty  years.
         On  direct  appeal  to  this  court,  he  challenged  the  sufficiency  of  the  evidence  to  sustain  his  convictions



                           1  See  Benson,  2000  WL  19535,  at  **1-5,  for  a  more  detailed  version  of  the  facts  of  the  shooting  and  trial.

                                                                          -2- and  the  length  of  his  sentence. This  court  denied relief. See  State  v.  John  Robert  Benson,  No.
                  01C01-9806-CC-00239,  2000  WL  19535,  at  *1  (Tenn.  Crim.  App.  Jan.  13,  2000),  perm.  to  appeal
                  denied  (Tenn.  Oct.  16,  2000).
                           The petitioner then filed a pro se  petition for post-conviction relief, alleging ineffective
                  assistance  of  trial  counsel. Counsel  was  appointed,  and  an  amended  petition  was  filed. After  an
                  evidentiary  hearing,  the  post-conviction  court  denied  the  petition. A  timely  notice  of  appeal  was
                  filed. Although  a  number  of  claims  of  ineffective  assistance  were  asserted  in  his  pro  se  petition,
                  amended  petition,  and  at  the  post-conviction  hearing,  the  petitioner  confines  himself  on  appeal  to
                  arguing  that  trial  counsel  provided  ineffective  assistance  by  failing  to  move  for  a  mistrial  based  on
                  an  incident  of  pretrial  ÒmisidentificationÓ  of  the  petitioner. 

                                                                         Trial

                           The  facts  surrounding  the  petitionerÕs  convictions  involve  a  shooting  that  occurred  at  the
                  Shelbyville,  Tennessee,  apartment of Jenine  McBride  in  the  early  morning  hours  of  August  17,
                  1997.  1 Present  at  the  apartment  were  Jenine  McBride,  James  McBride,  Andrew  Rankins,  Trishia
                  Pease,  and  Ashley  Benson. Ashley  Benson,  who  was  twenty  months  old  at  the  time,  is  the  daughter
                  of  the  petitioner  and  Trishia  Pease. The  relationship  between  the  two  ended  about  a  month  before
                  the  shooting,  and  Pease  had  since  become  romantically  involved  with  Rankins. 
                           At  trial,  Rankins  testified  that,  sometime  before  sunrise,  he  heard  gunshots  coming  from  the
                  front  of  the  apartment. Rankins  then  proceeded  to  the  living  room  where  he  observed  a  man  armed
                  with  a  rifle  and  wearing  a  stocking  to  cover  his  face. After  unsuccessfully  attempting  to  stop  the
                  intruder  from  entering  the  house,  Rankins  grabbed  the  barrel  of  the  rifle  and  both  men  fell  to  the
                  floor. During  the  ensuing  struggle,  the  intruderÕs  face  was  exposed. Rankins  testified  that,  despite
                  the  darkness  of  the  room,  he  was  able  to  observe  the  intruderÕs  face  ÒclearlyÓ  for  about  two  minutes
                  before  he  fled  the  apartment. According  to  his  testimony,  Rankins  recognized  the  intruder  as  the
                  petitioner  and  told  him  during  the  struggle,  ÒYou  could  have  killed  your  baby.Ó Id.  at  *1. Although
                  unable  to  positively  identify  the  intruder,  James  McBride  testified  that  the  petitionerÕs  ÒstockyÓ  build
                  matched  that  of  the  intruder. Id.  at  *3.
                           Members  of  the  Shelbyville  Police  Department  arrived  shortly  thereafter  and  interviewed  the
                  witnesses  at  the  apartment. Some  of  those  questioned  stated  that  there  may  have  been  two  intruders.
                  Rankins  indicated  that  he  believed  the  gunman  to  be  the  petitioner,  and  Pease  gave  the  police  a
                  description  of  the  petitionerÕs  car. 
                           Approximately  fifteen  minutes  later,  the  police  apprehended  Timmy  Reese,  the  petitionerÕs
                  cousin,  and  brought  him  to  the  apartment  for  a  Òshow-upÓ  identification. The  testimony  differs  as
                  to  what  occurred  next. Rankins  testified  that,  although  he  was  initially  unsure  whether  Reese  was
                  the  intruder,  he  stated,  ÒNo,  thatÕs  not  the  guyÓ  after  Pease  explained  that  Reese  was  the  petitionerÕs



                                                                -3- cousin. Id.  at  *2. Officer  Trey  Clanton  was  present  during  the  identification  and  testified  that
               Rankins  looked  at  Reese  and  said,  ÒIÕm  not  sure  if  this  is  himÓ  and  then,  ÒNo,  itÕs  not  him.Ó Id.  at
               *4. Pease  testified,  however,  that  Rankins  affirmatively  identified  Reese  as  the  intruder  before
               learning  that  the  suspectÕs  name  was  Timmy  Reese.  It  was  only  then,  Pease  testified,  that  Rankins
               claimed  that  Reese  was  Ònot  the  guy.Ó It  is  this  ÒmisidentificationÓ  that  forms  the  factual  basis  of
               the  petitionerÕs  appeal. 
                       Approximately  ten  minutes  later,  the  petitioner,  who  lived  in  Fayetteville,  was  apprehended
               in  Shelbyville  in  his  car  a  few  blocks  away  from  the  scene  of  the  shooting.  Rankins  and  Pease  were
               brought  to  the  site  of  the  arrest  and,  according  to  Officer  Clanton,  Rankins  immediately  identified
               the  petitioner  as  the  shooter  exclaiming,  ÒThis  is  the  man  that  was  inside  the  house.Ó Id. At  trial,
               Rankins  again  identified  the  petitioner  as  the  gunman,  testifying  that  he  was  ÒpositiveÓ  and  ÒcertainÓ
               of  the  identification. Id.  at  *2.
                       At  trial,  the  petitioner  denied  any  participation  in  the  shooting,  and  his  sister  testified  that  he
               was with  her  the  night  before  the  shooting. According  to  her  testimony,  they  returned  to her
               apartment,  she  went  to  bed  by  4:00  a.m.,  and,  sometime  between  6:00  and  6:30  a.m.,  the  petitioner
               woke  her  to  say  that  he  was  leaving. 

                                                      Evidentiary  Hearing

                       Three witnesses testified at the evidentiary hearing:  two investigators for the public
               defenderÕs  office  and  the  assistant  district  public  defender  who  represented  the  petitioner  at  trial.
               Only  trial  counselÕs  testimony  is  relevant  to  the  issue  raised  on  appeal.  The  petitioner  did  not  testify
               on  his  behalf  at  the  evidentiary  hearing.
                       In  the  opinion  of  trial  counsel,  there  was,  in  fact,  a  misidentification. He  testified  that  the
               State  failed  to  give  notice  of  any  misidentification  although  it  was  exculpatory  evidence  which
               should  have  been  produced. Apparently,  the  trial  judge  had  asked  trial  counsel  if  he  was  going  to
               move  for  a  mistrial  in  light  of  the  StateÕs  failure  to  produce  evidence  of  the  misidentification.
               Explaining  why  he  did  not  move  for  a  mistrial,  trial  counsel  testified: 
                              I  think  the  Judge  made  that  offer  to  me. But  I  think  he  also  said
                              something  to  the  effect  you  canÕt  have  your  cake  and  eat  it,  too. He
                              was  asking  that  because  the  State  had  technically  failed  to  comply
                              with  discovery  on  the  misidentification  by  Andrew  Rankins. That
                              was  something  I  was  fully  informed  of  through  interviews  with  Tricia
                              [sic]  Pease. I  knew  full  well  what  had  happened  or  what  he  was
                              going  to  say  happened. So  it  would  have  been  a  little  hard  to  say
                              Judge, here is some exculpatory evidence.  We would like an
                              opportunity  to  explore  that  when  I  was  better  informed  about  it  than
                              probably  the  State  was. So  I  guess  if  I  had  moved  for  a  mistrial  and
                              the  Judge  had  granted  it,  that  would  have  given  the  State  a  greater



                                                                -4- period  of  time  to  do  damage  control  on  that  misidentification  than
                              forging  ahead  at  trial. I  didnÕt  think  it  was  wise  at  that  time  [to  move
                              for  a  mistrial]  because  I  think  I  thought  we  had  the  upper  hand. We
                              had  knowledge  of  misidentification. I  donÕt  think  [the  State]  did. 
                       Trial  counsel  has  been  licensed  to  practice  law  since  1991,  and  most  of  his  practice  has
               consisted  of  criminal  defense  work. Explaining  that  the  element  of  surprise  is  Ò[o]ne  of  the  few
               advantages  the defense has,Ó he testified that this was a calculated tactical decision aimed at
               precluding  the  State  from  using  their  identification  evidence. Additionally,  he  testified  that  his
               strategy  for  trial  was  to  highlight  the  deficiencies  with  regard  to  the  police  departmentÕs  investigation
               of  the  shooting.
                       At  the  conclusion  of  the  hearing,  the  post-conviction  court  denied  the  petition,  finding  that
               the  petitioner  had  failed  to  carry  his  burden  of  demonstrating  ineffective  assistance  of  counsel.
               Specifically, the post-conviction court found that trial counsel Òexercised more than adequate
               judgment  in  his  presentation  of  the  [petitionerÕs]  proofÓ  and  performed  better  Òthan  anyone  could
               have  expectedÓ  in  light  of  the  StateÕs  Òoverwhelming  case  against  the  [petitioner].Ó

                                                           ANALYSIS

                       The  sole  issue  raised  on  appeal  is  whether  the  conduct  of  the  petitionerÕs  trial  counsel  was
               within  the  standard  demanded  of  competent  defense  counsel.  Specifically,  the  petitioner  asserts  that
               his  trial  counselÕs  performance  was  deficient  because  he  chose  not  to  move  for  a  mistrial  based  on
               the  pretrial  incident  of  Òmisidentification.Ó 

                                            I. Post-Conviction  Standard  of  Review

                       The  post-conviction  petitioner  bears  the  burden of proving  his  allegations  by  clear  and
               convincing  evidence. See  Tenn.  Code  Ann.  ¤  40-30-210(f). When  an  evidentiary  hearing  is  held
               in  the  post-conviction  setting,  the  findings  of  fact  made  by  the  court  are  conclusive  on  appeal  unless
               the  evidence  preponderates  against  them.  See  Tidwell  v.  State,  922  S.W.2d  497,  500  (Tenn.  1996).
               Where  appellate  review  involves  purely  factual  issues,  the  appellate  court  should  not  reweigh  or
               reevaluate  the  evidence.  See  Henley  v.  State,  960  S.W.2d  572,  578  (Tenn.  1997).  However,  review
               of  a  trial  courtÕs  application  of  the  law  to  the  facts  of  the  case  is  de  novo,  with  no  presumption  of
               correctness.  See  Ruff  v.  State,  978  S.W.2d  95,  96  (Tenn.  1998).  The  issues  of  deficient  performance
               of  counsel  and  possible  prejudice  to  the  defense  are  mixed  questions  of  law  and  fact  and,  thus,
               subject  to  de  novo  review  by  the  appellate  court. See  State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.
               1999).

                                             II. Ineffective  Assistance  of  Counsel

                       To  establish  a  claim  of  ineffective  assistance  of  counsel,  the  petitioner  has  the  burden  to  show
               both that trial counselÕs performance was deficient, and that counselÕs deficient performance



                                                                -5- prejudiced  the  outcome  of  the  proceeding.  Strickland  v.  Washington,  466  U.S.  668,  687,  104  S.  Ct.
               2052,  2064,  80  L.  Ed.  2d  674  (1984);  see  also  State  v.  Taylor,  968  S.W.2d  900,  905  (Tenn.  Crim.
               App.  1997)  (noting  that  same  standard  for  determining  ineffective  assistance  of  counsel  that  is
               applied  in  federal  cases  also  applies  in  Tennessee). The  Strickland  standard  is  a  two-prong  test:
                              First, the defendant must show that counselÕs performance was
                              deficient. This  requires  showing  that  counsel  made  errors  so  serious
                              that  counsel  was  not  functioning  as the  ÒcounselÓ  guaranteed  the
                              defendant  by  the  Sixth  Amendment. Second,  the  defendant  must
                              show  that  the  deficient  performance  prejudiced  the  defense. This
                              requires  showing  that  counselÕs  errors  were  so  serious  as  to  deprive
                              the  defendant  of  a  fair  trial,  a  trial  whose  result  is  reliable.
               466  U.S.  at  687,  104  S.  Ct.  at  2064. 
                       The  deficient  performance  prong  of  the  test  is  satisfied  by  showing  that  ÒcounselÕs  acts  or
               omissions  were  so  serious  as  to  fall  below  an  objective  standard  of  reasonableness  under  prevailing
               professional  norms.Ó  Goad  v.  State,  938  S.W.2d  363,  369  (Tenn.  1996)  (citing  Strickland,  466  U.S.
               at  688,  104  S.  Ct.  at  2065;  Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.  1975)).  The  prejudice  prong
               of  the  test  is  satisfied  by  showing  a  reasonable  probability,  i.e.,  a  Òprobability  sufficient  to  undermine
               confidence  in  the  outcome,Ó  that  Òbut  for  counselÕs  unprofessional  errors,  the  result  of  the  proceeding
               would  have  been  different.Ó  Strickland,  466  U.S.  at  694,  104  S.  Ct.  at  2068. 
                       Because both prongs of the test must be satisfied, a failure to show either deficient
               performance  or  resulting  prejudice  results  in  a  failure  to  establish  the  claim.  See  Henley,  960  S.W.2d
               at  580. For  this  reason,  courts  need  not  approach  the  Strickland  test  in  a  specific  order  or  even
               Òaddress  both  components  of  the  inquiry  if  the  defendant  makes  an  insufficient  showing  on  one.Ó
               466  U.S.  at  697,  104  S.  Ct.  at  2069;  see  also  Goad,  938  S.W.2d  at  370  (stating  that  Òfailure  to  prove
               either  deficiency  or  prejudice  provides  a  sufficient  basis  to  deny  relief  on  the  ineffective  assistance
               claimÓ).
                       On  appeal,  the  only  issue  raised  is  whether  trial  counsel  provided  ineffective  assistance  by
               failing  to  move  for  a  mistrial. At  the  evidentiary  hearing,  however,  the  petitioner  did  not  testify  or
               offer  an  instance  of  trial  counselÕs  alleged  inadequate  performance  or  any  resulting  prejudice.  Post-conviction 
                          petitions  and  hearings  are  governed  by  the  Post-Conviction  Procedure  Act  of  1995  which
               mandates  that  Ò[t]he  petitioner  shall  appear  and  give  testimony  at  the  evidentiary  hearing  if  such
               petition  raises  substantial  questions  of  fact  as  to  events  in  which  the  petitioner  participatedÓ  and  that
               Ò[t]he  petitioner  shall  have  the  burden  of  proving  the  allegations  of  fact  by  clear  and  convincing
               evidence.Ó See  Tenn.  Code  Ann.  ¤  40-30-210(a),  (f). 
                       During  the  hearing,  the  petitioner  merely  questioned  his  defense  team  about  the  events  of  the
               trial  and  pretrial  investigation. In  matters  of  the  credibility  of  witnesses,  we  defer  to  the  judgment
               of  the  post-conviction  court. Michael  Russo  v.  State,  No.  M2000-00919-CCA-R3-PC,  2001  WL



                                                                -6- 605156,  at  *8  (Tenn.  Crim.  App.  June  5,  2001). Trial  counsel  defended  his  strategical  decision  to
               not  move  for  a  mistrial,  and  the  petitioner  presented  no  proof  to  the  contrary  to  demonstrate  deficient
               performance  or  prejudice. For  the  petitionerÕs  petition  to  succeed,  we  would  have  to  assume  that
               both  trial  counselÕs  performance  was  deficient  and  that  counselÕs  deficient  performance  prejudiced
               the  outcome  of  the  proceeding. See  Strickland,  466  U.S.  at  687,  104  S.  Ct.  at  2064. Neither
               assumption  is  justified  in  any  way. 
                       Applying the Strickland holding that we must Òevaluate the conduct from counselÕs
               perspective  at  the  timeÓ  the  decisions  had  to  be  made,  that  we  must  Òindulge  a  strong  presumption
               that  counselÕs  conduct  falls  within  the  wide  range  of  reasonable  professional  assistance,Ó  466  U.S.
               at  689,  104  S.  Ct.  at  2065,  and  that  in  challenging  counselÕs  conduct  a  petitioner  must  show  that  Òno
               competent  counsel  would  have  taken  the  action,Ó  Chandler  v.  United  States,  218  F.3d  1305,  1315
               (11th  Cir.  2000),  cert.  denied,  531  U.S.  1204,  121  S.  Ct.  1217,  149  L.  Ed.  2d  129  (2001),  we
               conclude  that  the  petitioner  has  failed  to  show  that  his  trial  counsel  did  not  perform  within  the  range
               of  competence  required  of  attorneys  in  criminal  cases.

                                                        CONCLUSION

                       Having  reviewed  the  entire  record  in  this  case,  we  conclude  that  the  petitioner  has  failed  to
               meet his burden of demonstrating that he was denied the effective assistance of counsel.
               Accordingly,  we  affirm  the  post-conviction  courtÕs  denial  of  the  petition. 


                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                              March  12,  2002  Session

                  STATE  OF  TENNESSEE  v.  WILLIAM  C.  BENTLEY

                   Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                          No.  2000-A-62 Seth  Norman,  Judge


                     No.  M2001-01521-CCA-R3-CD  -  Filed  June  19,  2002 


         Defendant,  William  C.  Bentley,  was  convicted  by  a  Davidson  County  jury  of  attempted  aggravated
         robbery.  In  this  appeal,  he  challenges  the  sufficiency  of  the  evidence  to  sustain  the  conviction,  and
         argues  that  the  trial  court  committed  reversible  error  by  admitting  hearsay  testimony. After  a
         thorough  review  of  the  record,  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  JOE  G.  RILEY  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         Lawrence  Wilson,  Nashville,  Tennessee,  for  the  appellant,  William  C.  Bentley.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Gill  Robert  Geldreich,  Assistant  Attorney
         General;  Victor  S.  Johnson,  III,  District  Attorney  General;  and  Shelli  Neal,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                 BACKGROUND

             On  July  10,  1999,  Joe  Jackson,  Andrew  Gardner,  Sr.,  Andrew  Gardner,  Jr.,  and  Jerry  Clay,
         Mr.  Gardner  Sr.Õs  son-in-law,  were  talking  while  standing  outside  Mr.  Gardner  Sr.Õs  funeral  home
         located  on  Buchanan  Street  in  Nashville.  During  the  conversation,  Defendant  suddenly  approached
         Mr.  Jackson,  brandishing  a  gun.  All  four  of  the  men  were  acquainted  with  Defendant,  who  owned
         a  market  across  the  street  from  Gardner,  Sr.Õs  funeral  home.  Without  warning,  Defendant  struck  Mr.
         Jackson  with  the  revolver,  rendering  two  blows  to  the  left  side  of  his  face.  Mr.  JacksonÕs  ear  and
         nose  began  to  bleed.  Mr.  Jackson  testified  that  Defendant  then  reached  into  his  left  pants  pocket,
         and  grabbed  approximately  sixty  dollars.  In  the  process  of  doing  so,  Defendant  ripped  Mr.  JacksonÕs
         pants  pocket.  Defendant  then  approached  Mr.  JacksonÕs  car  and  rummaged  through  the  passenger



                                                                -2- compartment. He  then  kicked  the  car,  denting  the  left  fender,  and  left. Mr.  Jackson  testified  that  as
               a  result  of  the  attack,  he  suffered  a  ruptured  ear  drum  and  is  unable  to  hear  out  of  his  left  ear. He
               further  stated  that  prior  to  the  attack,  he  and  Defendant  never  had  any  conflict. 
                       Mr.  Gardner,  Sr.,  Mr.  Clay,  and  Mr.  Gardner,  Jr.  corroborated  most  of  Mr.  JacksonÕs  account
               of  the  attack. Mr.  Gardner,  Sr.  testified  that  after  Defendant  hit  Mr.  Jackson,  he  intervened  and
               stated  to  Defendant,  Ò[d]o  not  hit  Mr.  Jackson  anymore.Ó He  then  witnessed  Defendant  grab  Mr.
               JacksonÕs  pants  pocket,  but  he  did  not  see  him  take  anything  out  of  the  pocket. Mr.  Gardner,  Sr.
               testified  that  he  was  a  friend  of  both  Defendant  and  Mr.  Jackson. Mr.  Gardner,  Jr.  testified  that  he
               witnessed  Defendant  approach  Mr.  Jackson  with  a  pistol  in  his  hand,  demanding  that  Mr.  Jackson
               pay  him  money  that  was  owed. However,  when  he  turned away, he  heard  a  loud  sound,  like
               someone  was  hit. When  he  looked  up,  Mr.  Jackson  was  bleeding. He  then  watched  as  Defendant
               approached  Mr.  JacksonÕs  car,  tore  off  the  antenna  and  dented  the  front  fender. He  also  witnessed
               Defendant  grab  Mr.  JacksonÕs  pants  pocket,  but  he  did  not  see  him  take  anything.  On  July  15,  1999,
               Mr.  Jackson  swore  out  a  warrant  against  Defendant  for  armed  robbery. Detective  James  Arendahl,
               who  transcribed  the  complaint,  stated  that  the  victim  admitted  that  he  had  previously  spent  $118.00
               on  supplies  for  a  plumbing  repair  at  one  of  DefendantÕs  homes.  However,  he  was  unable  to  complete
               the  project. 
                       Defendant  testified  that  when  he  arrived  at  his  store  on  July  10,  1999,  he  saw  a  group  of  four
               men,  including  Mr.  Jackson,  Mr.  Gardner,  Sr.  and  Mr.  Gardner,  Jr.,  standing  in  Mr.  Gardner,  Jr.Õs
               driveway,  located  across  the  street  from  his  store. He  denied  seeing  Mr.  Clay. Instead,  he  stated
               that  John  Smith  was  the  fourth  member  of  the  group. He  then  parked  his  car  and  approached  Mr.
               Jackson,  who  owed  him  money. He  explained  that  two  years  earlier,  he  had  paid  Mr.  Jackson
               $225.00  to  perform  plumbing  work,  but  that  the  work  was  never  completed  and  Mr.  Jackson  did  not
               return  the  money. They  argued  and  although  he  swung  at  Mr.  Jackson,  he  missed  him. Then,  Mr.
               Gardner,  Sr.  stepped  in  and  stated,  Òlet  him  [Mr.  Jackson]  alone.Ó Defendant  then  approached  Mr.
               JacksonÕs  car,  looking  for  a  stick  or  other  weapon  on  the  ground. Finding  none,  he  looked  inside
               the  car,  intending  to  confiscate  Mr.  JacksonÕs  keys  until  the  debt  was  paid.  Unable  to  find  the  keys,
               he  then  walked  away. He  denied  touching  Mr.  Jackson  or  taking  any  money  from  him. He  further
               denied  kicking  Mr.  JacksonÕs  car. On  cross  examination  Defendant  admitted  that  he  always  carries
               a  revolver  in  his  front  pocket,  primarily  because  he  has  been  robbed  in  his  store  several  times. 
                       Mr.  Percy  Jones,  DefendantÕs  employee,  testified  that  prior  to  the  trial,  Mr.  Gardner,  Sr.
               stated  that  he  did  not  see  Defendant  with  a  gun  during  his  altercation with Mr.  Jackson. Mr.
               Gardner,  Sr.,  offering  rebuttal  testimony  for  the  State,  denied  making  that  statement  to  Mr.  Jones.
                       Following  a  jury  trial,  Defendant  was  acquitted  of  the  offense  of  aggravated  robbery,  but  was
               convicted  of  the  lesser-included  offense  of  attempted  aggravated  robbery. He  received  a  three  year
               suspended  sentence,  with  three  years  of  supervised  probation,  and  was  ordered  to  pay  restitution. 



                                                                -3- ANALYSIS

                       Defendant  argues  that  Òthe  trial  judge  err[ed]  in  holding  that  the  State  had  made  a  prima  facie

               case  of  all  of  the  elements  of  the  predicate  offense.Ó Essentially,  Defendant  is  challenging  the
               sufficiency  of  the  evidence  to  sustain  the  conviction  of  attempted  aggravated  burglary.  We  disagree.
                       The  burden  rests  with  Defendant  to  prove  that  the  evidence  is  insufficient  to  support  the
               verdict  returned  by  the  trier  of  fact. See  State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982).  We
               must  review  the  evidence  in  the  light  most  favorable  to  the  prosecution  to  determine  if  Òany  rational
               trier  of  fact  could  have  found  the  essential  elements  of  the  crime  beyond  a  reasonable  doubt.Ó State
               v.  Keough,  18  S.W.3d  175,  180-81  (Tenn.  2000)  (quoting  Jackson  v.  Virginia,  443 U.S.  307,  319,
               99  S.Ct.  2781,  61  L.Ed.2d  560  (1979)). A  guilty  verdict  in  criminal  actions  shall  be  set  aside  on
               appeal  only  if  the  evidence  is  insufficient  to  support  the  findings  by  the  trier  of  fact  of  guilt  beyond
               a  reasonable  doubt. Tenn.  R.  App.  P.  13(e). 
                       The  State,  on  appeal,  is  entitled  to  the  strongest  legitimate  view  of  the  evidence  contained
               in  the  record  as  well  as  all  reasonable  and  legitimate  inferences  which  may  be  drawn  therefrom.  See
               Keough,  18  S.W.2d  at  181  (citing  State  v.  Bland,  958  S.W.2d  651,  659  (Tenn.  1997));  State  v.
               Harris,  839  S.W.2d  54,  75  (Tenn.  1992);  State  v.  Herrod,  754  S.W.2d  627,  632  (Tenn.  Crim.  App.
               1988)).  Questions  concerning  witnessesÕ  credibility,  the  weight  and  value  to  be  given  the  evidence,
               and all factual issues are resolved by the trier  of fact; the evidence will not be reweighed or
               reevaluated.  See  State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978);  State  v.  Pappas,  754  S.W.2d
               620,  623  (Tenn.  Crim.  App.  1987). ÒA  guilty  verdict  by  the  jury,  approved  by  the  trial  court,
               accredits  the  testimony  of  the  witnesses  for  the  State  and  resolves  all conflicts  in  favor  of  the
               prosecutionÕs  theory.Ó Bland,  958  S.W.2d  at  659. The  standard  for  appellate  review  is  the  same
               whether  the  conviction  is  based  upon  direct  evidence,  circumstantial  evidence,  or  a  combination  of
               both. See  State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990).
                       Defendant  contends  that  the  State  failed  to  prove  that  he  attempted  a  Òtheft,Ó  an  essential
               component  of  robbery  and  thus  attempted  aggravated  robbery,  because  a  Òtheft  does  not  occur  until
               the  defendant  deprive[s]  the  owner  of  the  property.Ó Specifically,  he  claims  that  because  Mr.
               Jackson  owed  him  money,  he  was  the  rightful  owner  of  the  money  allegedly  stolen,  not  Mr.  Jackson.
                       Aggravated  robbery  is  the  intentional  or  knowing  theft  of  property  from  the  person  of  another
               by  violence  or  putting  the  person  in  fear,  and  accomplished  with  a  deadly  weapon,  or  by  display  of
               any  article  used  or  fashioned  to  lead  the  alleged  victim  to  reasonably  believe  it  to  be  a  deadly
               weapon. See  Tenn.  Code  Ann.  ¤¤  39-13-401(a),  402(a)  (1997). An  attempt  is  committed  when:
                       [a]  person  .  .  .  acting  with  the  kind  of  culpability  otherwise  required  for  the  offense:
                              (1)  Intentionally  engages  in  action  or  causes  a  result  that  would  constitute  an
                       offense  if  the  circumstances  surrounding  the  conduct  were  as  the  person  believes
                       them  to  be;



                                                                -4- (2)  Acts  with  intent  to  cause  a  result  that  is  an  element  of  the  offense,  and
                       believes  the  conduct  will  cause  the  result  without  further  conduct  on  the  personÕs
                       part;  or 
                              (3)  Acts  with  intent  to  complete  a  course  of  action  or  cause  a  result  that  would
                       constitute  the  offense,  under  the  circumstances  surrounding  the  conduct  as  the  person
                       believes them to be, and the conduct constitutes a substantial step toward the
                       commission  of  the  offense.
                              (b) Conduct  does  not  constitute  a  substantial  step  under  subdivision  (a)(3)
                       unless  the  person's  entire  course  of  action  is  corroborative  of  the  intent  to  commit  the
                       offense
               Tenn.  Code  Ann.  ¤  39-12-101(a)  (1997).
                       Likewise,  theft occurs when Òwith intent  to deprive the owner of property, the person
               knowingly  obtains  or  exercises  control  over  the  property  without  the  owner's  effective  consent.Ó 
               Tenn.  Code  Ann.  ¤  39-14-103  (1997). Ò[T]heft  is  an  offense  against  the  legal  title  or  ownership  of
               the  property.Ó State  v.  Ralph,  6  S.W.3d  251,  255  (Tenn.  1999). An  owner,  in  the  context  of  a  theft
               case,  is  defined  as  Òa  person,  other  than  the  defendant,  who  has  possession  of  or  any  interest  other
               than  a  mortgage,  deed  of  trust  or  security  interest  in  property,  even  though  that  possession  or  interest
               is  unlawful  and  without  whose  consent  the  defendant  has  no  authority  to  exert  control  over  the
               property[.]Ó Tenn.  Code  Ann.  ¤  39-11-106(26)  (1997).
                       We  find  that  evidence  was  sufficient  to  prove  that  Defendant  attempted  to  commit  aggravated
               robbery. Clearly,  the  proof  established  Mr.  JacksonÕs  ownership  and  control  of  the  money  at  issue.
               Mr. Jackson testified that Defendant took approximately sixty dollars from his pocket.  The
               evidence,  in  the  light  most  favorable  to  the  State,  clearly  showed  that  Defendant  assaulted  Mr.
               Jackson with a weapon, and then, without Mr. JacksonÕs consent, took the money from his
               possession. Thus,  because  there  was  sufficient  evidence  that  the  offense  of  aggravated  robbery  was
               completed,  we  find  that  the  evidence  was  also  sufficient  to  sustain  DefendantÕs  conviction  for
               attempted  aggravated  robbery. Defendant  is  not  entitled  to  relief  on  this  issue.
                       Next, Defendant argues that the trial court committed reversible error by allowing
               inadmissible  hearsay  testimony  at  trial. Specifically,  Defendant  contends  that  the  trial  court  erred
               by  allowing  Joe  Jackson  to  testify  that  Mr.  Gardner,  Sr.  told  Defendant  to  stop  hitting  the  victim.
                       During  the  direct  testimony  of  Mr.  Jackson,  the  victim  in  this  case,  the  following  exchange
               occurred: 
                       Counsel:             Now,  after  he  hit  you  did  he  say  anything  else  to  you? 
                       A:                    No  maÕam. When  Andrew  Gardner  and  his  son  got  in  it  and
                                              Andrew  Gardner  said,  ÒIf  you  hit  him  anymore  .  .  . 



                                                                -5- Mr.  Wallace,  Jr.:     Objection,  Your  Honor,  please.
                       A:                    He  said,  ÒIf  you  hit  him  anymore,Ó  he  said,  ÒIÕll  .  .  . 
                       Mr.  Wallace,  Jr.:     I  object  to  hearsay. HeÕs  saying  what  somebody  else  said.
                       Court:                ItÕs  not  hearsay  if  the  defendant  is  standing  there,  sir.
                       Mr.  Wallace,  Jr.:     I thought he said Mr., excuse me, I thought he  said  Mr.
                                              Gardner  was  saying  this.
                       Court:                He  did,  but  it  was  in  the  presence  of  the  defendant.  Go  ahead.
                       A:                    Andrew  Gardner  said,  ÒIf  you  hit  him  anymore,Ó  he  said,  ÒI
                                              will  do  something  to  you.Ó He  said,  ÒThe  man  ainÕt  said
                                              nothing,Ó  he  said,  ÒSpoony,  you  go  on.Ó  He  said,  ÒYou  come
                                              up  in  my  yard  and  jump  on  this  man  for  nothing.Ó And  by
                                              that  time  Andrew  Gardner,  Jr.  said,  ÒWait  a  minute,  Spoony,
                                              donÕt  you  hit  that  man  no  more,Ó  he  said,  Òthat  manÕs  not
                                              bothering  nobody,Ó  he  said,  Òwait  a  minute.Ó
                       The  State  concedes  that  the  foregoing  statement  was  hearsay. However,  the  State  maintains
               that it was not reversible error to admit the statement because it was Òcorroborated by other
               non-hearsay  testimony.Ó Furthermore,  the  State  contends  that  the  statement  is  admissible  under  the
               excited  utterance exception to the hearsay rule as Òa statement relating to a startling event or
               condition  made  while  the  declarant  was  under  the  stress or  excitement  caused  by  the  event  or
               condition.Ó See  Tenn.  R.  Evid.  803(2). Finally,  the  State  argues  that  even  if  the  statement  was
               admitted  in  error,  it  was  harmless  error  because  the  statement  does  not  Òaffirmatively  appear  to  have
               affected  the  result  of  the  trial.Ó 
                       We  find  that  any  error  in  admitting  the  hearsay  testimony  was  harmless. The  trial  court
               admitted the statement on the ground that it was non-hearsay because it was uttered in the
               defendant's  presence. This  Court  has  specifically  rejected  this  analysis. See  State  v.  Venable,  606
               S.W.2d  298,  301  (Tenn.  Crim.  App.  1980)  (citing  Laird  v.  State,  565  S.W.2d  38,  41  (Tenn.  Crim.
               App.  1978)). While  the  trial  court  erred  by  admitting  the  hearsay  statement  on  this  ground,  we  find
               that  because  other  admissible  direct  evidence  was  similar  to  the  hearsay  testimony,  the  error  was
               harmless.  Mr. Gardner, Sr., who was friends with defendant and the victim, testified that he
               witnessed  Defendant  strike  Mr.  Jackson  with  a  weapon. Mr.  Gardner,  Sr.  further  testified  that  after
               Defendant  hit  Mr.  Jackson,  he  ordered  Defendant  to  Òlet  him  [Mr.  Jackson]  alone.Ó  Defendant  also
               testified that Mr. Gardner  said, Ò[l]et him alone.  AinÕt no use in you getting in no trouble.Ó
               Considering  this  evidence  and  the  entire  record,  we  cannot  find  that  the  admission  of  the  hearsay
               more  probably  than  not  affected  the  judgment  or  would  result  in  prejudice  to  the  judicial  process.



                                                                -6- See  Tenn.  R.  App.  P.  36(b). Nor  can  we  find  that  the  error  affirmatively  affected  the  result  of  the
               trial  on  the  merits. See  Tenn.  R.  Crim.  P.  52(a). Defendant  is  not  entitled  to  relief  on  this  issue. 

                                                        CONCLUSION

                       Accordingly,  the  judgment  of  the  trial  court  is  affirmed. 
                                                                     ___________________________________ 
                                                                     THOMAS  T.  WOODALL,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                          Assigned  on  Briefs  May  21,  2002

                   STATE  OF  TENNESSEE  v.  CARLOS  BIERNER

                    Direct  Appeal  from  the  Circuit  Court  for  Blount  County
                         No.  C-12530  D.  Kelly  Thomas,  Judge


                            No.  E2001-01857-CCA-R3-CD
                                September  13,  2002

         Defendant,  Carlos  Bierner,  was  charged  with  aggravated  sexual  battery.  After  his  trial  had
         commenced,  but  prior  to  its  conclusion,  Defendant  entered  a  plea  of  guilty  to  the  lesser  charge  of
         attempted  aggravated  sexual  battery,  a  Class  C  felony. In  accordance  with  the  negotiated  plea
         agreement,  Defendant  received  a  sentence  of  eight  years,  as  a  multiple  Range  II  offender,  with  the
         manner  of  service  to  be  determined  by  the  trial  court.  Following  a  sentencing  hearing,  the  trial  court
         denied  probation  or  any  other  form  of  alternative  sentencing  and  ordered  that  Defendant  serve  the
         eight  years  in  confinement,  at  thirty-five  percent  eligibility.  In  this  appeal,  Defendant  argues  that  the
         trial  court  erred  by  ordering  a  sentence  of  continuous  confinement.  We  affirm  the  judgment  of  the
         trial  court. 

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

         THOMAS  T.  WOODALL,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and
         NORMA  MCGEE  OGLE,  JJ.,  joined.
         Mack  Garner,  District  Public  Defender,  Maryville,  Tennessee  for  the  appellant,  Carlos  Bierner.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Helena  Walton  Yarbrough,  Assistant  Attorney
         General;  Michael  L.  Flynn,  District  Attorney  General;  and  William  R.  Reed,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                    FACTS

             The  twelve-year-old  victim  in  this  case,  E.F.,  lived  with  her  mother,  step-father,  and  two
         younger  brothers  during  the  week  and  spent  the  weekends  with  her  father,  Corey  Foster.  (The  minor
         victim  shall  be  referred  to  herein  by  her  initials.)  On  December  23,  1999,  during  a  visit  with  their
         father  for  the  holidays,  E.F.  and  her  eight-year-old  brother,  Grant,  spent  the  night  at  the  home  of  his
         girlfriend,  Nikki  Huffine.  Foster,  Huffine,  and  her  brother,  the  Defendant,  were  planning  to  attend



                                                                -2- a  Christmas  party  that  evening  at  the  End  Zone  Bar  and  Lounge. E.F.,  as  the  oldest  child,  was  to
               babysit  her  brother  along  with  HuffineÕs  two  daughters,  who  were  five  and  six  years  old. E.F.
               testified  at  trial  that,  prior  to  this  night,  she  had  met  Defendant  only  a  couple  of  times.
                       The  three  adults  departed  for  the  party  at  approximately  9:00  p.m.  and  returned  home  early
               the  next  morning,  at  2:30  a.m. Corey  Foster  testified  that  during  the  course  of  the  evening,  he,
               Huffine,  and  Defendant  had  consumed  approximately  ten  beers  each. Foster  claimed  that,  although
               he  could  feel  the  effects  of  the  alcohol,  he  was  not  disoriented  and  had  not  suffered  any  lapse  of
               memory  regarding  the  events  of  that  evening. According  to  Foster,  the  three  of  them  were  able  to
               converse,  walk,  and  function  in  their  normal  capacity  when  they  returned  home.  E.F.  and  her  brother
               were  asleep  on  the  couch  at  that  time;  HuffineÕs  two  daughters  were  in  their  bedroom. Foster  and
               Huffine  went  into  the  kitchen  and  talked  for  a  short  while.  Defendant  sat  on  the  couch  with  E.F.  and
               her  brother. Foster  came  out  of  the  kitchen,  awakened  Grant,  and  sent  him  to  sleep  in  the  spare  bed.
               He  instructed  E.F.  to  find  some  blankets  and  sleep  on  the  floor  in  the  girlsÕ  room. Defendant,  who
               was  still  sitting  on  the  end  of  the  couch  with  E.F.,  responded,  ÒNo,  sheÕll  be  all  right  right  [sic]  here.Ó
               So  Foster  covered  E.F.  with  a  blanket,  and  then  he  and  Huffine  went  to  bed. 
                       E.F.  testified  that  her  foot  was  sticking  out  from  underneath  the  blanket,  and  Defendant  began
               to  rub  it  once  her  father  left  the  room. In  response,  E.F.  sat  up  and  Defendant  kissed  her  on  the
               cheek. E.F.  laid  back  down. Within  a  few  minutes,  his  hands  moved  up  her  leg  to  her  inner  thigh.
               E.F.  was  wearing  jeans  and  a  T-shirt  at  the  time.  Defendant  whispered,  ÒShhh,Ó  and  then  unbuttoned
               and  unzipped  E.F.Õs  pants. E.F.  testified  that  Defendant  touched  her  Òprivate  part,Ó  but  his  hands
               stayed  outside  of  her  underwear. At  that  point,  E.F.  moved  to  the  far  end  of  the  couch,  and  then  left
               the  room  to  find  her  father. Foster  was  in  HuffineÕs  bedroom. When  she  told  him  what  happened,
               he  called  the  police. 
                       Foster  testified  that  when  he  opened  the  bedroom  door,  tears  were  streaming  down  E.F.Õs
               face  and  she  appeared  afraid.  Foster  wanted  to  confront  Defendant,  but  Huffine  pulled  him  back  into
               the  bedroom  and  said,  ÒIÕll  go  deal  with  this.Ó She  yelled  at  Defendant,  ÒCarlos,  what  are  you
               doing?Ó He  responded,  ÒIÕm  sorry.Ó Foster  promptly  called  E.F.Õs  mother  and  the  Blount  County
               SheriffÕs  Department. The  police  arrived  a  short  time  later  and  arrested  Defendant.
                       Defendant  was  charged  with  aggravated  sexual  battery. On  the  morning  of  the  second  day
               of  trial,  he  pled  guilty  to  the  lesser  offense  of  attempted  aggravated  sexual  battery. In  accordance
               with  the  plea  agreement,  Defendant  was  sentenced  to  eight  years,  with  the  manner  of  service  to  be
               determined  by  the  trial  court. 
                       At  the  sentencing  hearing,  Defendant  testified  that  he  was  twenty-five-years  old. In  1994,
               after  graduating  from  high  school,  he  enlisted  in  the  United  States  Army. In  1995,  Defendant  was
               arrested  and  convicted  of  four  felonies  in  the  United  States  Army  Court:  three  counts  of  distribution
               of  marijuana  and  one  count  of  Òillegal  distribution  of  other  dangerous  drug  (steroids).Ó Defendant
               was  sentenced  to  thirteen  months  in  confinement  and  forfeited some pay. Thereafter,  he  also
               received  a  Òbad  conductÓ  discharge. Defendant  claimed  that  he  was  convicted  of  simple  possession



                                                                -3- of  marijuana  in  Jefferson  County  in  2000,  for  which  he  received  a  sentence  of  11  months,  29  days
               probation.  (Defendant  admitted  during  the  sentencing  hearing  that  he  was  convicted  for  this  offense;
               the  conviction  appears  in  the  presentence  report  as  a  statement  by  Defendant  under  Òcomments,Ó
               rather  than  with  the  other  convictions.) He  claimed  that  he  was  in  jail  in  Jefferson  County  when  the
               indictment  was  returned  on  the  present  charge,  and  he  has  not  been  charged  with  any  offenses  in  the
               time  hence. Defendant  stated  that  he  has  been  employed  continuously  since  his  discharge  from  the
               Army.
                       Defendant  testified that he has had major problems with drugs and alcohol  during his
               lifetime. He  began  drinking  alcohol  at  age  six,  and  started  smoking  marijuana  when  he  was  fifteen
               years  old.  He claimed that, in the beginning, he only  smoked marijuana socially. His usage
               increased  over  time  and,  approximately  one  year  prior  to  sentencing,  he  was  using  the  drug  regularly.
               At  the  time  of  this  offense,  Defendant  was  consuming  one  case  of  beer  per  week  and  smoking
               marijuana  daily. However,  he  testified  that  he  had  since  stopped  drinking  and  smoking  marijuana
               to  ensure  that  Òthis  sort  of  thing  doesnÕt  happen  anymore.Ó 
                       As  for  the  events  which  lead  to  his  commission  of  the  offense,  Defendant  testified  that  he  had
               been  out  drinking  with  his  sister,  Huffine,  and  her  boyfriend,  Foster,  earlier  that  evening.  According
               to  Defendant, he was Òpretty well drunkÓ when they  came home, having  consumed  twelve to
               fourteen  beers  during  six  to  seven  hours. He  recalled  seeing  E.F.  and  her  brother  lying  on  the  couch
               when  they  entered his sisterÕs home.  He admitted that he had met  E.F. prior to the night he
               committed  this  offense,  and  that  he  was  Òpretty  sureÓ  that  she  was  under  the  age  of  thirteen. After
               E.F.Õs  brother  was  sent  to  bed,  he  and  E.F.  were  alone. Defendant  sat  down  on  the  opposite  end  of
               the  couch  from  E.F.  and  Òproceeded  to  fall  asleep.Ó But  before  he  did  so,  he  reached  over  and
               unbuttoned  E.F.Õs  pants. E.F.  then  got  up  off  the  couch  and  knocked  on  HuffineÕs  bedroom  door.
               Defendant  testified  that  he  did  not  recall  what  happened  afterward. He  stated  that  if  E.F.  had  not
               moved  from  the  couch,  he  would  have  stopped  and  nothing  else  would  have  happened. 
                       During cross-examination, Defendant testified that, in his opinion, this case had been
               Òsensationalized  or  carried  a  little  too  far.Ó He  stated  that  he  believed  unbuttoning  her  pants  was
               Òwrong,Ó  but  Òthat  was  the  extent  of  the  matter.Ó He  believed  that  Foster  was  somehow  behind  the
               charges  against  him  Òbecause  he  wants  my  sister  but  she  donÕt  want  him  and  I  got  caught  in  the
               middle  of  it.Ó  Defendant  denied  having  any  type  of  sexual  problem.  However,  he  stated  that  he  was
               willing  to  submit  to  treatment  or  counseling  for  sexual  behavior  and  drug  treatment  if  ordered  to  do
               so  as  part  of  his  sentence.
                       With  regard  to  the  crime  charged,  Defendant  denied  kissing  E.F.  on  the  cheek  and  that  he
               had  urged  her  to  remain  quiet. When  questioned  as  to  why  he  unbuttoned  E.F.Õs  jeans,  he  stated
               ÒIÕm  really  not  sure.Ó  He  testified  that  his  Òonly  goalÓ  was  to  unbutton  her  pants;  he  would  not  have
               gone  any  further  with  Òinappropriate  touching.Ó Defendant  admitted  that  he  was  fully  awake  when
               the  incident  occurred. However,  he  blamed  alcohol  for  his  conduct. 



                                                                -4- Defendant  acknowledged  that  he  had  a  four-year-old  daughter  and  that  the  mother  of  his  child
               was  fifteen  years  old  when  she  gave  birth.  When  asked  whether  he  wondered  what  had  attracted  him
               to  a  fifteen-year-old  girl,  he  replied,  ÒIÕve  wondered  about  it. But  I  really  havenÕt  thought  about  it,
               so  I  couldnÕt  answer  your  question.Ó  He  denied  having  an  unnatural  attraction  to  young  girls  or  that
               this  might  be  something  he  should  Òlook  into.Ó 
                       Defendant  testified  that  he  had  not  used  marijuana  during  the  six  or  seven  months  prior  to
               the  date  of  the  sentencing  hearing  (July  31,  2001).  The  State  pointed  out  that  this  claim  contradicted
               his  statements  to  the  probation  officer  during  the  presentence  interview  on  May  10,  2001  (that  he  had
               used  drugs  in  the  six  weeks  prior  to  the  interview). The  State  also  asked  Defendant  whether  he  had
               continued  to  use  drugs  on  a  daily  basis,  even  after  he  was  indicted  on  the  present  charge. Defendant
               answered  affirmatively,  but  stated  that  he  had  not  had  any  alcohol  for  approximately  one  year. He
               claimed  that  his  decision  to  abstain  had  nothing  to  do  with  the  instant  crime,  however;  he  simply
               believed  that  it  was  Òtime  to  stopÓ  because  he  was  young. He  said  that  the  continued  use  of  alcohol
               would  take  Òits  tollÓ  on  his  body,  and  he  Ò[did  not]  want  to  deal  with  that.Ó
                       Neither  the  victim  nor  her  family  testified  at  the  sentencing  hearing.  At  the  conclusion  of  the
               proceeding,  the  trial  court  found  that  Defendant  was  not  a  favorable  candidate  for  probation  or
               alternative  sentencing. Accordingly,  the  trial  court  ordered  that  Defendant  serve  his  sentence  in
               confinement based upon the following: (1) DefendantÕs criminal history was significant, (2)
               DefendantÕs  potential  for  rehabilitation  was  low,  as  evinced  by  the  fact  that  he  refused  to  accept
               responsibility  for  his  actions,  and  (3)  DefendantÕs  testimony  was  untruthful  and  lacked  candor.
               Consequently,  the  trial  court  sentenced  Defendant  to  serve  his  eight  year  sentence  in  confinement.

                                                           ANALYSIS

                       The  sole  issue  in  this  appeal  is  whether  the  trial  court  erred  by  ordering  Defendant  to  serve
               his  entire  sentence  in  the  Department  of  Correction. Defendant  contends  that  he  should  have
               received  probation  or  some  other  type  of  alternative  sentence,  i.e.,  supervision  in  a  community
               corrections  program. The  State  responds  that  the  record  adequately  supports  the  trial  courtÕs  denial
               of  any  form  of  alternative  sentencing. We  agree  with  the  State.
                       When  a  defendant  challenges  the  length,  range,  or  manner  of  service  of  a  sentence,  this  Court
               conducts  a  de  novo  review  of  the  record  with  a  presumption  that  the  determinations  made  by  the
               sentencing  court  are  correct. See  Tenn.  Code  Ann.  ¤¤  40-35-401(d),  40-35-402(d)  (1997). If  our
               review  Òreflects  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  that  the  trial  courtÕs  findings  are  adequately  supported  by  the  record,
               then  we  may  not  modify  the  sentence  even  if  we  would  have  preferred  a  different  result.Ó State  v.
               Pike,  978  S.W.2d  904,  926-27  (Tenn.  1998);  State  v.  Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.
               App.  1991). On  the  other  hand,  if  the  trial  court  failed  to  comply  with  the  statutory  guidelines,  our
               review  is  de  novo  without  a  presumption  of  correctness. State  v.  Poole,  945  S.W.2d  93,  96  (Tenn.
               1997). Having  concluded  that  the  trial  court  considered  the  sentencing  principles  and  all  relevant



                                                                -5- facts  and  circumstances  in  this  case,  our  review  of  DefendantÕs  sentencing  determination  is  de  novo
               with  a  presumption  of  correctness.
                       On  appeal,  the  defendant  has  the  burden  of  establishing  that  the  sentence  is  improper. See
               Tenn.  Code  Ann.  ¤  40-35-401(d),  Sentencing  Commission  Comments. In  determining  whether  the
               defendant  has  carried  this  burden,  this  Court  must  consider: (a)  the  evidence  adduced  at  trial  and
               the  sentencing  hearing;  (b)  the  presentence  report;  (c)  the  principles  of  sentencing;  (d)  the  arguments
               of  counsel;  (e)  the  nature  and  characteristics  of  the  offense;  and  (f)  the  defendantÕs  potential  or  lack
               of  potential  for  rehabilitation  or  treatment. Tenn.  Code  Ann.  ¤¤  40-35-103(5),  -210(b)  (1997).
                       Because  Defendant  agreed  to  be  sentenced  as  a  standard  Range  II  offender  convicted  of  a
               Class  C  felony,  he  is  not  entitled  to  the  statutory  presumption  in  favor  of  alternative  sentencing. See
               Tenn.  Code  Ann.  ¤  40-35-102(6)  (1997). We  are  mindful,  however,  that  the  determination  of
               whether  Defendant  is  entitled  to  an  alternative  sentence  and  whether  he  is  entitled  to  probation  are
               different  inquiries.  See  State  v.  Boggs,  932  S.W.2d  467,  477  (Tenn.  Crim.  App.  1996).  If  Defendant
               had  been  entitled  to  the  statutory  presumption  favoring  alternative  sentencing,  the  State  would  have
               the  burden  of  overcoming  the  presumption  with  evidence  to  the  contrary. State  v.  Ashby,  823
               S.W.2d  166,  169  (Tenn.  1991);  State  v.  Bingham,  910  S.W.2d  448,  455  (Tenn.  Crim.  App.  1995),
               overruled  on  other  grounds  (State  v.  Hooper,  29  S.W.3d  1  (Tenn.  2001));  see  Tenn.  Code  Ann.  ¤  40-
               35-102(6),  -103  (1997). With  regard  to  probation,  Defendant  bears  the  burden  of  establishing
               suitability,  even  if  he  had  been  entitled  to  the  statutory  presumption of  alternative  sentencing.
               Bingham,  910  S.W.2d  at  455;  see  Tenn.  Code  Ann.  ¤  40-35-303(b)  (1997). Therefore,  we  shall
               address  the  issues  concerning  probation  and  alternative  sentencing  separately.

                                                          I. Probation

                       To meet the burden of establishing suitability for full probation, a defendant must
               demonstrate  that  probation  will  Òsubserve  the  ends  of  justice  and  the  best  interest  of  both  the  public
               and  the  defendant.Ó  Bingham,  910  S.W.2d  at  456  (quoting  State  v.  Dykes,  803  S.W.2d  250,  259
               (Tenn.  Crim. App. 1990)).  The following criteria, while not controlling the discretion of the
               sentencing  court,  shall  be  accorded  weight  when  deciding  the  defendantÕs  suitability  for  probation:
               (1)  the  nature  and  circumstances  of  the criminal  conduct  involved,  Tenn.  Code  Ann.  ¤  40-35-
               210(b)(4);  (2)  the  defendantÕs  potential  or  lack  of  potential  for  rehabilitation,  including  the  risk  that
               during  the  period  of  probation  the  defendant  will  commit  another  crime,  see  Tenn.  Code  Ann.  ¤  40-
               35-103(5);  (3)  whether  a  sentence  of  full  probation  would  unduly  depreciate  the  seriousness  of  the
               offense,  Tenn.  Code  Ann. ¤  40-35-103(1)(B);  and  (4)  whether  a  sentence  other  than  full  probation
               would  provide  an  effective  deterrent  to  others  likely  to  commit  similar  crimes,  Tenn.  Code  Ann.  ¤
               40-35-103(1)(B). Id. 
                       A  defendant  is  eligible  for  full  probation  where  the  sentence  received  by  the  defendant  is
               eight  years  or  less,  subject  to  some  statutory  exclusions  not  relevant  here. See  Tenn.  Code  Ann.  ¤
               40-35-303(a). Although  full  probation  must  be  automatically  considered  by  the  trial  court  as  a
               sentencing  alternative  whenever  the  defendant  is  eligible,  Òthe  defendant  is  not  automatically  entitled



                                                                -6- to probation as a matter of law.Ó  Tenn. Code Ann. ¤ 40-35-303(b), Sentencing Commission
               Comments;  State  v.  Hartley,  818  S.W.2d  370,  373  (Tenn.  Crim.  App.  1991). Rather,  a  defendant
               seeking  full  probation  bears  the  burden  of  showing  that  the  sentence  imposed  is  improper  and  that
               probation  will  be  in  the  best  interest  of  the  defendant  and  the  public. State  v.  Baker,  966  S.W.2d
               429,  434  (Tenn.  Crim.  App.  1997). Generally,  this  Court  will  not  set  aside  findings  of  fact  made  by
               the  trial  court  after  an  evidentiary  hearing  unless  the  evidence  contained  in  the  record  preponderates
               against  the  trial  courtÕs  findings.  State  v.  Dick,  872  S.W.2d  938,  943  (Tenn.  Crim.  App.  1993);  State
               v.  Young,  866  S.W.2d  194,  197  (Tenn.  Crim.  App.  1992). This  deference  applies  to  a  trial  courtÕs
               findings  of  fact  in  the  context  of  sentencing  hearings. See  State  v.  Raines,  882  S.W.2d  376,  383
               (Tenn.  Crim.  App.  1994).
                       As  a  preliminary  matter,  we  observe  that  Defendant  is  eligible  for  probation  based  on  the  fact
               that  his  agreed-upon  sentence  is  eight  years  or  less. See  Tenn.  Code  Ann.  ¤  40-35-303(a)  (1997).
               The  record  reflects  that,  prior  to  sentencing Defendant,  the  trial  court  considered  the  evidence
               presented  during  the  trial  (which  was  incorporated  by  reference  at  the  StateÕs  request)  and  the
               sentencing  hearing,  in  addition  to  the  presentence  report  and  relevant  sentencing  factors.  Thereafter,
               the  trial  court  concluded  that  Defendant  should  serve  his  sentence  in  confinement  based  on  its
               findings that: (1) DefendantÕs criminal history is significant, (2) DefendantÕs potential for
               rehabilitation  is  poor,  and  (3)  DefendantÕs  testimony  was  untruthful  and  lacked  candor.
                       We  concur  with  the  trial  courtÕs  determination  that  Defendant  displayed  a  lack  of  potential
               for rehabilitation.  The record reflects that, rather than accept responsibility for his actions,
               Defendant  blamed  alcohol  for  his  criminal  conduct. Neither  did  he  appear  remorseful  or  repentant
               to  any  degree.  According  to  his  testimony  at  the  sentencing  hearing,  Defendant  maintained  that  this
               case  had  been  Òsensationalized  or  carried  a  little  too  far.Ó He  admitted  at  one  point  that  unbuttoning
               E.F.Õs  pants  was  Òwrong,Ó  but  his  next  statement,  that  this  Òwas  the  extent  of  the  matterÓ  clearly
               suggests  that  he  considered  the  charges  trivial  and/or  unimportant. In  spite  of  the  present  charge
               against  him  and  the  fact  that  he  caused  a  fifteen-year-old  girl  to  become  pregnant,  it  is  also  apparent
               that  Defendant  does  not  believe  that  he  has  any  type  of  sexual  problem.  ÒDefendantÕs  VersionÓ  of
               the  present  matter  is  contained  in  the  following  excerpt  from  the  presentence  report:
                       I  was  charged  with  aggravated  sexual  battery  which  I  believe  I  was  over  charged. I
                       pleaded  guilty  to  attempted  sexual  battery  through  my  own  conscience  &  advice  from
                       my  lawyer  because  it  was  probationary. I  donÕt  believe  I  did  anything  wrong  to  be
                       charged with  such  an  offense. It  may  sound  strange,  but  I  believe  her  father  is
                       pushing  this  so  hard  because  he  wants  my  sister  but  she  donÕt  want  him  and  I  got
                       caught  in  the  middle  of  it.
               (Emphasis  added.)  Clearly,  although  Defendant  admitted  once  that  what  he  did  was  wrong,  it  seems
               he  is  not  entirely  convinced  of  this  fact. It  also  appears  that  he  considers  himself  to  be  a  victim. He
               stated  that  Foster  was  somehow  behind  the  charges  against  him  for  reasons  unrelated  to  him  and  that
               he  merely  Ògot  caught  in  the  middle  of  it.Ó In  light  of  the  above,  we  find  DefendantÕs  potential  for
               rehabilitation  to  be  quite  poor. Because  he  generally  denies  responsibility  for  his  conduct  or  that  he



                                                                -7- committed  any  wrongdoing,  we  also  conclude  that  the  risk  that  Defendant  may  commit  another  crime
               during  a  period  of  probation  is  unacceptably  high. See  Tenn.  Code  Ann.  ¤  40-35-103(5). 
                       In  addition,  we  agree  that  DefendantÕs  testimony  was  untruthful  and  that  he  displayed  a
               disturbing  lack  of  candor  with  regard  to  the  crime. A  defendantÕs  lack  of  candor,  credibility,  and
               willingness  to accept responsibility  for his crime are  relevant considerations  in determining a
               defendantÕs  potential  for  rehabilitation,  and  its  lack  thereof  is  a  proper  consideration  in  determining
               whether  probation  or  confinement  is  appropriate.  State  v.  Zeolia,  928  S.W.2d  457,  463  (Tenn.  Crim.
               App.  1996);  State  v.  Dowdy,  894  S.W.2d  301,  306  (Tenn.  Crim.  App.  1994);  State  v.  Anderson,  857
               S.W.2d  571,  574  (Tenn.  Crim.  App.  1992);  State  v.  Bryant,  775  S.W.2d  1,  6  (Tenn.  Crim.  App.
               1988)  (ÒAny  lack of candor on  the part  of the defendant  is an important factor  in the overall
               consideration  of  the  issue  of  probation.Ó). As  noted  in  the  facts,  Defendant  testified  that  he  had  not
               used  marijuana  during  the  six  or  seven  months  prior  to  the  date  of  the  sentencing  hearing  (July  31,
               2001),  which  contradicted  his  admission  to  the  probation  officer  on  May  10,  2001,  that  he  had  used
               drugs  in  the  six  weeks  prior  to  that  day. The  record  further  reflects  that,  when  asked  why  Defendant
               unbuttoned  the  victimÕs  pants,  he  replied,  ÒI  donÕt  know.Ó Finding  DefendantÕs  statement not
               credible,  the  trial  court  remarked,  ÒThere  [wa]s  but  one  reason  to  unbutton  that  young  ladyÕs  pants,
               and  thatÕs  a  sexual  motive.Ó Based  on  the  above,  we  find  that  DefendantÕs  lack  of  candor  provided
               an  additional  basis  for  denying  probation.  See  State  v.  Dykes,  803  S.W.2d  250,  259-60  (Tenn.  Crim.
               App.1990),  overruled  on  other  grounds  (State  v.  Hooper,  29  S.W.3d  1  (Tenn.  2001)).
                       In  sum,  we  find  that  DefendantÕs  inability  to  accept  responsibility  for  his  criminal  conduct,
               his  lack  of  remorse,  and  his  failure  to  accept  that  what  he  did  was  wrong  demonstrate  that  his
               potential  for  rehabilitation  is  poor. We  also  agree  that  DefendantÕs  testimony  revealed  a  lack  of
               candor  and  truthfulness. Accordingly,  Defendant  has  failed  to  show  that  the  trial  courtÕs  denial  of
               probation  was  improper  or  that  probation  will  be  in  the  best  interest  of  the  defendant  and  the  public.

                                      II. Alternative  Sentencing  Other  Than  Probation 

                       Defendant  also  argues  that  the  trial  court  erred  by  not  ordering  that  he  serve  his  sentence  in
               a  community  corrections  program  or  granting  him  some  other  type  of  alternative  sentence.
                       As  previously  noted,  a  Range  II  standard  offender  convicted  of  a  Class  C  felony,  Defendant
               is  not  presumed  a  favorable  candidate  for alternative  sentencing  options. Tenn.  Code  Ann.  ¤
               40-35-102(6)  (1997).  Nevertheless,  the  trial  court  must  consider  the  following  factors  when  ordering
               confinement:  (1)  Ò[c]onfinement  is  necessary  to  protect  society  by  restraining  the  defendant  who  has
               a long  history  of  criminal  conduct,Ó  (2)  Ò[c]onfinement  is  necessary  to  avoid  depreciating  the
               seriousness  of  the  offense  or  confinement  is  particularly  suited  to  provide  an  effective  deterrence  to
               others  likely  to  commit  similar  offenses,Ó  or  (3)  Ò[m]easures  less  restrictive  than  confinement  have
               frequently  or  recently  been  applied  unsuccessfully  to  the  defendant.Ó  Id.  ¤  40-35-103(1)(A)-(C);  see
               Ashby,  823  S.W.2d  at  169. As  with  probation,  the  court  may  additionally  consider  a  defendantÕs
               potential  for  rehabilitation  or  lack  thereof. Tenn.  Code  Ann.  ¤  40-35-103(5).



                                                                -8- The  record  reflects  that  the  trial  court  denied  alternative  sentencing  based,  in  part,  upon  its
               finding  that  DefendantÕs  criminal  history  is  Òsignificant.Ó The  evidence  of  DefendantÕs  criminal
               history  was  submitted  via  the  presentence  report  and  his  testimony  during  the  sentencing  hearing.
               The  presentence  report  revealed  that  Defendant  has  four  felony  convictions  for  distributing  drugs
               during  his  service  in  the  Army  in  1995, and that he  reported  one  misdemeanor  conviction  for
               possession  of  marijuana  sometime  in  2000.  We  note  that  the  presentence  report  was  introduced  into
               evidence  without  objection  by  Defendant. While  DefendantÕs  felony  convictions  were  not  recent
               or  of  a  violent  character,  they  nevertheless  demonstrate  that  Defendant  has  a  problem  with  illegal
               drugs. Defendant  testified  that  he  began  smoking  marijuana  when  he  was  fifteen  years  old  and
               admitted  that,  at  the  time  he  committed  the  crime,  he  was  smoking  marijuana  daily  and  consuming
               approximately  one  case  of  alcohol  a  week. Defendant  admitted  that  he  had  continued  to  use  drugs
               on  a  daily  basis,  even  after  he  was  indicted  on  the  present  charge. We  find  no  error  in  the  trial
               courtÕs  determination  that  alternative  sentencing  was  improper  in  this  case  based  on  DefendantÕs
               criminal history.  The trial courtÕs denial of alternative sentencing is further supported by
               DefendantÕs  lack  of  potential  for  rehabilitation,  as  previously  discussed,  which  is  also  a  proper
               consideration  in  determining  whether  sentence  alternatives  other  than  probation  are  appropriate.  See
               Tenn.  Code  Ann.  ¤  40-35-103(5)  (1997).
                       Finally,  we  note  that  Defendant  is  not  entitled  to  a  sentence  involving  community  corrections.
               His  conviction  for  attempted  aggravated  sexual  battery,  designated  a  Òcrime  against  the  person,Ó
               makes  him  ineligible. See  Tenn.  Code  Ann.  ¤  40-36-106(a)(2)  (1997  &  Supp.  2001). 
                       For  the  forgoing  reasons,  we  find  the  trial  court  did  not  err  in  denying  Defendant  probation
               or  any  other  form  of  alternative  sentencing. Defendant  is  not  entitled  to  relief  on  this  issue.

                                                        CONCLUSION

                       Accordingly,  we  AFFIRM  the  judgment  of  the  trial  court.
                                                                     ___________________________________ 
                                                                     THOMAS  T.  WOODALL,  JUDGE



                           1  The  Defendant  raises  two  challenges  to  the  sentence  imposed  by  the  trial  court. First,  the  Defendant  contends
                  that  he  should  have  been  afforded  an  alternative  sentence. Second,  the  Defendant  argues  that  the  trial  court  improperly
                  refused  to  credit  him  for  time  served  in  the  Williamson  County  jail. We  will  address  these  two  sentencing  issues
                  together. IN  THE  COURT  OF  CRIMINAL  APPEALS OF  TENNESSEE
                                                               AT  NASHVILLE

                                                Assigned  on  Briefs  November  28,  2001

                                       STATE  OF  TENNESSEE  v.  MICHAEL  BIKREV


                                          Appeal  from  the  Circuit  Court  for  Williamson  County
                                               No. I-1100-336-A    Donald  P.  Harris,  Judge



                                        No.  M2001-01620-CCA-R3-CD  -  Filed  February  4,  2002


                  The  Defendant,  Michael  Bikrev,  was  convicted  of  theft  of  property  over  $1,  000.00  by  a  Williamson
                  County  jury.  After  a  sentencing  hearing,  the  Defendant  was  sentenced  as  a  Range  I  standard  offender
                  to  three  years  in  the  Department  of  Correction. The  trial  court  suspended  the  sentence  conditioned
                  upon  the  Defendant  serving  one  year  in  the  Williamson  County  jail  and  completing  four  years  of
                  probation. On  appeal,  the  Defendant  contends  that  (1)  the  evidence  is  insufficient  to  support  his
                  conviction,  (2)  the  State  did  not  prove  venue,  (3)  the  trial  court  erred  in  admitting  evidence  of  a  tacit
                  admission  made  by  the  Defendant,  and  (4)  the  trial  court  erred  in  sentencing  the  Defendant.1 We
                  affirm  the  judgment  of  the  trial  court.


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


                  DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH and  NORMA
                  MCGEE  OGLE,  JJ.,  joined.

                  Jeff  Preston  Burks,  Franklin,  Tennessee,  for  the  appellant,  Michael  Bikrev.

                  Paul  G.  Summers,  Attorney  General  and  Reporter;  David  H.  Findley,  Assistant  Attorney  General;
                  Ron  Davis,  District  Attorney  General;  and  Lee  Dryer,  Assistant  District  Attorney  General,  for  the
                  appellee,  State  of  Tennessee.


                                                                      OPINION

                           The  victims  in  this  case,  Brian  and  Barbara  Maislin,  operate  a  computer  delivery  business.
                  In  situations  where  delivery  is  not  practical,  the  Maislins  conduct  business  out  of  a  storage  unit  in
                  a  ÒStor  N  LockÓ  in  Bellevue,  Tennessee. The  ÒStor  N  LockÓ  is  located  in  Davidson  County. The



                                                                -2- Maislins  acquire  business  via  advertisements  in  various  newspapers. The  Defendant  and  his  wife,
               Myra  Bikrev, responded to one such advertisement and informed the  Maislins that they  were
               interested  in  buying  a  computer  for  Ms.  BikrevÕs  business. The  Defendant  met  the  Maislins  at  the
               storage  unit  in  Bellevue  and  bought  a  computer,  but  declined  to  provide  any  information,  such  as  an
               address  or  phone  number,  that  would  allow  Mr.  Maislin  to  give  him  a  receipt.
                       On  July  28,  1999,  the  day  after  buying  the  computer,  the  Defendant  called  the  Maislins  and
               stated  that  he  was  having  problems  with  the  monitor. Mr.  Maislin  told  the  Defendant  that  he  would
               have  to  speak  with  Ms.  Maislin  who  did  the  computer  repair  work.  The  Defendant  would  not  leave
               his  phone  number  with  Mr.  Maislin,  but  Mr.  Maislin  noted  the  number  from  his  caller  identification
               display.  The Defendant called again the next day, and Mr. Maislin offered to come to the
               DefendantÕs  residence  and  fix  the  monitor  or  to  allow  the  Defendant  to  return  it. The  Defendant
               declined  both  options.
                       On  July  30,  the  Maislins  discovered  that  their  storage  unit  had  been  burglarized  and  ten
               computers,  three  Cannon  5100  printers,  five  sets  of  Phillips-Magnavox  speakers,  four  monitors,  and
               various  ÒmiceÓ  and  cables  were  missing. Brian  Billingsley,  the  repair  man  at  the  Bellevue  ÒStor  N
               Lock,Ó  testified  that  the  lock  had  been  pried  off  the  MaislinsÕ  storage  unit,  and  the  latch  had  to  be
               replaced.  Darcy  Rowe,  the  manager  of  the  ÒStore  N  Lock,Ó  described  the  surveillance  cameras  used
               at  the  storage  facility,  and  the  State  introduced  a  surveillance  tape  made  at  the  time  of  the  offense
               in  which  a  hand  with  a  large  ring  on  one  of  the  fingers  can  be  seen  pushing  the  camera  to  an  angle
               where  only  the  sky  is  visible.
                       Mr.  Maislin  testified  that  he  viewed  the  surveillance  tape  and  recognized  the  ring  from  the
               tape  as  being  similar  to  one  worn  by  the  Defendant. Mr.  Maislin  used  the  number  that  appeared  on
               his caller identification display the night the Defendant called him to get in touch with the
               Defendant.  Mr.  Maislin  inquired  about  the  monitor  the  Defendant  had  previously  complained  about
               and  offered  to  come  out  to  the  DefendantÕs  residence  and  repair  it. Reluctantly,  the  Defendant
               agreed. Upon  arriving  at  the  DefendantÕs  residence  in  Williamson  County  on  North  Chapel  Road
               in  Franklin,  the  Maislins  observed  that  the  Defendant  was  wearing  the  ring  they  had  recognized  on
               the  surveillance  video.  Additionally,  while  in  the  house,  Mr.  Maislin  noticed  a  box  that  looked  very
               similar to the box which contained the speakers missing from their storage  unit.  When the
               Defendant  noticed  Mr.  Maislin  looking  at  the  box,  he  ushered  Mr.  Maislin  away  from  the  area.
                       The  Maislins  informed  the  Defendant  that  they  recently  had  a  break-in  at  the  storage  unit.
               Mr.  Maislin  testified  that  the  Defendant  seemed  very  interested  in  the  investigation. In  fact,  the
               Defendant  called  the  Maislins  several  times  to  inquire  about  the  progress  of  the  investigation.
                       The  Maislins  informed  Detective  William  Cothren  of  the  Metro  Police  Department  of  their
               suspicions  regarding  the  Defendant.  On  August  2,  Detective  Cothren,  along  with  Detectives  Tommy
               Jarrell  and  Rick  Hagan  of  the  Metro  Police  Department  and  T.R.  Parker  of  the  Williamson  County
               SheriffÕs  Department,  went  to  the  DefendantÕs  residence  in  order  to  question  him. The  detectives
               informed  the  Defendant  about  the  surveillance  tape  and  the  MaislinsÕ  suspicions. The  Defendant



                                                                -3- told  the  detectives  that  he  Ògoofed  around,Ó  jumped  up  and  hit  the  camera. Detective  Cothren  told
               the  Defendant  that  if  he  could  jump  and  hit  the  camera  he  should  be  playing  professional  basketball
               because  the  camera  was  twelve  feet  off  the  ground. The  Defendant  stated  that  he  was  very  athletic.
               The  Defendant  denied  any  involvement  in  the  theft,  and  consented  to  a  search  of  his  home. The
               detectives  found  nothing  in  the  home  or  on  the  premises.
                       Following  the  detectivesÕ  visit  to  his  home,  the  Defendant  called  the  Maislins  and  told  them
               that  the  police  had  been  there  and  asked  what  the  ÒproblemÓ  was. Mr.  Maislin  hung  up  the  phone.
               The  Defendant  continued  calling,  and,  becoming  angry,  Mr.  Maislin  told  the  Defendant  that  he  knew
               the  Defendant  had  stolen  the  computers  and  the  police  were  handling  the  situation. At  that  point,
               the  DefendantÕs  wife  interjected  and  stated  that  she  knew  where  the  Maislins  lived,  and  that  they
               Òbetter  watch  themselves.Ó The  DefendantÕs  wife  further  stated  that  the  Maislins  would  never  find
               their  ÒshitÓ  and  the  police  could  not  find  Òa  turd  in  an  outhouse.Ó 
                       On  October  7,  2000,  Deputy  Tamika  Sanders  of  the  Williamson  County  SheriffÕs  Department
               received a Òfound propertyÓ call from North Chapel Road.  Johnny Talley, Jr., who lives
               approximately  three-fourths  of  a  mile  from  the  Defendant,  found  several  trash  bags  and  boxes  of
               computer  equipment  while  working  on  his  land. Deputy  Sanders  took  possession  of  the  items  and
               gave  them  to  Detective  Hagan. The  equipment  was  wet  when  recovered.
                       The  Maislins  identified  the  items  recovered  by  Deputy  Sanders  as  the  equipment  stolen  from
               their  storage  unit. Detective  Hagan  gave  the  equipment  to  the  Maislins. The  Maislins  used  blow
               dryers  to  dry  the  computers. Ms.  Maislin  entered  the  registry  file  of  one  of  the  computers  and
               noticed  that  a  software  program  for  one  of  the  printers  that  had  been  stolen  from  the  storage  unit  had
               been  loaded  onto  one  of  the  computers  that  had  been  recovered  by  Deputy  Sanders. The  program
               was  loaded  on  August  1,  2000,  several  days  after  the  printers  were  stolen. Ms.  Maislin  also  noticed
               several Ukranian names in the registry  file of the recovered computer, and testified that the
               Defendant  is  of  Ukranian  descent. Detective  Hagan  also  examined  the  computers  and  discovered
               several  files  registered  to  or  containing  the  name  ÒMyra,Ó  which  was  the  DefendantÕs  wifeÕs  name.

                                                        SUFFICIENCY

                       The  Defendant  contends  that  the  evidence  presented  at  trial  is  insufficient  to  support  the
               juryÕs  verdict  of  guilt  beyond  a  reasonable  doubt. We  disagree. Tennessee  Rule  of  Appellate
               Procedure  13(e)  prescribes  that  Ò[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.Ó  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.  See  Jackson  v.  Virginia,  443  U.S.  307,  319  (1979);  State  v.  Smith,
               24  S.W.3d  274,  278  (Tenn.  2000). 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.  See  McBee  v.  State,  372  S.W.2d  173,  176



                                                                -4- (Tenn.  1963);  see  also  State  v.  Buggs,  995  S.W.2d  102,  105-06  (Tenn.  1999);  State  v.  Evans,  838
               S.W.2d  185,  191  (Tenn.  1992);  State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982).
                       In  its  review  of  the  evidence,  an  appellate  court  must  afford  the  State  Òthe  strongest  legitimate
               view of the evidence as well as all reasonable and legitimate inferences that may be drawn
               therefrom.Ó Tuggle,  639  S.W.2d  at  914;  see  also  Smith,  24  S.W.3d  at  279. The  court  may  not  Òre-weigh 
                      or  re-evaluate  the  evidenceÓ  in  the  record  below. Evans,  838  S.W.2d  at  191;  see  also  Buggs,
               995  S.W.2d  at  105. 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. All  questions  involving  the  credibility  of  witnesses,  the  weight  and  value  to  be
               given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact,  not  the  appellate  courts.
               See  State  v.  Morris,  24  S.W.3d  788,  795  (Tenn.  2000);  State  v.  Pappas,  754  S.W.2d  620,  623  (Tenn.
               Crim.  App.  1987).
                       Tennessee  Code  Annotated  section  39-14-103  provides  that  Ò[a]  person  commits  theft  of
               property  if,  with  intent  to  deprive  the  owner  of  property,  the  person  knowingly  obtains  or  exercises
               control  over  the  property  without  the  ownerÕs  effective  consent.Ó Theft  of  property  with  a  value  of
               over  $1,000  is  a  Class  D  felony. See  Tenn.  Code  Ann.  ¤  39-14-105  (3).
                       The  ÒStor  N  LockÓ  surviellance  tape  revealed  a  hand  with  a  ring  identical  to  one  worn  by  the
               Defendant  moving  a  security  camera  near  the  time  of  the  theft. Mr.  Maislin  observed  a  box  similar
               to  a  speaker  box  stolen  from  his  storage  unit  in  the  home  of  the  Defendant. The  stolen  computer
               equipment  was  recovered  three-fourths  of  a  mile  from  the  DefendantÕs  home. Several  files  and
               programs  found  within  the  stolen  computers  bore  the  name  of  the  DefendantÕs  wife. The  Maislins
               testified  that  the  Defendant  did  not  have  their  permission  to  enter  the  storage  unit  and  remove  the
               computer  equipment. The  Maislins  also  stated  that  the  value  of  the  recovered  equipment  was
               approximately  $  1,500  at  wholesale.
                       Reviewed  in  the  light  most  favorable  to  the  State,  this  evidence  is  sufficient  to  support  the
               juryÕs  verdict  of  guilt  beyond  a  reasonable  doubt. This  issue  is  without  merit.

                                                             VENUE

                       The  Defendant  next  contends  that  his  conviction  must  be  set  aside  because  the  State  failed
               to  prove  that  Williamson  County  was  the  correct  venue  in  which  to  try  him. We  disagree. Mr.
               Maislin  testified  that  his  storage  unit  was  located  in  Davidson  County,  and  Deputy  Sanders  stated
               that  the  stolen  equipment  was  recovered  in  Williamson  County. ÒIf  one  or  more  elements  of  an
               offense  are  committed  in  one  county  and  one  or  more  elements  in  another,  the  offense  may  be
               prosecuted  in  either  county.Ó Tenn.R.Crim.P.  18(b). Accordingly,  the  ÒtakingÓ  of  the  computer
               equipment  did  not  have  to  occur  in  Williamson  County. It  is  sufficient  that  the  Defendant,  at  one
               time,  exercised  control  over  the  equipment  within  Williamson  County  and  without  the  permission
               of  the  victims. See  Tenn.  Code  Ann.  ¤  39-14-103.



                                                                -5- Venue  need  be  proved  by  only  a  preponderance  of  the  evidence. See  Tenn.Code  Ann.  ¤
               39-11-201(e). ÒSlight  evidence  is  enough  to  carry  the  prosecutionÕs  burden  of  preponderance  if  it
               is  uncontradicted.Ó Ellis  v.  Carlton,  986  S.W.2d  600,  602  (Tenn.Crim.App.1998). The  Defendant
               argues  that  there  is  no  evidence  to  suggest  that  the  Defendant  possessed  the  stolen  equipment  in
               Williamson  County.  Detective  Hagan  testified  that  the  Defendant  resides  in  Williamson  County  and
               the  computers  were  recovered  in  Williamson  County  three-fourths  of  a  mile  from  the  DefendantÕs
               home. Furthermore,  the  computers  contained  files  bearing  the  DefendantÕs  wifeÕs  name  when  they
               were  recovered. Deputy  Sanders  and  Detective  HaganÕs  testimony  was  sufficient  for  a  rational  jury
               to  find  that  the  Defendant  exercised  control  over  the  equipment  in  Williamson  County. The  State
               satisfied  its  burden  of  proving  venue,  and  this  issue  is  therefore  without  merit.

                                                     TACIT  ADMISSION

                       The  Defendant  also  argues  that  the  trial  court  erred  in  admitting  into  evidence  statements
               made to the victim by  the DefendantÕs wife in the  presence of the Defendant under the tacit
               admission  rule. While  we  agree  that  the  trial  court  erred  in  admitting  the  statements  as  a  tacit
               admission,  we  find  the  error  to  be  harmless  because  the  statements  were  admissible  as  the  statements
               of  a  co-conspirator.
                       Ò[W]hen  a  statement  is  made  in  the  presence  and  hearing  of  one  accused  of  an  offense  and
               the  statement  tends  to  incriminate  him,  or  is  of  an  incriminating  character,  and  such  statement  is  not
               denied  or  in  any  way  objected  to  by  him,  both  the  statement  and  the  fact  of  his  failure  to  deny  it  or
               make  any  response  to  it,  is  admissible  against  him  as  evidence  of  his  acquiescence  in  its  truth.Ó  State
               v.  Black,  815  S.W.2d  166,  176-77  (Tenn.  1991),  quoting  Ledune  v.  State,  589  S.W.2d  936,  939
               (Tenn.  Crim.  App.  1979).
                       In  the  present  case,  after  the  police  searched  his  home,  the  Defendant  called  Mr.  Maislin  and
               demanded  to  know  what  the  ÒproblemÓ  was. Mr.  Maislin  informed  the  Defendant  that  he  knew  the
               Defendant  had  stolen  the  computers  and  that  the  police  were  handling  the  matter. At  this  point,  the
               DefendantÕs  wife  interjected  over  the  phone  and  stated  that  she  knew  where  the  Maislins  lived  and
               that  they  Òbetter  watch  themselves.Ó The  DefendantÕs  wife  further  stated  that  the  Maislins  would
               never  get  their  ÒshitÓ  back  and  the  police  could  not  find  Òa  turd  in  an  outhouse.Ó  The  Defendant  then
               told  his  wife  to  Òshut  up.Ó The  trial  court  admitted  this  exchange  as  a  tacit  admission  on  the  part  of
               the  Defendant  and  gave  a  limiting  instruction  to  that  effect. While  the  DefendantÕs  silence  in  the
               face  of  the  Mr.  MaislinÕs  accusation  is  admissible  as  a  tacit  admission,  the  DefendantÕs  wifeÕs
               statements  were  not  an  accusation  against  the  Defendant,  but  rather  a  threat  directed  at  the  victims,
               and  were  not  admissible  under  the  same  theory.
                       However,  we  conclude  that  the  admission  of  the  wifeÕs  statements  as  a  Òtacit  admissionÓ  is
               harmless  because  the  statements  were  admissible  as  the  statements  of  a  co-conspirator.  A  conspiracy
               is  a  combination  between  two  or  more  persons  to  commit  a  criminal  act. State  v.  Lequire,  634
               S.W.2d  608,  612  (Tenn.  Crim.  App.  1981). The  evidence  established  that  the  Defendant  and  his
               wife  worked  in  concert  to  exercise  control  over  the  MaislinsÕ  computer  equipment. A  conspiracy



                                                                -6- does not have to be formally  charged in order for statements made by  co-conspirators to be
               admissible.  See id.;Tenn. R. Evid. 803 (1.2)(E).  Furthermore, once a conspiracy has been
               established, any statement made during the course of or in furtherance of that conspiracy is
               admissible  against  any  conspirator. See  id.,  at  613;  Randolph  v.  State,  570  S.W.2d  869,  871  (Tenn.
               Crim.  App.  1978).
                       In  State  v.  Henry,  33  S.W.3d  797,  803  (Tenn.  2000),  our  supreme  court  held that  Òthe
               commission  of  the  offense  .  .  .  does  not  imply  that  the  conspiracy  automatically  included  all  later
               statements  pertaining  to  the  concealment  of  the  offense.Ó  See  also  State  v.  Walker,  910  S.W.2d  381,
               386  Tenn.  1995). Henry  requires  an  analysis  of  the  facts  in  each  case  to  determine  if  the  common
               goal  of  the  conspiracy  was  still  in  existence  at  the  time  of  the  statements,  and  if  the  statements  were
               made  in  furtherance  of  that  goal. See  Henry,  33  S.W.3d  at  803. In  the  present  case,  we  find  that  the
               conspiracy was ongoing, and the statements admissible because the statements made by the
               DefendantÕs  wife  were  made  to  threaten  the  victims  in  an  effort  to  impede  the  criminal  investigation
               against  the  Defendant.
                       Accordingly,  the  trial  court  erred  by  admitting  the  statements  made  by  the  DefendantÕs  wife
               under the tacit  admission rule, however, the error was harmless because the statements were
               admissible  as  co-conspirator  statements. See  Tenn.  R.  Evid.  803  (1.2)(E).

                                                         SENTENCING

                       Finally,  the  Defendant  contends  that  the  trial  court  erred  in  sentencing  him  because  he  was
               not  afforded  an  alternative  sentence  and  he  was  not  given  credit  for  time  served  in  the  Williamson
               County  jail. We  disagree.
                       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
               Òconditioned  upon  the  affirmative  showing  in  the  record  that  the  trial  court  considered  the  sentencing
               principles  and  all  relevant  facts  and  circumstances.Ó 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. See  Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;  State  v.  Brewer,  875
               S.W.2d  298,  302  (Tenn.  Crim.  App.  1993);  State  v.  Thomas,  755  S.W.2d  838,  844  (Tenn.  Crim.
               App.  1988).



                           2  As  enhancement  factors,  the  trial  court  found  that  the  Defendant  had  a  previous  history  of  criminal  conduct
                                                                                                                         (continued...)

                                                                          -7- 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  courtÕs  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.  Pike,  978  S.W.2d  904,  926-27  (Tenn.  1998);  State  v.  Fletcher,
                  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991).
                           A  defendant  who  Òis  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  the  absence
                  of  evidence  to  the  contrary.Ó Tenn.  Code  Ann.  ¤  40-35-102(6);  State  v.  Lane,  3  S.W.3d  456,  462
                  (Tenn.  1999). Guidance  regarding  what  constitutes  Òevidence  to  the  contraryÓ  which  would  rebut
                  the  presumption  of  alternative  sentencing  can  be  found  in  Tennessee  Code  Annotated  section  40-35-
                  103(1),  which  sets  forth  the  following  considerations:
                           (A)  Confinement  is  necessary  to  protect  society  by  restraining  a  defendant  who  has
                           a  long  history  of  criminal  conduct;
                           (B)  Confinement  is  necessary  to  avoid  depreciating  the  seriousness  of  the  offense  or
                           confinement  is  particularly  suited  to  provide  an  effective  deterrence  to  others  likely
                           to  commit  similar  offenses;  or 
                           (C) Measures less restrictive than confinement have frequently  or recently been
                           applied  unsuccessfully  to  the  defendant[.]
                  See  State  v.  Hooper,  29  S.W.3d  1,  5  (Tenn.  2000);  State  v.  Ashby,  823  S.W.2d  166,  170  (Tenn.
                  1991). 
                           Additionally,  the  principles  of  sentencing  reflect  that  the  sentence  should  be  no  greater  than
                  that  deserved  for  the  offense  committed  and  should  be  the  least  severe  measure  necessary  to  achieve
                  the  purposes  for  which  the  sentence  is  imposed. See  Tenn.  Code  Ann.  ¤  40-35-103(2),  (4). The  trial
                  court should also consider the potential for rehabilitation or treatment of the defendant in
                  determining  the  appropriate  sentence. See  id.  ¤  40-35-103(5).
                           The  presentence  report  reflects  that  at  the  time  of  sentencing  the  Defendant  was  twenty-one
                  years  old,  married,  and  a  high  school  graduate. His  family  immigrated  to  the  United  States  in  1991,
                  and  the  Defendant  attended  high  school  in  New  Jersey. He  was  previously  employed  at  an  auto
                  service  business,  but was terminated  after stealing  a pistol from a customerÕs automobile.  The
                  Defendant  was  most  recently  employed  by  a  temporary  service  provider.
                           The  Defendant  contends  that  the  trial  court  erroneously  denied  him  alternative  sentencing.
                  The  Defendant  properly  asserts  that,  because  he  was  convicted  of  a  Class  D  felony,  he  is  presumed
                  eligible  for  alternative  sentencing. See  Tenn.  Code  Ann.  ¤  40-35-102  (6).   After finding two
                  enhancement  factors  and  one  mitigating  factor,2  the  trial  court  imposed  a  sentence  of  three  years.



                           2  (...continued)
                  in  addition  to  that  necessary  to  establish  the  appropriate  range,  and  that  he  was  on  probation  at  the  time  he  committed
                  the  present  offense. See  Tenn.  Code  Ann.  ¤¤  40-35-114  (1),  (13)(c).  In  mitigation  of  the  DefendantÕs  sentence,  the  trial
                  court  found  that  his  conduct  neither  caused  nor  threatened  serious  bodily  injury. See  Tenn.  Code  Ann.  ¤  40-35-113  (1).
                  However,  the  trial  court  gave  this  mitigating  factor  little  weight.

                           3  The  Defendant  argues  that  the  trial  court  erred  by  ordering  his  sentence  to  be  served  consecutively  to  the
                  previous  sentence. The  trial  judge  did  not  impose  consecutive  sentences,  and  it  is  actually  the  refusal  of  the  trial  judge
                  to  allow  the  Defendant  jail  time  credit  that  the  Defendant  contests.

                                                                          -8- However,  the  trial  court  suspended  that  sentence  conditioned  upon  one  year  of  incarceration  in  the
                  Williamson  County  jail  and  the  completion  of  four  years  probation.
                           Two  alternative  sentences  available  to  sentencing  courts  are  Ò[a]  sentence  of  confinement
                  which  is  suspended  upon  a  term  of  probation  supervisionÓ  and  Ò  [a]  sentence  of  periodic  confinement
                  which  may  be  served  in  a  local  jail  or  workhouse  in  conjunction  with  a  term  of  probation.Ó Tenn.
                  Code  Ann.  ¤  40-35-104;  see  also  State  v.  Dowdy,  894  S.W.2d  301,  304  (Tenn.  Crim.  App.  1994)
                  (split  confinement  is  one  of  the  alternative  sentencing  options  under  Tennessee  Code  Annotated
                  section  40-35-104). The  trial  court  imposed  an  appropriate  alternative  sentence  under  Tennessee
                  Code  Annotated  section  40-35-104. This  issue  is  without  merit.
                           The  Defendant  also  challenges  the  trial  courtÕs  refusal  to  give  him  credit  for  time  served  in
                  the  Williamson  County  jail. The  Defendant  was  incarcerated  in  the  Williamson  County  jail  from
                  August  21,  2000  to  March  1,  2001  pursuant  to  an  unrelated  probation  violation. On  October  11,
                  2000,  while  incarcerated,  the  Defendant  was  served  with  the  arrest  warrant  for  the  present  case. The
                  Defendant  remained  in  custody  after  he  concluded  his  sentence  for  the  probation  violation,  and  was
                  sentenced in the present case on May  4, 2001.  During sentencing, the trial court credited the
                  Defendant  for  time  served  in  custody  after  the  completion  of  the  probation  violation  sentence,  a  total
                  of  sixty-one  days. The  Defendant  now  contends  that  he  is  entitled  to  sentence  credit  for  all  the  time
                  served  in  custody  after  the  service  of  the  arrest  warrant  for  the  present  case.3 We  disagree.
                           Tennessee  Code  Annotated  section  40-23-101  (c)  provides  that
                           [t]he trial court shall, at the time the sentence is imposed and the defendant is
                           committed  to  jail,  the  workhouse,  or  the  state  penitentiary  for  imprisonment,  render
                           the  judgment  of  the  court  so  as  to  allow  the  defendant  credit  on  the  sentence  for  any
                           period  of  time  for  which  the  defendant  was  committed  and  held  in  the  city  jail  or
                           juvenile  court  detention  prior  to  waiver  of  juvenile  court  jurisdiction,  or  county  jail
                           or  workhouse,  pending  arraignment  and  trial. The  defendant  shall  also  receive  credit
                           on  the  sentence  for  the  time  served  in  the  jail,  workhouse  or  penitentiary  subsequent
                           to  any  conviction  arising  out  of  the  original  offense  for  which  the  defendant was
                           tried.
                  A  defendant  is  not  entitled  to  credit  for  time  he  spent  in  jail  for  other  offenses. See  Trigg  v.  State,
                  523  S.W.2d  375  (Tenn.  Crim.  App.  1975).



                                                                -9- The trial court properly credited the Defendant for only the sixty-one days he was
               incarcerated  after  the  conclusion  of  the  unrelated  probation  violation  sentence.  This  issue  is  without
               merit.


                                                        CONCLUSION

                       After  a  thorough  review  of  the  record,  we  conclude  that  the  evidence  supports  the  juryÕs
               verdict  of  guilty  beyond  a  reasonable  doubt,  venue  was  proven  by  a  preponderance  of  the  evidence,
               the  trial  courtÕs  error  in  admitting  the  DefendantÕs  wifeÕs  statements  under  the  tacit  admission  rule
               was  harmless,  and  the  Defendant  was  properly  sentenced. For  the  foregoing  reason,  the  judgment
               of  the  trial  court  is  AFFIRMED.






                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  April  9,  2002

                 STATE  OF  TENNESSEE  v.  KENNETH  JAVON  BILLS

                     Appeal  from  the  Circuit  Court  for  Hardeman  County
                          No.  6451  Kerry  Blackwood,  Judge


                     No.  W2001-00396-CCA-R3-CD  -  Filed  May  10,  2002


         The  Defendant,  Kenneth  Javon  Bills,  was  convicted  by  a  jury  of  attempted  second  degree  murder
         and  aggravated  assault. He  was  sentenced  as  a  Range  I  standard  offender  to  ten  years  for  the
         attempted  murder  and  four  years  for  the  aggravated  assault,  to  be  served  concurrently  in  the
         Department  of  Correction. In  this  direct  appeal,  the  Defendant  raises  the  following  issues: (1)
         whether  the  evidence  is  sufficient  to  sustain  his  convictions;  (2)  whether  double  jeopardy  principles
         require  dismissal  of  his  aggravated  assault  conviction;  (3)  whether  the  trial  court  erred  by  admitting
         certain  rap  lyrics  authored  by  the  Defendant;  and  (4)  whether  his  sentence  is  excessive.  Finding  that
         double  jeopardy  principles  prohibit  the  DefendantÕs  dual  convictions,  we  reverse  and  dismiss  the
         DefendantÕs  conviction  for  aggravated  assault. In  all  other  respects,  we  affirm  the  trial  courtÕs
         judgment.


          Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Circuit  Court  Affirmed  in  Part;
                                 Reversed  in  Part 

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  JAMES
         CURWOOD  WITT,  JR.,  JJ.,  joined.
         Marcus  M.  Reaves,  Jackson,  Tennessee,  for  the  appellant,  Kenneth  Javon  Bills.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Braden  H.  Boucek,  Assistant  Attorney  General;
         Elizabeth  Rice,  District  Attorney  General;  and  James  W.  Freeland,  Jr.,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             At  about  5:00  a.m.  on  December  3,  1999,  the  victim,  Morgan  Robinson,  Jr.,  arose  to  get
         ready  for  work.  While  outside  calling  his  dog,  Mr.  Robinson  saw  the  barrel  of  a  gun  pointed  at  him
         from  some  shrubbery  at  the  end  of  his  house.  He  heard  a  shot  fire  and  fell  to  his  left.  Realizing  that
         he  had  not  been  hit,  Mr.  Robinson  attacked  his  assailant,  grabbing  the  pistol.  The  two  men  struggled



                                                                -2- and  wrestled  on  the  ground.  Mr.  Robinson  put  his  finger  on  the  trigger  of  the  gun  and  fired  it  several
               times  into  the  ground,  trying  to  empty  it.  During  the  struggle,  the  gunmanÕs  mask  came  off  and  Mr.
               Robinson recognized his assailant as the Defendant.  Mr. Robinson recognized the Defendant
               because  he  had  been  friends  with  the  DefendantÕs  father  for  many  years,  frequently  visiting  the
               DefendantÕs  fatherÕs  home. Mr.  Robinson  eventually  wrested  the  gun  from  the  DefendantÕs  grasp,
               and  the  Defendant  left  the  scene. Mr.  Robinson  testified  that  the  DefendantÕs  attempt  to  shoot  him
               had  ÒscaredÕ  him. 
                       Hearing  the  initial  gunshot  and  seeing  the  commotion  outside  the  window,  Mrs.  Robinson
               called  911. After  the  Defendant  left,  Mr.  Robinson  reentered  his  house  and  told  his  wife  that  the
               Defendant  had  tried  to  kill  him. Mr.  Robinson  had  the  pistol  used  during  the  attack  and  put  it  on  the
               living  room  floor. The  police  subsequently  took  this  gun  into  custody. At  the  time  the  police  took
               possession  of  the  pistol,  a  .357  Magnum  revolver,  it  had  one  live  round  in  the  chamber.  Investigator
               Pat  Baker  testified  that  the  gun  would  hold  a  total  of  six  bullets. No  bullets  or  casings  were
               recovered  from  the  scene. However,  the  police  did  recover  from  Mr.  RobinsonÕs  yard  a  Òdog  tag
               necklaceÓ  bearing  the  name  of  the  DefendantÕs  deceased  father.
                       A  few  minutes  after  Mrs.  Robinson  called  911,  Sgt.  Eddie  Henson  of  the  Bolivar  Police
               Department  saw  the  Defendant  walking  in  a  wooded  area  near  Mr.  RobinsonÕs  house. Sgt.  Henson
               described  the  Defendant  as  out  of  breath,  with  a  lot  of  grass  in  his  hair  and  on  his  clothing. The
               Defendant appeared to be sweating.  Sgt. Henson asked the Defendant his name, which the
               Defendant  gave  as  Kenneth  Bills.  The  Defendant  was  unable  to  produce  any  identification,  and  Sgt.
               Henson  did  not  recognize  the  Defendant. Accordingly,  Sgt.  Henson  called  another  officer  to  his
               location. The  officer  who  arrived  knew  the  Defendant  and  had  been  told  by  Mr.  Robinson  that  the
               Defendant  was  the  assailant. Upon  this  officerÕs  arrival,  the  Defendant  was  placed  in  a  squad  car
               and  driven  to  Mr.  RobinsonÕs  house.  There,  Mr.  Robinson  identified  the  Defendant  as  the  man  who
               had  shot  at  him.
                       Mr.  Robinson  testified  that  his  assailant  had  been  wearing  a  dark  hooded  jacket  and  white
               gloves  during  the  attack. Investigator  Pat  Baker  testified  that  he  found  a  dark-blue,  hooded  jogging
               jacket  and  pants  about  75  to  80  yards  from  Mr.  RobinsonÕs  house,  alongside  a  trail  near  a  fence.  The
               jacket  bore  the  logo  ÒHill  Haven.Ó Investigator  Baker  testified  that  this  jogging  suit  was  similar  to
               a  dark  blue  jogging  suit  that  he  had  seen  the  Defendant  wearing  in  October  1999,  which  also  bore
               the  logo  ÒHill  Haven.Ó  In  the  pockets  of  the  clothes  found  along  the  trail  were  a  pair  of  white  cotton-lined 
                     gloves,  a  small  bag  of  marijuana,  some  crack  rocks,  and  some  brass  knuckles. Wrapped  up  in
               the  bundle  of  clothes  was  also  a  pistol  holder  and  a  back  brace. The  jacket  and  pants  had  grass  on
               them.
                       Officer  Frank  Yalda  also  testified  that  he  had  seen  the  Defendant  in  October  1999  wearing
               clothing  that  matched  the  clothing  recovered  in  connection  with  the  shooting.
                       Ernestine  Bills,  the  DefendantÕs  mother,  testified  that  the  Defendant  had  been  living  with  her
               on  December  3,  1999,  and  was  unemployed  at  that  time.  She  stated  that  they  lived  about  a  mile  from



                                                                -3- Mr.  RobinsonÕs  house. She  acknowledged  that  Mr.  Robinson  and  the  DefendantÕs  father  had  been
               friends  for  many  years,  and  that  Mr.  Robinson  had  frequently  visited  the  DefendantÕs  father.
                       The  Defendant  testified,  stating  that  he  had  been  jogging  on  the  morning  he  was  picked  up.
               He acknowledged knowing Mr. Robinson but explained that they did not have a personal
               relationship. The  Defendant  denied  any  involvement  in  the  shooting  and  explained  that  the  grass
               in  his  hair  was  from  a  shortcut  that  he  took  through  some  trees  and  bushes. He  denied  ever  owning
               or  wearing  any  jogging  suit  matching  the  one  recovered  by  police. He  stated  that  he  had  seen  a  man
               running  shortly  before  he  was  stopped  by  the  police  but  did  not  recognize  the  man.  He  admitted  that
               he  had  worn  his  fatherÕs  Òdog  tagsÓ  in  the  past  but  denied  that  he  had  been  wearing  them  on
               December  3,  1999. The  Defendant  testified  that  he  sometimes  wore  a  back  brace  while  jogging  or
               working  out  but  denied  wearing  one  on  December  3,  1999.

                                            SUFFICIENCY  OF  THE  EVIDENCE

                       The  Defendant  first  contends  that  the  evidence  is  not  sufficient  to  support  his  convictions.
               Tennessee  Rule  of  Appellate  Procedure  13(e)  prescribes  that  Ò[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.Ó 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.  See  Jackson  v.  Virginia,
               443  U.S.  307,  319  (1979);  State  v.  Smith,  24  S.W.3d  274,  278  (Tenn.  2000). 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.
               See  McBee  v.  State,  372  S.W.2d  173,  176  (Tenn.  1963);  see  also  State  v.  Buggs,  995  S.W.2d  102,
               105-06  (Tenn.  1999);  State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992);  State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982).
                       In  its  review  of  the  evidence,  an  appellate  court  must  afford  the  State  Òthe  strongest  legitimate
               view of the evidence as well as all reasonable and legitimate inferences that may  be drawn
               therefrom.Ó Tuggle,  639  S.W.2d  at  914;  see  also  Smith,  24  S.W.3d  at  279. The  court  may  not  Òre-weigh 
                      or  re-evaluate  the  evidenceÓ  in  the  record  below. Evans,  838  S.W.2d  at  191;  see  also  Buggs,
               995  S.W.2d  at  105. 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. See
               Tuggle,  639  S.W.2d  at  914. All  questions  involving  the  credibility  of  witnesses,  the  weight  and
               value  to  be  given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact,  not  the  appellate
               courts. See  State  v.  Morris,  24  S.W.3d  788,  795  (Tenn.  2000); State  v.  Pappas,  754  S.W.2d  620,
               623  (Tenn.  Crim.  App.  1987).
                       Second  degree  murder  is  the  knowing  killing  of  another. See  Tenn.  Code  Ann.  ¤  39-13-
               210(a)(1).  A  person  attempts  second  degree  murder  when  he  or  she  acts  with  the  intent  to  cause  the
               death  and  the  personÕs  actions  constitute  a  substantial  step  toward  the  commission  of  the  offense.
               See  id.  ¤  39-12-101(a)(3). In  this  case,  the  State  proved  that  the  Defendant  hid  himself  at  the
               victimÕs  house,  aimed  a  loaded  pistol  at  the  victim,  and  fired  a  shot  at  the  victim. The  victim



                           1  Given  our  ruling  on  this  issue,  we  also  find  without  merit  the  DefendantÕs  contention  that  the  trial  court  erred
                  in  refusing  to  grant  his  motion  for  judgment  of  acquittal.

                                                                          -4- identified the Defendant as his assailant.  This proof is sufficient to support the DefendantÕs
                  conviction  for  attempted  second  degree  murder.
                           The same proof supports a conviction for aggravated assault.  As charged in this case,
                  aggravated  assault  is  committed  when  the  accused  intentionally  or  knowingly  causes  another  to
                  reasonably  fear imminent bodily injury,  accomplished with a deadly  weapon. See  id.  ¤  39-13-
                  102(a)(1)(B). As  set  forth  above,  the  Defendant  secreted  himself  at  the  victimÕs  house,  and  then
                  fired a gunshot at the victim, scaring him.  This proof is sufficient to support the DefendantÕs
                  conviction  for  aggravated  assault. This  issue  is  without  merit.1


                                                             DOUBLE  JEOPARDY

                           The  Defendant  contends,  and  the  State  concedes,  that  the  DefendantÕs  dual  convictions  based
                  upon  the  same  conduct  offend  principles  of  double  jeopardy  under  the  Tennessee  Constitution. We
                  agree.  See State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997) (where defendantÕs
                  convictions  of  attempted  second  degree  murder  and  aggravated  assault  arose  out  of  a  single  attack
                  upon  a  single  victim,  principles  of  double  jeopardy  under  TennesseeÕs  Constitution  required  reversal
                  and  dismissal  of  the  defendantÕs  aggravated  assault  conviction). See  generally  State  v.  Denton,  938
                  S.W.2d  373  (Tenn.  1996). As  was  the  case  in  Hall,  the  DefendantÕs  convictions  in  this  case  arose
                  out  of  a  single  attack  upon  a  single  victim,  and  the  same  evidence  was  relied  upon  to  prove  each
                  offense. Accordingly,  we  reverse  and  dismiss  the  DefendantÕs  conviction  for  aggravated  assault.

                                                      ADMISSION  OF  SONG  LYRICS

                           The  Defendant  contends  that  the  trial  court  committed  reversible  error  in  admitting  certain
                  song  lyrics  that  he  wrote. During  the  StateÕs  cross-examination  of  the  Defendant,  the  prosecutor
                  produced a document bearing handwritten song lyrics and asked the Defendant if that was his
                  handwriting.  The Defendant admitted that it was and that he wrote Òa lot of raps, poetry,
                  everything.Ó The  Defendant  admitted  writing  the  lines,  Òpulling  a  gun  and  not  pulling  the  trigger
                  is  like  breaking  a  mirrorÓ  and  ÒainÕt  no  sunshine  when  the  mortician  pulls  a  curtain  down.Ó Defense
                  counsel  objected  to  the  line  of  questioning  on  the  grounds  of  relevance,  and  the  prosecutor  argued
                  that  the  rap  lyrics  went  to  the  DefendantÕs  motive  in  shooting  at  the  victim.  The  trial  court  overruled
                  defense  counselÕs  objection,  and  the  prosecutor  continued  to  ask  the  Defendant  about  additional  rap
                  lyrics  he  had  written. The  Defendant  admitted  that  his  rap  lyrics  glorified  violence  but  denied  that
                  he  himself  believed  in  glorifying  violence. The  Defendant  also  stated  that  the  rap  lyrics  were  at  least
                  five  years  old.
                           The  Defendant  now  argues  that  the  lyrics  Òwere  irrelevant,  too  remote,  and  only  offered  for
                  the  purpose  of  unconstitutionally  prejudicing  the  jury  againstÓ  him. The  State  concedes  that  the
                  DefendantÕs  rap  lyrics  Òwere  irrelevant  to  prove  motive.Ó We  agree  that,  particularly  due  to  its  age,



                                                                -5- this  evidence  was  irrelevant  and  should  have  been  excluded  pursuant  to  our  Rule  of  Evidence  402
               which  states  that  Ò[e]vidence  which  is  not  relevant  is  not  admissible.Ó
                       However,  Ò[n]o  judgment  of  conviction  shall  be  reversed  on  appeal  except  for  errors  which
               affirmatively  appear  to  have  affected  the  result  of  the  trial  on  the  merits.Ó Tenn.  R.  Crim.  P.  52(a).
               Pursuant  to  this  Rule,  this  Court  will  not  reverse  a  conviction  on  the  basis  of  improper  admission  of
               evidence  Òunless  it  affirmatively  appears  that  the  error  affected  the  result  of  the  trial.Ó Davidson  v.
               Holtzman,  47  S.W.3d  445,  456  (Tenn.  Crim.  App.  2000). We  do  not  believe  that  such  a  showing
               has  been  made  here.  The  proof  of  the  DefendantÕs  guilt  was  overwhelming.  Accordingly,  although
               we  agree  that  the  trial  court  erred  when  it  overruled  the  DefendantÕs  objection  to  the  admission  of
               his  rap  lyrics,  we  find  the  error  to  be  harmless. This  issue  is,  therefore,  without  merit.

                                                         SENTENCING

                       Finally,  the  Defendant  argues  that  his  sentence  is  excessive,  and  that  he  should  have  been
               ordered  to  serve  his  sentence  on  Community  Corrections.  Because  we  have  reversed  and  dismissed
               the  DefendantÕs  aggravated  assault  conviction,  we  need  not  review  the  DefendantÕs  sentence  for  that
               offense.  We  will,  however,  review  his  sentence  for  the  attempted  second  degree  murder  conviction.
                       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. See  Tenn.  Code  Ann.  ¤  40-35-401(d). This  presumption  is
               Òconditioned  upon  the  affirmative  showing  in  the  record  that  the  trial  court  considered  the  sentencing
               principles  and  all  relevant  facts  and  circumstances.Ó 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. See  Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;  State  v.  Brewer,  875
               S.W.2d  298,  302  (Tenn.  Crim.  App.  1993);  State  v.  Thomas,  755  S.W.2d  838,  844  (Tenn.  Crim.
               App.  1988).
                       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  courtÕs  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. See  State  v.  Pike,  978  S.W.2d  904,  926-27  (Tenn.  1998);  State  v.
               Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991).
                       Attempted  second  degree  murder  is  a  Class  B  felony.  See  Tenn.  Code  Ann.  ¤¤  39-12-107(a),
               39-13-210(b). The  trial  court  determined  the  Defendant  to  be  a  standard,  Range  I  offender. The



                                                                -6- sentencing  range  to  which  the  Defendant  was  subject  was  therefore  eight  to  twelve  years. See  id.
               ¤  40-35-112(a)(2). The  trial  court  sentenced  the  Defendant  to  the  midrange  term  of  ten  years,
               finding as  enhancement  factors  that  the  Defendant  has  a  previous  history  of  criminal  convictions
               or  criminal  behavior  in  addition  to  those  necessary  to  establish  the  appropriate  range,  and  that  he
               employed  a  firearm  during  the  commission  of  the  offense. See  id.  ¤  40-35-114(1),  (9). The  trial
               court  found  that  no  mitigating  factors  applied.
                       The  presumptive  sentence  for  a  Class  B  felony  is  the minimum sentence  in  the  range,
               increased  as appropriate for applicable enhancement factors, and decreased as appropriate  for
               applicable  mitigating  factors.  See  id.  ¤  40-35-210  (c),  (e).  Here,  the  trial  court  imposed  a  midrange
               sentence  based  on  two  applicable  enhancement  factors  and  no  applicable  mitigating  factors. The
               Defendant  argues  that  he  should  have  received  the  minimum  sentence  in  the  range. We  disagree.
               The  Defendant  has  two  prior  convictions  for  weapons  offenses,  a  prior  conviction  for  evading  arrest,
               and  a  prior  conviction  for  possession  of  drugs. These  prior  convictions  support  the  application  of
               enhancement  factor  (1). Additionally,  the  Defendant  used  a  .357  Magnum  pistol  in  his  attempted
               second  degree  murder  of  Mr.  Robinson,  supporting  application  of  enhancement  factor  (9). The
               record  contains  no  proof  of  mitigating  factors. Accordingly,  a  midrange  sentence  is  appropriate.
               This  issue  is  without  merit.
                       The  Defendant  also  contends  that  he  should  have  been  sentenced  to  Community  Corrections.
               However,  because  the  Defendant  committed  a  violent  felony  with  a  firearm,  he  does  not  meet  the
               minimum  eligibility  criteria  for  community  corrections  sentencing. See  Tenn.  Code  Ann.  ¤  40-36-
               106(a).  Nor  is  he  eligible  for  Community  Corrections  on  a  Òspecial  needsÓ  basis  because  he  received
               a  sentence  of  ten  years.  See  id.  ¤¤  40-36-106(c),  40-35-303(a);  see  also  State  v.  Boston,  938  S.W.2d
               435,  438-39  (Tenn.  Crim.  App.  1996);  State  v.  Staten,  787  S.W.2d  934,  936  (Tenn.  Crim.  App.
               1989). The  DefendantÕs  argument  has  no  merit.

                                                        CONCLUSION

                       The  DefendantÕs  conviction  of  aggravated  assault  is  reversed  and  dismissed. The  judgment
               of  the  trial  court  is  otherwise  affirmed. 


                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE

                                AT  NASHVILLE
                            December  12,  2001  Session

                   STATE  OF  TENNESSEE  v.  WILLIAM  BINKLEY

                     Appeal  from  the  Circuit  Court  for  Rutherford  County
                        No.  F-47453  James  K.  Clayton,  Jr.,  Judge


                      No.  M2001-00404-CCA-R3-CD  -  Filed  April  5,  2002



         A  Rutherford  County  jury  convicted  the  defendant,  William  Binkley,  of  criminal  attempt  to  commit
         first-degree  murder  and  reckless  endangerment  in  connection  with  the  shooting  of  the  defendantÕs
         former  girlfriend.  The  trial  court  sentenced  the  defendant  as  a  Range  I  standard  offender  to  23  years
         in  the  Department  of  Correction  for  the  attempted  first-degree  murder  conviction  and  to  two  years
         for  the  reckless  endangerment  conviction.  The  sentences  were  ordered  to  be  served  consecutively
         for  an  effective  sentence  of  25  years.  Primarily  aggrieved  that  he  was  not  allowed  to  offer  expert
         testimony  about  his  mental  responsibility,  the  defendant  appeals  the  trial  courtÕs  evidentiary  ruling.
         Secondarily,  he  questions  the  sufficiency  of  the  evidence,  and  he  complains  that  all  relevant  lesser-included 
              offenses  were  not  included  in  the  jury  instructions.  Based  upon  our  review,  we  affirm  the
         judgment  of  the  trial  court.

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

         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         Joe  M.  Brandon,  Jr.,  Smyrna,  Tennessee,  for  the  Appellant,  William  Binkley.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Renee  W.  Turner,  Assistant  Attorney  General;
         William  C.  Whitesell,  District  Attorney  General;  and  J.  Paul  Newman,  Assistant  District  Attorney
         General  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                  On  the  afternoon  of  March  2,  1999,  Julia  Fisher  heard  an  unusual  noise  at  the  back
         door  of  her  house,  which  was  located  on  Jackson  Ridge  Road  in  the  Rockvale  community.  When
         she  went  to  investigate,  Ms.  Fisher  discovered  her  next-door  neighbor,  Melissa  Tucker,  lying  on  her
         side  on  the  pavement  outside  the  back  door. Ms.  Tucker  was  bleeding  profusely. Ms.  Fisher
         summoned  medical  help,  and  Ms.  Tucker  was  transported  to  Middle  Tennessee  Medical  Center  in



                                                                -2- Murfreesboro.  Dr. Wayne Westmorland, an emergency room surgeon, performed an initial
               assessment  and  determined  that  Ms.  Tucker  had  a  gunshot  wound  to  the  right  side  of  her  chest  and
               was  bleeding  to  death. Dr.  Westmorland  took  Ms.  Tucker  to  the  operating  room  and  successfully
               performed  emergency  surgery  to  stop  the  hemorrhage. The  path  of  the  bullet  damaged  the  right
               upper  lobe  of  her  right  lung,  requiring  the  removal  of  a  portion  of  her  lung. Ms.  Tucker  eventually
               recovered  from  her  injuries.
                              Shortly  following  the  shooting,  the  defendant  showed  up  at  Rockvale  Elementary
               School  where  the  victimÕs  sister,  Cynthia  Morris,  worked. The  defendant  had  his  and  the  victimÕs
               three  year-old  son  with  him  in  his  vehicle. The  defendant  told  Ms.  Morris  to  take  the  crying  child,
               and  he  stated  that  he  had  just  shot  Ms.  MorrisÕs  sister. The  defendant  drove  away  from  the  school,
               and  he  was  next  spotted  when  he  stopped  and  parked  his  car  at  the  Rutherford  County  SheriffÕs
               DepartmentÕs  sally  port. There  the  defendant  encountered  several  detectives  to  whom  he  reported
               that  he  had  shot  someone  and  that  the  gun  was  inside  his  vehicle. Not  surprisingly,  the  detective
               arrested  the  defendant,  and  the  defendant  was  later  charged  with  attempted  first  degree  murder,  Tenn.
               Code  Ann.  ¤¤  39-12-101  (1997),  39-13-202  (Supp.  2001),  and  felony  reckless  endangerment,  Tenn.
               Code  Ann.  ¤  39-13-103  (1997).
                              At  trial,  the  state  presented  a  thorough  and  straightforward  case.  We  summarize  and
               report  the  trial  proof  from  the  vantage  point  most  favorable  to  the  state.
                              The  victim  was  the  stateÕs  first  witness. She  testified  that  she  and  the  defendant  met
               in  1993. Shortly  thereafter  they  began  cohabiting,  and  in  1995  the  couple  had  a  child. During  their
               relationship,  the  victim  and  the  defendant  had  separated  once  or  twice,  the  last  time  being  on  Super
               Bowl  Sunday  in  January  1999. The  couple  had  been  living  in  Shelbyville,  but  the  victim  and  the
               child  moved  to  Rutherford  County.
                              On  Tuesday  morning,  March  2,  1999,  the  victim  was  at  her  house  with  the  child.  The
               defendant  called  at  9:30  a.m.,  and  when  the  victim  answered  the  phone,  he  said,  ÒHello. Why  did
               you  lie  to  me?Ó  The  victim  expressed  puzzlement,  whereupon  the  defendant  complained  that
               instead  of  spending  the  weekend  with  him,  she  was  working. Exasperated,  the  victim  blurted  out
               that  they  were  never  going  to  get  back  together,  so  each  of  them  needed  to  go  ahead  with  their  lives.
               She  assured  the  defendant  that  he  could  see  their  child  at  any  time  but  that  she  just  could  not  live
               with  him.
                              Approximately  three  hours  later,  the  defendant  came  to  the  victimÕs  house.  The  front
               door  was  open,  and  the  defendant  entered  by  way  of  the  unlocked  screened  door. The  victim  was
               sitting  on  the  couch  in  her  living  room;  she  was  talking  to  her  mother  on  the  telephone,  and  the  child
               was  near  an  end  table  on  the  side  of  the  couch  where  the  victim  was  seated. The  defendant  walked
               up  to  the  victim  and  asked  to  whom  the  victim  was  speaking. She  replied  that  it  was  her  mother.
               The  defendant  then  stated,  ÒHang  up  the  phone,  tell  her  bye,  IÕm  here  to  kill  you.Ó  The  victim  looked
               away  Òfor  a  split  second,Ó  and  when  she  looked  back,  the  defendant  was  pointing  a  nine  millimeter