# FILED

April 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE AUGUST SESSION , 1996

STATE OF TENN ESSEE , ) ) No. 03C01-9502-CR-00039 Appellee ) ) BLOUNT COUNTY vs. ) ) Hon. D. Kelly Thom as, Jr., Judge CECIL SKIDMORE , ) ) (Attempted First Degree Murder) Appellant )

For the Appellant : For the Appellee : Mack Garner John Knox Walkup District Public Defender Attorney General and Repor ter 318 Court Street Maryville, TN 37804 Eugene J. Honea Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
Mike Flynn District Attorney General 363 Court Street Maryville, TN 378

04-5906

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 Arch ie Be nne tt, a su perv isor a t the N ippon den so P lant, d esc ribed the vic tim, J imm y Baskin: “Top-notch. G ood worker, very solid, got a good head on his shou lders. Very fair.” Before working at

the Nippondenso Pl ant, fro m 1963 until 1990, Baskin served i n the United States A rmy.

2 On cross-examination, Baskin testi fied that he once accompanied the appel lant to look at a car that the appellant was selli ng. Baskin di d not purchase t he car, and he and the appellant parted a mica bly. 2 OPINION

The appellant, Cecil D. Skidmore, was convicted by a Blount County jury of attempted first degree murder, a class A felony. The trial court sentenced the appellant as a standard, range I offender to twenty-three years imprisonm ent in the Tennessee Department of Correcti on. In this appeal, the appellant challenges the trial c

ourt’s refusal to instruc t the jury concerning

the offense of attempted voluntary manslau ghter, the sufficiency of the ev idence supporting the jury’s verdict, and the trial court’s imposition of a sentence of twenty-three years.

Following a thoroug h review of the recor d, we affirm the judgment of the trial court.

I. Factual Background This case arose from a shooting on December 17, 1992, at the Nippondenso Meter Plant, loc ated in Maryvill e, Tennessee. In December, 1992, the appellant was a temporar y employee of the Nippondenso Pl ant. The appellant worked for the Log istics Department, coll ecting discarded packin g foam from the different assembly lines. The victim, Jim Baskin, had worked in the Subassembly Department at the Nippondenso Pla nt for several years, delivering parts to the assembly lines. 1 The victim testified that his relationship with the appellant was

solely work-r

elated, but friendly. Indeed, the victim stated that, prior to the morning of December 17, 1992, he had never e ngaged in an extended conversation w ith the appellant, much less any altercation. 2 Employees of the plant generally described the appellant as “nice” and were3 The State argued at trial that th e appellant

was referri ng, in a der ogatory manner, to the victi m, Baskin, who is Afr ican-American. 3 unaware of any ongoing conflict between the appellant and other Nippon denso employees, including

the victi m.

However, Tony Mow

dy, a “tool and die maker” at the Nippondenso Plant, testified that, approximately two weeks before the shooting, the appellant had remarked to him in an angry tone of voice, “I’m thinki ng about killing me a goddam buck.” 3 Mowdy stated that the appellant also “had a[n] . . .angered look on his face.” Richard Mar sh, another employee of the plant, t estified that, a few days before the shooting, he an d the appellant had been involv ed in an argument, during which the appellant threatened to assault Marsh, stating, “I’m tired of this shit. . . . I ’ve took it too long. I’ve been taking it for two months now and . . . . I can’t take it anymore.” During th e week prior to the shooting, the appellant mentioned to Marsh sev eral times that other employ ees at the plant were harassing him. Linda Johnson, a Nippondenso employ ee, testified that, on the afternoon of December 16, 1992, she, the ap pellant, and another co-wo rker were leaving the plant following their shift. When Johnson told the appellant that she would s

ee him the nex

t day, he re plied, “[Y

]ou may and y

ou may not see me . . . . [Y]ou may hav

e someone new picking up y our garbage.” Accor

ding to Johnson, the appellant was v isibly upset.

On the morning of December 17, 1992, just before 5:00 a.m., employees began to arrive at the p arking lot of the Nippondenso plant. At this time, sev eral employees observed the appel lant shoot repeatedly at the victim’s truck. The appellant continued to fire his weapon as the truck fled the par king lot. Thereafter, the appellant walked back to his own truck and, “[v]ery nonchalantly and not in any hurry,”

placed his weapon on the seat of the truck and lit a cigarette. The appellant then apparently awaited the arrival of the police. At the4

time of his arrest, the appellant was “passive” and “quiet.” Follow

ing the appellant’s arrest, testi ng of the appellant’s blood for al cohol and drugs produced negative results.

The victim, Bask in, additional ly testified tha t he always drove an ora nge pick-up truck to wor

k and parked in the same locati on. On the morning of the offense, h e was scheduled to arr ive at w ork at 5 :00 a.m. The appel lant’s shift began at 7:00 a.m. As the victim backed into his parking space at approximately 4:45 a.m., he heard a “thump ” on the window of hi s truck. Baskin loo ked through his window and obser

ved the appellant. The appellant was speaking, and Baskin opened his door in ord er to hear the appellant. At this point, the appellant raised a weapon and shot Baskin twice in the chest. Baskin immediately got back int o his truck and began to dr ive away. The appell ant continued to fire his weapon, striking Baskin four more times.

Upon their arrival at the scene, the police searched the appellant’s truck, recovering the follow

ing items: a .30 caliber

rifle containing 18 rounds of ammunition, a .25 caliber semi- automatic pistol containing seven rounds of ammunition, and a “long-blade” knife. The rifle was capable of holding 31 rounds of ammunition: 30 rounds in the magazine and one round in the chamber. The pistol was capable of holding seven rounds : six in the magazi ne and one in the chamber. The safety mechan ism had been deactivated on both weapons. The police found thirt een .30 caliber spent casings in the general vicinity of the sho oting.

Dr. Melissa Trekell,the physician who tr eated the victim, also tes tified at trial. She stated that Baski n suffered six gunshot wo unds in the chest. She further described Baskin’s condition and treatment: Mr. Baskin came in and he had s ucking chest wounds. And when you breathe and you have holes in your chest, ai r travels in and4 The appellant indicat ed to Dr. Eri c Engum, a clini cal psychol ogist who eval uated the appellant

follo wing the shoot ing, t hat he resumed drinki ng heavil y after his div orce in 1991. 5 out. And we put chest tubes i n, which are drainag e tubes, to both sides of his chest when he arrived in the emergency room. His blood pressure was stabi lized and subsequently dropped again, and he continued bleeding. And s o we took him to surger y to do what we call an ex

ploratory thoracotomy , where we actually open his chest, his right chest, and take a look and see w hat’s bleeding. . . . He had a laceration in his lung, he had a tear in his lung. And also at his exit w

ounds here in his anterior chest, he had bleeding intercostal vessels , which are blood ves sels that lie right u nder your ribs. According to Dr. Trekel l, Baskin almost died.

The appellant did not testify, but introduced the testimony of v arious family members. The appellant’s brother, Richard Skidmor e, testified that the appellant had always possessed a “suspicious nature” and did not respond well to teasing. Skidmore further indicated that his brother had a history of alcohol abuse, but had stopped drinking in 1987 or 1988. 4 Moreover, accordin g to the appellant’s brother, after r esigning from his job at Pathway Bellows,a company in Oak Ridge, Tennessee, in 1989, and following his di vorce in 1991, the appellant “began to just ac t bizarre.” The appellant was “withdraw n and paranoi d.” Addit ionally, d espite f inancial difficu lties, th e appella nt began t o giveaway valuable personal belongings. Skidmore conceded during crossexamination that, although hi s brother sometimes carri ed a rifle in his vehicle, Skidmore never believed that his brother was dangerous.

Henry Shuler, the appellant’s brother-in-law, testified that, prior to his divorce in 1991, the appell ant was a “jolly good fellow.” Follow ing his divorce, the appellant began to behave od dly, isolating hims elf from family and friends. On one occasion, approximatel y one year prior to

the shooting, the appellant arrived at Shuler’s home at 12:00 a.m. or 1:00 a.m., claimi ng that he was being pursued by the police. Shul er could find no evidence of any pursuit.6 Carl McGill, a tr

usty at the Blount County Jail, testified that, w

hen the appellant was first admitt ed to the jail, he sat in a c orner and ate a pencil. Richard Skidmore and Henry Shuler visited the appel lant at the jail followi ng the appellant’s arrest. The appellant appeared disoriente d and depressed. He whispered throughout their conversation, because he believed that his conversations were

being monitored by pers onnel at the jail. He als o stated that his life was in danger

at the jail. Finally, he asked his brother and br other-in-law to remove their jackets , because they were the color of the walls at the jail and indicated that Skidmore and Shuler were a part of “the system.” W hile incarcerated in the jail , the appellant attempted suicide.

Dr. Eric Engum, a cli nical psychologist , testified on behalf of the appellant. He testified that the appellant had inform ed him that the appellant’s co-workers at the Nip ponden so Plant h ad haras sed and in timidat ed him. Sp ecifica lly, according to the appellant, the victim, Baskin, drove a cart with which he would frequently attempt to block the appellant’s path. His c o-workers also si gnaled to one another for the purpose of harassi ng the appellant. The appellant be lieved that, if he did not act, someone would harm him. Th e appellant particularly felt threatened by the variou s military jackets worn by the vic

tim. Accordingly, he decided to confront Baskin on the morning of Dece mber 17, 1992. Baskin arrived at the Nippondens o plant and parked his truck. At this point, the appellant believed that the v ictim was reaching

for a weapon, and he began firi ng his rifle at

the victi m.

Dr. Engum diagnosed the appel lant as suffering from alcohol abus e, depression, and a mixed pers onality disorder. The mi xed personality dis

order comprised components of three different dis orders, including par

anoid, antisocial, and narcissistic disorders. Dr. Engum characterized the appellant’s mental state as a “siege mental ity.” He further ex plained:5 Dr. Engum’s report,which was admitte d at tri al, i ndicates t hat the appel lant possesses a Full Scale I.Q. of 108, “which place[s] him in the high average range of intellectual functioning.” Howe ver, Dr. En gum also state d in his repo rt: Though clearly

not indi cative of

underly ing organi c brain damage, one shoul d be aware that . . . defi cits i n problem-solvi ng, flexi bility, r esponsivit

y to feedb ack and ability to consider multi ple aspects of a problem . . .suggest underlying di storti ons in cognit ion which may enhance underly ing hyper sensiti vity

and feeli ngs of vulne rability. 7 I think it is very evident from all of the facts that in no way could [the appellant] realistic

ally or objectiv

ely appraise the nature and aspects of his interactions w ith Baskin. He was mi sinterpreting and distorting anything that Baskin did in a very paranoid, suspicious, delusional fashion. Nevertheless, Dr. E ngum concluded that the appellant was mentally competent to stand trial. He also concluded that the appellant w as not insane, as the appellant understood the wr ongfulness of his conduct and w as capable of conform ing his con duct to th e requirem ents of t he law.

Dr. Ahmed Farooque, a psy chiatrist who exami ned the appellant at the Middle Tennessee Mental Health Institute, testified on behalf of the State. He also diagnosed the appellant a s suffering from alcohol dependence, dy sthymia, which is “a low

-grade, chronic depres sion,” and a non-specific per sonality disorder, including c

omponents of antisocial, narciss istic, histrionic, and borderline personality

disorders. He too determi ned that the appellant was mentally competent to stand trial and that his mental cond ition could not support a defense of insanity. Dr. Fa rooque opined that, whil e the appellant’s disorder might significantly

impair his ability

to function socially or

occupationally, the disorder would not neces sarily impair his

“thinking capacity .” 5

At the conclusion of the trial , the jury found the appellant g uilty of attempted first degree murder. On October 5, 1995, the trial court conducted a sentencing hearing. At the hearing, the State relied upon the pre-senten ce report an d the evid ence add uced at t rial. The appellan t testif ied on his own behalf. The appellant recounted that, foll owing his resig nation from Pathway Bellows and his div

orce, he began to believe that he was being follow ed. At the6 A garotte is an imp leme nt or wea pon us ed to stran gle a victim

. Webster’s Ninth New Collegiate Dictionary506 (1987). 8 sentencing hearing, he c ould not recall why

he believed he was bei ng followed or by whom, although he did recall believing that the F.B.I. was monitoring his movements. In any case, he began to keep his window blinds closed and his doors locked at all times.He also propped chairs und erneath his door handles in order to barricade the doors. At work, he bel ieved that the victi m, Baskin, was harassing him, includi ng placing two garottes 6 on the appellant’s cart and threatening the appellant. The appellant believed tha t the colors of Baskin’s military jacket si gnified death. Ultimately , he decided to confront the appellant

. The Sunday prior to the shooting, he purchased the .30 caliber rifle . However, the appellant testified that he only shot Baskin on the morning o f December 17, 1992, because he believed that the victim was reac hing for a weapon. The appellant sta ted at the sent encing hearing: Anyway, I don’t k

now -- I don’t know

exactly -- that’ s the straight of it. The man [Baskin] sat here and lied. I know it’s a mess. You know, anytime you s hed someone’s blood, that’s wrong. But what happened, to me, was self-defense. Y ou all call it how y

ou see it. The appellant claimed that he wa s sorry for what had transpired.

In sentencing the appellant to twenty-three ye

ars incarceration in th e Tennessee Department of Correction,the trial court found sever al mitigating factors, inclu ding: (8) The appellant was sufferi ng from a mental condition that significantly reduced

his culpability for the offense; (10) The appellant assisted the authorities in locating

or recovering any property or pers

on involved in the cr

ime; (13) The appellant has no sig nificant criminal record. Tenn. Code Ann. § 40-35-113 (1990). The court then found the following enhancement factors: (6) The personal injuries inflicted upon the victim were particularly great; (9) The appellant employed or possessed a firearm during the commission of the offense; and7 We note that, in State v. Kimbrough , 924 S.W.2d 888, 892 (Tenn. 1 996), the Supr eme Cou rt held that th e off ens e of a ttem pted felon y-m urde r doe s not exist in Te nne sse e, as “it is logical ly and l egally

impossible t

o attempt to per

petrate an un intent ional ki lli ng.” The Supreme Court observed t hat, because t he intent required f

or an attempt i s an intent to commit the contem plated crim e, attem pt to com mit m urder re quires a s pecific inten t to kill. Id . at 891. Thus, the c ourt s ugg este d tha t the s tatuto ry prov ision o n crim inal at tem pt is ina pplica ble to any cr ime requiring les s than a s pecific inten t. Voluntary

manslaughter requi res only knowledge. Tenn. Code Ann. § 39-13-211 (a) (1991). Pri or to Kimbrough , this c ourt h eld th at atte mp ted vo lunta ry ma nsla ugh ter is a n off ens e in Tenn essee
. State v. Adams , No. 03C01-9403-C R-00123 (Te nn. Crim. App. at Knoxville, January 11, 1995). However, the l anguage in Kimbrough seem ingly ca sts d oub t upo n our conc lusion in Ad ams
. But see State v. Jenkins , No. 01C01-9508-CC-00269 ( Tenn. Crim. App. at

Nashvill e, November 15, 1996)(citing Kimbrough , 924 S.W.2d at 890)(one who intends t

o commit an act that would constitute second degr ee murder but fai ls to complete the act commits att empted second degree murder). Of course , if at tempted volunt

ary manslaughter

is not a crime in Tennessee, then the tria l court com mitted n o error in re fusing to ins truct the jur y on that offe nse. See, e.g. , State v. Forbes , 918 S.W.2d 431, 447 (Tenn. Cr im. App. 1995) ( trial court properly deni ed the appellant’s special

request for

a jury i nstructi on, as the i nstructi on was an incorre ct statement of the law). 9 (16) The crime was committed under circumstances under which the potential for bodily in jury to a victim w

as great. Tenn. Code Ann. § 40-35-114 (1995 Supp. ).

II. Analy

sis

a. Prop osed Jury I nstr ucti on Co ncer ning Attem pted Volu ntar y Manslaughter 7
The appellant contends that the tri al court erred in refusing to instruct the jury concerning the offense of attempted volu ntary manslaught er. A trial judge must give a correct and complete charge of the law applicable to the facts of the

case. State v. Ruane , 912 S.W.2d 766, 782 (Tenn. Crim. App. 1995); State v. Phipps , 883 S.W.2d 138, 139 (Tenn. Crim. App. 1994). Accor dingly, defendants are entitled to jury instructions on all offenses which are a lesser grade or class of the charged offense, if the evidence would supp ort a conviction for the offense

. State v. Trusty , 919 S.W.2d 305, 311 (Tenn. 1996); Tenn. Code Ann. § 40-18-110(a) (1990). Conv ersely, "the giv

ing of instructions on offenses for which there is no ev

idence in the record is to be avoided." State v. Davis , 751 S.W.2d 167, 170 (Tenn. Crim. App. 1988).

Attempted voluntary manslaughter is a lesser grade of attempted f irst degree murder. See Trusty , 919 S.W.2d at 311. Voluntary manslaughter “is the8 The attempt statut e refers to the “cir

cumstances surrounding t he conduct as the per son believes them to be.” Id . However, t his refer ence does not al ter our subsequent conclusion that prov oca tion is to be ass ess ed ac cord ing to an ob jectiv e sta nda rd, in lig ht of th e atte mp t statu te’s requirement that a person ac t “with the kind of culpabilit y otherwise required for the offense.” Id

. 10 intentional or knowing

killing of another in a s tate of passion produced by adequate provocation sufficient to lead a reasonable pers on to act in an irrational

manner .” Tenn. Code Ann. § 39-13-211(a) (1991) (emphasis adde d). Moreover, “[a] person commits crimin al attempt who, acting with the kind of culpability otherwise required for the offense : . . . Acts with int ent to complete a course of action or cause a result that would constitute the offense, unde r the circumstances surrounding the conduct as the person beli eves them to be, and the conduct constitutes a substantial step toward the comm ission of the offense.” Tenn. Code Ann. §39-12-101(a)(3) (emphasis adde d). 8 Arguably, the evidence adduced at trial does not suppor t a finding that the appellant w as in a state of passion at the time of the offense. Clear ly, the record does not s upport a finding of adequate provocation. The appellant dispute s the lack of evidence concerning passion, but c oncedes that any provocation was the product of the appellant’s delusional mental state. Nevertheless, he contends that, for the purpose of determining whethe r there existed prov ocation adequate to support a convictio n for volu ntary man slaughte r, the app licable st andard is a subject ive standard, i.e., whether a reasonable person, suff ering the appellant’s delusions, would have been provoked. The State contends that this standard is “oxymoronic,” as a reasonable person would not have suffered the appellan t’s delusions.

In support of his proposition, the appellant cites Davis v. State , 28 S.W.2d 993 (Tenn. 1930). In Davis , 28 S.W.2d at 993-994, the appellant had been convicted of second degree mur der. At the time of the offense, the appellant was “laboring under an insane delusion” that his wife and the victim were conducting an affair. Id . There was no basis w hatever for this belief. Id . The appellant encountered the vic tim at a service stati on and began to curse the11

victim “with the utmost violence.” Id . Witnesses testified that the victim i n no way threatened the appellant, although the appellant claimed that the victim appeared to reach for a weapon. Id . The appellant shot the vic tim several times, returned to the garage, sat down, and awaited the arrival of the polic e. Id

. The Supreme Court reversed the appellant’s convicti on for second degree murder. Citing the McNaughten standard, the court specifica lly rejected the application of the insanity defense. Id . at 995-996. Nevertheless, the court concluded that the appellant’s d elusions precluded a finding of malice. Id . at 996-997. Moreover, the c ourt observed: We are of the opinion that, if, as a matter of fact, the deceased had debauched the wife of the plaintiff in er ror, and the plaintiff in error had been apprised of that fact and had become conv inced of its truth on the day of the wedding or thereafter, and, with reasonable expedition, while unde r the influence of passion and agitation produced by such information, had killed [the victim], he would only have been guilty of voluntary manslaughter. [According to] McNaughten’s Case . . . and those following it a homicide committed under an insane d elusion is excusable, if the notion embodied in the delusion and believed to be a f act, if a fact indeed, would have ex

cused the defendant. “Manslaughter is the un lawful killing of another without malice, either express or impl ied, which may be eithe r voluntary upon a sudden heat, or involuntary . . . “ Such being the law, it

ensues that plaintiff in error would have been guilty of manslaughter only, if, when he was first obsessed by this insane conceit, acting under the passion and agitation the reby produced, he had killed [the v ictim]. Id . at 996.

In State v. Shelton , 854 S.W.2d 116, 12 2 (Tenn. Crim. App. 1992), this court, noting

the continuing

vital ity of Davis , suggested that “the hol ding in Davis indicated an acceptance of the propos ition that an abnormal mental condi tion short of insanity, as then de fined, could be used to negate the s tate of mind elements, including malic e, required for first or second degree murder.” The court the n noted t he change in the ins anity stan dard man dated by Graham v. State , 547 S.W.2d 531, 543 (Tenn. 1977). See also Tenn. Code Ann. § 39-11-12

501 (a) (1991) (codifyi ng the criteria of crimi nal insanity whic h have been followed in Tennessee since the Graham decision). The court stated : Under the Graham test, the cornerstone of a defense to homi cide under Davis must be that the defendant’s state of mind a

t the time of the offense had to be the product of a mental diseas e or defect, not just any mental condition. If the mental disease or de fect produced a delusion and the notion embodied in the delusion and believed to be a fact would have excused the defendant’s condu ct if the notion were indeed a fact, then the conduct committed under such a delusion is, like wise, excusable. Shelton , 854 S.W.2d at 122.

In Phipps , 883 S.W.2d at 148, this court observed that the “entire line of cases from Davis to Shelton , though frequently not us ing the term ‘diminished capacity,’ supports the

conclusion that evidence of an accused’s state of mind at the time of the offense is admissible in Tennessee to negate the existen ce of the requisite element of intent.” However, the cour

t emphasized that “diminished capacity is not a defense that absolves the accused from cul pability ; rather, it is a rule of evidence which allows the introducti on of evidence to negate the existence of specific intent when a defendant is charged w ith a specific intent crime.” Id . at 143 (emphasis added).

In Phipps , 883 S.W.2d at 144, we additionally ci ted MODEL PENAL C ODE § 4.02 Proposed Official Draft 1962), which provides: Evidence that the defendant suffered from a mental disease or defect is admissible whenev er it is relevant to

prove that the defendant did or did not have a sta te of mind that is an element of the offense. The court noted that the legisl ature, in revising the criminal code in 1989, fail ed to include a similar prov ision among the general and affirmative defenses set forth in the statute. Phipps , 883 S.W.2d at 148. However, the court again emphasized that the theory of “diminished capacity” applicable in Ten nessee is purely evidentiary

and not a means to excuse or j ustify a criminal offense and13

observed that “[t]he cri minal code does not purport to es tablish rules of relevance.” Id . at 149.

This court specifically

distinguished “dimini shed capacity” from “diminished responsibil ity,” rejecting the latter. Id . at 143-144. Similarly , the drafters of the Model Penal Code, i n rejecting diminished r esponsibility as an alternative ground for r educing murder to manslaught er, explained that cases may arise where ev

idence of a mental disorder dispr oves intent to kill, i .e., cases of diminished capacity, butthe reduction of murder to manslaug hter may be accomplished onlythrough a rule of provoc ation. The drafters explained the concept of dimin ished res ponsibil ity: Unlike provocation, diminished responsibility is entirely subjective in character. It looks into the actors mind to see whether he should be judged by a lesser standard than that applicable to ordinary men. It recognizes the defendant’s own mental disorder or emotional instability a

s a basis for partially

excusing his conduct

. Comment, MODEL PENAL C ODE § 210.3. The theo ry of dimi nished re sponsib ility, unlike the theory of diminis hed capacity described i n Phipps , is a defense. Therefore, we conclude, in cont rast to the Phipps case, that the legislature’s omission of this defense from the 19 89 Criminal Code reflects its rejection of this theory.

Although under the Model Penal Code provocation is not entirely subjective, the Model Pe nal Code does place far more emphasi s than does the common law on the actor’s s ubjective mental state. M ODEL P ENAL C ODE § 210.3(1)(b) (emphasis added) provides: Criminal homicide constitutes manslaughter when . . . a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance f or which there is reasonable explanation or excuse. The reasonableness of such explan ation or

excuse shall be determ ined fro m the vi ewpoint of a person in the actor’s situation under the circumstances as he believes them to be

.14

The drafters noted: [T]he Model Code qualifies the rigorous objectiv ity with whi ch the common law determined adequacy of provocation. . . . The cri tical element in the Model Code formulati on is the clause requir ing that reasonableness be assessed “fro m the viewpoint of a person in the actor’s situation.” The w ord “situation” is desi gnedly ambiguous. On the one hand , it is cle ar that pers

onal handicaps and some external circumstances must be taken into account. . . .On the other hand, it is equally plain that idiosyncr

atic moral values are n ot part of an actor’s situation. . . . In between these tw o extremes, . . . abnormally fearful temperament may . . . serve to differentiate an individual actor from the h ypothetical reasonable man, yet none of these factors is wholly

irrelevant to the ultimate issue of credibility

. . . . The Model Code endorses a formul ation that affords sufficient flexibility to differenti ate in particular cases between those special aspects of the actor’s situati on that should be deemed material for purpose of grading and those that should be ignored. Comment, M ODEL P ENAL C ODE § 210.3. Our legislatur e declined in 1989 to adopt the Model Penal Code’s appr oach to provocation, sig naling its intention to adhere to the common law objective standard. Applyi ng an objective standar d, the record contains no evi dence of provocation, and this issue is without meri t.

b. Sufficiency of

the Evidence The appellant next challeng es the sufficiency of the eviden ce supporting his conviction. A ju ry conviction re moves the presumption of innocence with which a defendant is initi ally cloaked and replac es it with one of guilt , so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant must establish that the ev idence presented at trial w as so deficient that no "reasonable trier of fact" co uld have found the essential ele ments of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994); Tenn. R. App. P. 13(e).

Moreover, an appellate c ourt may neither rew

eigh nor reevaluate the evidence when determini ng its sufficiency. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concer ning the credibility

of witnesses and the15

weight and value to be given the evidence,as well as all factual issues raised by the evidence, are resolv ed by the trier of fact, and not the appellate courts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). "A jury v erdict approved by the trial judge accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the State's theory." State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). The State is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which may be drawn therefrom. Id. See also State v. Harris , 839 S.W.2d 54, 75 (T enn. 1992).

The State may prove a cri minal offense by direct evi dence, circumstantial evidence, or a combination o f the two. State v. Tharpe , 726 S.W.2d 896, 899- 900 (Tenn. 1987). See also State v. B rown , 836 S.W.2d 530, 541 (Tenn. 1992)(“the cases have l ong recognized that the necessary elements of firstdegree murder may be show n by circumstantial ev

idence”). Before a jury may convict a defendant of a criminal offe nse based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other reasonabl e hypothesis save the g uilt of the defendant, and that beyond a reasonable doubt." State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). See also State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). As in the case of direc t evidence, the weig ht to be given circums tantial evidence and “‘[t]he inferenc es to be drawn from such ev idence, and the extent to which the circumstanc es are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958)(citation omitted).

At the time of this offense, the relev ant statute defined first degree mur der as "[a]n intentional, premeditate d and deliberate killing

of another." Tenn. Code Ann. § 39-13-202(a)(1). Again, “[a] person commits cr iminal attempt who, acting with the kind of culpabili ty otherwise req uired for the offense: . . . Acts w ith intent9 However, wit h respect to d eliber ation, we note that , in State v. Gentry , 881 S.W .2d 1, 5 (Tenn. Crim. App. 1993 ), thi s court stat ed, “The [mere] pre sence of agitation or even anger, i n our view, doe s not nec essarily m ean that th e mu rder cou ld not have occurre d with the re quisite degree of delibera tion.” 16 to complete a course of action or cause a result that woul d constitute the offense, under the circumstances sur rounding the conduct as the per son believes them to be, and the cond uct constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. §39- 12-101(a)(3). As to the requisite culpability, a person acts intenti onally “with respect to the nature of the conduct or to a resu lt of the conduct when it is th e person ’s conscio us object ive or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39- 11-106(a)(18) (1991). Additionally, premeditation necessitates "a p reviously formed design or intent to ki ll," State v. West , 844 S.W.2d 144, 147 (Tenn. 1992), and "the exercise of re flection and judgment," Tenn. Code Ann. § 39-13- 201(b)(2) (1991). Del iberation requires a "c ool purpose" and the absence of "passion or provocation." Tenn. Code Ann. § 39-13-201(b)(1 ) and Sentencing Commission Comments. 9

Generally, the State has the burden of establishing premedi tation and deliberation. Brown , 836 S.W.2d at 543. Again, although the jur y may not engage in speculation, State v. Bordis , 905 S.W.2d 214, 22 2 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995), the jury may infer premeditation and deliberation from the circumst ances surrounding the ki lling. Gentry , 881 S.W.2d at 3. Our supreme court has del ineated several circumstances which may be indicative of premeditation and deliberation, including the use of a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel, declarations by the defendant of his intent to kill the vi ctim, and the making of preparations before the killi ng for the purpose of concealing the crime. Brown , 836 S.W.2d at 541-542. This court has also recently noted several factor s from which the jury may

infer the two elements, including planning activ ity by the defendant before the killing, ev idence concerning the defendant’s motive, and10 "Calmness immediately after a ki lli ng may be evidence of a cool, di spassionate, prem editated m urder." West , 844 S.W.2d at 148 ( citi ng State v. Browning , 666 S.W.2d 80, 84 (Tenn. Crim. App. 1983 ), and Sneed v. State , 546 S.W .2d 254, 258 (Tenn. Crim . App. 1976)). 17 the nature of the killing. Bordis , 905 S.W.2d at 222 ( quoting 2 W. LaFave and A. Scott, Jr., Substantive Criminal La w§ 7.7 (1986)).

We conclude that the evidence is sufficient to s upport a conviction for attempted first degree murder. In summary, approximately two weeks prior

to the offense, the appellant stated to a co- worker that he was thinking about “killi ng me a goddam buck.” The State arg ued at trial that the appellant was referring to the victim, who is African-American. Moreov er, several days pr

ior to the shooting, the appellant stated to a co-worker that he

would no longer toler

ate harassment by fellow employ ees. The afternoon before the shooting, the appellant indicated that he mig ht no longer be worki ng at the plant. On the morning of the shooting, the appel lant arrived at the plant two hours early,at the time Baskin was schedule d to arrive. He w

aited in the area of the parking lot where Baskin alway

s parked his truck, armed with a fully loaded .30 caliber rifle, a fully loaded .25 caliber semi-automatic pistol, and a k nife. The appellant shot Baskin, who was unarmed, six times in the chest. The appellant then sat in his truck and smoked a cigaret te. 10

The appellant’s contention that hi s mental condition precluded premeditation and deliberation was submitted to the jury. The trial court instruct ed the ju ry: Evidence has been submitted in this case by the defense and the state concerning the defendant’s mental cond ition. This evidence should be considered by y ou, specifically in r

eference to whether or not the defendant possessed the necessar y deliberation or premeditation which are e lements of murder in the first deg ree, or knowledge which i s an element of murder in the second deg ree. While this evidence may not establis h a defense wherein the defendant would be found not guilty of any offense, it may be considered by you in deliberating upon the necess ary elements of murder in the first degree or murder in the second degree. As I11 In fact, the re cords o f the Spe cial Need s Facility indicate that the ap pellant did occasionall

y complain of an inabil ity to sleep. Otherwise, the records i ndicate t hat, as stated by Dr. Farooque, t he appellant was “quiet and cooperati ve,” i nteracted wel l wit h other pati ents and staff mem bers, and, generally, exhibited no unusual behavior. 18 instructed you earlier, should you find that the necess ary elements of any of the grades of homicide are not present, the defendant must be acquitted as to that ch arge. You may consid er evidence of the defendant’s mental condition alon g with other relevant evidence in arriving at y

our verdict.

Again, the evidence adduced at trial indicates that the appellant possesses, at least, aver age intelligence. Addi

tionally, Dr. Far

ooque testified that the appellant’s personality disorder does not impair his “thinking capacity.” Indeed, while incarcer

ated at the Department of Correcti on Special Needs Facility, the appellant informed Dr. Farooque that he was not suffering any mood or thought disorder, other than depression as a result of his divorce in 1991. However, he admitted ex periencing some difficulty controlling his temper

and also conceded that, at times, he ov erreacted to minor incidents . Dr. Farooque further testified that, whil e incarcerated at the Blount C ounty Jail, the appellant had been prescribed medication normally prescribed to “a person who is acutely psychotic or has a his

tory of seizures.” Dr. Farooque stated that,when he disconti nued the appellan t’s medic ation, th e appella nt “did a lo t better. ” Finally, in a staff conference report, Dr. Farooque recorded the following observations: At the tim e of adm ission . . . , and thro ughout hi s stay at th is facili ty, [the appellant again was lucid and coherent and gav e no indications of a severe mental illness. He was al ert, well oriented and cooperative throughout his stay. His behav

ior on the residential unit was suggestive of a mild l evel of depression, however he did not ex

perience difficulties eating or sleeping and he interac ted with his pee rs and t he staff. 11 Skidmore’s responses to questions were not suggestive of one with a severe thought disorder or an inabilit

y to accurately per

ceive reality. Ther

e was no suggestion of him halluci nating, and he did not claim t o have been hearing voices or having unusual visual experiences. Skidmore’s comments raised the question of par anoid thinking and a gener al mistrust of others. His v ocabulary was repr

esentative of someone with a high school education, and his reasoning and judgement did not appear impaired. . . . [The appellant’s] percepti ons of the victim are not accurate and may be the product of his alcohol dependence. . . . [The appellant] reports that he shot at [the v ictim] because he thought Bask in was19 going for a weapon, and he be lieved it was appr opriate to respond in self-defense. (Footnote added). Certainl y, the record contains s ufficient evidence to support a finding by the jury,beyond a reasonable doubt, that the appellant’s mental condition did not preclude pr emeditation and deliberation. With respect t o the testimony of the defense expert, Dr. Engum, the evaluation of expert testimony is the province of the jury

. State v. Coleman , No. 02C01-9503-CC-00083 ( Tenn. Crim. App. at Jackson), perm. to appeal denied , (Tenn. 1996). Accordingl y, the jury was free to disregard the testimony of Dr. Engum in light of other evidence adduced at trial.

c. Sentencing Finally, the appellant contends that his offense does not war rant a sentence of twenty-three y ears incarceration in the Department of Correction. Review, by this court, of the length of a sentence is de novo with a presumption that the determination made by the trial court is corr ect. Tenn. Code Ann. § 40- 35-401(d) (1990). This presumption only applies, however, if the record demonstrates that the trial c ourt properly consider

ed sentencing principles and all relevant facts and ci rcumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial cour t applies inappropriate factor s or otherwise fails t

o comply with the 1989 Sente ncing Act, the presumption of c orrectness falls. Shelton , 854 S.W.2d at 123. In th e instant case, we afford the trial court’s determination the presumption of correctne ss.

In any event, the appellant bears the burden of establishing that the sentence imposed by the tria l court is erroneous. State v. Lee , No. 03C01-9308- CR-00275 (Tenn. Crim. App. at Knoxville, April 4, 1995). In determining w hether the appellant has met this burden, this court must conside r the factors listed in Tenn. Code Ann. § 40-35-210(b)(1995 Supp. ) and the sentencing principles20

described in Tenn. Code Ann. § 40- 35-102 (1995 Supp.) and § 40-35-103 (1990).

Moreover, with r

espect to the length of a sentence, Tenn. Code Ann. § 40- 35-210 (1990) provides that the minimum sent ence within the ap propriate range is the presumptive sentenc e. If there are enhancing and mitigating factors, the court must start at the minimum s entence in the range and enhance th e sentence as appropriate for the enhan cement factors and then reduce the sentence within the rang e as appropriate for the mitigating factors. Id . If there are no mitigating factors, the court may set the sentence above the minim um in that range, but still w

ithin the range. Id

. See also State v. Dies , 829 S.W.2d 706, 710 (Tenn. Crim. App. 1991). "[T]here is no particular v alue assigned by the 1989 Sentencing Act to the v arious factors and the 'wei ght afforded mitigating or enhancement facto rs derives from balancin g relative degrees of culpability within the totality of the cir cumstances of the case involv ed.'" State v. Marshall , 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993)(cita tion omitted). The weight assigned to any existing factor is generally left to the trial judge's discretion. Id

.
Initially, the appellant concedes that the victim’s injuries were particularly great. Tenn. Code Ann. § 40-35- 114(6). However, he argues that the “real reason” for his sentence of tw enty-three years i s that “the crime was c ommitted under circumstances under w hich the potential for bodily injury to a victim was great.” Tenn. Code Ann. § 40-3 5-114(16). He contends that en hancement factor (16) is inapplicabl e to convictions for attempted first degree murder, as the factor i s inher

ent in th e offense.Simila rly, h e argues that th e appell ant’s us e of a firearm during the commissi on of the offense should be afforded little if any weight in sentencing

a defendant for the offense of attempted first degree murder. The appellant asserts that the rationale underly ing the application of12 We also agree with the St ate that the substant ial risk to the l ives of per sons other than the victim suppo rts the app lication of en hance men t factor (10 ). Tenn . Code A nn. § 40- 35-114

. See, e.g. , Stat e v. Mako ka , 885 S.W .2d 366, 3 73 (Te nn. Crim . App.), perm. to appeal de nied , (Tenn. 1994)(ot her persons were pr esent when the def

endant began to f ire hi s weapon at the intended victim).

13 It is not entirel y clear from the record of the sentencing proc eeding that the trial court applied this factor for the reason set forth above. Nevertheless, pursuant to our de novo review, we conclude that

this fact

or should enhance the appellant ’s sentence. 21 this factor is the greater danger associated with the use of a firearm. He states in his brief, “There is no w ay that attempted murder can be any more dangerous than it already is.”

With respect to the application of enhancement factor ( 9), this court has previously held that a sentencing court may consider the use of a firearm in enhancing a sentence for attempted fir st degree murder. See, e.g. , State v. Gibson , No. 01C01-9503-CC-00099 ( Tenn. Crim. App. at Nashvi lle, January 26, 1996)(the defendant shot the victim four times). With respect to the application of enhancement factor (16), the appellant correctly observ es that great potential for bodily injury al

ways exists w

ith an attempted first degree mur der. See State v. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996). However, the State correctly n otes that this factor may nevertheless enhance a sentenc e for attempted first degree murder if the proof establishes a potential for bodi ly injury to per sons other than the victi m. State v. Parker , No. 03C01-9307-CR-00214 ( Tenn. Crim. App. at Knoxvi lle, November 22, 1994), perm. to appeal denied , (Tenn. 1995 )(citing State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993)). The recor d establishes that numerous employees, in additi on to the victim, wer e present in the parking l ot of the Nippondenso plant as the appell ant fired his rifle at the v ictim’s truck thirtee n times. 12 Accordingly, in this case, consideration of factor (16) is appropriate. 13

With respect to mitigating factors, the appellant argues that, in addition to the three mitigating factor s applied by the sentencing court, the record supports14 In the instant case, the pre-sentence report reflects that the appellant’s criminal history consists of t

wo prior misdemeanor convi ctions for public i ntoxicat ion. 22 the application of mitigating factor (2), that the appellant acted under strong provocation. Tenn. Code Ann. § 40-35-113. We have already concluded tha t the record does not support a findi ng of provocation.

The State contests the application of mitigating factor (10) , that the appellant assisted the authori ties in locating or r

ecovering any property or person involved in the crime. Tenn. Code Ann. § 40-35-113. Presumably, the trial court was referring to the appellant’s voluntary surrender to the police. We will assume, for the purpose of this opini on, that the appellant’s vol untary surrender to the police qualifies as assistance to the police w ithin the meaning of mitigati ng factor (10). See, e.g. , State v. Phillips , No. 03C01-9502-CR-00047 (Tenn. Cr im. App. at Knoxville, M arch 25, 1996); State v. Farmer , No. 03C01-9206-CR-00196 (Tenn. Crim. App. at Knoxville, July 8, 1993).

The State also challenges the trial court’s consideration of the appellant’s lack of a significant criminal history as a mitigating factor. The State cites, in support of its argument, State v. Keel , 882 S.W.2d 410, 42 2 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994). In Keel , this court refused to consi der the appellant’s lack of prior felony convictions as a mitigating factor in l ight of the appellant’s extensive history of misdemeanor convictions and criminal behavior. 14 Similarly, the court

declined to consider the appel lant’s stable employment history. The court state d: The vast majority of citi zens residing in th is state do not have a prior felony conviction. If this court permitted an accused’s sentence to be mitigated for thi s reason, it would be i nviting the criminal element of our society to engage in criminal conduct punishable as a misdemeanor. . .

. The fact that the appellant had a ‘f airly stable employment history’. . . does not entitle him to a reduction in his sentence. . . . Every citizen in this stat

e is expected to have a s table work history

if the23 economy permits the citiz en to work, the citiz

en is not disabled, or the citize n is not in depend ently wealt hy. See also State v. Yankee , No. 03C01-9507-CC-00200 ( Tenn. Crim. App. at Knoxville, August

6, 1996), perm. to appeal denied , (Tenn. 1997) (“the la ck of a felony conviction and a s table work history

do not entitle an accused to a reduction in the sentence impose d by the trial court”

). Moreover, this court has stated m ore broa

dly tha t the lac k of any criminal record will not mitigate a sentence. See State v. Garrison , No. 01C01-9407-CC-00236 ( Tenn. Crim. App. at Nashville, September 20, 1995), perm. to appeal denied , (Tenn. 1996)(“the legislature did not int

end the absence of a prior crimi nal record to be a mitigating factor because citizens ar e not expected to have a cr iminal record”); State v. Derrick , No. 181 (Tenn. Crim. App. at Knoxville, December 6, 1990)(“[o]bviously the legislature chose not to include [the absence of a criminal record ] as a [mitigating] factor becaus e citizens are not ex

pected to have criminal r ecords”). Yet, this court has als

o observed that, whil e a court is not requir ed to do so, Tenn. Cod e Ann. § 4

0-35-11 3 (13) a llows

a court to consi der the absence o f a criminal record as a mitigating factor. State v. Willia ms , 920 S.W.2d 247, 261 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996). Similarly, this court has observed that consideration of the absence of a criminal history is consistent with the pur

poses and principles of the sente ncing act. State v. Bingham , 910 S.W.2d 448, 457 n.2 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995).

In any event, whil e we agree with the trial court that the appel lant is not “the worst possible person under our law that could commit this offense,” the applicable enhancement factors amply justify a sentence of twent y-three years. We reach this conclusion even in li ght of the trial court’s further determination15 Parentheti cally , we reject the State’s contenti on that t he jury’ s verdict , findi ng the appellant

guilt y of att empted first d egree murder, precl uded the appli cation of this miti gating factor. Based upon the record,the tri al court was certainl y capable of

concluding that, whi le the appellant’s mental condition di d not prevent him from forming the requi site mental state of premeditati on and deli beration,it never theless redu ced his culpab ili ty for the purpose of senten cing. No r do we a gree with th e State tha t “to find this fac tor applica ble but to re fuse to charge vol untary

manslaughte r as a l esser-i ncluded o ffense i s logi call y inc onsistent.”

As we note d ear lier, the prov oca tion n ece ssa ry to es tablis h volu ntary m ans laugh ter is d eterm ined s olely by an objective “reasonable person” standard a nd is not related to the mental condition of a particular d efenda nt. 24 that the appellant was suffering from a mental condition that sig nificantly reduced his culpability for the

offense. 15

For the foregoing reasons , we affirm the judgment of the tri al court.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

_______________________________ PAUL G. SUMMERS, Ju dge