### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs S eptember 13, 2000 

### STATE OF TENNESSEE v. JAMES M. LOVEDAY Direct Appeal from the Circuit Court for Sevier County No. 7468 Richard R. Vance, Judge

No. E1999-02072-CCA-R3-CD February 8, 2001

Following a jury trial

, Defendant,

James M. Loveda

y, was conv

icted of one coun

t of attempted fir

st degree murder, four counts of aggravated assault, and two counts of reckless enda ngerment. The trial court sentenced

him to twenty-five (25) yea rs for the attempted first degree murder conviction, six (6) years for each of the four a gg ravated a ssault convictions, and two (2) years for each of the reckless endangerment convictions. The sentences were ordered to be served consecutively to each ot her for a total sentence of fifty-three (53) y ears. On appeal, he challenges the sufficiency of the evidence to sust ain the convictions of attempted first degree murder and aggrava ted assault, and argues that the trial court erroneously admitted testimony of p

rior bad acts, imp

roperly considered victim impact letters in

the presentence report, and argues that the sentences are excessive and that the trial court erred by ordering consecutive sente ncing. After a review of the record, we affirm the judgment of the trial court as modified herein. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Sevier County Circuit Court Affirmed
T HOMAS T. W OODALL , J., delivered the opi nio n of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.
Jam es W . Gr eenl ee, S evi ervi lle , Te nne sse e, fo r th e app ell ant , Ja mes M. Lo ved ay.
Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Al C. Sc hmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorn e y General, for the appellee, the State of Tennessee.-2- OPINION
I. FACTS

At the time of the trial, the Defendant and his wife, Karen Loveday , had been married twelve yearsbut had been separated approximately two ye ars. They had thr ee ch ild ren, Jim my Lov eday, Flo ra Lo ved ay, and Angel Loveday. Kar en testified that

during the marriage, Defendant had been abusive to her and the children and had pulled a gun on her at least three times. She finally decided to leave the Defendant. The Defendant had told her that if she took the children, she would not get away and there woul d b e “hell to pay” wherever he might catch he r. Subsequently, Karen was informedthat the Defendant had filed for custody of the children in a Sevier County court. Ha ving previously

left the area, K

aren returned t

o Sevier County

to participate in the custody hearing. She prevailed and was awarded temporary custody of the children. Furthermore, Defendant was ordered notto have contact with the children pending a report from a court-appointed guardian ad litem. Not long before the shooting incident involvedin this appeal, Ka ren again retu

rned to Sevier Coun

ty so that the guardian ad litem could interview the children . She and the c hildren were staying at the home of friends, Thomas and Edith Merritt.
On August 7, 1998, Ka

ren took the childr

en to be interviewed by the guardian ad litem. Later that evening, Kare

n returned with he

r children to the M

erritt house. Also

present was Mrs. Merritt’s son, J.C. Ramsey, and

Robert Byrd. Two additional children, Matt an

d Tony Scott, w

ere present. Mrs. Merritt was babysitting the Scott children. Having been informed that his wife and children were at the Merritt home, Defendant called the home and asked to speak to his son, Jimmy Loveday . J.C. Ramsey testified that he answered the Defendant’s telephone call at approximately

6:21 p.m. J.C. advised h is mother that the Defendant was on the phone. She took the phone and listened for a minute and then hu

ng up on the Defe

ndant. J.C. left the house and was not present at the time of the shooting inciden t. After Karen b

ecame awarethat the Defenda

nt had called, she

became frightened and wanted to have her children taken to another lo cat ion. Thomas Merritt took Karen and Defendant’s daughters to another house. Thomas Merritt took Jimmy Loveday out for a r ide, but then they both later returned.
At approximately 10:30 p.m., Karen Loveday , her son, Jimmy Loveday, Thomas and Edith Merritt, Robert

Byrd, and the

two Scott children w

ere inside the Me

rritt home. Suddenl

y, they all noticedthat bullets bega

n to be fired into

the home. Thomas Merritt was struck by on e bullet while standing in his bedroom. Proof showed that the bedroom window was on the front side of the house, andthe windows in

the house were all open, lights were on inside the entire house, and the front door was open. Karen L

oveday ra n though the house

to the phone to call 911. Therewas testimony that it appeared as tho

ugh bullets were

striking objects

directly behind her as she ran through the house. Thomas Merritt received his injury in the left side of his back. He had to be taken by Lifestar helicopter to a hospital in Knoxvil le. He had injurie

s to his bladder, ki dneys, and heart. He remained in an intensive care unit for at least one month and then underwent ther apy at another hospital for at least an additional month.-3-

The witnesses inside th

e home heard a vehicle

racing its engine just after the shots stopped, and saw the car lights as the vehicle drove away at a fast pace.
In August, 1998, Defendant was staying with Mike Maples at

his home in Sevierville. The Maples residenc

e was approximatel

y five or six mil

es away fr

om the Merritt

residence. Ear

lier in the late afternoon or early evening of August 7, 1998,

Maples and his

girlfriend wer

e swimming with the Defendant and two young women. After swimming, Maples a

nd his girlfriend went home and the Defendant and the two other women went elsewhere. Later, the Defendant and the young women arrived at Maples’ reside

nce before dar

k. Maples had seve

ral people at his house for a social gathering.
At some point after dark, Maples realized that the Defendant had left. Later on that night, Maples was advised

that the Defendant was outside and wanted to speak to him. The Defendant was standing in front of his gr ey Dodge vehicle. The De

fendant gave M

aples a .380 calib

er semiautomatic pistol and the carry ing case in which it was placed. Defendant requested Maples to put the gun up. Defendant then sat on Maples’ couch and every one else went to bed.
At approximately

5:00 a.m. the same night, Ma ples answered a

knock at his door. D

eputy Sheriff John Brown was at Maples’ door and aske d if the Defendant was present. He stated that Defendant

was still sitting on the couch . Deput y Brown as ked Maples about a

gun and he told Deputy Brown where the gun could be found. This was the same weapon that Defendant had given Maples earlier that night. Maples testified that during the time periods he spoke with the Defendant, he did not seem to be intoxicated or acting out of the ordinary.
KarenLoveday had previously informed Deputy Brown that the Defendant was probably the
one who had fired the shots and gave him a description of his vehicle. The information received by Deputy Brown led him to the Maples’ residence to look for the Defe ndant.
Edith Merritt testified

regarding tw

o incidents when D

efendant made th

reatening stat

ements concerning Karen Loveday and others. On one occasion, the Defendant advised her that she might have to raise

the couple’s chil

dren “if [Defend

ant] done away with himself and Karen.” On another occasion, the Defendant asked Edith Merritt if she had y et receive d a subpoena to testify in the couple’s divorce proceedings. She advised that she had not yet received the subpoena. Defendant told Mrs. Merritt that she would get a subpoena and that “ever who’s going to be on her [Karen Loveday] sides [sic] going to be sorry.” Deputy Brown testified that he found two spent bullets insidethe h ouse, one behind the television and one behind a door in theliving room. He a dded that not all of

the bullets fired i

nto the house were found. He found at least six bullet holes in different parts of the Merritt home. He further testifie d that t

he Merritt home is approximately 35 to 40 feet away fr om the road and that visibility inside the house from the road was very clear if the windows wer e open and the lights were turnedon. Based uponhis investigation at the scene and speaking with the victims, Deputy Brown began to look for th

e D efendant. After receiving information from one of the Defendant’s-4-

acquaintances , he went to Maples ’ home at approximately 5:00 a.m. He received the .380 caliber pistol that Defendant had given to Mike Maples. He also found insid e the gun case,

one empty cl

ip for the pistol and one clip containing four l ive c artridges. No clip was in the gun at the time he received it. He testified that the clip would hold six or seven bullets.
D eputy Brown stated dur

ing the trial that

the Defendant si

gned a consent t

o se arch th e Defendant’s vehicle. There were two spent shell casings from a .380 caliber bullet on the driver’s side of t he Defendant’s vehicle. The pistol, the bullets found at the Merritt’s, and the spent shel l casings found in Defenda nt’s v ehicle were sent to the TBI crime lab in Nashville. The crime lab report stated that the two bullets recovered from the Merritt house were fired from the gun recovered from Mike Maples, which the Defendant had given Maples on the night of the incident. Deputy Brown interviewed the Defendan t on t wo occasions, but both statements were exculpatory

and the State did not introduce them into ev id ence during its c ase in chief. The

first interview was during the early morning hours of August 8 a nd the other

was two days later. Brown testified that the Defendant was much more alert about the events which he said had occurred during the second interview, but

he did not know the Defendant’s blood alcohol level and did not give him
a fie ld sobriety te

st to determine his l

evel of intoxication

during the first

interview in the e

arly morning hours of August 8, 1998.
The Defendant testified and denied that he had ever threatened his wife, Karen, with a gun
or had ever assaulted

her in front of Edith Merritt. He stated that his wife left him because he got drunk. Defendant

told the jury

that after he ca

lled the Merritt re

sidence on Augu

st 7, 1998 and was deniedthe opportunity to speak with his son, he went outside of the homewhere he was staying and saw some of his buddies.

They offered to let him share some moonshine and he accepted the offer. He later got

with two women and went to Gatlinburg to get horse feed. He also got and d rank a fifth of whiskey while there and later got a case and a half of beer before returning to Mike Maples’ home.
The Defendant testif

ie d th at going to Mike Maples’ home that night was the last thing he remembered. He denied having any memory of the shooting and asserted that he occasionally had “black-outs”

from drinking too much. He acknowled ged that he had purchased the .380 caliber pistol at a flea marke

t and subsequently

pawned it f

or $55.00. He admitted that on the day of the shooting that he had redeemed the gun from the pawn

shop. He also acknowledged that he “went off” when he was denied the right to talk with his son during the phone call to the Merritt household. II. Sufficiency of Evidence
Where the sufficiency of the evidence is contested on appeal, the re levant question for the reviewing court is whe ther any rational trier of fact could have found the ac cused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979) . In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. Statev. 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-5-

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. Statev. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a verdict of guilt removesthe presumption of a defendant’s innocence and replaces it with a presumption of guilt, the defendant has the burden of

proof on the sufficiency of the evidence at the appellate level. State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all fac tual issues raised

by the evide

nce, are resolv

ed by the tri

er of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (T enn. Crim . App. 1987), perm. to appeal denied , (Tenn. 1987). Nor may this court reweigh or reevaluate the

evidence. Cabbage , 571 S.W.2d at 835. A jury verdict approved by the tria l judge accredits the State's witnesses and resol v es all conflicts in favor of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).
The Defendant first contends that the evidence was not sufficient to support his conviction for attempted premeditated

first degree murder of ThomasMerritt. Defendant argues that he lacked the specific intent to

commit murder, as well as the premeditation required for first degree murder.
Defendant

concedes that the evidence was sufficient to support a conviction for attempted seconddegree murder, but he contends that the evidence was insufficient to support a conviction for attemptedfirst degree murder because the State fail ed to establish the required element of premeditation. Under Tennessee law , f irst degree murder is “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). A person acts intentionally “when it is the person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a) (18) (1997). In addition, “[a] person commits criminal attempt who, acting with the kind of culpability otherwise

required for the

offense . . . [a]cts

with intent to cause
a result that is an el

ement of the offe

nse, and believe

s the conduct w

ill cause the result without further conduct on the person's part.” Tenn. Code Ann. § 39-12-101(a)(2) (1997). “‘[P]remeditation’ is an act done after exercise of reflection and jud gment.” Tenn. Code Ann. § 39-13-202(d) (1997). Although premeditation requires that “the intent to kill must have been formedprior to th

e act itse lf,” “[i]t is not necessary

that the purpose to

kill pre-exist in

the mind of the accused

for any definite period of time.” Id. The element of premeditation is a question for the jury which may be inferred

from the circumstances surrounding the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Tennessee courts have delineated several circumstances that may be indicative of p

remeditation, inc

luding the use

of a deadly weapon upon an unarmed victim, Statev. Bland , 958 S.W.2d 651, 660 (Tenn. 1997), facts from which motive may be inferred, State
v. Bordis , 905 S.W .2d 214, 222 (Tenn. Crim. App. 1995), and calmness immediately after the killing, Bland , 958 S.W.2d at 660.
Revi ewing the evidence in the light most favorable to the State, we can only con clude th e proof was legal ly sufficient to support the Defendant's conviction. The proof adduce d at trial-6-

showedthat the Defendant used a d ead ly weapon to fire upon a house occupied by an unarmed victim, Thomas Merritt. All of the window s were open and all lights were on, permitting the Defendant

to see clearly into the house and see Merritt. The day of the shooting, Defendant paid off his pawn shop loan in order to retrieve the .380 semi-automatic caliber gun he used. Maples testified that when the Defendant returned to the Maples residence, Defendant neither appeared intoxicated nor behaved unusual, which the jury could infer as evidence of c alm after the shooting.
The Defe ndan t contradicted some facets of the State's proof and offered explanations for conduct that he ad mitted engaging in. However, it was upon the jury to re concile any conflicting testim ony. Th e Defendant would have this court reweigh the evidence in his favor. The jury resolvedthe contradictions against the Def endant, finding

him guilty. T

he jury chose not tobelieve that the Defendant was drunk and had a blackout, which affected his memory. Instead, the jury decided that the Defendant acted with premeditation and intentto kill Merritt when Defendant shot at Merritt through a well-lit and open bedroom window. There was also evidence that the Defendant hadthreatened to

harm anyone who sided with his wife, during the divorce proceedings. Merritt and his wife were assisting Defendant’s wife, and the jury could infer that

they were “siding” with her in Defendant’s mind. From our review of the record, we find that the evidence was su fficient for
a rational jury to find beyond a reasonab le doubt that Defendant acted both with intent to kill and with premeditation when he shot Merritt. The Defendant is not entitled to relief on this issue. Next, the Defendant contends the evidence was insufficient to support the convictions for aggravated

assault of Rob ert Byrd, Kare n Lov eday, Jim my Lov eday a nd E dit h Me rri tt. Spe cif ica lly, Defendant argues that the evidence failed to show that he acted “knowing ly.” We disagree.
"A person commits assa

ult who intentionall

y or knowing

ly causes a

nother to reasonably

fear imminentbodily

injury." Tenn. Code Ann. § 39-13-101(a)(2) (1997). The offense of assault rises to aggravated

assault if the per

son "uses or d isplays a deadly weapon." Tenn. Code Ann. § 39-13-102(a)(1)(B) (199 7). "To establish these charges, the state was required to prove bey ond a reasonable

doubt that [the defendant] int ent ion all y or knowingly caused the victim[s] to fear imminentbodily injury by his use or display of a deadly weapon." State v. Wilson , 924 S.W.2d 648, 649 (Tenn. 1996). One

acts knowingly

when, with respect to a result of the person's conduct, "the person is aware that the conduct is reas onably certain to cause the result ," Tenn. Code Ann. § 39-11- 302 (b), “. . .irrespective of his or her desire that the conduct or result will occur,” Id. (Sentencing Commission Comments).
In the light most favorable to the State, there was sufficient evidence whereby a rational trier of fact could

have determined beyond a reasonable doubt that the Defe ndant committed the offense of aggravated assault. The proof established tha t the Defendant retrieved his gun from the pawn shop on the same day he committed these offenses. Then, Defendant knowing ly drove by the Merrit t’s home, where he knew his wife and children were residing. All of the windows in the Merritt home wereopen and all lights were on. Next, Defendant used a deadly wea

pon to fire shots into the Merritt home. The testimony indicated that the bullets fired by the Defe

ndant appeared

to follow Karen Loved

ay as she ra

n through the hous

e. Edith Merritt te

stified that, as the

bullets came-7-

into the home, she was too shocked to move and afrai d for herself an

d the Scott childre

n. Jimmy Loveday testified that he co uld not hear the bullets, because he was so afraid. Robert Byrd sta ted that he was afraid a

nd that bullets wer

e flying on

bothsides of him and forcing him to grab Jimmy and get on the floor.
A rational trie

r of fac t could have found that the Defendant's action of shooting into an occupied home was for the purpose of causing fear of imm inent bodily injury or causing actual serious bodily injury. In fa ct, each victim testified as to their fear of imminent bodily injury. Again, we emphasize that the resolution of discrepancies in testimony is a matter for the jury to de cide. Statev. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The jury had sufficient evidence to convict the Defendant of each count of aggravated assault. There fore, Defendant

is not entitled to relief on this issue.
III. Admission of Prior Acts
Defendant contends that the trial court erred when it admitted evidence about his prior bad acts because the evidence wasinadmissible under Rule 404(b) of the Tennessee Rules of Evidence. Rule 404(b) provid

es as follows:
OtherCrimes, Wrongs, or Acts

. Evidence of other crimes, wrongs, or acts is notadmissible to prove the character of a p erson in or der to show action in conformity

with the character trait. It may, howe ve r, be adm issible for other purposes. The conditions whic h must be satisfied

before allowing such evidence
are:

(1) The court upon re quest must hold a hea

ring outside th

e jury's presence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evide nce if its probativ e value is outweighed by the danger of unfair pre judice.
Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by clear and convincing evidence that thedefendant commit ted the prior bad a

ct. Tenn. R. Evid. 404 (Advisory Commission Comments); State v. DuBose , 953 S.W.2d 649, 654 (T

enn. 1997); State v. Parton , 694 S.W.2d 299, 303 (Tenn. 198 5). When a trial co

urt substantiall

y complies with the procedural requirements

of the rule, we review the trial court's determination for an ab use of di scretion.-8-

DuBose , 953 S.W.2d at 652. Where a court fa ils to substantially

comply with th

ese requiremen

ts, we afford the court’s decision no deference. Id.
The Defendant asserts that trial court failed to follow the procedural mandates of Rul e 404(b). The Defendant contends that the trial court err ed by not hol ding a jury -out hearing to determine the admissibility of testimony c

oncerning prio

r threats made by

the Defendant. However, Defendant

simultaneously

admits to his failure

to request a jury-out h

earing and his f

ailure to reques

t that the trial court make specific findings on the record. Further, Defendant’s brief fails to mention his mot ion in limine, which the trial court heard before the start of trial, addressing the exact testimony Defendant is now attacking on appeal.
In considering Defendant’s motion in limine, the trial court ruled that testimony regarding prior threats made by the Defendant agains t two of the victims, was relevant to the issue of premeditation. The trial court a lso found that while

the evidence was pr

ejudicial, the pr

ejudice did notoutweigh th e probative value, becau se any evidence o f prior int ent goes to t he heart of a c harge for attempted first degree premeditated murder. However, during trial the Defendant again objected to the admission of this evidence and argued that while evidence of threats he made to Karen Loveday and Edith Merritt were relev ant to intent, the threats were too remote to the commission of the present offense and

were therefore prejudicial. The trial court overruled the objection, stating that defense counsel could argue the issue of remoteness

to the jury in closing argument. Thus, we conclude that the trial court properly adhered to the mandates of Rule 404(b) and

did not abuse

its discretion in admit

ting evidence o

f prior threats ma

de by the De

fendant.
The Defendant contends that the State failed to give him prior written notice of the State’s intentto introduce evidence of Defendant’s prior bad acts. The Defendant argues that Tenn. R. Evid. 608(b) requires the State to give the Defend a nt reasonable written notice of its intent to introduce such evidence of prior misconduct. The State respond s that Rule

608(b) only

requires the Stat

e to give written notice, when the State intends to use evidence of prior bad acts to impeach a Defendant
on cross-examination. Therefore, the State argues that because it introduced the evidence to show Defendant’s intent, and not to impeach him, the State was not required to follow thedictates of Rule 608(b). We agree.
We also note that at t

rial, Defendan

t objected to this ev

idence because

it violated Tenn. R. Evid. 402 and 403. On appeal, Defendant challenges its admission based upon Rule 608(b). Since a defendant may

not change theories from the trial court to the appellate court, he has waived this argument. State v. Gregory , 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
We find this evidence

was admissible

to show Defendan

t’s intent. During the trial, Karen Loveday tes tif ied tha t in add iti on t o th e cha rged off ens e, D efen dan t ha d as sau lte d he r occ asi ona lly. KarenLo ved ay detailed for the jury two instances when the Defendant pulled a g un on her and threatened to kill her. Edith Merrit also testified to previous threats the Defendant made to her.-9-

The State contends that

the evidenc e of Defendan t's prior bad acts committed against Karen Loveday was relevant to the issue of Defenda

nt's intent when h

e fired shots into th

e Merritt home
on August 7, 1998. We agree. Although Rule 404(b) prohibits the introduction of evidence of other crimes or bad acts in order to show that the defen da nt acted in conformity with his or her bad character in committing the charged of fens e, the rule permits the admission of evidence of prior wrongful conduct if the evidence is relevant to an issue such as identity, motive, intent , or rebuttal of accident or mista

ke. Tenn. R. Evid. 4

04(b) (Advisory

Commission Comments); State v. Electroplating, Inc. , 990 S.W.2d 211, 223 (Tenn. Crim. App. 1998). The evidence of Defendant's prior bad actswas relevant to establishing Defendant’s intent to harm Karen Love day and also to h arm those s upporting her, i.e., the requisite mens rea for attemptedfirst degree premeditated murder of Thomas Merritt. In State v. Smith , 868 S.W.2d 561 (Tenn. 1993), the Te nnessee Supreme Court held that evidence of the defendant's prior acts of violence andthreats against the victims was admissible under Rule 404(b) in a mur

der case beca

use the prior bad acts were relevant to showing the defendant's hostility toward the victims, his settled purpose to harm the victims, and his intent and motive for the killings. Id. at 574.
Here , the State had to prove that Defendant intended to kill Thomas Merritt in or der t o establish all of the required elements of the offense of attempted first degree premeditated murde r. As in Smith , the evidence of Defendant's prior wrongful conduct toward K aren Loveda

y and threa

ts to harm those who aided her was highly probative of his intent and his settled purpose to harm Karen Loveday and those surrounding her. We conclude that danger of unfa ir prejudi ce did not o utweigh this probative value and thus, theevidence of Defendant's prior bad acts was admissible. Defendant is not entitled to relief on this issue. IV. Sentencing
A. Excessive Sentence
When a defendant challenges the length,range or manner of service of a sentence, the reviewing court must conduct a de novo review o n the record with a presumption that the determinations made by the trial court were correct. Tenn. Code Ann. § 40-35-401(d). We condition the presumption of correctness “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. 199 1). The burden of showing that a se

ntence is imprope

r is on th e appealing party. Tenn. Code Ann. § 40-35-401(d) (sentenc ing commission comments).
In reviewing the record, this court must consider (a) the evidence at the 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 offenses, and (f) the appe llant's potential for rehabilitation. SeeTenn. Code Ann. § 40 -35-210; see also

Tenn. Code Ann. § 40-35-102 & 103. In State v. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994), our supreme court said that "[t]o fac

ilitate meaningful appellate review . . . the trial court must place on the record its reasons for arriving at-10-

the final sentencing decision, identify the mitigating and enhancement factors found, state the sp ecific facts supporting each enhancement factor found, and articulate how the mitiga ting and enhancement factors have been evaluated and balanced in determining the sentence."
Where one or

more enhancement factors apply but no mitigating factors exist, the trial court may sentence above the presumptive sentence but still within the range. See Tenn. Code Ann. § 40-35-210(d). Where both enhancement and mitigating factors apply, the trial c ourt must start at the presumptive sente

nce (i.e., the mid

point for Class

A felonies and the minimum sentence f or Class B, C, D and E felonies), enhance the sentence within the range as appropriate to

the enhancement factors and then reduce thesentence within the range as appropriate to the mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight afforded an enhancement or mitigating factor is left to the discretion of the trial court if the trial court complies with the pur pos es and principles of the Tennessee Crimin

al Sentencing Re

form Act of 1989 a

nd the record sup

ports its findings. State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). Here, the trial court basically

complied with the sentencing act, but inappropriately applied three enhancement factors. Therefore, we review the sentences de novo with a

presumption of correctness, except as to the length of the sentences for the convictions wherein enhancement factors were erroneously applied.
The jury convic

ted the Defenda

nt of attempted fir

st degree murde

r (Class A

felony), four counts of aggravated assault (Class C felony) and two c oun ts of r eckless endang erment (Class E felony). See Tenn. Code An n. §§ 39- 11-117(a)( 2), 39-13-1 02(d) and 39 -13-103(b) . As a Range I standard offender convicted of a ClassA felony, Appellant's statutory sente ncing range was fifteen to twenty-five years. See id. , § 40-35-112(a)(1). As a Range I standard offender convicted of Clas s C and E felonies, Defendant’s s tatutory se

ntencing rang

e was three to six an

d one to two ye

ars, res pect ive ly. See id. at (a)(3) & (4). Tenn. Code Ann. § 40-35-210(c) (1997) sets the presumptive sentence for a Class A felony at the midpoint of the range, if there are no enhancement or mitigating factors. The presumptive sentence for Class C and E felonies is the minimum sentence if there are no enhancement or mitigating factors. Id.
The Defendant complains that the sentences imposed by the trial court were excessive. After
a sentencing hea

ring, the trial c

ourt sp ecifical ly found that there were no mitigating factors applicable

to the present case. The Defendant does not challenge that finding. The trial court found seven enhancing

factors applica

ble to some or all of

the Defendant's convictions as fo llows: (a) T.C.A. § 40-3 5-114(1 ) (defendant has previous history of criminal convictions or crimi nal beh avior in addition to those necessary

to establish the appropriate

range) applic

able to all seven c

onvictions; (b) T.C.A. § 40-35-114(3) (offens e involved more than one victim) applicable to all s

even convictions ;-11- (c) T.C.A. § 40-35-114(4) (a victim of the offense was

particularly

vulnerable because of age or phy

sical or mental dis

ability) app

licable to the rec

kless end ange rme nt c onv ict ion s on ly; (d) T.C.A. § 40-35-114(6) (the personal injuries inflicted upon or the amount of damage to property sustained by or taken from thevictim was particu larly grea t) a ppl ica ble to a tte mpt ed fi rst degr ee m urd er co nvi cti on o nly; (e) T.C.A. § 40-35-114(9) (defendant possessed or employed firearm, explosive device , or other deadly weapon during commission of offense) app lic abl e to att emp ted fir st d egre e mu rder con vic tio n on ly; (f) T.C.A. § 40-35-114(10) (defendant had no hesitation about committing crimes when the risk to hum a n life was high) applicable to all seven convictions; and (g) T.C.A. § 40-35-114(12) (during commission of the f elony, defendant willfully inflicted bodi l y injury upon another person, or the ac tions of the defendant resulted in the death or serious bodily injury to a victim or a person other than the intended victim) applicable to attempted first degree murder
con vic tio n on ly.
Based upon the foregoing enhancement factors and relevant sentencing principles, the trial court imposed a sentence of fifty-three (53) y ears. The Def

endan t argues that the trial court inappropriately

applied the enhancement factors, yet does not specify which

factors the court applied ina ppr opr iat ely. Also, Defendant contends the trial court failed to make separate fin

dings as to which factors applied

to which convictio

ns. We find that,

while the trial court ba

sically adh

ered to the requirements of the sentence guidelines, it inappropriately applied f actors (3), (4), and (10). Factor (3)
The jury convicted the Defendant separately for the offenses committe

d against each

victim; therefore, the trial court should not have applied factor (3) to any of Defenda nt’s convictions. See Statev. Clabo , 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995) (holding that factor (3) was an "improper enhancement factor, since there were separate convictions for each victim"). Factor (4)
The trial court

found that enhancement factor (4), that a victim of the offense was particularly vulnerable

because of

age, was applicable to the reckless endangerment convictions. The trial court also noted that this fac

tor was not e ntitled to great weight, because the child victims were in no greater danger than the adult victims in this case. However, we conclude that because the children were in no greater danger, this factor was not applicable.-12- Factor (10)
The trial court incorrectly applied enhancing factor (10) to each of Defendant’s convictions. First, this Court has previously held that factor (10) generally cannot be applied to a

sentence for an attemptedfirst degree murder offense because a high risk to human life is inhere nt in the offense. See Statev. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Se cond, the victims we

re the only persons subject to injury during Defendant’s commission of these offenses. See Statev. Bingham , 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995) (holding factor (10) is applicable where the defendant creates a high risk to the l i fe of a person other than the victim(s)). Thus, factor (10) was not applicable to any of Defendant’s conviction.
With respect to calc

ulating the Def

endant's sente

nce, we find that the four enhancement factors (Tenn. Code Ann. §§ 40-35-114 (1), (6), (9) and (12)) applie d to Defendant’s

attempted first degree murder conviction justify the sentence of twenty -five years. However, we have found that only one enhancement factor (Tenn. Code Ann. § 40-35-114 (1)) app lied to Defendant’s four (4) aggravated assault convictionsandhis two (2) reckless endangerment convictions. Therefore, we reduce Defendant’s ag

gravated assa

ult sentences to four (4) ye ars each and the

reckless endangerment sentences to eighteen (18) months each.
B. Consecutive Sentences
Defendant

next challenges the trialcourt’s imposition of consecutive sentences. Tennessee Code Annotated section 40-35-115 pertains to consecutive sentencing. T h e trial court has the discretion to order consec

utive sentencing

if it finds that one o

r more of the req

uired statutory

criteria exist. State v. Black , 924 S.W.2d 912, 9 17 (Tenn. Crim. App. 1995). The trial court may order consecutive sentencing i f the defendant is a dangerous offender whose behavior indicates little or
no regard for hu

man life and no hes

itation about commit

ting a crime in wh

ich the risk to

human life is high. Tenn. Code Ann. § 40-35-115(b)(4) (1997). However, when a trial court uses this factor, it must also decide whether

consecutive sentences (1) reasonably relate to the se verity of the offenses committed; (2) serve to prot ect the public

from further criminal conduct by the offender; and (3) are congruent with general principles of sentencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).
The record indicates that in determiningwhether to i mpose cons ecutive sen tencing, the trial court found that the Def

endant was a

dangerous o

ffender. We agree with the determination that Defendant

is a dangerous offender with little reg ard for human life and no hesitation about committing a crime in which th e risk to human life

is high. Defenda

nt fired multiple g

unshots into
a home clearly

occupied by

several people,

including his wife

and children. Fu

rther, there is circumstantial evidence that he emptied one clip, reloaded and fired from a second clip.
The trial court,

through its findings, fur

ther satisfied the

additional Wilkerson requirements. At the sent encing heari ng, the tria l court sta ted the fol lowing:-13- COURT : “. . . the Court

cannot just take the language and give the Court’s own interpretation, that he is a dangerous offender beca use of this conduc

t. The Court has to go further and consider #1, that the defendant’s b ehavior indicatedlittle or no regard for human life and he did not hesitate about committing a crime

in which the risk to human life was high. That’s clearly established by this proof. The circumstances s

u rroun ding the commission of the offense were aggravated. That, too, is clearly established by the proof. The fact that there were so many peop

le there right in front of him and blindly opening fire where children and others were present.
That confinement for

an extended perio

d of ti me is necessary to protect
soc iet y. That, too, is clear in this record, that Mr. Loveday posed a dange r. There was testimony in the trial that infe rred th reats were made. It’s clear that he [ Defe nda nt] was very, very, very mad at his wife and

those that would hel p he r, co upl ed w ith prev iou s th reat s. It is n eces sar y.
And lastly, that

the aggregate length of the sentences rea sonably relatesto the offenses for which he [the Defendant] stands convi cted. The court m ust apply those factors as well.”
“. . .In applying the rationale of the law, applying it

to the conduct, applying it to the facts and

circumstances a

nd carryin

g out the Court’s r

esponsibility

, the Court feels that consecutive sent ences for each of these offenses for which Mr. Loveday stands convicted is the proper judg ment. . .”
Based upon the trial c ourt’s findings, consecutive sentencing reasonably r elates to the severity of the offenses. Indeed, the jury convicted Defendant of seven felony offenses re lated to the lives he put at great risk. Also, consecutive sentences are required here to protect the public from further criminal conduct

by Defendant. Clearly, De fendant’s violent and

intentional conduct toward K arenLoveday and the other victims indicates that he will not hesitate to threaten or actually us e violence against others. Further, Defendant’s ab ility to carr

y out previou

s threatsin such a violent
manner indicates that

he poses a

continuing threa

t to the public. Fina

lly, consec

utive sentencing

in this caseis congruent with the general principles of sentencing. We agree with the trial cou rt’ s ordering of consecutive se ntencing. With th

e reduction the in le

ngth of six of his sen

tences, Defendant’s effective sentence is reduced from fifty -three (53) years to forty

-four (44) years. C. Victim Impact Lette

rs
D efendant

contends that the trial court erroneously permitted victim impact letters from individuals

who did not testify at the sentencing hearing to be placed into the re cord. Victim impact evidence is not pe

r seimproper under statutory or constitutional law. Statev. Nesbit , 978 S.W.2d-14-

872, 889 (Tenn. 1998); State v. Burns , 979 S.W.2d 276, 281-82 (Tenn. 1998). Tenn. Code Ann. § 40-38-205 provide

s as follows:
Prior to imposition of sentence in a fel ony case, the department of correction shal

l prepare a written

victim impact statement as part of the presentencere port on the defendant. The statement shall include applicable

i nformation obtained during consultation with the victim or the victim representative. . . If there are multiple

victims and preparation of individual victim impa

ct statements

is not feasible, the department may submit one (1) or more representative statements.

We conclude that the

trial court prope

rly admitted

the victim impact le

tters into the pres

e nt ence report. In any event, Defendant has wa ived this issue. See

Tenn. R . App. P. 36(a). At the sentencing hearing, Defe

ndant failed to obj ect to the trial court’s consideration of the victim impact letters.
V. Conclusion
For the reasons stated above, we modify Defendant’s sentence for the f our (4) aggravated assault convictions to four

(4) years each. In addition, we modify Defendant’s sentence for the two (2) reckless endan

germent convic

tio ns to eighte

en (1 8) m ont hs e ach f or an effe cte d se nte nce o f fo rtyfour (44) years. In all other re spects, the judgment of the trial court is affirmed as modified.

___________________________________ THOMAS T. WOODALL, JUDGE