# FILED
March 10, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 2000
STATE OF TENN ESSEE, * * No. M1999-00647-CCA-R3-CD Appellee, * * DAVIDSON COUNTY vs. * * Hon. Walter Kurtz, Judge JEFFREY EUGENE WRIGHT, * a.k.a. JEFFREY EUGENE ARNELL * (Atte mpte d Vol unta ry * Manslaughter; A ggravated Appellant. * Assault) For the Appellant : For the Appellee : Thomas H. Miller Paul G. Summers Attorney for Appellant Attorney General and Repor ter P. O. Box 681662 Franklin, TN 37068-1662 David H. Findley Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Lisa Naylor Asst. District Attor

ney General Washington Sq., Suite 500 222-2nd Ave. N. Nashville, TN 37201-1662

OPINION FILED: AFFIRMED IN PART; DISMISSED AND VACATED IN PART
David G. Hay

es, Judge1 At the concl usion of t he State’ s case-in-chi ef, the t rial co urt enter ed a judgment of acquittal as to t he charge of att empted first d egree murder. The jury was instruct

ed on the lesser included charges of attem pted second degree murder and a ttempted voluntary manslaug hter. 2 OPINION
The appellant, Jeffrey Eugene Wright, a.k.a. , Jeffery Eugene Arnell, w as indicted by a Davids

on County Grand Jury for the offenses of attempted first degree murder, aggravated as sault, and aggravated robbery. Followi ng a jury trial, the appellant was found guilty of attempted voluntary manslau ghter and aggravat ed assault. 1 He was found not gu ilty of aggravated rob bery. At the sente ncing hearing, the trial court imposed concurrent sentences of fo ur years for attempted voluntary manslaughter and six y ears for aggravated as sault. The court denied any for m of alternative sentencing . In this appeal as of right , the appellant contends (1) that the sentence imposed by the tria l court is excessi ve and (2) that the court erred by imposing a sentence of total confinement

.
After review, we modify the appellant’s six year sentence for aggr avated assault to reflect a sentence of five years. In all other respects, the sen tence is affirmed. However, we find that the appellant’s conviction for attem pted voluntary manslaughter and its accompanying sentence is constitutionally infirm unde r basic principles of double jeopardy. Accordingly, thi s conviction and sentence must be vacated and dismissed.
Background On Septe mber 29, 1997, Leslie Mc Gehee w as mowi ng the l awn of a residence on Nassau Street i n Nashville whic h was owned by his

employer, Dewey Barnett. At approximately 3:30 p.m., Latasha and LaToya McDaniel, residents of 1711 Nassau Street, were outside their residence talking with several male adolescents. One of the youths, Jerome Buchanan, began throwing rocks at a cat. One rock missed and hit a house near where McGehee w as mowing the lawn.2 The a ppellant alo ng with thre e co-de fendan ts were ind icted for the assau lt of McG ehee. Jam es “Dirty” R iley was foun d guilty of attem pted volun tary ma nslaugh ter and a ggrava ted ass ault. Elmer Dansby pled gui lty to atte mpted first de gree murder and aggravat ed robbery.Charles W illiam pled g uilty to false repo rt.

3 Latasha McDaniel t

estifi ed that appro

ximately ten to fifteen boys were involved in the initial beating of M cGeh ee. 3 McGehee stopped his yard work and approached the group of youths. He told Buchanan to stop throwing rocks. Buchanan ignored McGehee and continued throwing rocks. McGehee again told Buchanan to stop throwing the roc ks. An argument ensued between McG ehee and Buchanan.

Meanwhile , the app ellant, a nd his ass ociates E lmer Dans by, James Riley, and Charles Williams, were retur ning from “the park” w

here they had been smoking marijuana. 2 The group observed the altercation between McGehee and James Buchanan. The appellant approached and as ked McGehee what the probl em was. At some point, McGehee began to direct his anger tow ard the appellant and “swu ng at [him].” The appellant was able to avoid being hit and moved back. McGehee then tried to kick the appell ant. The appellant picked up a bri ck and threw it at McGehee. After being struck in the head by the brick, McGehee shook his head and began chasing the appell ant. Several male youths that were watching

the altercation grabbed McG ehee and tried to throw hi m to the ground. Eventuall y, the mob of youths was successful in pushing McGehee to the g round and began “stompin g” and “kick ing” him in the head and body. 3 During this attack,a car pulled up, several other males jumped out and joined the assault. T he assault ended only when the victim stopped moving. One youth took the victim’s wal let while another removed his checkbook. The appellant later admitted to law enforcement officers that, following the inci dent, he and some others “went and bought some weed and . . . smoked it.”
A nearby resident observed the young men running from the motionless victim. The resident cal led Mr. Barnett asking him to come to the Nassau Street4 The appellant was seventeen at the ti me of the offense.

4 address because “some boys were beating up Lester. ” “When [Mr. Barnett] arrived on Nassau, the street was empty, and there was nobody but Les laying there . . . .” “When [Mr. Barnett] arrived, McG ehee was laying i n a fetal position and. . . wa s breathing heavy . . . .” “He was bleeding from his mouth and nose.” Metro Police Officer Vincent Archuleta res ponded to this incident. As he approached McGehee, he observed that the vic tim “was laying

face down in a rocky g ravel dirt area. . .h e could see a growing po ol of blood th at his head was laying in and several large gashes in his head.”

Dr. Daniel Himes w

as the attending physici an the day that McGehee w as brought into the emergency room at Vanderbilt Medical Center. Upon arriv

al, the victim was close to unconsciousness, he was sedated and intubated to help him breathe. There was bleeding inside his brain, causi ng a very seriou s brain injury. Following his admi ssion, McGehee remained in a coma for twenty-three day s. From Vanderbilt, he went to National Healthcare in Mur freesboro for six months and then was in an outpatient prog ram for two months. After completi ng the outpatient program, McGehee entered the Tennessee Rehab ilitation Center where he was in the Traumatic Brain Injury Center for seven months. Si nce his release, he has been at home with his mother and he remains in outpatient therapy . As a result of the beating, Leslie McGehee i s paralyzed in his face and on the left side of his body. “He has a balance problem in walking. . .and has a hard time getting around.” He suffers from memory loss and specific ally cannot recall th e events of September 29.
Based upon this proof, the jury found the appellant guilty of attempted voluntary m anslaugh ter and ag gravated a ssault re sulting in bodily inju ry.
At the subsequent sentencing hearing, the nineteen y ear old appellant 4 stated that he has been incarcerated since his arrest for the o ffense. While in jail,5

he has obtained his GED, successfully completed a drug program and currently participates as a counselor. Prior to the offense, he stated that he was employed at Wendy’s. Wendy’s Restaurants were unable to v erify the appellant’s employ ment. The appellant maintains that he w ould like to find employment and a ttend college. He admitted smoking marijuan a since his early teen years up until his ar rest for the present offense, in addition to the use o f alcohol and cocaine. His juvenile record consists of adjudications for assault and thef t for which he was granted probation in 1994 and one count of assault and two counts of disorderly conduc t in 1997 for which he was gr

anted probation.
Based upon this evidence, the trial court imposed the maximum sen tence available for each offense and ordere d the sentences to be served concurrently for an effective six year sentence.

I. Plain Error Before we begin our examination of the issues raised on appeal, we are first compelled to examine a non-rai sed issue which affects a cons titutional right. The United States and Tennessee Constitutions prote ct the accused from being twice placed in jeopardy for the s ame offense. U.S. C ONST
. amend. V; T ENN . CONST
. Art. I, Sec. 10. As our supreme court has sta ted on numerous occasions, three fundamental principles underlie the constitution al protections against double jeopardy: (1) protecti on against a second prosecuti on after an acquittal; (2) protection against a second prosecution after conviction; and (3) prote ction against multiple punishments for the same offense. See State v. Lewis , 958 S.W.2d 736, 738 (Tenn. 1997); State v. Denton , 938 S.W .2d 373, 378 (T enn. 1996) (citi ng North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969)).
After the jury returned the ir verdict in the pr esent case, the appellant filed a motion for judgment of acquittal pursuant to Tenn. R. Crim. P. 29. In this motion,6

the appellant argued that the ev idence was insufficient to s upport either a convicti on for aggravated assault

or a conviction for attempte d voluntary manslaug hter. Additionally, he asser

ted that his convictions violate principles

of double jeopardy as they arise from one incident and involve one vi ctim. The trial court deni ed the motion, finding the proof sufficien t and no violation of double jeopardy principles in that the convictions arose from two separate incidents. Specifically, the trial court found that (1) the appellant’s action of hitting the victim in the he ad with a brick constituted attempted voluntar y manslaughter and (2) once the victim was o n the ground as a result of being hit on the head, the appellant and hi s co-defendants “kicked and stomped the vi ctim unmercifully, supporting the conviction for aggravated assault.”

No motion for new trial , pursuant to Tenn. R. Crim. P.33, was filed, and the appellant does not raise the dou ble jeopardy issue on appeal.

A review of the recor

d in the case presently before us leads this court to conclude tha

t the princi ple protect ing agains t multiple p unishments for the same offense is implicated. Generally, this court will not consider issues that ar e not raised by the parties; however, plain err or is an appropriate consi deration for an appellate court whether pr operly assigned or n ot. State v. Walton , 958 S.W.2d 724, 727 (Tenn. 1997); State v. Ogle , 666 S.W.2d 58, 60 (T enn.1984). Indeed, an error affecting "the substantial rights of an accused may be noticed at any time ... where nece ssary to do substan tial justi ce." Ten n. R. Crim. P. 52(b). Thus, we address the issue in order to correct an error of cons titutional dimension and to prevent manifest injustice.Tenn. R. Crim. P. 52; Lewis , 958 S.W.2d at 738.
Our supreme court has address ed the issue of multiple punishments arising from a single criminal epi sode on numerous occasions. See, e.g. , State v. Barney , 986 S.W.2d 545 (Tenn. 1999); Denton , 938 S.W.2d at 373; State v. Phillips , 924 S.W.2d 662 (Tenn. 1996). In this respect, the cour t found the legislative i ntent to be crucial. Denton , 938 S.W.2d at 379; see also Barney , 986 S.W.2d at 549.7

Specifically, the court articulated a four part test t o determine whether two offenses are the “same” for double jeopar dy purposes. The factors to be c onsidered are: 1. An analysis of the statutory offenses under Blockburger to determine whether each provision requires proof of an additional f act which the other does not; 2. An ana lysis , guided by the princi ples of Duhac v. State , 505 S.W.2d 237 (Ten n. 1973) , of wheth er the sam e evidenc e is require d to prove each offense; 3. A consideration of whether there were multiple v

ictims or discrete acts; and 4. A comparison of the purposes of the respect ive statutes. See Denton , 986 S.W.2d at 381; see also Barney , 986 S.W.2d at 549. T he court stressed that “[n]one of these steps is determinative; rathe r the results of each must be weighed and considered in relation to each other.” Denton , 938 S.W.2d at 381; see also Barney , 986 S.W.2d at 549. Additionally, in State v. Phillips , 924 S.W.2d at 662, the court set forth sev eral principles to be co nsidered when determining whether multiple punishments were imposed arising

from a single criminal ep isode: 1. A single offens e may not b e divided i nto sepa rate part s; genera lly, a single wrongful ac

t may not furnish the basis for more than one criminal prosecution; 2. If each offense charged requires proof of a fact not required in proving the other, the o ffenses are not multiplicitous; an d 3. Where time and location separate and distin guish the commission of the offen ses, the

offenses cannot be said t o have a risen o ut of a single wrongful act

. Phillips , 924 S.W.2d at 665. Additional factors such as th e nature of the act; the time elapsed between the alleged conduct; the intent of the accus ed; i.e. , was a new intent formed; and cumulative punishmen t may be considered for guidance in determining whether the multiple convictions v iolate double jeopardy. Id.

We note that the case sub judice is similar to Denton which also invol ved convictions for aggr

avated assault and attempted v oluntary manslaughter. In Denton , the defendant’s convictions arose out of an incident wher ein the defendant first attacked and then stabbed an i ndividual. Denton , 938 S.W.2d at 378. The8

court not ed that a ggravated a ssault an d attemp ted volun tary mans laughter have different elements under Blockburger

. Id. Notwithstanding, the c ourt ruled that the convictions viol ated double jeopardy. Id. It reached this conclusi on by determining that proof of both convictions necessarily relied upon the same evidence, a single attack of a single vic

tim, in violation of the pr inciple announced in Duhac

. Id.

With guidance from the se princip les and co nsiderat ion of th e same, we conclude that the appellant’s c onvictions for attempted v oluntary manslaughter and aggravated assault v

iolate the constitutional pr otections against double j eopardy. Initiall y, we note th at the as sault and the homi cide stat utes have similar le gislative purposes, i.e. , to deter “assaultive-type conduct.” Denton , 938 S.W.2d at 382. Moreover, despite the numer ous inconsistencies in the testimony, we conclu de that the record preponderates aga inst the trial court’s finding that two separate and distinct acts occurred; (1) the appellant hitting the victim with a brick, rendering him unconscious, and (2) the g roup’s actions, includi ng those of the appellant, in “k icking and stomping” the victi m. Rather, the proof reveals that, after the appellant threw the brick at the victi m, the victim began to chas e the appellant at which ti me the victim was attacked

by the group. Contrary to the trial court’s findings at the hear ing on the motion for judgment of acquitt al, we find, from the evidenc e presented in the record, that the attempted voluntary manslaughter and the aggravated assault aro se from a single intent to inflict harm upon McGehee; the act ions were contiguous in time and place, and involv ed the same victim. Accor dingly, only one offense w as committ ed and on ly one convi ction ma y stand. “[ U]pon a f inding th at two convictions cannot both st and, the conviction for the g reater offense[, aggravated assault, a class C felony ,] must stand and that for the low er offense must be vacated.” See State v. Beard , 818 S.W.2d 376, 379 (Tenn. Crim. App. 1991)(citations omitted). Thus, the judgment and sentence upon th e charge of attempted voluntary manslau ghter, a class D felony , is, therefore, vacated and dismissed.9 II. Sentencing The appellant challenges both the length and the m anner of service of his sentence. As we have di smissed and vacated the appell ant’s sentence for attempted voluntary manslau ghter, we need only address his remaining s ix year incarcerative sentence

for aggravated assault.
In its imposition of the maxi mum allowable sentence for a r ange I offender convicted of aggrav

ated assault, the trial cour t remarked that there are “s everal enhancement factors applicable.” Despite this state ment, the court only enumerated two specific factors, (6) the personal injuries inflicted upon the victim were particularly

great, and (9) the defendant employ ed a deadly weapon during the commission of the offense. SeeTenn. Code Ann. § 40-35-114(6), -114(9) (1997). With reference to factor (6), the trial cour t commented that it was placi ng “tremendous weight” on this enhancement factor in imposin g a six year sent ence. Additionally, the court

only considered one factor in mitigation, the appellant’s youth. See Tenn. Code Ann. § 40-35-113(6) ( 1997). The appellant contends that the trial court misapplied enhancement factor (6), resulting in an excessive sentence. Additionally, the appellant asserts that he is entitled to an alternative sente nce despite the trial court’ s cursory denial based upon the circumstances of the case.
Review, by this court, of the length, range, or manner of service of a sentence is de novo

with a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption only applies if the record demonstrates that the trial court properly considered relevant sentencing considerations. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court’s findings in the r ecord are cursory and do not reflect a consideration o f the relevant sentencing pr

inciples, thus, the presumpti on does not apply.
A. Enhancing and Mitigating Fact ors10 Again, the trial court found that two enhancement factors and one mi tigating factor are applicable and imposed the maximum six year sentence. The appellant contends that the trial cour t erred in applying enhancement factor six, that the injuries were particularly great. He concedes application of factor nine, that a deadly weapon was employed i n the commission of the offense.
1. Injuries Sustained

by Victim were Particu larly Great We conclude that the trial court’s appli cation of enhancement factor six w as clearly erroneous. F

actor (6) may be used w hen "[t]he personal injuries inflicted upon ... the victim [w

ere] particularly g reat." Tenn. Code Ann. § 40-35-114(6) . Our supreme court has precluded appl ication of enhancement factor six to convictions for aggravated assault

when the indictment charges serious bodily inj ury. State v. Jones , 883 S.W.2d 597 (Tenn.1994). Specifically, the court in Jones concluded that since "serious bodily injury" includes "a s ubstantial risk of death," "prot racted unconsciousness," "extreme phy sical pain," "protracted or obvious disfigurement," and "protracted loss or substantial impairment of a f unction of a bodily member, organ, or mental faculty" as defined in Tenn. Code Ann. §§ 39-13-102; 39-11-106(a)(2) & (33), factor (6) is always an element of aggravated assault causing serious bodily

injury and cannot be used t o enhance a sentence for that offense. Jones , 883 S.W.2d at 602; see also State v. Cr owe , 914 S.W.2d 933, 940 (Tenn. Crim. App. 1995). Therefore,enhancement factor (6) may not be used to enhance the appellant's sentence.

2. Presence of Enhancement Factor (9) Regarding applicati on of enhancement factor nine, we note tha t enhancement factors based on f acts which are used to prove the offense or which establish the elements of the offense are ex cluded. State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997). However, the use of a deadly weapon, i n this case a brick, is not an element of the offense of aggravated ass ault resulting in ser

ious bodily injury

.11

Accordingly, factor 9

is applicable.

3. Mitigating Facto rs Our de novo

review of the record

supports the trial court ’s application of factor (6), the defendant lacked subs tantial judgment due to his y outh. See Tenn. Code Ann. § 40-35-113(6) (1997) . The record does not support any other mitigating circumstances. Thus, upon de novo review, we appl

y enhancement factors (9) and mitigating factor (6).
4. Length of Senten ce In determining the appropri ate sentence for a felony convi ction, Tenn. Code Ann. § 40-35-210(c) and (e) (1997), instruct the sente ncing court that “[t]he presumptive sentence shall be the minimum sentence in the range . . . [s]hould there be enhancement and mitigating factors, the court must start at the minimum sentence . . ., enhance the sentence within the range as app ropriate for the enhancement factors, and then reduce the s entence within the rang e as appropriate for the mitigating factors. ” The range I sentence for ag gravated assault is three to six years. See Tenn. Code Ann. § 40-35-112(a)( 3) (1997).
No specific value is at

tributed to any particul ar enhancing or mitigating factor. See State v. Boggs , 932 S.W.2d 467, 476 (Tenn. Crim. App. 1996). Rather, the weight afforded the mitigati ng and enhancement factors deriv es from balancing relative degrees of culpability within the totality of the circumstances of the case involved. Boggs , 932 S.W .2d at 476 (citin g State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986)). Upon consider ation of the facts and circumstances of the case and the applicable principles of sentencing, we conclud e that a sentence of confinement of five years is justi

fied.
B. Alternative Sentencing5 The a ppellant co ncede s that he is in eligible for a se ntence under th e Com mun ity Correc tions Act. See Tenn. Code Ann. § 40-36- 106(a)(2) ( 1997) (offender cannot be convi cted of crime against

person as provi ded in title 39, chapter 13, parts 1-5); Tenn. Code Ann. § 40-36- 106(a)( 3) (offen der can not be co nvicted o f violent felon y offense ). Moreve r, he doe s not claim to me et an exc eptio n to th ese requ irem ents unde r Te nn. C ode Ann . § 40 -36- 106 (c) (in eligible offend ers with sp ecial nee ds). In add ition to the app ellant’s prec lusion from a com mun ity corr ectio ns s ente nce , we a ckn owle dge that th e app ellant had a lread y serv ed nin etee n m onth s in confinement at t he time of his sentencing hearing; accordi ngly, total probationis not a l ogical considerati on. 12 Finally, the appe llant contend s that the trial co urt erred by imposi ng a sentence of total confinement, rather than granting a sentencing alternative. 5 Without articulating more, the trial court made a cursory st atement that confinement was necessary due to the circumstances of the present case.
The appellant, is a range I offender of a c lass C felony who does not have a criminal history evin cing eithe r a “clear d isregard f or the laws and mora ls of soci ety” or “failure of past efforts at rehabilitation.” See Tenn. Code Ann. § 40-35-102(5);
- 102(6) (1997). Accordingly, the appellant is provided the presumption favoring alternative sentencing

. See State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). Where a defendant is entitled to the statutory presumption of alter native sentencing, the St ate has the burden of overcoming the presumpti on with evidence to the contrary. See, e.g. , Tenn. Code Ann. § 40-35-103(1)(A-C)

.

The fac t that a de fendan t is entit led with a p resumpt ion favor ing altern ative sentencing does not mean that he i s entitled to an alternativ e sentence. Indeed, the presumption may be rebutted by evidence to the contrary. Tenn. Code Ann. § 40- 35-102(6); see also Bingham , 910 S.W.2d at 454. Guidance as to what consti tutes evidence to the contrary may be found in Tenn. Code Ann. § 40-35- 103(1)(A)-(C). If it is shown that the appel lant has a long history of criminal conduct, that the appellant has not been rehabilitated with less restr ictive methods, or that confinement is necessary to av oid depreciating the ser iousness of the offense or to provide an effective deterr ent to others, alternativ e sentences may be denied. Id.13

See also Bingham , 910 S.W .2d at 454 (citin g Ashby , 823 S.W.2d at 169).
In order to deny an alterna tive sentence based on the ser iousness of the offense, “the circumstances of the offense as committed must be especially v iolent, horrifying, shocking , reprehensible, offensive, or otherwise of an excess ive or exaggerated degree” and the nature of the offense must outweigh all factors favoring a sentence other than confinement. ” Bingham , 910 S.W.2d at 454 (quoting State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). The circumstances of the case sub judice satisfy this criter

ia. It is difficult to env

ision a much more horrifying, sho cking, or reprehensibl e situation than that whic h was perpetrated by the appellant and his accomplices in the pr esent case. After an initial confrontation wi

th the appellant, the victi m was pushed to the ground by a mob of youths, including the appellant, at which time he was kicked, stomped, and punched by the group. The rage of each youth was encouraged by the violence of the others, more joining i n the assault as they approac hed the scene. The brutal attack ended only when the victim was render

ed unconscious and a bystander threatened to call law enforcement officers. Before leaving the scene, however, the attackers removed the victim’s wallet and checkbook. Apparently unscathed by their actions, the appellant and his cohorts proceeded to pu rchase and then smoke marijuana. Accordingly, we conclude that a sentence of total confinem ent is justified based upon the seriousn ess of the offense. See Tenn. Code Ann. § 40-35- 103(1)(B).

After a review of the rec ord and in consideration of our finding of one enhance ment and one mitig ating fa ctor , we mo dify the s ix year incar cerative sentence imposed for the appellant’s conviction for aggr

avated assault to a term of five years. In all other respects, this sentence is affirmed. However, the appellant’s conviction and sentence for at tempted voluntary manslaug hter is reversed and vacated as violativ

e of principles of double jeopardy. This cause is remanded to the14

trial court for the purpose of permitting the court to amend i ts minutes and accompanying judgments of co nviction to reflect the s ame.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JERRY L. SMITH, Jud ge

____________________________________ NORMA MCGEE OGLE, J udge