### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 22, 200 8

STATE OF TENNESS EE v . TONY E. CANNON, JR.

Appeal from t he Circuit Court for Lincoln Coun ty No. S0600080 Robert C rigler, Judge

No. M2007- 00557-CCA -R3-C D - Filed June 19, 2008

A Lincoln Co u n ty Circuit Court jury convicted the de fenda nt, Tony E. Cannon, Jr., of attempted second de gree murder, a ggravated assault, and f elony re ckless enda

n g e rme n t. T h etrial court mer ged the conviction of a ggravated assault with the convic ti on of attempted se cond degr ee mur der a nd imposed an ef

fec tive sentenc e of 12 ye ars i n t h e De p artment of Correc tion. In this appeal, the defe ndant assert s t h at t h e evide nce is insuffic ient to support his convictions and that the 12-ye ar sentenc e imposed for

attempted sec ond degre e murde r is exce ssive. Discerning no error , we a ffirm the jud gme nts of

the tr ia l c ou rt

. Tenn. R. App . P. 3; Judgments of the C ircuit Court A ffirm ed

J A M ES C UR W OOD W I TT , J R ., J., delivere d the opi nion of t he court, in which D AVI D H. W ELL ES and R OBER T W. W EDEMEYER , JJ., joined.

Her shell D. Koger , Pulaski, Tennessee , for the a ppellant, Tony E. Cannon, Jr.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a n d R e p o r t e r ; R e n e e W . T urne r, As sis ta nt A tto rn e y G e ne ra l; C h ar l es C raw ford, District Attorne y Gene ral; and H olyn Hewgley and Ann L. Filer, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Th e e ve nts giv ing ri se to the c on vic tio ns in this c a se oc c ur re d o n J un e 18 , 2 00 6, in Fayetteville, Tenne ssee. The victim, Tr enton Dixon, testified that on that day he attended a barbe cue in a field ne xt to a n abandone d house and then went “riding around” with f riends. After

a while, the victim became tired and decide d to go spend the night with a friend in H untsvill e. Before leaving, he par ked h i s ca r o n R o b er tson St ree t and went to say goodbye to some of his friends. As he approach ed the brown house whe re Randa ll McClure lived, he saw the def endant a nd “more than three or four” people, including Kendrick Thom as and Rafae l Ford, standing on the porch. At that po int , th e de fe nd a nt, wh om the victim kn ew as “Big Ma n, ” “ c a me of f o f the po rc h .

. . str a igh t to [him], like, man don’t come down here with that.” The victim c laimed that he was confuse d by the de fe nd a nt’ s beh a vio r be c a us e the tw o ha d part e d on p le a sa nt t e rm s a fe w d a ys e arl ie r. Th e vic tim-2-

became more c onfused wh en the def endant sa id, “Don’t c ome down her e, you and Rio, with that shit.” The victim explained, “ I don’t know why. I was a ll by myself.” Whe n the victim asked the defe ndant what he was talking a bout, the defe ndant repe ated, “Don’ t c ome down here

. I am telling you today ain’t the day.” The victim state d that “[e ]ventua lly what I got from [the defe ndant] wa s for some r eason he thought I came down there betwee n whateve r him and Rio had going on.” The victim explained that “Rio” w as Mario Porter, t he individual who had hosted the barbe cue e arlier that day. He state d th a t he kn e w M r. Porte r b e c a us e he wo rk e d f or the vic tim ’s a un t.

The victim rec alled that the defendant brandished a handgun during the encounter
, a ndthe vic tim

raise d h is s hirt to sh ow that he wa s n ot a rm e d. Th e vic tim

tol d th e de fe nd a nt, “ Chi ll out. I didn’t come down f or this ma n.” The defe ndant “kept on saying what he was saying.” At that point, the victim said, “[D] o what you have got to do” and starte d to walk away, and the de fenda nt sh ot h im t wi c e . T he vic tim re c a lle d that he fe lt a s if his “ sto ma c h wa s on fi re ” a ndthat “ [o ]n a sc a le of one to ten I wo u l d s ay [t h e p ain was] a ten.” He f ell to the ground and trie d to get up but was unable to do so. After the shooting, “[e ]verybody scatter ed. I w as left ther e cr awling, trying to get

so me wh e re .” Af

te r a bo ut 3 0 s e c on ds , a n in div idu a l name d J a so n c a me ov e r a nd ta lke d to the vic tim until the ambulance a

rrived.

The victim was take n b y h el i copter to Huntsvill e Hospital whe re he underw ent surgery to remove the bullets and repair the damage t o his internal orga ns. The victim rec alled that he lost six inche s of his small intestine and that the doctors had to “ rebuild [his] digestive tra ct.” The vic tim re ma ine d in the ho sp ita l f or a we e k. Th e vic tim state d that a pie c e of on e of the bu lle ts c ou ld not be re moved and that he has a pe rmane nt “twitch” that his doctor attributed to “nerve s.”

Du ri ng c ro ss- e xa min a tio n, the vic tim de nie d th a t the re wa s b a d b loo d b e tw e e n h im and the de fenda nt prior to the shooting. The victim a cknowledge d that he did not see the defe ndant fi re the fi rs t sh ot b ut i ns ist e d th a t he ha d s e e n th e de fe nd a nt f ir e the se c on d s ho t.

Laure l Petty testi fied that she ha d known the defe ndant “[s] ince he was a littl e child” and the victim “[a ] good while.” Ms. Petty, who lived acr oss the street f rom the brown house , was sitti ng on her por ch enjoying the sunny da y and the c o m p an y of a ne ighbor when she hear d the defe ndant, whom she kne w as “ Big Man,” and the vic tim “fussing” “in t he yard

. . .[o]f the brown house.” She sa w the def

enda n t s hoot the victim twice. Afte r the shooting, Ms. Petty went inside he r h ome a nddidno t ta lk t o th e a uth oriti e s. Th re e da ys late r, sh e we nt t o th e po lic e statio n a ndtol d Detec tive Eubanks what she had see n. She identified the de fenda nt from a photogra phic lineup.

During cr oss-exa mination, Ms. P etty acknow led g ed t hat she took medication for schizophre nia but stated that she ha d taken he r medication on t h e d ay o f the shooting and was experiencing no problems wit h her mental health at that time. She insisted that she had a c lear view of the sh oo tin g a ndsa w the e nti re e ve nt u nf olda s sh e sa t on he r po rc h. Ms. Pe tty of fe re d li ttl e in the way of

explanation for her

delay in conta cting the police.

Fayetteville Police Depa

rtment Dete ctive Adam Euba nks testified that he re sponded to the scene of the shooting and saw the victim “ lying on the e dge of the driveway” and “ yelling that he had be en shot.” De tective Euba nks tried to ta lk w ith the victim at that tim e, but the victim “wa s-3-

in a lot of pain and rea lly didn’t want to ta lk.” Despite interviewing a number of people who wer e prese nt at the sce ne, De tective Euba nks gleane d no i n fo rm at i o n about the identity of the shooter

. He e xp la ine d, “ I w a s to ld e ve ry thi ng fr om ‘ I d idn ’t se e a ny thi ng ’ to ‘ [Y ]e s, I s a w s ome thi ng bu t I am not telling you.’” Thre e days later, Ms. Petty came to the police station and identified the de fe nd a nt a s th e pe rp e tr a tor of the sh oo tin g. Al tho ug h Ms. P e tty kn e w the de fe nd a nt o nly a s “ Big Man,” D etec tive Eubanks wa s familiar with the alias a nd cre ated a photographic a

rray that included the defendant’s photograph. According to Dete ctive Euba nks, Ms. Petty i mmediately identified the defe ndant as “B i g Man” a nd showed no he sitation in her identification. The ne xt day, Dete ctive Eubanks visited the victim in the hospital, and the victim provided a state ment identifying the de fe nd a nt a s th e pe rs on wh o s ho t hi m.

Lincoln County Emerge ncy Medic al Service s worker Joseph Stringfield treated the victim at the scene . Acc ording to Mr. Stringfield, the victim stated that he did not know who shot him. On cross-e xamination by the S tate, Mr. Stringfield stated t hat t he victim “had two pe netrating injuries which conf

irmed [sic] to be gunshots to the

. . . right lower flank region of his ba ck. He wa s very a nxious, in pain.”

Rafae l For d , Kendrick Thomas, and Maurice Kelso also testified on be half of the de fe nd a nt. Ea c h d e nie d b e ing pr e se nt w he n th e vic tim wa s sh ot.

At the conc lusion of the trial , the jury convic ted the def endant of the attempted

se c on d d e gr e e mur de r o f the vic tim , th e a gg ra vate d a ssa ult of the vic tim , a ndfe lony r e c kle ss endange rment. The trial court ordere d that the conviction for aggravated assault be merged into the conviction for attempted second de gree murder.

I. Sufficiency of the Evidenc e

Th e de fe nd a nt c on te nd s th a t th e e vid e nc e is ins uf fi c ie nt to sup po rt

his c on vic tio ns

. Specifica lly, he asserts that there was insufficient evidenc e of his identity as t he perpetrator and that the Sta te faile d to est abl ish th e ne c e ssa ry e le me nts of

fe lon y r e c kle ss e nd a ng e rm e nt. Th e Sta te

su bmi ts t hat th e e vid e nc e is s uf

fi c ie nt t o s up po rt

the c on vic tio ns

.
When an ac cused challenge s the sufficie ncy of the e vidence , an appe llate cour t’s stand ar d o f revie w is whether , afte r consider ing the evidenc e in the lig ht most favorable to the prosec ution, any

rational trier

of fa ct could have found the esse ntial elements of the c rime beyond

a re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); J ac k so n v . V irg ini a , 443 U.S. 307, 324, 99 S. C t. 2781, 27 91 -9 2 ( 19 79 ); Sta te v . W inte rs , 137 S.W .3d 641, 654 (Tenn. Crim. App. 2003) . The rule applies to finding s of guilt based upon direc t evidence , circ umstantial evidence , or a c ombination of direct and cir cumstantial evidenc e. W inte rs , 137 S.W .3d at 654.

I n deter mining the sufficie ncy of the evidenc e, this c ourt should neither re -we igh the evidenc e nor substitute its inferenc es fo r t h o s e drawn by the trier of

fac t. Id. at 655. Questions

c on c e rn ingthe c re dib ili ty of the wi tne sse s, th e wei ght and va lue of the e vid e nc e , a s w e ll a s a ll fac tual issues raised by the evidence are resolved by the trier of

fac t. State v. Cabbage , 571 S.W .2d-4-

83 2, 83 5 ( Te nn . 1 97 8). S ign if ic antl y , th is c ourt

mus t a ff or d th e State of

Te nn e sse e the str on g e st le g iti mate vie w o f t

he e vid e nc e c on ta ine d in the re c or d a s w e ll a s a ll rea so na ble and le g iti mate infere nces which may

be dra wn from the e vidence

. Id.

Cr imi na l a tte mpt

is d e fi ne d a s f

oll ow s:
(a) A per son commits criminal attempt who, acting with the kind of culpability otherwise r equire d for the of fense :
(1 ) I nte nti ona lly e ng a ge s in a c tio n o r c a us e s a re su lt that w ou ld constitute an offen s e i f the c ircumstance s surrounding the conduc t

wer e as the person be lieves them to be;

(2) Ac ts with int ent to cause a re sult that is an element of the of fense
, and believe s the conduct will c ause the result without further conduct on the per son’s part; or

(3 ) A c t s w i t h i n t e n t t o c o m p l e t e a c o u r s e o f a c t i o n o r c a u s e a re su lt that would constitute the offe n s e, under the circ umstances

surroun d in g th e c o n d u c t a s th e p e r s o n b e li e v e s th e m to b e , a n d the conduct c onstitut es a substantial step towa rd the commiss ion of the offe nse.
T.C.A. § 39-12-101( a) ( 2003). “Sec ond degre e murder is .

. . [a] knowing killing of another.” Id. § 3 9- 13 -2 10 . “ A p e rs on c omm its a gg ra vate d a ssa ult wh o .

. . [i ]n te nti on a lly or kn ow ing ly c omm its

an assault as defined in § 39- 13-101 and . . . [ c]auses serious bodily injury to another; or [u]ses or displays a dea dly weapon . . . .” Id. § 39 -1 3- 10 3. In thi s c a se , the jury, by se pa rate ve rd ic t f

orms, fo un d th a t th e de fe nd a nt b othc a us e d seri ou s b od ily inj ury to the vic tim a nddis playe d a

de a dly

we apo n. “ A p e rs on c omm its [the ] o ff e ns e [o f r e c kle ss e nd a nge rm e nt] wh o r e c kle ssl y e ng a ge s in

c on du c t th a t pl a c e s o r m a y p la c e a no the r p e rs on in i mmi ne nt d a ng e r o f d e a th o r s eri ou s bod ily injury,” id. § 3 9- 13 -1 03 (a ), a nd“ re c kle ss e nd a ng e rm e nt c omm itt e d wi th a de a dly we apo n is a Cla ss E felony, id. at (b).

We ne ed not tarry long over the de fenda nt’s claims. The victim, who had known the defe ndant since e arly c hildhood and had eve n lived with him at one point, testified that the defe ndant shot him t wice. Ms. Petty, who had known the defe ndant “[ s]ince he was a littl e child,” w itnessed the e nti re e ve nt andte sti fi e d th a t th e de fe nd a nt s ho t th e vic tim tw ic e . Bo th the vic tim

a ndMs. Pe tty confirme d that people other than the victim wer e prese nt during the shooting and within the “zone of danger” cre ated by the shooting. See State v . Payne
, 7 S.W.3d 25, 28 (Tenn. 1999) (def ining the “zone of dange r” a s “that ar ea in whic h a re asonable probability exists that the def endant’ s conduct would place others in imminent danger of death or serious bodily injury if others we re pr esent in that

zone or are a”)

. Although the defe ndant prese nted the testimony of three witnesses who de nied being prese nt on the porch of t he brown house on the day of t he shoot ing, he off ere d no proof to contr adict the victim’s test i m o n y t h at “more than three or four ” people wer e on the por ch or Ms. Petty’s-5-

testimony that “[t]her e we re a lot of people standing ar ound.” The evidenc e is sufficie nt to support the jury’ s v e rd ic t.

II. Se ntencing

The de fenda nt complains that the 12-yea r sentenc e for

attempted sec ond degre e murder is e xcessive. He contends that the trial court err oneously applied enhanc ement fa ctor 10, that the def end an t s h owed no he sitation in commi tting a crime whe re the risk to human life wa s high. See T. C

. A. § 40-35-114( 10) (2006) . The State a sserts that the application of the fac tor was appropriate bec ause of

the risk to the l ives of t he byst ander s, including Ms. Petty. In t he alternative, the Sta te c on te nd s th a t th e app lic a tio n of the fi veun c ha lle ng e d e nh a nc e me nt f a c tor s is su ff

ic ie nt t o support the 12-ye ar se ntence

.

W he n a de fe nd a nt c ha lle ng e s th e le ng th of a se nte nc e , th is c ou rt

ge ne ra lly c on du c ts a de novo r eview of

the re cord w ith a presumption that the determinations made by the trial court

are corr ect. T.C.A. § 40- 35-401(d) (2003). This pre sumption, however, is co n d itioned upon the

a ff ir ma tiv e sh ow ing in the re c or d th a t th e tr ia l c ou rt c on sid e re d the se nte nc ing princ ipl e s a nda ll rele vant fa cts and c ircumstance s. State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1991) . The burde n
o f s h o wi n g that the sentenc e is improper is upon the a ppellant. Id

. I f

th e r e v ie w r e f

le c ts th e trial court prope rly consider ed all relevant factors and its findings of fact are adequately supported by the

rec ord, this court must affirm the sentenc e, “e ven if we would have p re fe rr ed a diffe rent re sult.” State v. Fletc her , 8 05 S .W. 2d 78 5, 78 9 ( Te nn . Crim. Ap p. 19 91 ). In the e ve nt the re c or d f a ils to de mon str a te the re qu ir e d c on sid e ratio n b y th e tr ia l c ou rt , a pp e llate re vie w o f the se nte nc e is p ur e ly de novo. Ashby , 823 S.W.2d at 169.

In making its senten ci n g determination in the present ca se, the trial c ourt, at the conclusion of the se ntencing hea ring, was obliged to de t er mine the proprie ty of sentenc ing alternatives by considering (1) the evidenc e, if a ny, rec eived at the trial and sente ncing hea rings, (2) the pr e se nte nc e re po rt , (3 ) the princ ipl e s o f s e nte nc ing a ndarg ume nts a s to se nte nc ing a lte rn a tiv e s, (4) the nature a nd char acte ristics of the criminal conduct involved, (5 ) ev i dence and information offe red by the parties on the enhanc ement and mitigating fac tors, (6) any statements the def endant made in his beha lf about sentenc ing, and (7) the pot ential for reha bilitation or treatment. T.C.A. §§ 40 -3 5- 21 0( a ), (b ); -1 03 (5 ); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993)

.

In setting the s entenc e for

attempted sec ond degre e murde r at 12 ye ars, the ma ximum within the range , the trial court applied enhanc ement fac tors 1, 6, 8, 9, 10, and 13. See T.C.A. § 40- 35-114( 1 ), (6 ), (8) , (9), ( 10), (13) (2006). The defe ndant contests only the application of

e nhancem ent fac tor

10 , c omp la ini ng that th is f a c tor sh ou ld n ot h a ve be e n a

pp lie d b e c a us e it i s inhere nt in the offense of sec ond degre e murde r.

Code section 40-35- 114 provides that “[ i]f appr opriate f or the o ff en s e and if not alre ady an e ssential element of the offe nse, the court shall consider, but is not bound by,” a list of statutory enhanc ement fa ctors. See T.C.A. § 40-35-114. “In the case of attempted second degr ee
mur de r, a hig h risk to hum a n lif

e wi ll obv iou sly e xis t,” ge ne ra lly makin g fa c tor 10 ina pp lic able to a convic tion for attempted se cond deg re e murder. See State v. Je rry B. Crow , No.-6-

01C01-9310-CR-00348, slip op. at 8- 9 (Tenn. Crim. App., Nashville, May 11, 1995). This c ourt has he ld, ho we ve r, that “e nh a nc e me nt fa c tor (1 0) ma y be app lie d whe re the de fe nd a nt cr e a te s a hi gh ri sk
to the l ife of a per son other than the vic tim.” State v. Bingham
, 91 0 S. W .2 d 4 48 , 4 52 (T e nn . Crim. App. 1995), overruled in part on other grounds by State v. H ooper , 29 S.W.3d 1, 9-10 (Te nn. 2000). In thi s ca se , the Sta te ins ist s fa c tor 10 is a pp lic able on gr ou nd s th a t th e de fe nd a nt c re a te d a hig h risk to the lives of the bystande rs to the s hooting. The S tate’s argument, however, overlooks the fa ct that the def endant wa s convicted of

felony re ckle s s e n d an germe nt based upon his conduc t in endangering the lives of those standing ar ound when the shooting commenc ed. Unde r t hese c ircumstance s, the trial court should not have applied factor 10 to the conviction for attempted second de gree murder. See State v. Janic e Carol Biskner , No. E2000-01440- CCA-R3-CD (Tenn. C ri m

. App. Nov. 13, 2001) (holding in a driving under the influence case that “fa ctor (10) is inapplica ble pre dicated on the ri sk to [d ]ef e nd ant’ s so n b e c a

us e thi s w a s th e pr e c ise g ro un d f or he r s e pa rate c on vic tio n o f c hil d endang erme nt”); State v. Jam es Edwin Harber , No. W2000-00462-CCA-R3-CD, slip op. at (Te nn. Crim. App., J ackson, D ec. 27, 2000) (holding in a vehicular homi cide case that “the applica bility of fac tor (10) c annot .

. . be base d on the risk [the defenda nt’s] actions caused to [passeng ers other than the ve hic ula

r h omi c ide vic tim ]” whe re “ the de fe nd ant r e c e ive d a sep arate c on vic tio n f or re c kle ss end angerm ent ” as t o thos e pa sse ng e rs ); S ta te v

. R ick y W illiams , N o. E1 99 9- 00 34 4- CCA -R 3- CD , s lip op. at (Tenn. Crim. App., Knox ville, J une 15, 2000) (“Although [d]efenda nt did create a r isk to the lives of the two small children in the r esidenc e whe n he committed the re ckless h o m i ci d e, he

rec eived a

separ ate c onviction for re ckless endang erme nt for the risk he created t o the lives of the children. Thus, a

pplication of fa ctor (10) was inappr opriate.” ).

The e rrone ous application of f actor 10 notwithstanding, the recor d fully supports the imposit ion of the 12-ye ar se ntence . At the time of the sente ncing hearing, the 20-year- old defe ndant had four previous convictions of assault, a conviction of poss ession of coc aine, a nd a convic tion of failure to appea

r. At the time of the of

fense , the def

endant wa s on communit y co rr ections. The proof at trial established that the victim suffe red se rious inj u ry , requiring surge ry and a lengthy hospital stay, as a re sult of the gunshot wounds inflicted by the def endant. More over, the rec ord establishes that the attack on the una rmed victim was e ssentially unprovoked.

Acc ordingly, the judgments of the trial court are aff irmed.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE