FILED

July 8, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

 MARCH 1999 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) No. 02C01-9804-CR-00111

 )

) Shelby County

v . ) 

) Honorable Joseph B. Dailey, Judge 

)

RODNEY D. PALMER, ) (Attempted second degree murder and

) three counts of aggravated

assault)

) 

Appellant. )

For the Appellant : For the Appellee :

A. C. Wharton, Jr. John Knox Walkup

District Public Defender Attorney General of Tennessee

 and and

Dianne Thackery Douglas D. Himes

Assistant Public Defender Assistant Attorney

General 

201 Poplar Avenue, Ste. 201 425 Fifth Avenue North

Memphis, TN 38103-1947 Nashville, TN 37243-0493

(AT TRIAL)

William L. Gibbons

A. C. Wharton, Jr. District Attorney General

District Public Defender and

 and Jerry Harris

W. Mark Ward Assistant District Attorney General

Assistant Public Defender 201 Poplar Avenue, 3rd

Floor

201 Poplar Avenue, Ste. 201 Memphis, TN 38103

Memphis, TN 38103-1947

(ON APPEAL)

OPINION FILED:____________________
2

AFFIRMED

Joseph M. Tipton

Judge

O P I N I O N

The defendant, Rodney D. Palmer, was convicted by a

jury in the Shelby County Criminal Court of attempted second

degree murder, a Class B felony, and three counts of aggravated

assault, a Class C felony. He was sentenced to ten years in the

Department of Correction as a Range I, standard offender for the

attempted second degree murder conviction and to eight years as a

Range II, multiple offender for each aggravated assault

conviction. The ten year sentence and two of the eight year

sentences are consecutive to each other, and the remaining eight

year sentence is concurrent for an effective twenty-six year

sentence. In this appeal as of right, the defendant contends

that:

(1) attemp t ed second degree murder is not a

crime;

(2) the trial court gave an erroneous

instruction on attempted second degree murder;

and 

(3) the trial court erred in imposing

consecutive sentences because the defendant is

not a dangerous offender and does not have an

extensive criminal record within the meaning

o f the statute and b ecaus e the trial court

failed to consider the crit eria set forth in

State v. Wilkerson , 905 S.W.2d 933 (Tenn.

1995).

We affirm the judgments of conviction.
3

Belinda Palmer, the defendant’s wife, testified that in

February 1997, she lived with the defendant, her two sisters,

Tameka and Tracy Parsons, and her cousin, John Gross. She said

that she was in the hospital for two weeks in October 1996

following gastro-bypass surgery and that she returned to the

hospital for seven days in January 1997. She said that on

Friday, February 14, 1997, she had not yet returned to work after

getting out of the hospital. She said that she believed that the

defendant smoked crack cocaine purchased with his income tax

refund over that weekend from Valentine’s Day until she saw him

on Monday night or early Tuesday morning. 

Mrs. Palmer testified that at 8:00 a.m. on Tuesday,

February 18, the defendant asked her to take him to work, but she

refused and told him to leave. She said that she was in the

bathroom when the defendant stabbed her in the chest, back, and

arm. She said that either just before or as he was stabbing her,

the defendant said, “B**ch, I’m going to put you in the Med.” 

She said that after he stabbed her, she lay on the bathroom floor

in shock and yelling. She said that she has scars from all three

wounds and that she has nightmares about the incident.

Tameka Parsons testified that she lived with her

sister, Mrs. Palmer, and the defendant in February 1997. She

said that the defendant left the house Friday night, February 14,

and returned early Tuesday morning around 2:00 a.m. She said

that between 8:00 and 8:30 a.m., she heard Mrs. Palmer and the

defendant arguing in the master bedroom. She said that Mrs.
4

Palmer had been on the telephone that morning with her father

telling him that she was tired of the defendant spending his

money on drugs and that she wanted him out of her house.

Tameka Parsons testified that she then heard Mrs.

Palmer yelling and that she thought that Mrs. Palmer and the

defendant were fighting, but she did not know that he was

stabbing her. She said that she and her sister, Tracy Parsons,

kicked open the bedroom door and that the defendant came out of

the bedroom and stabbed them. She said that he first stabbed her

on her arm and under her arm, using a large kitchen knife. She

said that she and her sister did not fight with the defendant or

say anything to him before he stabbed them. She said that her

sister pulled her from the hall into her room, and they closed

the door. She said that she kicked the door open in order to

help Mrs. Palmer.

 John Gross testified that in February 1997, he lived

on Janssen Street with Mrs. Palmer. He said that at that time,

Mrs. Palmer was sick and was having complications from surgery. 

He said that on the morning of February 18, Mrs. Palmer called

her father and told him that the defendant had not been there

over the previous weekend, that she was tired of it and did not

want to live like that anymore, and that she wanted to get a

divorce. He said that Mrs. Palmer asked the defendant to leave,

and the defendant responded that he was not going anywhere. He

said that the defendant and Mrs. Palmer began to argue heatedly

in the living room, and they moved to the master bedroom at the
5

defendant’s request. He said that the defendant locked the

bedroom door.

Mr. Gross testified that he could hear Mrs. Palmer

yelling. He said that he was standing behind Mrs. Palmer’s

sisters when they kicked the bedroom door open. He said the

defendant came toward the sisters with a large chef’s knife and

began stabbing them. He said the knife was six inches long and

about two inches wide. He said that the sisters did not say

anything to the defendant before the stabbing nor did they have

anything in their hands.

Mr. Gross testified that he turned and ran outside onto

the porch intending to get help. He said that the defendant ran

after him and stabbed him once in the right shoulder. He said

that he had not said anything to the defendant before the

defendant stabbed him and that he was on the cordless telephone

trying to get help. He said the defendant then entered the

house, grabbed Mrs. Palmer’s purse and car keys, and drove away

in her car. He said that he did not know if the defendant took

the knife with him when he left. He said that he lost a lot of

blood from the stab wound and that he was treated and released

from the hospital.

Tracy Parsons testified that on the morning of February

18, 1997, she was at Mrs. Palmer’s house. She said that the

defendant and Mrs. Palmer first argued in the living room. She

said that they were loud but that she was not paying attention to
6

what they were arguing about. She said they went into the

bedroom and Mrs. Palmer started yelling. She said that she and

her sister, Tameka Parsons, kicked the door open and that she

could see Mrs. Palmer gasping for breath on the floor of the

bathroom connected to the master bedroom. She said that within a

few seconds, the defendant stabbed her and her sister. She said

that she was stabbed in the chest and in the upper back. She

said that she did not have anything in her hands and did not say

anything to the defendant before he stabbed her.

Tracy Parsons testified that she is four feet, eleven

inches tall and that she weighs one hundred fifteen pounds. She

said that she was in the hospital for three days after the

defendant stabbed her. She said that her lungs collapsed and

that a chest tube was inserted through her side.

On cross-examination, Tracy Parsons testified that when

they kicked the bedroom door open, Tameka was closer to the

defendant. She said that the defendant came out of the bedroom

as soon as the door opened. She said that the hallway was wide

enough for the defendant to pass through even though she and

Tameka were standing there and that she was only partially

blocking the doorway. She said that the defendant stabbed her

first in the chest, then he stabbed her back as she was turning

away from him. She said that the defendant then went down the

hall and into the living room. She said that she and Tameka went

into Tameka’s bedroom and closed the door. She said she saw the

defendant come out the front door, go back in the house, and come
7

out again with keys. She said that she did not see or hear him

attack anyone after he went back in the house.

Officer Russell Stevens of the Memphis Police

Department testified that he was on duty the morning of February

18, 1997, and that he received a call to go to 4452 Janssen. He

said that when he arrived, two ambulances were already on the

scene, and attendants were taking two females from the house. He

said that he saw a bleeding male outside, and a paramedic advised

him that three people were critically injured. 

Officer Stevens said that he went inside and saw Mrs.

Palmer lying in the middle of the living room floor on her side. 

He said that he could see that she was bleeding from her upper

body but that a pillow drenched with blood blocked his view of

the wound. He said that Mrs. Palmer was talking on the

telephone, trying to get someone to take care of her children and

that she was hysterical. He said that Mrs. Palmer told him that

she had been fighting with the defendant in the master bedroom

and that the fight had escalated. He said that she told him that

the defendant said, “You’re a smart b**ch. I’m going to send you

to the Med” and then he stabbed her.

Officer Stevens said that in the master bedroom, he

found a dayplanner on the bed. In the dayplanner, he found the

defendant’s identification and a glass cylinder used to smoke

crack. He said that the door to the bedroom appeared to have

been kicked or forcibly pushed open.
8

The defendant testified that in 1991 he received a oneyear sentence for reckless endangerment and a two-year sentence

for theft. He said that on February 18, 1997, he lived at 4452

Janssen with his wife, her two sisters, and her cousin. He said

that at that time, he had been working at Jolly Royal Furniture

for eight months. He said that on Friday, February 14, he went

home after work, stayed at his house for three to four hours, and

then went to his mother’s house. He said that he left because

his wife’s sisters and cousin and some other people were

preparing to have a party funded by their income tax refunds. He

said that he had received his paycheck that day, not an income

tax refund. He said that Mrs. Palmer had returned to work two

weeks earlier and that she had just gotten home from work when he

left. The defendant stated that he smoked crack that weekend.

The defendant testified that Mrs. Palmer picked him up

at his mother’s house at about 12:35 p.m. or close to 1:00 a.m.

on Tuesday. He said that he awoke at 6:30 or 7:00 a.m. and

prepared for work. He said he asked Mrs. Palmer to take him to

work, and they began to argue because she refused to take him to

work and told him that she wanted him out of the house. He said

that they argued for about twenty minutes starting in the living

room and then continuing in their bedroom where he locked the

door. He said that when he realized that they could not come to

an understanding, he went to get the car keys from Mrs. Palmer’s

purse, which was hanging on the back of the bedroom door. He

stated that Mrs. Palmer grabbed him around the waist to try to

stop him from leaving in the car. He said that he and Mrs.
9

Palmer then got into a physical fight and that when her sisters

and cousin heard them bumping into things, they kicked open the

bedroom door.

The defendant testified that when Mrs. Palmer’s sisters

and cousin started toward him, he grabbed a steak knife from the

dresser or from a chair in the bedroom. He said that he had not

put the knife there. He said that Mrs. Palmer was still holding

him around the waist with her shoulder in his stomach pushing him

backward into the bed. He said that as the others rushed into

the room, he stabbed Mrs. Palmer in the back. He said that

Tameka and Tracy got on him and he stabbed them.

The defendant testified that he then ran to the back

door in the kitchen. He said that Mr. Gross was running in front

of him and that he went to the back door to avoid Mr. Gross, who

went to the front door. He said that the back door was locked

and that he went back to the bedroom to get the keys to the door

and the car. He said that Tameka and Tracy were no longer in the

bedroom. He said that he got the keys, asked Mrs. Palmer if she

was alright, and ran to the front door. He said that Mr. Gross

was blocking the front door and he stabbed Mr. Gross. He said he

then left in his and Mrs. Palmer’s car. He said he tried to use

the cellular phone to call 9-1-1 but that 9-1-1 was not

accessible in that area. He said he then called Mrs. Palmer’s

father and asked him to come to the house and check on everyone. 

He said that three or four days later he turned himself in to the

police.
10

On cross-examination, the defendant testified that Mrs.

Palmer’s three- year-old daughter and Tameka’s baby were also in

the house at the time of the incident. He admitted that on that

morning, he and Mrs. Palmer argued in part over his drug use. He

said that he did not have the knife until all four people came in

the bedroom and that as he was stabbing them, they were still

attacking him. He said that at the time Tracy attacked him, he

had not yet stabbed Tameka. He admitted that he stabbed Mr.

Gross in the back. He said it was necessary to stab the victims

because he thought that he was being attacked. He said that he

did not know if anyone had anything in their hands when they

attacked him. He said that he did not have to go the hospital

after the incident and that he was treated by his mother. He

said that he was five feet, eleven inches tall and weighed one

hundred seventy pounds.

Based on the foregoing evidence, the jury convicted the

defendant of attempted second degree murder for the attack on

Mrs. Palmer and aggravated assault for the stabbing of Tameka and

Tracy Parsons and Mr. Gross.

I. ATTEMPTED SECOND DEGREE MURDER

The defendant contends that attempted second degree

murder does not constitute an offense in Tennessee because the

requirement of specific intent in the attempt statute cannot be

combined with the lesser mens rea of “knowing” required for

second degree murder. The defendant argues that this case is

analogous to State v. Kimbrough , 924 S.W.2d 888 (Tenn. 1996), in
1

Tenn. Code Ann. § 39-12-101 defines criminal attempt as follows:

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that

wou ld constitute an offense if the circumstances

surrounding the conduct were as the person believes them

to be;

(2) Acts with intent to cause a result that is an element of

the offense, and believ es the con duc t will ca use the re sult

without further conduct on the person’s part; or

(3) Acts w ith intent to com plete a course of action or cause

a result that would constitute the offense, under the

circumstances surrounding the conduct as the person

believes them to be, and the conduct constitutes a

substantial step toward the commission of the offense.

(b)Conductdoesnotconstitute asubstantialstepundersubdivision(a)(3)unless theperson’s

entire course of action is corroborative of the intent to commit the offense.

(c)Itisnodefensetoprosecutionforcriminalattemptthattheoffenseattemptedwas actually

committed.

11

which the Tennessee Supreme Court held that the attempt statute

could not be combined with the felony murder statute because one

could not intend to commit a reckless act. The state contends

that the analysis in Kimbrough does not apply because one can

intend to act knowingly. We agree.

Initially, the state asserts that although the

defendant objected to the charging of the offense of second

degree murder during the trial, the defendant has abandoned this

issue by failing to raise it in his motion for a new trial. See

T.R.A.P. 3(e). However, we may properly review its merits

because deciding this issue in the defendant’s favor would lead

to dismissal of the charges rather than to a new trial.

In Kimbrough , our supreme court held that the specific

intent required by the criminal attempt statute 1 was inconsistent

with felony murder because attempt requires a specific intent,
12

and one cannot intend to commit an unintentional act. 924 S.W.2d

at 890. “Second degree murder is . . . [a] knowing killing of

another.” Tenn. Code Ann. § 39-13-210. With regard to attempted

second degree murder, this court has noted that unlike a mens rea

of recklessness, the mental states of intentional or knowing both

“involve a level of conscious awareness and volitional,

affirmative conduct.” State v. Dale Nolan , No. 01C01-9511-CC00387, Sequatchie County, slip op. at 18 n.9 (Tenn. Crim. App.

June 26, 1997), app. denied (Tenn. Mar. 2, 1998) (declining to

recognize the offense of attempted criminally negligent

homicide).

This court has continuously recognized the offense of

attempted second degree murder. See State v. Craig Bryant , No.

02C01-9707-CR-00286, Shelby County, slip op. at 13 (Tenn. Crim.

App. Jan. 8, 1999), applic. filed (Tenn. Mar. 9, 1999); e.g. ,

State v. Eldridge , 951 S.W.2d 775, 779 (Tenn. Crim. App. 1997)

(upholding jury charge on attempted second degree murder); Grant

C. Ivey v. State , No. 01C01-9801-CC-00052, Rutherford County,

slip op. at 4 (Tenn. Crim. App. Apr. 20, 1999) (holding that

retrial for attempted second degree murder did not violate double

jeopardy); State v. Jose Holmes , No. 02C01-9505-CR-00154, Shelby

County, slip op. at 3-4 (Tenn. Crim. App. Dec. 10, 1997), app.

denied (Tenn. Sept. 21, 1998) (reversing attempted felony murder

conviction under Kimbrough and remanding for retrial on attempted

second degree murder); State v. Frederick R. Porter , No. 03C01-

9606-CC-00238, Anderson County, slip op. at 5 (Tenn. Crim. App.

Oct. 24, 1997), applic. filed (Tenn. Apr. 2, 1998) (holding that
13

the evidence was sufficient to support the attempted second

degree murder conviction). In Kimbrough , the supreme court

indicated that the concerns raised by combining the attempt

statute with felony murder were not implicated by attempted

murder:

O f course, it goes without say ing that if an

accused actually possesses the requisite

intent to kill, he or she may be charged with

attempted mur der. We simply believe that it

i s logically and legally impossible to attempt

to perpetrate an unintentional killing.

924 S.W.2d at 892. We hold that the intent to commit a knowing

act is neither logically nor legally impossible. Thus, an

attempt to commit second degree murder is a criminal offense in

Tennessee. 

II. JURY INSTRUCTIONS

The defendant contends that the trial court’s failure

to instruct the jury that the defendant must have “intended” the

killing was a fundamental or plain error. See State v.

Stephenson , 878 S.W.2d 530, 553-54 (Tenn. 1994) (“a trial court

judge’s failure to give a jury charge on matters characterized as

‘fundamental’ may be found to be error requiring reversal despite

the fact that the defendant did not request the omitted

instructions”); Tenn. R. Crim. P. 52(b). The defendant also

argues that the trial court erroneously instructed the jury that

in order to find the defendant guilty of attempted second degree

murder, the defendant must have committed a “knowing” homicide. 

The state responds that the trial court correctly instructed the

jury on attempted second degree murder. We agree.
14

The state initially argues that the defendant has

waived this issue for failing to include it in his motion for new

trial. Because we believe that a jury instruction which did not

accurately charge the requisite mental state would substantially

affect the defendant’s rights, we will address the merits of this

issue in order to do substantial justice. See Tenn. R. Crim. P.

52(b). 

Kimbrough holds that an attempt to commit murder

entails a specific intent to kill. 924 S.W.2d at 891. In

Eldridge , this court approved the fourth edition of the pattern

jury instruction because this instruction “expressly includes the

defendant’s intent to commit the specific offense as an essential

element.” 951 S.W.2d at 779 (noting that this instruction had

not been published at the time of trial); see T.P.I.--Crim. 4.01

(4th ed. 1995). In the present case, the trial court used the

fourth edition of the pattern instruction on attempt, charging as

follows:

 For you to find a person guilty of

criminal attempt, the state must have proven

beyond a reasonable doubt the existence of the

following essential elements:

that the defendant intended to commit the

specific offense of Murder in the Second

Degree ; and

that the defendant did s o me act or caused

something to happen that would have

constituted Murder in the Second Degree if the

defendant’s beli efs at the time he acted had

in fact been true; or

that the defendant did some act intending to

cause an essential e lement of Murder in the

Second Degree to occur, and at the tim e

believed the act would cause the eleme n t to
15

occur without further action on the

defendant’s part; or 

tha t the defendant did some act intending t o

complete a course of action or cause a result

that would constitute Murder in the Second

Degree under the circumstances, as the

defendant believed them to be at the time, and

his actions constituted a substantial step

toward the commission of Murder in the Second

Degree. The defendant’s actions do not

constitute a substantial step unless the

defendant’s entire course of action clearly

shows his int ent to commit Murder in the

Second Degree.

(emphasis added). Because the trial court specifically charged

that the jury must find that the defendant intended to commit

second degree murder, we hold that the instruction was proper. 

The trial court’s further instruction that second degree murder

requires that the defendant act knowingly does not detract from

the accuracy of this instruction.

III. CONSECUTIVE SENTENCES

The defendant contends that the trial court erred in

imposing consecutive sentences because he is not a dangerous

offender, he does not have an extensive criminal record within

the meaning of the statute, and the trial court failed to

consider the criteria set forth in State v. Wilkerson , 905 S.W.2d

933 (Tenn. 1995). The state contends that consecutive sentences

were proper. We agree.

Appellate review of sentencing is d e novo on the record

with a presumption that the trial court's determinations are

correct. Tenn. Code Ann. §§ 40-35-401(d), -402(d). As the

Sentencing Commission Comments to these sections note, the burden
16

is now on the appealing party to show that the sentencing is

improper. This means that if the trial court followed the

statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration

and proper weight to the factors and principles that are relevant

to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different result were preferred. State v.

Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumption of correctness which

accompanies the trial court's action is conditioned upon the

affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and

circumstances". State v. Ashby , 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate

review,

the tria l court must place on the record its

reasons for arriving at the final sentencing

decision, identify the mitigating and

enhancement factors found, state the specific

facts supporting each enhancement factor

found, and articulate how the mitigating and

enhancement factors have been evaluated and

balanced in determining the sentence. T.C.A.

§ 40-35-210(f) (1990). 

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1995).

Also, in conducting a d e novo review, we must consider

(1) the evidence, if any, received at the trial and sentencing

hearing, (2) the presentence report, (3) the principles of

sentencing and arguments as to sentencing alternatives, (4) the

nature and characteristics of the criminal conduct, (5) any
17

mitigating or statutory enhancement factors, (6) any statement

that the defendant made on his own behalf and (7) the potential

for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -

103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727

S.W.2d 229 (Tenn. 1986). 

The sentence to be imposed by the trial court for a

Class B, C, D or E felony is presumptively the minimum in the

range if neither enhancement nor mitigating factors are present. 

Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is

to increase the sentence within the range based upon the

existence of enhancement factors and, then, reduce the sentence

as appropriate for any mitigating factors. Tenn. Code Ann. § 40-

35-210(d), (e). The weight to be afforded an existing factor is

left to the trial court's discretion so long as it complies with

the purposes and principles of the 1989 Sentencing Act and its

findings are adequately supported by the record. Tenn. Code Ann.

§ 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at

237; See Ashby , 823 S.W.2d at 169.

At the sentencing hearing, the defendant testified that

he had apologized by telephone to all of the victims and that he

understood that what he did was wrong although at the time, he

thought that the victims were trying to hurt him. He said that

he cared deeply for all of the victims. On cross-examination, he

said that the stabbings were a mistake, that he took full

responsibility for what happened that day, and that the incident

arose out of passion.
18

The presentence report reveals that the then thirtyone-year-old defendant graduated from high school and worked in

shipping and receiving at Jolly Royal from August 1996 through

February 1997. Prior to this, he had worked eight months for

Kroger as an overnight stocker, and in 1987, he had worked three

and one-half months at El Chico as a dishwasher. In the

presentence report, the defendant admitted that he began using

drugs in 1987 following deaths in his family and that he used the

drugs to cope with his grief. The presentence report reflects a

substantial prior criminal history, including convictions in 1995

for evading arrest; in 1991 for reckless endangerment not

involving a weapon, theft of property valued at five hundred to

one thousand dollars, aggravated assault, and simple assault; and

in 1989 for three weapons offenses. On January 10, 1990, the

defendant violated two conditions of the probation stemming from

his weapons offenses. Additionally, the defendant was convicted

of four driving- related offenses between October 1990 and May

1997.

The trial court enhanced the defendant’s sentence,

finding that with regard to enhancement factor (1), Tenn. Code

Ann. § 40-35-114, the presentence report revealed a history of

prior criminal convictions in addition to those necessary to

establish the range. Under factor (4), the trial court found

that Mrs. Palmer was particularly vulnerable because she was

still weak from surgery and not in a position to respond to the

assault by the defendant. Regarding factor (6), the trial court

determined that Mrs. Palmer and her two sisters received
19

particularly great personal injuries. The trial court found that

factor (9) applied because the defendant used a deadly weapon, a

knife. With regard to factor (10), the trial court found that

having no hesitation to commit a crime when the risk to human

life is high is part of the offense of attempted second degree

murder but that it would apply to all three aggravated assaults.

The trial court found that mitigating factor (13),

Tenn. Code Ann. § 40-35-113, applied because the defendant

graduated from high school and had some employment history, but

it gave this factor very little weight in light of its finding

that the defendant had been in and out of trouble for his entire

adult life. Reflecting upon the numerous enhancement factors

with virtually no mitigation, the trial court sentenced the

defendant to ten years for the attempted second degree murder and

to eight years for each of the three aggravated assaults.

The trial court found consecutive sentences to be

appropriate because the defendant had an extensive record of

criminal activity, which included violent offenses, and because

the defendant was a dangerous offender. See Tenn. Code Ann. §

40-35-115(b)(2), (4). The trial court ordered the eight-year

sentences for the aggravated assaults of Tameka and Tracy Parsons

to be concurrent because the court viewed the assault upon them

to be a single event occurring as the defendant left his bedroom

after stabbing Mrs. Palmer. It found the stabbing of Mrs. Palmer

and of Mr. Gross to be separate events, and it noted that the

defendant could have left the house without stabbing Mr. Gross. 
20

The trial court ordered the ten-year sentence for the attempted

second degree murder to run consecutively to the concurrent

eight-year sentences for the aggravated assaults of the sisters

and consecutively to the eight-year sentence for the aggravated

assault of Mr. Gross.

A. EXTENSIVE CRIMINAL HISTORY

The defendant contends that he does not have an

extensive criminal record within the meaning of Tenn. Code Ann. §

40-35-115(b)(2) because this category applies when a defendant’s

present offenses for which sentences are being imposed are

extensive and continuing rather than when a defendant has an

extensive prior criminal record. He then argues that because his

convictions in this case arise out of a single incident, the

trial court erred in imposing consecutive sentences under this

category. The state contends that the great weight of authority

supports the trial court’s interpretation of this factor, and it

was properly applied to the defendant. We agree.

Consecutive sentencing is guided by Tenn. Code Ann. §

40-35-115(b), which states in pertinent part: 

The court may order sentences to run consecutively if the

court

finds by a preponderance of the evidence that:

 . . . .

(2) The defendant is an offender whose record

of criminal activity is extensive[.]

 Rule 32(c)(1), Tenn. R. Crim. P., requires that the trial court

“specifically recite the reasons” behind its imposition of a
21

consecutive sentence. In this case, the trial court referred to

the defendant’s prior criminal record, which includes eight

convictions in addition to two probation violations and several

driving offenses.

 The Sentencing Commission Comments to Tenn. Code Ann.

§ 40-35-115 note that the first four categories in subsection

(b)(2) were taken from Gray v. State , 538 S.W.2d 391 (Tenn.

1976). The defendant contends that the wording of subsection

115(b)(2) comes from the supreme court’s definition of a

“multiple offender” in Gray . See Id. at 393. A fifth category

set forth in Gray , “the persistent offender,” was based upon a

defendant’s prior criminal record. Id. The supreme court

distinguished between these two categories as follows:

The prior record of the persistent offender

will indicate that he is one not likely to be

rehabilitated and should be incarcerated under

consecutive sentences for the protection of

the public. . . . The prior record of the

multiple offender may have been good, but the

crimes for which he has been convicted

indicate criminal activity so extensive and

continuing for such a peri od o f time as to

warrant consecutive sentencing.

Id. The legislature did not incorporate the “persistent

offender” category into Tenn. Code Ann. § 40-35-115(b)(2). The

Sentencing Commission Comments to § 40-35-115 explain that the

legislature incorporated the “persistent offender” category into

the various sentencing ranges, which provide a greater potential

sentence based upon a defendant’s prior felony convictions. We

acknowledge that Gray and the Comments, considered together, can

lead one to interpret the statute as the defendant suggests. 
22

However, the great majority of the Tennessee cases applying

subsection 115(b)(2) have interpreted subsection 115(b)(2) more

broadly. 

Since the 1989 Sentencing Act became effective, all

reported and most unreported cases of this court have

consistently interpreted § 40-35-115(b)(2) to apply to offenders

who have an extensive history of criminal convictions and

activities, not just to a consideration of the offenses before

the sentencing court. See , e.g. , State v. Baker , 956 S.W.2d 8,

18 (Tenn. Crim. App. 1997); State v. Ensley , 956 S.W.2d 502, 514

(Tenn. Crim. App. 1996); Powers v. State , 942 S.W.2d 551, 558

(Tenn. Crim. App. 1996); State v. Nix , 922 S.W.2d 894, 904 (Tenn.

Crim. App. 1995); State v. Tuttle , 914 S.W.2d 926, 933 (Tenn.

Crim. App. 1995); State v. Marshall , 888 S.W.2d 786, 787 (Tenn.

Crim. App. 1994); State v. Chrisman , 885 S.W.2d 834, 839 (Tenn.

Crim. App. 1994); Manning v. State , 883 S.W.2d 635, 640 (Tenn.

Crim. App. 1994); State v. Davis , 825 S.W.2d 109, 113 (Tenn.

Crim. App. 1991); but see State v. Rickey Crawford , No. 02C01-

9806-CR-00169, Shelby County, slip op. at 8-10 (Tenn. Crim. App.

May 12, 1999) (Hayes, J., disagreeing with the concurring opinion

by Tipton, J., who along with Lafferty, Senior J., held that

subsection 115(b)(2) applies to defendants with extensive prior

criminal records); cf. State v. Michael Blazer , No. 03C01-9405-

CR-00185, Carter County, slip op. at 3 (Tenn. Crim. App. Feb. 3,

1995) (holding that a defendant with a prior record of one felony

conviction and misdemeanor convictions did not have an “extensive

record of criminal activity” under Gray and noting that the
23

“persistent offender” category was omitted from subsection

115(b)(2)). The interpretation used in the reported cases is

supported by a reasonable understanding of the language of

subsection 115(b)(2), i.e., an offender’s record of criminal

activity denotes his or her history of criminal activity. 

Moreover, this interpretation logically fills the gap between the

professional criminal, see Tenn. Code Ann. § 40-35-115(b)(1), and

the multiple offender with no previous criminal history.

This court’s interpretation of subsection 115(b)(2) for

the past eight years, upon which trial courts and parties have

relied, now carries the weight of the doctrine of stare decisis ,

embodying a judicial policy to adhere to previous court

decisions. This doctrine is based upon the public’s need to rely

upon court decisions, and it recognizes that rights may accrue in

reliance upon those decisions. It has particular importance when

a decision involves the interpretation of a statute. See , e.g. ,

Monday v. Millsap , 197 Tenn. 295, 298, 271 S.W.2d 857, 858

(1954). In this respect, holding today that subsection 115(b)(2)

does not relate to prior histories of criminal activity would

result in unnecessary litigation in the future regarding formerly

sentenced people. Also, the legislature has convened in regular

sessions during the past eight years without electing to modify

this court’s interpretation of subsection 115(b)(2). Because

this interpretation is both rational and functional for the

criminal justice system, stare decisis should prevail. In

consideration of the defendant’s numerous prior convictions, the
24

trial court properly found that the defendant qualified for

consecutive sentences under subsection 115(b)(2).

B. DANGEROUS OFFENDER

The defendant contends that the record does not reflect

that he had no hesitation about committing the offenses, which

arose out of a domestic dispute, that the offenses were not

premeditated or deliberate, and that they occurred during a state

of passion. The state argues that the number and seriousness of

the stab wounds, the defendant’s threat to put his wife in the

hospital, and the unprovoked and systematic stabbing of Tameka

and Tracy Parsons and John Gross reveal that the defendant had no

regard for human life and did not hesitate to commit these crimes

despite the great risk to human life. We agree.

The trial court may impose consecutive sentences when

“[t]he defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” 

Tenn. Code Ann. § 40-35-115(4). The trial court found the

defendant to be a dangerous offender because he repeatedly

stabbed four unarmed, much smaller and virtually helpless people. 

The trial court noted the defendant’s previous convictions for

reckless endangerment, aggravated assault, and simple assault and

characterized the defendant as a dangerous man. 

At trial, Mrs. Palmer testified that the defendant

threatened to put her in the hospital and then stabbed her three
25

times. She said that at the time, she was recovering from

surgery. Tameka and Tracy Parsons testified that as they

attempted to help Mrs. Palmer, the defendant stabbed them each

twice. They both testified that they neither said anything to

the defendant nor had anything in their hands at the time they

were attacked. Mr. Gross testified that the defendant chased him

out of the house and stabbed him on the porch as he was trying to

call for help. Finally, the presentence report reflects that the

defendant has convictions for three violent crimes and three

weapons offenses. We do not believe that the evidence

preponderates against the trial court’s finding that the

defendant is a dangerous offender.

C. WILKERSON ANALYSIS

The defendant contends that the trial court failed to

make any findings with regard to the criteria for consecutive

sentencing set forth in State v. Wilkerson , 905 S.W.2d 933 (Tenn.

1995). The defendant argues that this court should review the

criteria d e novo with no presumption that the consecutive

sentences were correct. Our d e novo review of the record

confirms that consecutive sentences are justified based upon the

Wilkerson criteria.

In Wilkerson , our supreme court stated that

“consecutive sentences cannot be imposed unless the terms

reasonably relate to the severity of the offenses committed and

are necessary in order to protect the public from further serious

criminal conduct by the defendant.” Id. at 938. Here, the
26

defendant stabbed his wife, left the bedroom and stabbed the two

young women trying to come to her aid, then chased a fourth

victim out of the house and stabbed him in the back. Three of

the victims were in critical condition following the stabbings. 

At the sentencing hearing, the trial court noted that there was

no need to stab Mr. Gross under any claimed circumstance. We

hold that the consecutive sentences reasonably relate to the

severity of the offenses.

We also hold that the record reflects that consecutive

sentences are necessary to protect the public from further

criminal conduct at the hands of the defendant. The defendant’s

criminal record, which includes several violent offenses, and the

present offenses, in particular, expose the defendant’s inability

to conform his behavior to the law. Previous attempts to

rehabilitate the defendant have failed, as the presentence report

reveals that the defendant violated the probation imposed as a

result of his convictions for weapons offenses. We affirm the

trial court’s imposition of consecutive sentences.

Based on the foregoing and the record as a whole, we

affirm the judgments of conviction entered by the trial court.

 

 

Joseph M. Tipton, Judge

CONCUR:
27

 

Gary R. Wade, Presiding Judge

 

Thomas T. Woodall, Judge