### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y

8, 200 7

STATE OF TENNESS EE v . SZ UMANSKI STROUD

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 05-06225 Chris Cr aft, Jud ge

No. W2006-01945-C CA-R 3-CD - F iled October 29, 2007

The de fenda

nt, Sz umanski Stroud, appeals fr om his S helby Count y C ri m i n al Court jury trial convictions of two counts of ag g ravated assault, Class C felonies, for which he re ceive d seven- y ear
an d s i x
- m o n t h s e n t e n c e s , t o b e s e r v e d c o n s e c u t i v e l y

i n t h e D e p art m e n t o f C o r r e c t i o n a s a

R a n g e II of fe nd e r. I n th is a

pp e a l, h e c la ims (1 ) t

hat the e vid e nc e is n ot s uf fi c ie nt t o s up po rt

his c on vic tio ns , (2) that the tr ial court e rrone ously instructed the jury

on the def

inition of “intentionally ” and “knowing ly ” mental states, and (3) that he wa s excessively sentenc ed. We af

firm the judg ments of the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , P.J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and N OR MA M C G EE O G LE , J J ., joined.

Robert Wils on J ones, District Public Defe nder, a nd Trent Hall (at trial) a

nd Phy llis L . Aluko (on appea l), Assistant Publi c De fende rs, for the appellant, Szumanski S troud.

Rob e rt E. Coo pe r , Jr

. , A tt o r

n e y Ge ne ra l and

Re po rt e r; Da

vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; Wil liam L

. Gibbons, District Attorney Gene ral; and Michelle L . Kimbril-Parks, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION
Randy Smothers te stified for the state that his fiance e, De nita Har vey , was the de fenda

nt’s sister and that he had known the de fenda nt for about thre e or f

our y ear s. He said that on Ma y 26, 20 05 , at a bo ut 3 :00 or

4:0 0 p .m. , h e wa s dr ivi ng Ms. Ha rv e y ’s c ar, wi th h e r a s a

pa sse ng e r. He sa id that as he approa ched a four-way stop, he saw a “new er ty pe” w hite truck oc cupied by two men, one of whom had a

white towel or c loth tied around his mouth and nose. He said the truck w as on the opposite side of the roa d coming toward him. He said he could see the masked person’s ey es and

re c og nize d him a s the de fe nd ant. He sa id h e tol d th e de fe nd ant’ s si ste r t o r e c lin e in h e r s e a t be c a us e-2-

he thoug ht he saw he r brother and “a in’t no telling what he might do.” He said that no words we re exchang ed betwe en him and the defe ndant, that “[t] hey proce eded to pull off,” and that he made a U- tur n a nd sp e d a wa y . H e said

he wa s a fr a id t

he de fe nd ant w a s c omi ngto r e ta liate a g a ins t hi m beca use of a n alterc ation that had t ak en p l ac e two day s ear lier. He said that afte r he spe d off, the truck c aug ht up to him. He said that the defe ndant was in the pa sseng er seat an d hung out the window with a g un pointed at the witness. He said that at lea st four or five shots were fired a nd that none of the m hit the car he was driving . He s ai d h e s we rved in the street to avoid beingshot and sped ar ound the neig hborhood in order to ge t away . He sa id that he did not recog nize the driver a nd that he did not see the driver w ith a g un. Smothers said he re ported the inc ident to the police and that he identified the defe ndant from a photogr aph lineup on June 8.

Mr. Smothers testified that he a nd the def

endant ha d an alter cation on May 24 beca use the defe ndant was upse t that Smot hers ha d not give n the d ef en d an t bail money

to ge t the defe ndant’s y oung er brother out of jail. He said he had rec eived a series of irate voice mail messag es at a bout 4:00 a.m. from the de fenda nt and that he had r eturne d the ca ll and attempted to discuss the situation wi th t he de fe nd ant. Af

te r t he c a lls , th e de fe nd ant c a me t o th e ho me S mothe rs sh are d w ithMs. Har vey . He sa id the defe ndant bang ed on the door and w as admitted by Ms. Harve y . He sa id the de fe nd ant r a n in sid e and

hit him in the mout

h. He sa id t

he y “ tus sle d a

ro un d f or a min ute ” un til Smothers stabbed t h e def endant “ about two times.” He said the def endant r an outside, took a

wo od en lo g f

ro m a fl ow e r b e d, c ha

rg e d in to t

he ho us e , a

nd thr e w i t in to t

he path o f S mot

he rs ’ daug hter. He said that he stabbed the def endant a nother time and that the defe ndant ra n awa y . He said that during the incident, the de fenda nt said litt le other tha

n cursinghim, althoug h as he left, the de fe nd ant s a id t

hat he wo uld be ba c k. Smo the rs sa id he re po rt e d the inc ide nt to the po lic e . H e sa id he did not have any contac t with the defendant between the incident at his house on May 24 and the time he saw the defe ndant on the roa d on May 26.

Mr. Smothers testified that he had saved the voi ce mail messag es from the def endant a nd had let the police listen to them but that the y had automatically deleted from his cellular tele phone af ter a fe w day s. He said that he rec eived additional threats by voice mail and had taken his family to stay in a hotel af

ter the Ma

y 24 alterc ation.

Mr. Smothers acknow ledg ed that he ha d been c onvicted of bur g lary of a motor vehic le and theft of pr operty

valued at more than $500. He said, howeve r, that he w as telling the truth about the defe ndant’s ac tions.

Denita Harve y testified t hat R andy Smothers was the fathe r of her two childre n and that the de fe nd ant w a s h e r o lde st b ro the r. She sa id s he ha d b e e n ask ed to g ive mon e y fo r h e r young e st brother’ s bail but that she refused because she di d not have the mone y . She said that the def endant

wa nte d M r. Smo the rs t o contr ibute mon e y bu t th a t Smo the rs re fu se d a nd the de fe nd ant b e c a me ang ry . She said the def

endant e x presse d his ang er w ith Mr. Smot hers in a te lephone c all to her.

She said that Smothers and the de fenda nt got into an a ltercation on May 24, 2005, at the house in which she a

nd Smothers lived. She said her c hildren we re pr esent in the home at the time.-3-

She sa id that she he ard ba

ng ing on the do or and that she op e ne d the do or fo r t he de fe nd ant. She sa id that th e de fe nd ant a

nd Smo the rs be g an f

ig hti ngand

tha t sh e c ou ld no t re c a ll wh a t wa s sa id. She sa id that afte r Smothers stabbed the de fenda nt, the defendant left the hous e. She said that the de fenda nt was not ar

med when he arr ived but that he had thr own a s t i ck bef ore Smothers stabbe d him. She said that she ca lled the def endant immediately

afte rwa rd to che ck on his condition, that he wa s not okay , and that she ha d hear d he re quired tre atment at the hospital. She said the police wer e ca lled about an hour

afte r the a ltercation.

Ms. Harve y

testified that on May

26, 2005, at about 2:00 or 3:00 p.m., she was a passeng er in her 2000 Pontiac Gr and Prix
, which S mothers was driving

. She said she saw a person whom she could not positively

identify as t h e def

endant in a w hite truck. She said that the pe rson had

so me thi ngov e r t

he low e r p art

of his fa c e and

tha t sh e di d not r e c og nize the dr ive r. She sa id Smothers told her to g et down and that she g ot on the floorboar d. She said that while she wa s on the floorboar d, shots were fired and the car was twisting around. She said that she did not see someone

w i t h a w e a

p o n b u t t h a t s h e h e ar d g u n s h o t s

. S h e s a i d s h e an d S m o t h e r s t a l k e d t o t h e p o l i c e t h a td a y. Ms. Harve y

acknow ledg ed she ha d told the police on May 26 that the def

endant wa s the person w ho

was re sponsible

. S he said, howe ver, that she could not positively identify him and that she had assumed he w as re sponsible beca use of the a ltercation.

Offic er Daniel Miller of the Memphis Police Depa rtment testified that he w as workingthe Br avo sh i ft
, which is from 7:00 a.m. until 3:30 p.m, on May 24, 2005. He sa id he re sponded to a “f i gh t ca l l ” an d spoke with Randy Smothers. He said Smothers told him he had g otten into an alterc ation with the defe ndant. He sa id Smot hers r eporte d that the alter cation wa s over money that the def endant believed was owed him. He said that Denita Harve y was on the s cene , as well and that he spoke w ith her brief

ly . He sa id he was not told that someone ha d been sta bbed.

Offic er Tristan Br own of the M emphis Police Depa rtment testified that he w as workingthe Delta shift, w hich is from 5:00 p.m. until 1: 00 a.m., on May 26, 2005. He sa id he re sponded to an ag g ravated assault ca ll at 6:35 p.m. that day . He sa id that Smot hers wa s upset and re ported that he ha d b e e n in

an a lte rc a tio n w ithhis “ br oth e r” in wh ic h his br oth e r ca me by in a ca

r a nd sh ot at hi m beca use of a n ear lier incident. He s ai d Smothers reporte d that he had sta bbed his brother

in an

ear lier incident. He said he also spoke wit h Denita Harve y , who advised him t hat the shooter ha d been the “victim’s brother .” He sa id that Smot hers a nd Har vey identified the shooter

by name a s the defe ndant. Off

icer Br own said that he w as advised of telephone c alls that the defe ndant had plac ed and that he listene d to some telephone me ssag es but that he could not re member e x actly what wa s said.

The de fenda

nt did not offer a

ny proof. The jury

found him g uilty of t wo counts of ag g ravated

a ssa ult

.-4- I

The de fenda

nt challeng es the suff

iciency of the c onvicting e vidence

. Our standard of re view when the sufficienc y of t he evidence is questioned on appea l is “whe ther, after viewing the evidenc e in the light mos t favor able to the prosecution, any rational trier of fact could have found the esse ntial

e le me nts of

the c ri me be y on d a

re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 2781, 2789 (1979). This me ans that we do not rewe igh the evidenc e but pre sume that the jury ha s r e so lve d a ll c on fl ic ts in the te sti mony and dr a wn a ll r e a so na

ble inf e re nc e s f ro m th e e vid e nc e in favor of the state. See State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978). Questions reg arding witness cre dibilit y , conflicts in te stimony , and the weig ht and value to be g iven to evidenc e we re r esolved by the jury . Se e S t ate v. Bland, 958 S.W .2d 651, 659 (Tenn. 1997)

.

T h e d e f e n d an tw a s c o n v i c t e d

o f a g g r a v a t e d

a s s a u l to f R an dy S m o t h e r s an d

D e n i t a H a r v e y. As re le va nt t o th is a

pp e a l, t hat of fe ns e is d e fi ne d a s f

oll ow s:
(a) A per son commits agg ravated assault who: (1) I ntentionally

or knowing ly

commits an as s ault as define d in § 39-13-101 and:

. . . (B ) Uses or display s a dea dly wea pon[.]
T.C.A. § 39-13-102( a)( 1)(B ). Assault, as pe rtinent to this appeal, is co m m i t ted by one who “[i] ntentionally

or knowing ly

cause s another to r easona bly fea r imminent bodily

injury [.] ” T.C.A. § 39-13-101( a)( 2).

The de fenda

nt argues that the state’ s proof wa s defi ci en t beca use neither

Randy Smothers nor De nita Har

vey testified that they

wer e in fe ar of

imminent bodil y

injury . This court has held that proof of a victim’s fe ar ma

y be inferre d from cir cumstantial evidenc e. See, e .g ., State v. L arr y Allen Whit ed and William Henry Rutherford, N o. M2005-00167-CCA-R3-CD, Sumner County (Tenn. Crim. App. Mar. 7, 2006), a pp. denied ( Tenn. Aug . 28, 2006). In the pre sent ca se, there was proof that Smo the rs h ad tak en his f a mil y to a ho te l a ft e r a

vio le nt a lte rc a tio n w iththe de fe nd a nt i n Smothers’ and Har

vey ’s home. There was evidenc e that when Smothers sa w the defe ndant on May 26, he made a U- turn and sped a way beca use he w as “a fra id that he was c oming ba ck for reta liation,” that the def

endant pointed a

g un at Smothers, that the def end an t fi red four or f

ive shots, and that Smothers “was swe rvingin the street try ing to prev en t from g etting shot.” There was proof that Har vey g ot on the floorboar d of the c ar a nd rema ined there for se vera l minutes during the attack and that she hea

rd the shots and fe lt the car swerving

. In the light most fa vorable to the state, this proof sufficie ntly

establishes that the victims wer e in re asonable fea r of imminent bodil y

injury from the defe ndant’s attac k.

Th e de fe nd ant a lso argue s th a t the pr oo f of his ide nti ty

wa s in su ff

ic ie nt. He c la ims that bo th victims were pr edisposed to believe he wa s t h e s h ooter be cause of the prior alterc ation, that the-5-

shooter’s f

ace was pa

rtially conce aled, a

nd that the victims’ opportunity to observe the shooter wa s minimal. He also argues that Ha rvey was una ble to identify

him with ce rt ai nty

at trial and that Smothers’ t es t i m o n y

was that he told Harve y

he “thoug ht” he sa

w her brother, the reby

qualifying his earlier positive identification of the defendant as the s hooter. The jury had before it evidenc e that both Smot hers a

nd Har vey identified the de fenda

nt to the police at the sc ene a s their attac ker, that S m o t h e r s i d e n t i f

i e d t h e d e f e n d an ta s t h e a t t a c k e r

f r o m a p h o t o g r a

p h l i n e u p h e v i e w e d

s e v e r a l d a ys afte r the c rimes, and that Smothers identified t he defenda nt as hi s attacke r at trial. The jury ’s ver dict

re fl e c ts that it

a c c re dit e d th is e vid e nc e , a s w a s it s p ro vin c e a s th e tr ie r o f f act . T his e vid e nc e is

su ff ic ie nt t o s up po rt

the de fe nd ant’ s c on vic tio ns

.

II

The de fenda

nt contends that the trial c ourt err ed by defining in its j ury

instructions that “intentionally ” and “ knowing ly ” included both “ nature of conduc t” and “ resu l t o f co n duct.” The de fe nd ant d id no t ob

je c t to the jur

y ins tr uc tio ns a t tr ia l or

ra ise the iss ue in h is m oti on fo r n e w tri a l. Howeve r, h e u r g e s u s to r e v ie w it a s a matt e r o f p la in e r r o r , a lt h o u g h h e h a s f

a il e d to make a ny argument demonstrating that the matter qua lifies for plain e rror revie w.

The trial c ourt g ave the following instruction:

Any pe rs on wh o c omm its the of

fe ns e of Ag g ra vate d A ssa

ult is guilty of a c rime.

F or y ou to f ind the de fe nd ant g uil ty of thi s off e ns e , th e state

mu s t have pr oven beyond a re asonable doubt the exis tence of the fo llo wi nge sse nti a l e le me nts :
(1 ) that th e de fe nd ant i nte nti on a lly or kn ow ing ly

cause d the alleg ed victim in that p articular Count t o r e a so na

bly fe ar i mmi ne nt b odily i n j u r y;

and
(2 ) that th e de fe nd ant u se d o r d isp lay e d a de a dly

wea pon.

“ I n t e n t i o n a l l y ” m e an s t h a ta p e r s o na c t s i n t e n t i o n a l l y wi th respe ct to the nature of t he conduct or t o a re sult of the conduct whe n it i s th e p e r s o n ’ s c o n s c io u s o b je c ti v e o r d e s ir e to e n g a g e in the

c on du c t or

c a us e the re su lt.-6- “Knowin gl y ” m ea n s t h at a p er s o nac t s k n o wi n gl y wi t h re s pect to the conduct or

to circumstanc es surroundingthe conduc t when the person is aw are of the nature of the conduct or that the circ umstances exis t. A person a cts knowing ly with respec t to a result of the pe rson’s

c on du c t w he n th e pe rs on is a wa re that the c on du c t is re a so na bly

c e rt a in t o c a

us e the re su lt.

Th e r e qu i r e m e n t o f “ kn o w i n g l y ” i s a l s o e s t a b l i s h e d i f i t is

s h o w nt h a tt h e d e f

e n d an ta c t e d

i n t e n t i o n a l l y.
[Definition of “Dea dly

Weapon” omitted.]

The de fenda

nt argues that ag g ravated assault i s a re sult of conduct cr ime and that the tria l court errone ously included the nature of conduct lang uag e. The state ar g ues that the instruction wa s
no t e rr on e ou s b e c a

us e the e le me nts of

a g g ra vate d a ssa

ult inc lud e bo th a

natur e of c on du c t e le me nt, intentional or knowing use or display of a deadly wea pon, and a r esult of conduc t element, ca using a victim to have r easona

ble fe ar of

imminent bod i l y i n

j u ry . See g ener ally

State v. Howar d, 926 S.W. 2d 57 9, 58 6 ( Te nn . Cr im. Ap p. 19 96 ) ( “ Whe n an offe ns e ha s d if fe re nt m e ns re a

fo r s e pa rate elements, the tria l court must set forth the menta l state for e ach e lement clea rly so that the jury

can deter mine whether the s tate has met its burden of proof.” ), overruled on other grounds by State v. Wil liams, 977 S.W .2d 101 (Tenn. 1998)

. Both pa rties ar g ue that their respe ctive positions ar e supported by an unre ported de cision of thi s c ourt , State v. Mic ha e l P. He a ly , N o. W19 99 -0 15 10 -C CA -R 3- CD , Sh e lby County (T e nn . Cr im. App. J une 26, 2001), a

case which involved a c laim of failure to instruc t on lesser inc luded offe nses of ag g ravated assault. I n analy zing whether reckless enda ng erme nt is a lesser include d offe nse of ag g ravated assault, the c ourt in Michael P. Hea ly said that ag g ravated assault “‘ has a r esult-ofconduct a spect in that it focuse s on the victim being place d in fea r of imminent bodily

injury [.] ’” I d., slip op. at 4 (quoting State v. Ralph Dewa y ne Moore , No. E1999-02743- CCA-R3-CD, Roane County (Tenn. Crim. App. Oc t. 30, 2001) (Tipton, J ., dissenting)
, rev’ d on other grounds, 77 S.W.3d 13 2 ( T e n n

. 2 0 0 1 ) )

. T h e d e f e n d an t ar g u e s th a t H e a ly is a u th o r it y f o r h is ar g u me n t th at only the “re sult of conduct” de finition was appropr iate, while the state a rg ues that He aly ’s statement that ag g ravated assault has a “re sult of conduct” element means by infere nce that the crime has a “ nature of conduc t” eleme nt, as well. Upon c onsideration, we acc ept Hea ly for the pr oposition t hat the victim being place d in f

ear of imminent bodily injury is a “re sult of conduct” e lement and de cline to draw a ny infere nce f

rom that ca se re g ardingmodes of conduc t of other a spects of the offe nse.
Thus, we consider the state’s arg ument that intentionally or knowing ly using or display ing

a de a dly we a po n is a “ natur e of

c on du c t” e le me nt. I n d oin g so , w e are g uided by our s up re me
c ourt ’s de c isi on

in S ta te v. Du c ke r, 27 S.W. 3d 88 9 ( Te nn . 2 00 0) . In th a t c a se , th e c ourt sa id

A result-of- conduct offe nse re quires that the c ulpable mental state a c c omp any

th e re su lt a s o pp os e d to the natur e of the c on du c t.W e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es s ee Code An n ot at ed s ec t i on s 40- 35- 1

1 0 2 (6), - 1 1 4 , - 2 1 0 , - 4 0 1

. See 2 0 0 5 T enn. P ub

. A ct s ch. 35 3 , §§ 1, 5, 6 , 8

. H o w ever, t he am end ed co d e sect i o ns are ina p p lica b le to the d e fen d a n t’s ap p e a l. T h e d e fen d a n t wa s se n te n c e d a fter the c h a n g e in t h e se n te n c ing la w s to o k e ff e c t, but t he r ecor d do es not r ef l ect t hat t he def

endan t s i gn ed a wa i ver of hi s ex post f

act o prot ect i ons t o be s ent enc ed un der

t he am en d ed p ro visi o ns. S ee T .C .A

. § 4 0

- 3 5

- 2 1 0 , C o m p i l er’s N o t es.

-7- See g ener ally

Wallace v. State, 763 S.W .2d 628 (Tex. Ct. App. 1989). Th e fo c us is on wh e the r the a c tor po sse sse d th e re qu ir e d c ulp a bil ity t o e f f e c tu a t e t h e r e s u l tt h a tt h e l e g i s l a tu r e h a s s p e c i f i e d

. G e n e r a l l y, an offense may be classified as a result-of- conduct offense when the result of the c onduct is the only element c ontained in the off ense.
An example of a r esult-of-c onduct offe nse is second de g ree murder, which is de fined as a “knowing killing of another

. ” Tenn. Code Ann. § 39-13-210( a)( 1). I n second deg ree murder, the result of the conduc t is the sole element of the offe nse. The “ nature of the

c on du c t” that c a

us e s d e a th o r t

he mann er in whi ch o ne is k ill e d is inc on se qu e nti a l un de r t

he se c on d de g re e mur de r sta tut e . T he statut e fo c us e s p ur e ly

on the re su lt a

nd punis he s a

n a ctor w ho kn ow ing ly

cause s another’ s death. The intent to eng ag e in co n d u ct is not an expli cit el em en t of the state’ s case in second de g ree murder. Acc ording ly
, a re sult-of-conduc t crime doe s not require as an e lement that an a c tor

e ng a g e in a

sp e c if ied c ours e of

c on du c t to a c c omp lis h the spec ified re sult.

Du c ke r, 27 S.W. 3d

a t 89 6. Withthe se pr inc ipl e s in min d, we ho ld t

hat th e e le me nt o f i nte nti on a lly

or knowing ly using or display ing a deadly wea pon focuse s on the nature of conduct b ec au s e t h at

e le me nt f oc us e s o n th e de fe nd ant’ s c on du c t of us ingor dis pla y inga we a po n, rathe r t

ha n th e re su lt from that conduc t. We therefor e reje ct the def endant’ s claim of instructional er ror in the inclusion of “nature of c onduct” languag e.

III

The defe ndant argues that he rec eived excessive sentenc es of seven y ear s and six months for

eac h of his convictions and that the tria l court erroneously imposed consec utive sentenc ing, y ielding

ane f f e c t i v e f i f t e e n

- y e ar s e n t e n c e

. T h e t r i a l c o u rtd e t e r m i n e d t h a t t h e d e f

e n d an tw a s a

R an g e II offe nder.

When a defenda

nt appea ls the l eng th or m anner of service of a sentence imposed by the trial court, this court c onducts a de novo revie w o f t he re cord w ith a presumption that the trial cour t’s de te rm inatio ns are c or

re c t. T. C.A . § 40 -3 5- 40 1( d)

. Ho we ve r, the pr e su mpt ion of c or re c tne ss i s 1 “conditioned upon t

he af firmative showingin the rec ord that the trial c ourt consider ed the se ntencing principles and a ll releva

nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn.-8-

1991). T h e b u r d e n is o n th e a p p e a li n g p arty to s h o w th a t th e s e n te n c e is im p r o p e r

. T.C.A. § 40-35-401( d), Sent’gComm’n Cm ts. This means if the t rial court followed the statutory sentenc ing p ro ce d u re , made f

indings of f

act that a re a dequate ly

supported in the re cord, a nd g ave due consideration and proper weight to the factors and principles relevant to sentencing under the 1989 SentencingAct, we may

not disturb the sentenc e even i f a differ ent result wer e prefer red. St ate v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

I n conductinga de novo r eview, w e must consider ( 1 ) t he evide nce, if any , rec eived at the trial and sente ncing hear ing, ( 2) the pre sentenc e re port, (3) the principles o f s entenc ing a nd

argume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the na tur e and c ha

ra c te ri sti c s of the c ri min a l c on du c t, (5) a ny mitigating or statutory

enhanc ement fa ctors, (6) any statement that the def endant made on his own behalf, and (7) the pot ential for reha bilitation or t reatment. T.C.A. §§ 40-35-102, - 103, - 210; see Ashby , 823 S.W .2d at 168.

As a Rang e I I of

fe nd e r, the de fe nd ant fa c e d a se nte nc e of six to te n y e ars fo r e a c h o f h is C la ss C felonies. T.C.A. § 40-35- 112(b)( 3). The tr ial court fou n d on the basis of c ertified c opies of judgme nts of the def

endant’ s prior convic tions t h at the def endant ha d sufficie nt prior convictions to qualify him as a Rang e I Ioffe nder, a nd it noted as well from the pr esente nce r eport that he had

an a d d it io n a l, e xte n s iv e h is to r y o f c r im in a l b e h a v io r , w h ic h th e c o u rt f o u n d s h o u ld e n h an c e the defe ndant’s sentences. See T.C.A. § 40-35-114( 2) (2003) (providing for e nhance ment of sentenc e ba se d u po n f ind ingof “ pr e vio us c ri min a l c on vic tio ns or c ri min a l be havio r i n a dd ition to tho se
ne c e ssa ry to e sta bli shthe a

pp ro pr ia te ra

ng e ” ). Th e c ourt state d that the de fe nd ant w a s “ ob liv iou s” to t he law a nd “ jus t do e s w hat he wa

nt s, dr ive s w he n h e wa

nts , d ru g s w he n h e wa

nts , a ssa ult [s] people whe n he wa

nts.” The de fenda

nt does not contest the finding s relative to his criminal history on appea l. Rather, he argues that the trial court err ed in de clining to a pply mitigating weig ht to the fac t that he c o m m i t ted the shooting under strongprovocation by the victim from the pre vious alt ercation in which the de fenda nt was stabbed. See T.C.A. § 40-35-113( 2). Howe ver, the d ef en d an t ’s ar gu m en t fa i l s t o ac co u n t fo r th e fa ct t h at t h e s h o o t i n g wa s t wo d ay s af t er t h e s t ab b i n g, that the stabbing occur

red w hen the de fenda

nt attacke d the victim in the victim’s home, t h at the vic timwa s f

le e ingwh e n th e de fe nd ant f ir e d s ho ts at hi m, a

nd that his a c tio ns we re mor e fa ir ly char acte rized as re taliation, rather than action under strongprovocation. The trial cour t did not err in declining to apply

mitigating weig ht for this fac tor.

The trial c ourt found on the ba sis of the prior c riminal history enhanc ement fac tor that the appropr iate sente nce f

or the individual convictions was te n y ear s each

. Ho weve r, the c ourt later reduc ed the se ntence s to seven y ear s and six mont h s ea ch based upon its finding that consec utive sentenc es we re w arr anted but that an eff ective twenty -y ear sentenc e did not rea sonably relate to the

sever ity of the off ense. U pon de novo re view, we hold that the defe ndant has not demonstrated that these de terminations wer e improper

.
Fur ther, we note that the trial c ourt ac knowledg ed that it wa s require d to c onsider probation beca use t he defenda

nt’s individual sentenc es were eight y ear s or less. See T.C.A. § 40- 35-303(a ) (2003) ( amende d 2005). The c ourt found that the de fenda nt’s cri m i nal history

and cha rac ter-9-

ref lected e x tremely

poorly on his prospects for re h ab i l i t ation and denie d probation. The r ecor d supports this determination.

T h e d e f e n d an ta l s o c l a i m s t h a tt h e t r i a l c o u rte r r e d i ni mp o s i n g c o n s e c u t i v e s e n t e nc e s. Consecutive sente ncing is guide d by Tenne ssee Code Annotated se ction 40-35-115( b), which state s in pertinent par

t that the court may

order sentenc es to run conse cutively if it finds by

a pre pondera

nce of the e vidence that the defe ndant is a n “off ender whose rec ord of criminal activity is ex tensive” or a “da ng erous of

fende r whose be havior indicates littl e or no reg ard for human life, and no he sitation about committing a crime in which the risk to human l ife is hi g h.” T.C.A. § 40-35- 115(b)( 2), (4)

. F or dangerou s of

fe nd e rs , “ c on se c uti ve se nte nc e s c ann ot b e imp os e d unle ss t he te rm s r e a so na

bly relate to the seve rity

of the off enses committ ed and are nece ssary in order to pr otect the public f rom further serious cr iminal conduct by the def endant.” State v. Wil kerson, 905 S.W .2d 933, 938 (Tenn. 1995); see State v. L ane, 3 S.W.3d 456, 461 (Tenn. 1999)

. Rule 32(c) (1) of the Tenne ssee Rules of Criminal Procedure require s that the trial court “specific ally rec ite the re asons” be hind its i mpositi on of a c onsecutive se ntence . See State v. Donnie Thompson, N o. M2002-01499-CCA-R3-CD, Maur y County , s li p o p

. a t 5 ( T e n n

. Cr im

. A p p

. M ar

. 3 , 2 0 0 3 ) ( r e v e r s in g th e tr ia l c o u rt’ s im p o s ition of

consec utive sentenc ing be cause it failed t o make a finding under Tennessee Code Annotated se ction 40-35-115( b) and the rec ord did not support a conc lusion that the defendant met the conse cutive sentenc ing pr ere quisites).

T h e cour t found that the def

endant wa s an off

ender with an extensive rec ord of c riminal activity and that he w as a da

ng erous of

fende r whose behavior indicated l ittle or no re g ard f or human life and no he sitation to commi t a cr ime when the r isk to human life was hig h. See T.C.A. § 40-35- 115(b)( 2), (4) . Wit h respe ct to the latter finding
, the cour t noted that the def

endant ope ned fire on the s tree ts of

a p o p u lo u s c it

y

. T h e c o u rt a ls o f

o u n d th a t t h e c ir c u ms ta

n c e s o f th e o f f e n s e w e re
a g g ra vate d a nd tha t e xten de d c on fi ne me nt wa s “ne c e ssa ry to pr ote c t so c ie ty

fr om [the de fe nd a nt’ s] unwillingness to lea d a produc tive life and h i s re sort to criminal ac tivity in further ance of an

anti so c ie ta l lif

e sty le .” Th e c ourt fo un d, ho we ve r, that g ive n th a t no on e wa s in jur e d in the c ri me s, a twenty -y ear

eff ective se ntence did not rea sonably relate to sever ity

of the off ense. Thus, the court

r e d u c e d t h e t e n

- ye ar

s e n t e n c e s t o s e v e nye ar s an d s i x m o n t h s e a c h an d i mp o s e d t h e m c o n s e c u t i v e l y, for a n eff ective fiftee n-y ear sentenc e. These finding s are supported by the re cord, a

nd we may

not disturb the trial court’ s sentencing . The de fenda nt has failed to de monstrate er ror.

I n consideration of the fore g oing and the rec ord as a whole, the judg ments of the trial c ourt

are aff irmed.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE