### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001
STATE OF TENNESSEE v. DARRIN BRYANT
Appeal from the Criminal Court for Shelby County No. 98-03828 Carolyn Wade Blackett, Judge

No. W2000-01136-CCA-R3-CD - Filed July 11, 2001

After a jury trial, Defendant, Darrin Bry ant, was convicted of attempted first deg ree m urder. Sub seq uen tly, he was sentenced to twenty-five (25) y ears, Range I, Standard Offend er in t he Department

of Corrections. In this appeal as of right, Defendant asserts that the trial court

erred in sentencing Defendant to the ma ximum se ntence of twenty -five (25) y

ears by ina

ppropriately applying an enhancement factor; and the State failed to present sufficient evid ence to j ust ify a rational trier of fact in f

inding bey

ond a reasonable

doubt, that the assa

ult was an attempt to

commit premeditated

murder. We conclude that the evidence was sufficient to support the conviction and that the trial court

did not err in sentencing Defendant to the maximum of twenty

-five (25) y

ears in the Department of Corrections.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.

L. T ERRY LAFFERTY , S R

. J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. D AVID H. W ELLES , J., not pa rticipati ng.
A. C. Wharton and Ton

y N. Bray ton, Memphis, Tenne

ssee, for the app

ellant, Darrin B

ryant.
Paul G. Summers, Attorne y General and Reporter; J. Ross

Dyer, Assis

tant Atto rney General; and Betsy Carnesale, Assistant District Attorney G eneral, for the appellee, State of Tennessee.
OPINION

At trial, Ms. Carol McKi nnon, age 35, mother of t wo sons, De shun, age 14, and Javon, age 11, testified that she

, her two sons and D

efendant were

living at 1973 Cl overdale, Memph is, Tennessee, on November 25, 1997. She and Defendant had been living together since June of 1997. She testified that on the Sunday before the 25 th , De fend ant bega n act ing s tra ngel y:
“Just kind of saying, like, we wer e laying a cross t he bed watching TV and he kind of grabbed me re

al hard around my

throat, but he said

that he didn’t mea

n any harm,-2-

that he was just playing with me. And he started say ing that he didn’t want to live without me. And just a lot of stuff about my ex-boyfriend and stuff like that. And it kind of scared me so I called one of my g irlfriends to come over to stay with me, like the rest of the day, because it kind of made me nervous, beca

use it was just me and Darrin at home.”
Later, her girlfriend

cam e ov er an d st ayed a ll d ay wi th h er. O n Mo nda y, the fol low ing d ay, Defendant

called her at wor

k a nu mber of times statin g he loved her. Wh

en she arrived h

ome betwee n 4:40 and 4: 45 p.m., Defendant was cooking and her sons were either in the living room doing their homework or

getting their c

lothes togeth

er for school . Defendant had drawn her bath water and laid out her gown. After they had eaten, the boys were in the living room watching television, she had her bath and got into bed. Defenda

nt gave her a ma

ssage because

she told him her back was hur ting. Ms. McKinnon statedshe fell asleep about 10:00 p.m. and was awakened by Defendant

who was mov ing a rou nd i n th e bed roo m. H e adv ise d he r th at t he b oys were asleep in the living room and he was going to check the doors to make sure they were locked. Defendant stepped outof the bedroom and when he returne d he shut the bedroom door, which made Ms. McKinnon curious. She asked him about the door and noticed he was standing on her side of the bed when he answered. “And that’s when everything just started happe ning.”

Defendant

jumped in the bed on her chest and she asked him, “What was going on?” He stated that “he wasn’t g

oing to live withou

t me. All he wanted

was a chance to m

ake me h app y. And that he loved me.” Ms. McKinnon stated that shewas trying to yell and he wa s covering her mouth with his hand. Then he put his hand on her throat and started choking her, telling her to be quiet. She stated that during the scuffle, her head was pulled ba

ck and she could se

e the knife in his handand thought he wa

s going to cut her throat. She described the knife as one of her steak knive

s. Ms. McKinnon asked Defendant not to kill her and he told her that “he was going to kill me and he
was going to kill himself. And I was crying and asking him not to.” The victim turned her head and the knife went into her face (cheek). The victim stated she w as stabbed about eight times and required 80 stitches to repair the stab wounds. The victim was able to run into the living room where her sons were sl eeping. She fell on the couch and her sons laid on top of her as Defendant continued to threaten to kill her. The knife Defendant was using broke off in the back of her arm, so Defendant obtainedtwo more knives from the kitchen. She statedher sons kept asking Defendant to leave, then Defendant

looked at her, realized w hat he had do ne and said he would have to go to jail, and he startedtelling the kids he was sorry and to call an ambulance and the police. Finally, the kids were able to call the police.

Ms. McKinnon testifie

d that she had ta

lk ed to Defendant on several occasions since the incident. He would

say he was s

orry and a pologize. During

one of the conver

sations, he had told her that on Sunday while they were lay ing ac ross th e bed and he was choking her, he could have killed her then. During cross-examination, Ms. McKinnon identified some letters and cards that she had sent to Defendant while he

was incarcerated. The victim acknowledged that she stated she still loved the-3-

Defendant

and signed oneof the letters with a lipstick kiss and a

nother letter as C

arol Brya nt. Also, the victim sent Defendant photos of her which had been taken at Defendant’s sister’s home.

Javon McKinnon, age 12, a 6 th grade student, testified that he, his brother, Dashun, his mother andDefendant

lived at 1973 Cloverdale, Memphis, Tennessee, in November of 1997. Javon
was asleep on the living room floor on November 24th or 25th when he heard some “bumping and jumping.” He heard his mother yell, “Darrin’s got a knife.” Hi

s mother ran into

the living room and jumped on the couch. Javon and his brother got on top of their mother. He saw she was bleeding from the arm. Darrin had a knife in his hand and he said “he was going to kill her andkill himself.” Javon continued to lay on top of his mother so Defendant would not stab her. Javon told Defendant that “they would tell the police that somebody broke in.” At Javon’s requ est, Defendant

got the phone, which Javon plugged into the wall and called 911. Defendant left and Javon told the 911 operator that his mother's boyfriend had tried to kill her.

Dashun McKinnon, age 14, an 8 th grade student, testified that he l

ived with his mother, Defendant,

and his brother, J avon, at 1973 Cloverdale, Memphis, Tennessee. Dashun stated he heard his mother calling their names and she came running into the living room and jumped on the couch. Dashun saw D efendant go into the kitchen and g et two knives. Def

endant told the boy

s to get off their mother s

o he could kill her.

They said

“no” and continued to stay on top of their mother to protect her. Da

sh un saw a knife blade sticking in his mother’s arm. Defendant gave Javon a phone and Javon called 911. Defendant got his coat and the victim's car key s and drove off.

Alvin Moore of the Memphis Police Department, South Precinct, testified that he received
an “armed party” call on November 25, 1997, at 12:32 a.m., to 1973 Cloverdale. He was met by two young hysterical boys who said their mother had been stabbed. Of

ficer Moore obse

rved quite a bit of blood in the living room. The boys told him that their mother’s boyfriend had stabbed her. A bout thirty -five (35 ) or forty-five (45) minutes after Officer Moore arrived at the residence, Defendant calledon the phone and sp oke to the officer. Officer Moore identified himself and Defendant asked, “Is she dead?” Officer Moore replied “no.” Officer Moore a ttempted to get De

fendant to retur

n to the house, but Defendant refused to do so. Officer Moore then asked Defendant where he was and Defendant repl

ied, “I'm no

t going to tell

you that eith

er. I’m goi

ng to kill myself.” Officer Moore then put out a broadcast of the victim’s car which had been driven away by Defendant.

Sheila Wright of the Memphis Polic

e Department, te

stified that she wa

s riding with

Officer Moore when they got a disturbance call to 1973 Cloverdale. She observed the victim inside the house with several stab

wounds and blood wa

s everywhe

re. Officer Wri

ght identified a

photo of a knife. Defendant offered no proof on his behalf.-4- LEGAL ANALYSIS
SUFFICIENCY OF EVIDENCE

In his secondassignment of er ror, Defendant

asserts that the e

vidence is insufficient to justify
a finding of guilt beyond a reasonable doubt of attempted murder first deg ree. The State counters that the record suppo

rts that the eleme

nt of premeditatio

n was proven bey

ond a reasonable

doubt.

Rule13(e), T enne ssee Rules of Appe llate Procedure

, prescribes tha

t “findings of g

uilt in criminal actions whether by the trial court or jury shall be set

aside if the evide

nce is insufficient to support the findings by the trier

of fact of guilt

beyond a reasonable doubt.” Evidence is sufficient if, after reviewin

g the evidence

in the li gh t most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1 979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). Also, a conviction by a trier of fa ct des troys the presumption of innocenceand imposes a presumption of guilt, a convicted criminal bears the burden of showing that the evidence was insufficient. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173, 176 (Tenn. 1963); State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999).

In its review of the e

vidence, an appe

llate court must af

ford the State “th

e strongest leg

itimate view of the evidence as well as all reasonable and leg itimate i nferences that may be drawn therefrom.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Smith, 24 S.W.3d at 279. The court may not “r e-weigh or re-evaluate the evidence” in the record below. State v. Buggs, 995 S.W.2d at 105. Likewise, sho uld the reviewing

court find partic

ular conflicts in

the tri al t est imo ny, the court must resolve them in favor of the jury verdict or trial court judgment. State v. Tuggle, 639 S.W.2d at 914. All

questions involving the credibility of witnesses, the weight and value to be given the evidence, and a

ll factual issues are

resolved by the trier of fact, not the appellate courts. State
v. Morris, 24 S.W.3d 788, 795 (Te nn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

First degree murder is: “(1) A premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202. Tennessee Code Annotated § 39-12-101, Criminal attempt is defined: (a) A person commits criminal attempt who, acting with the kind of culpability other wis e required for the offense: (1) Intention

ally enga ges in action or c

auses a result that would c

onstitute an offe

nse if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to c

ause a result tha

t is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or-5-

(3) Acts with

intentto complete 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) Conduct does not constitute a substantial step under subdivis ion (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

Defendant

argues that the State failed to prove beyond a reasonable doubt that the attempted homicide was premeditated in that the intent to kill must be established after a period of reflection and judgment. Te

nnessee Code Anno

tated § 39-13-202

(d) defines pre

meditation as:

As used in subdivision (

a)(1) “premed

itation” is a

n act don e after the exercise of reflectionan d judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not

necessary

that the purpose to

kill pre-exist in the mind of the accused for any definite period of time. The men tal state of the accused at the time the acc

used allegedly

decided to kill must

be carefully considered in order to

determine whether the accused was sufficiently free f rom excitement and passion as to be capable of premeditation.

The element of

premeditation is a question for the jury which may be established by proof of circumstances surrounding the killing. State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000), citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). There are several factors which tend to support the existence of

this element which

include: the use of

a deadly we

apon upon an unar

med victim; the particular cruelty of the kill ing; declarations by the defendant of an intent to kill; evidence of procurement

of a weapon; preparations before the killing for concealment of the crime; and ca

lmness immediately

after the killing. Id. Looking at th e evidence in the

light most

favorable to the State,
on Sunday before the actual attack, Defendant see m ed conce rned about the victim’s former boyfriend. He attempted to choke her while she was lying across the be d and later admitted

that he hadthe opportunity to kill her that Sunday. The victim was in enough fear that she felt it necessary to call a friend to sp

end the day

with her. On the fo

llowin g Monday, Defendant constantly ca lled the victim assuring h

er of his love and t

heir need to talk. Then, there was the graphic description by the victim of the actual stabbing of her by Defendant to the extent that a knife blade was broken off andleft in her arm. As testified by the victim’s son, Dashun, Defendant went into the kitchen and obtaine d two more knives, a nd then made repe

ated statements th

at he would kill her

and then kill himself. We conclude that therewas ample evidence for the jury to find premeditation based upon reflectionand judgment to constitute a char

ge of attempted

murder first deg

ree. There is no

merit to this issue.
SENTENCING

Defendant

com pla ins tha t th e tr ial cou rt e rred in s ent enci ng hi m to the max imu m of twe ntyfive (25) year

s by inappro

priate l y applying an enhanc ement factor. The State asserts that the trial-6-

court’s application of

enhancement factor

(10) was appropriate under the facts of this case. Also, if any error was made by

the trial court, it was its failure to apply enhancement factors (4) and (5).

At the conclusion o

f a sentencing

hearing, the tr

ial court imp osed the max imum Range I sentence of twenty

- five (25) years for attempted murder first deg ree, a Class A felony. The sentencing range for attempted murder first degree is from fifteen (15) to twe nty-five (25) years. The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement

or mitigating factors. Tenn. Code Ann. § 40-35-210(c). Should there be enhancement butno mitigating fa

ctors for a Class A

felony, then the court shall set the sentence at or above the midpoint range. Should there be mitigating but no enhancement factors for a Class A felony, then the court shall set the

sentence at or be

low the midpoint ran

ge. Tenn. Co

d e Ann. § 40-35-210(d) (Supp. 2000).

When an accused challenges the length, range or manner of service of a s

entence, this

court has a duty to con

duct a de novo review of the sentence with the presumption that the determinations made by the trial c

ourt are corre

ct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditionedupon th e affirmative showing in the record that the trial court considered the sentencing pr inciples and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In determining a proper sentence, the trial court must consider: (1) the e vide nc e, i f any, received at the trial and sentencing hearing; (2) the pre-sentence repor t; (3) t he principles of sentencing and arguments as to sentencing alternatives; (4) the n ature and characteristics of the
cr iminal conduct; (5) any statutory mit

igating or enh

ancement facto

rs; (6) any

statement that th e defendant made on his own behalf; and (7) the potential or lack of p otential for re habilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and-210; State v. Adams, 973 S.W.2d 224, 229 (Tenn. Crim. App. 1997).

The trial court found as enhancement factors the following as set forth in Tennessee Code Annotated § 40-35-114: (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range. This factor is cle arly establishedin the record. Th e defendant was

convicted of ag

gravate d rob bery and received a 9 year sentence in 1994. The defendant has two misdemeanor convictions for assault, two convictions for weapons offenses and numerous traffic convic tions. Likewise, the pre-sentence report reveals the defendant had a probation violat

ion in 1993. (13) The felony was committed while the defendant was on rel ease status: to wit, parole, for the conviction of aggravated robbery. This factor clearly applies. The defendant admitted in his testimony that at the time of this offense he was on parole. (10) The defendant ha

d no hesitation abou

t commi ttin g a crime when t he risk to human life was high. The trial court explained that this factor applied because two-7-

young children that were there

as well as the fact that even though the victim lived, I think that this could

have been a much

more tragic situ

ation as to the thre

e people that were involved that night.

The trial court reje

cted the State’s c

ontention that it shou

ld apply the e

nhancement fac

tors, whether or not Defendant

was a leader, w

hether the victim o

f the offense wa

s particul arly vulnerable, and whether or not Defendant treated or allowed the victim

to be treated with

exceptional
crue lty. Further, as to mitigating factors, the trial court found none applied. Specifically, the trial court rejected Defendant’s testimony about seeing his mother killed before his eyes as a y oung child, as well as Defendant’s depression and his giving the phone to the son to seek assistance. Determining whether an enhancement factor should b e applied i s a task that must be undertakenon a case by

case basis. A tria

l court may n

ot apply an e nhancement factor if it is an essential element of the of fense charge

d in the indictment. Tenn. Code Ann. § 40-35-114. T he test for determining whe

ther an enhance

ment factor is

an essential element of an offense is whether the
sameproof necessar

y to establish

a particular ele

ment would also

establish the enhancement factor. State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994). In Jones, our Supreme Court held that the focus in determining the applicability of enhancement factors should be on whethe r the “risk to human life
was high.” Id. at 602. Little, if any, emphasis is to be placed on whether Defendant “hesitated beforecommitting the crime.” Id. Therefore, following the Jones rationale, if the proof necessary to establish an element of the offense would establish that the “risk to human life was high” the enhancement

factor is an essential element of the offense and, thus, not applicable. In the case of attemptedmurder first degree, a high risk to huma n life will obviously

exist. Thus, we conclude that enhancement

factor (10) con

stitutes an essenti

al ele ment of the instant offense and would be improperly

applied by a trial

court. However, in this case the State argues that the facts support the application of enhancement factor (10). The State asserts that Defendant’s following the vic

tim into the living room, after therepeated stabbing, obtaining two knives and continued threatening of the mother by asking t

he boys to mov

e so he could

kill the v ictim cons tituted a “ high risk to human life.” We must respectfully disagree with the State’s theory

. These actions morethan support the element of premeditation, the essential element of murder first degree. T he only distinction between attemptedmurder

first degree a

nd murder first

degree is the victim died. We find the application of enhancement factor (10) was an error, but at most, a harmless error.

We are, however, in agreement with the State that enhan cemen t factor (5), the Defendant treated the victim with exceptional cruelty during the commission of this of fense, is applicable. Defend ant, while the victim is asleep, obtains a steak knife. He comes in the bedroom, s huts th e door, grabs the

victim by the head as if to cut her throat and repeatedly stabs her up to eight times. One of the blows is sufficient to break off the blade of the knife in the victim’s arm. The victim is hospitalized for up to 18 hours and 80 sti tches are requi

red to repair the

stab wounds. Defendant’s actions are compounded b y the fact t hat the victim runs i

nto the living room, jumps on the couch and it is necessary

for her two minor s

ons to lie on top of her to protect her from additional stabs. The
sons see Defendant obtain two knives from the kitc hen and threate

n to kill their mother be

fore their eyes. Fortunately, Defendant regains his senses and leaves before any f urther damage is done. See-8-

State v. Alexander, 957 S.W.2d 1, 6 (Tenn. Crim. App. 1997) (in sentencing for attempted murder first degree, Defendant

stabbed victim in face and body several times and beat victim with hammer to justify application of enhancement factor (5)).

In conclusion, we agree that en hancement fact

ors (1), (5) and ( 13) are applica ble to increase Defendant’s sentence from themidpoint of twenty (20) year s to twenty-f

ive (25) ye

ars, Range I. As the trial court found, we agree that there are no mitigating fac tors. The trial court’s judgment is affirmed.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE