### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs September 20, 2000
STATE OF TENNESSEE v. CHARLE S RAY ALLEN
Appeal from the Criminal Court for Davidson County No. 98-C-1969 J. Randall Wyatt, Jr., Judge

No. M1999-00818-CCA-R3-CD Filed November 3, 2000

The Defendant was convicted by a jury of first degree premeditated murder and criminal attempt to commit voluntary manslaughter. He was sentenced to life imprisonment for the murder, an d to a consecutive four year

term for the atte

mpted manslaught

er. In this ap

peal as of right

, the Defendant challenges the sufficiency of the evidence; the trial court's exclusion of proof about the victim's prior violentconduct; the tria

l c ou rt's instruction to the jury about the penalties for first degree murde r; and his sentencing. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined. Larry B. Hoover, Nashville, Te nnessee, for the appellant, Charles Ray Allen.

Paul G. Summers, Attorney General and Reporter; Jenn

ifer L. Bled

soe, Assistant Attor

ney Gener

al; Victor S. Johnson, District Attorney General; and Dan Hamm, Assi stant District Attor

ney Gener

al, for the appellee, State of Tennessee.

OPINION

On April 15, 1998, the Defendant, Charles Ray Allen, shot and ki lled Joshua Graham and shotand injured Antoni

o Carter. The Defendant was charged with first degree premeditate d murder andattempted first degree premeditated murder. Upon his trial, the j ury convi cted the Defendant of first degree premeditated murde r for his killing of Graham and crimi

nal attempt to commit voluntary manslaughter for his shooting of Carter. The Defendant received a sent ence of life imprisonmentfor the murder and, aft er a sentencin

g hearing, a consecutive four ye ar term for the attemptedmanslaughter. T he Defendant no

w appeals as of right, raisin

g the following

five issues:-2- 1. Whetherthe evidence is sufficient to support his conviction for first degree premeditated murder;

2. Whether the trial court erred wh e n it excluded proof about Graham's prior

violent conduct;

3. Whether

the trial court erred when it informed the jury about the possible sentences for first degree murder;

4. Whether the trial court erred by sentencing him to the maximum term of four years for his attempted manslaughter conviction; and

5. W hether the trial court erred by ordering his sentenc es to run con secu tiv ely. Upon our review of therecord, we find no reversible er

ror and affirm th

e judgment of the

trial court.

FACTS

ToshibaFloyd, murder victim Graham's girl f riend, testified t

hat on the morning

of his murder, April 15, 1998, she and Graham awoke together at about seve n o'clock. Floyd left about forty-f ive minutes later to walk next door to work, leaving Graham with their son. Graham the n droppedthe boy off at the dayca re center where Floyd worked at about 8:30 a.m. She a nd Graham talkedfor a few minutes before Graham left. According to Floy d, Graham drovea light brown Lincoln.

Graham had just started working for the other victim, Antonio Carter. Carter testified that he saw Graham on the job at approximately nine-twenty

that morning and never saw him leave. At about twelve-twenty

that afternoon, C

arter, Graham a

nd Charles Howse w

ent to Cyn's restaurant for lunch. When they ar

rived, the Defe

ndant was seated

at a table with another man. Carter and Graham went into the restroom to wash their hands, staying about three minutes. When they reentered the restaurant,

the Defendant was no longer at his table. Carter testified that food and drinks were sitting
on the Defendant's table, "untouched." C arter said to

Graham, "Dang, he must be scared of y ou or something." Carter and Graham got in line to order their food.

While Carter

and Graham were getting their lunches, the Defendant reente redthe restaurant andstood near them. According to Carter, the D efendan t said in an angry voice, "What's up, Motherf---er? Huh? What's up now?" Carter testified that the Defendant was s peaking to Grah

am. Graham put his hand on Carter's right shoulder, and as Carter turned to look, hesaw the Defendant raising a gun in both hands. Carter tried to jump out of the way, but was shot in the right leg. Carter fellto the floor while the Defendant kept shooting. Graham was shot and fell

down on top of Carter,-3-

across Carter's legs. Carter raised up and was shot again. He then decided to "play dead." Nevertheless, th

e Defendant shot

Carter twice mor

e, all four shots hi

tting his legs.

Car ter testified that the Defendant had been two to three feet away from him and G raha m during the shooting. He had never seen the Defendant be for e. Carter stated that he had had no weapon, and he sa

w none on Graham.

Ronniea Dozier was workin

g the cash register at Cyn's during the shooting. She testified that there had been four to five other customers in the restaurant when Carter, Graham and Howse came in. When Carter and Graham went into the restroom, she said, the Defendant came up and askedto use the telephone. Before she answered, he said, "that's okay ." The Defendant then asked if he and his companion could le

ave their plates on the table

, that they' d be right back.

The Defendant a

nd his companion then left the restaurant through the side door.

About five minutes later, Dozier stated, shesaw the Defendant coming in the front door from
a purple Nova. When

he got inside, he said

to Graham, "What's up, now?" The Defendant then pulled a handgun and

began firing. Dozier ducked behind the cash register. After the Defendant left, she called 911. Do

zier testified that

she saw no weapon

s other than the De

fendant's.

Officer Jerry Bottoms was the first officer on the scene, and he saw Graham lying on top of Carter. He testified that f our shell casings were found at the scene, but no weapons. Officer James Browntestified that he found a purple Nova about four blocks from the restaurant. Detective Tim Mason testified that the

Nova was regis

tered to th

e Defendan t and that he found the Defendant at homeon April 19, 1998. The Defendant accompanied Mason to headquarters

and gave a stat

ement. According to the Defendant 's s tate ment to Detective Mason, he and Trenell Copeland had been walking to a market at about seven o'clock on the morning of April 15. A brown L incoln pulled up and a man opened the door, saying, "set that shit out." When the Defendant protested, the man got out of the ca r, cocked a pi stol, and p ut the gun to the Defendan t's head. The Defendant then gave the man the $125 he hadwith him. The Defe ndant stated to De

tective Mason tha

t he had gotten hi

s gun after the robbery and swore that he would kill the man who ha d just robbed him. According to the Defendant's statement, he went to Cyn's restaura nt that day at

about noon, carrying his gun. He had ju

st gotte n his food a nd sat down when he saw Graham walk in. The Defendant

recognized Graham

as the man who had robbed him, and so he "got real nervous." When the Defendant looked at Graham, Graham looked back and "gave [him] a little funny look." When Graham went into the restroom, the Defendant worried that Graham

might shoot him when

he came back out. The Defenda

nt walked out the sid

e door of the rest

aurant, returning through the front door
as Graham stood at the counter. According to the Defendant's statement, he then "went up there to [Graha m and] said , hey, you know what the f--k this for, y ou ain't gonna rob nobody else." The Defendant

then began

firing, shooting "probably three or four times." A fter the Defendant saw

that he had hit Graham and saw Graham on the floor, he left. He told Detective Mason that he gave the gun to Marquise Fleming who “got rid of it.”-4-

Dr. John E. Gerber perfo rmed the autopsy on Graham and testified that Graham had been shotthree times, with

one of t he w oun ds b ein g fat al. All thr ee bu lle ts r ema ine d in Grah am's bod y. The shots had been fired fr om a distance of mo re than two feet.

Tests for alcohol

and drugs in Graham's body were negative. He was six feet two and one-half inches tall and weighed two hundred forty-eight pounds at the time of his death. He was twenty years old.

The Defendant testif

ied on his own behalf, stating that Graham had robbed him at gunpoint at app rox ima tel y sev en-t hir ty that morni ng. H e te sti fie d th at, aft er he gave Grah am h is m one y, Graham told him, "The next time I see you I'm g oing to kill you, I'm going to burn y ou." The Defendant

explained thathe did not know Graham at that time. He also testified that he was carrying his gun d uri ng th e rob bery.

After the robbery, the Def endant test ified, he we nt to Arzel ia Playmate's house. He was very upset and crying, and he remained at Playmate' s house until lunchti me. He did

not report the robbery to the police. He d ecided to go t o Cyn's restaurant to eat, after Copeland gave him five dollars for lunch mon ey. He went to Cyn's with K

eith Jackson. As the

y were sitti

ng at their table

preparing to eat, the Defendant

looked up and saw Graham. His first thought, he testified, wasthat he was "about to die" because o

f what Graham ha

d told him e arlier . He stated that Gr aham was whisper

ing to Carter and that they were looking at him. Graham and Carter then we nt to the restroom, and th e Defendant

told Jackso n, "T hat's the guy that robbed me this morning. I 'm fixing to leave." He testified that he and Jackson left through t he side door, an d Jackson ran down the street. The Defendant

walked to the front entrance where his car was parked. He was "going to

try to get t

o [his] car, to just

leave." As he approached his car, however, he saw Graham looking out the window at him. The Defendant testified that he was "angry

and afraid, " and he reent ered the rest aurant thro ugh the front door. Grah

am asked him,"What's up?" The Defendant testified that he responded by yelling, "What's up?" He saw Graham "kind of ma[ke] a funny move." The Defendant testified that he thought Graham "was reaching for something." So, the Def endant stated, he pulled his gun.

The Defendant testif

ie d that he s hot his gun three or four times and s

hot Carter beca

use Graham pulled Carter in f

ront of him. After

the shooting, the

Defendant state

d, he left, got in his car, and went home.

On cross-examination

, the Defendant t

estified that he had thrown his gun into the CumberlandRiver. He explainedthat he had told the police something e lse because he "really wasn't in [his] right state o f mind." He statedhe had been "af raid and scared

and didn't know ho

w to talk to [the detective]." He stated that he did not remember telling

the police that he

had sworn to kill the man who had robbed him, and he did not remember stati ng that he had told Graham before shooting him that, "you know what t he f--k this is for. You ain't going t o rob nobo dy else." The Defendant

claimedthat, while

he was outside the restaurant, he "just felt that [Graham] was going to come out and get" him.

Arzelia Playmate testified that she saw the Defendant leaving her

yard with Trenell Copeland at about seven or seven-thirty that morning. As she watc hed, she saw the tw

o men talking with1 The Defenda nt's statement of t his iss ue in his brief appears to include a chall enge to the sufficiency of the evidence supporting his conviction of criminal att empt to commit voluntary manslaughter. However, his brief contains
no argument o n this issue, no r any citations to t he record or legal authority. Accordingly, any issue regarding the suffici ency of the evidence supporting the Defendant's second conviction is waived. Tenn. Ct. Crim. App. R. 10(b); State v. Kil

lebrew , 760 S.W.2d 228 , 231 (Tenn. Crim. App. 1988).
-5- someone in a brown Lincoln and saw "a guy put a gun out the window and open the car door at the
sametime." She testified the gun was pointed at the Defendant. She ran, and Copel and then ran into her house, saying that the Defendant had been robbed. The Defendant came in a few seconds later, crying and very upset. Playmate testified that the Defendant rema

ined at her house

until lunchtime.
I. SUFFICIENCY OF THE EVIDENCE

The Defendant contends that t he evidence is ins

ufficient to suppo

rt his conviction of

first degree premed i tated murder. 1 Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indi ngs of guilt in crimina l actions whethe r by the trial court or jury shall be set aside if the evidence is insufficient

to suppo rt the findings by the trier of fac

t of guilt bey

ond a reasonable doubt.” Ten n. R . Ap p. P . 13 (e). In ad dit ion , be caus e con vic tio n by a trier of fa ct destroys the presumption of innocenceand imposes a presumption of guilt, a convicted criminal defendant bears the burd en of sh owing that the evidence was insufficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans , 838 S.W. 2d 185, 191 (Tenn. 1992 ) (citing State v. Grace , 493 S.W.2d 474 , 476 (Tenn. 1976), and State v. Brown , 551 S.W.2d 329, 331 (T enn. 1977)); Sta te v

. Tuggle , 639 S.W.2d 913, 914 (T enn. 1982); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 1962).

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 we ll as allreasonable and legitimate inferences that may be drawn therefrom.” T ug gle , 639 S.W. 2d at 914 (ci ting State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978)). The court may

not “re-weigh or re-evaluate the evidence” in the recor d below. Evans , 838 S.W.2d at 191 (cit ing Cabbage , 571 S.W.2d at 836). Likewise, should the revi ewing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle , 639 S.W.2d at 914.

The Defendant was c

onvicted of first

degree premeditated murder, the essential elements of which are a premeditated and intentional killing of another. Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one done after the exercise of reflection and judgment and where the intent to kill was formedprior

to the killing itself. Id. § 39-13-202(d). The purpose to kill need not preexist in the killer's mindfor any definite period of time. Id. The accused' s state of mind at the time he decided to kill must, however, be carefully considered to determine whether he was sufficiently free from excitement and passion as to be capable of premeditation. Id. A defendant comm its an intentional killing when he consciously tries to kill the victim. See id. § 39-11-302(a).

The Defendant does not argue that his actions in killing Graham were not intentional , no r would the facts support such an argument. The Defen dant appro ached Graham, c hallenged him verb all y, and then raised h is handgun in both hands and began shooting at Graham from a very short-6-

distance away. Graham was unarmed, yet the Defendant continued to shoot at Graham even after Graham fell to the floor. The Defendant fired at leas t s even rounds in Graham's direction before turning and fleeing t he scene. Th e evidence i s more than sufficient to support the jury's finding that the Defendant a

cted intentionally

when he killed Gra

ham.

The Defendant does a

rgue, however

, that the proof is

insufficient to

support the jury's finding that he kil

led Graha m with prem

editation. Wedisagree. Wheth er the Defenda

nt killed the victim withpremeditation is a

question of fact f

or the jury a

nd “may be e

stablis hed by proof of the circumstances surrounding the killing.” State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Circumstances which support an inference of premeditation include the use of a deadly weapon upon
an unarmed victim; the defendant’s declarations of intent to kill; the procurement of a weapon; and calmnessimmediately following the killing. Id. Multiple shots at the victim may also be considered, although they alone cannot establish premeditation. State v. Brown , 836 S.W.2d 530, 542 (Tenn. 1992). Other circumstances which may suppor t an in ference of premeditation include the defendant’s att

empt to shoot the vic

tim again after he has been felled by a prior shot and rendered helpless, State v. And e rson , 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992), and the accused’s failure to render aid to the victim. State v. Fugate , 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988).

In this case, the proof is more than sufficient to support the jury's finding that the Defendant acted with premeditation when he shot and killed Joshua Graham. The Defendant's own statement establishes that the Defendant had sworn to kill Graham earlier that day. The De f endan t armed himself and went to Cyn's for lunch. As the Defendant was preparing

to eat, he saw the

victim enter the restaurant and

go the restroom. The Defendant took this opportunity to leave the restaurant by the side door and walk

around to the fron

t door. From there

, he observed the

victim standing in

line at the counter. The Defendant then reentered the restaurant through the f ront door, approached Graham, and verbally

challenged him.

The Defendant then

raised his pistol in both hands and began firing at Graham from a

distance of tw

o to three f

eet away. The Defendant continued firing a t Graham even after he h

ad fallen to the f

loor. The Defen

dant f ired atleast seven shots toward Graham, striking him three times. The Defendant then left the scene in

his car and took a

ctions to conceal the murder weap

on. These facts

support the jury's finding that the Defendant killed Graham with premeditation

, and this issue is the

refore without me

rit.
II. PROOF OF V

ICTIM'S PRIOR BAD A CTS During the trial, the Defendant attempted to introduce proof t hat Gr aham had robbed and shot another person approximate

ly a ye ar before alle

gedly robbing him. Although the Defendant was not
awareof this prior attack at the time Graham allegedly accosted him, he soug ht to introduce the evidence in support of his theory that Graham had bee n the “first aggre

ssor” during the

ir confrontatio

n at C yn's and that he shot Graham in self-defense. The trial c ourt excluded the proffered eviden ce, ruling th at the Defendant had not adequately demonstrated that Graha m had been the first aggressor. The Defendant argues that the trial cour t erred in refusing to allow this proof.2 Indeed, the tr ial court i

nstructed t

he jury on the def

ense of self

-defense.
-7- A defendant may offer proof of a victim's prior

viol ent ac ts und er lim ited c ircum stanc es. If the defendant knew of the prior acts before his own confrontation wi th the victim, then proof of those prior acts may be admitted as substantive evidence to show that the defendant was a fraid of the victim

. State v. John D. Joslin , No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Crim. App., Knoxville, Sept. 22, 1997). Where, as he re, the defen dant was una ware of the vi ctim's prior violent conduct at the time of their altercation, then proof of the victim's earlier conduct may be admitted only to corroborate the defendant's theory that he acted in se

lf-defense and that the victim was the first aggressor. Id. at *36. There are three prerequisites to the i ntrodu ction of corroborativeevidence of the victim’s first aggressor tendencies: there must be proof that the defendant acted against the victim in self-defense; the trial court must determine whe

ther there is a factual basis unde rlying the defen dant's alle gations tha t the victi m had first agg ress or tendencies; and the trial court must determine whether the p robative value of the corr oborative eviden

ce is outweighed

by the potential for unfai

r pre judice. State v. Billy Joe Henderson , No. 03C01-9804-CR

00139, 1999 WL 398087, at *6 (Tenn. Crim. App., Knoxville, June 18, 1999), perm. appeal denied (Tenn. 1999 ), (citing State v. Ruane , 912 S.W.2d 766 (Tenn. Crim. App. 1995)).
Here, the Defendant testified that Graham robbed him at gunpoint and then told him he was going to kill him the next time h e saw him. The Def

endant f urther testified that, when he approached

Graham in

the restaurant several hours later, Graham “kind of made a funny move” and that the Defendant “f

elt [Graham] was reac

hing for somethin

g.” The trial c

ourt ruled that this testimonywas insufficient to show that Grah am w as the initial agg ressor and did not p

roceed to consider the rem

aining two prer

equisites for the i

ntroduction of the

victim's prior co

nduct.

We respectfully disagree with the trial court's ruling . The Defendant's testimony was sufficient to raise the issue of self-defense such that the trial court should have proceeded

with its analysis of the admissibility of the proffered proof. 2 However, we find the trial co urt's error in this regard to be harmless. First, we reject, as did the trial court, the Defendant's contention t ha t Graham's status as first

aggressor in the alleged robbery continued into and during the confrontation at Cyn's. Graham's alleged status as first ag gressor that morning was nullif

ied by the am

ount of time which passed bet ween t he alleged ro bbery and the con frontatio n at Cyn's and by the Defendant's actions in leaving Cyn's unharmed and unthreatened, y et returning to confront Graham.
Second, the proof

which the Defendant wanted to introduce was that Graham had earlier shot another person while robb

ing him. Had the D

efendant shot Gr

aham during the

alleged robbe

ry, this proof would have been strongly corroborative of the Def endant's claim that Graham was the fir st aggressor. However, th e Defendant s hot Graham d uring l unch hou r at a busy r estaurant while Graham was unarmed. Mor e over, there was absolutely no proof in the record other than the Defendant's own testimony that Graham made any move toward or against the Defenda ntwhile at Cyn's. That Graham

shot someone during a robbery approximately a year before the Defendant shot Graham is only weak corroboration of the Defendant's claim that Gr ah am wa s the first aggressor during the ir confrontation at Cyn's. Thus, we hold that the exclusion of proof of Graham's prior3 Hadthe trial judge merely informed the jury that the State wasnot seek ing t he d eat h pe nal ty, we would find no error. See State v. Billy Gene DeBow , No. M1999 -02678-CC

A-R3-CD,

2000 WL 1137465, at *8 (Tenn. Crim. App., Nashville, Aug. 2, 2000).
-8- violentconduct does not affirmatively appear to have affec ted the result of the t

ria l on the merits, Tenn. R. Crim. P. 52(a), and does not require the reversal of the Defendant's conviction. See Tenn. R. App. P. 36(b). This issue is without merit.

III. INSTRUCTION TO JU RY ON PENALTIES

We next address the De

fendant's cont

ention that th

e trial co urt committed reversible error when it told prospective jurors during voir dire that the State was notseeking either the death penalty
or the penalty of life without parole on the murder charge a nd that “should [the jury] return a verdict of guilty of First Degree Murder, then the a utomatic sentence that

would come from thi

s trial would be an automatic li

fe senten ce.” The trial judge repeated this information during his charge to the jur y. The Defendant c

ontends that this

instruction constit

utes plain error entitling

him to a new trial. We respectfully disagree.

The Defendant's trial began in June 1999. Effective May 18, 1998, the p ertinentstatute provides:

In all contested criminal cases, except for capital crimes which are

governed by the procedures contained in § § 3 9-13-204 and 39-13- 205, and as necessary to comply w ith the Constitution of Tennessee, article VI, section 14, and

§ 40-35-301, the judge shall not instruct the ju ry , nor shall the attor

neys be per

mitted to comment at a

ny time to the jury, on possible penalties for the offense charged no r all less er included offense

s.
Tenn. Code Ann. § 40-35-201(b) (Supp. 1999). Under the statute, the trial judge's remarks to the prospective jurors and his later instruction to the jury about the penalties for first degree murder were
error. 3

A panel of

this Court has previously addressed this issue and found the trial court's e

rror to be harmless. In State v. Edward Pinchon, No. M1999-00994-CCA-R3-CD, 2000 WL 284071 (Tenn. Crim. App., Nashville, March 17, 2000), the defendant was tried in September 1999 for first degree murder. The trial judge i nstructed the jur

y th at the p unishment for the charged offense was life imprisonmentor life imprisonment without parole. He further informed the jury that the State was notseeking the puni

shment of life witho

ut parole, hence

a verdict of gu

ilty would re

sult in li fe imprisonment. The jury

was instructed to consider both first degre

e murder and the l

esser offense of second-degree murder. The jury f ound the defendant guilty of first degree murder

.-9-

In addressing the issue, this Court stated that, for the defendant to have demonstrated that he
was harmed by th

e challenged c

harge, he “mus

tdemonstrate that, but for the erroneous instruction, there is a reasonable p

robability th

e jury would

have acquitted h

imof first degree murder and found him guilty of th

e lesser offens

e of second degree murder or guilty of no off ense at all.” Id. at *4. In light of the evidence ad

duced at the tria

l, this Court conclud

ed that “[i]t is, at bes

t, improbable

that the jury would

have opted for second degree murder, much less acquittal, had the instruction been omitted.” Id.

The case before us warrants a similar conclusion. With respect to the Defendant's killing of Graham , the trial court instructed the jury on first degree premeditated murde r; second degree murder; and volun tary manslau ghter. The State's proof was that the Defendant killed Graham intentionally

and with premeditation. The Defendant's theory was that he shot Graham out of fear andanger, and in self-defense. The jury clearly re jected the Defendant's explanation, and the proof
was more than sufficient to support the jury's conclusion. There is absolute ly no indication in the record that the jury would have convicted the Defendant of either of the lesser offenses, or acquitted him, hadthe challenged information not been provided. Since the trial court's error in instructing the jury about

the penalties for first degree murder does not “affirmatively appear to have affecte d the result of the trial on the merits,” Tenn. R. Crim. P. 52(a), the Defendant is not entitled to a new trial on this grou

nd. This issue is witho

ut merit.
IV. SENTENCING

The Defendant was sentenced to life imprisonmen

t for his conviction

of first degree murder. For his con vic tio n of cri min al a tte mpt to c omm it v olu nta ry m anslaughter , he was sentenced to a consecutive term of four years. The Defendant contends that the four year sentence is too long and that it should not have been run consecutively to his life sentence.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial c

ourt are corre

ct. Tenn. Code An n. § 40-35-401(d) . This presumption is “conditionedupon the affirma tive showin

g in the record that the trial court considered the sentencing principles and al

l relevant facts and

circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sent ence, this Court mus

tconsider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c ) the principles of sentencing an d arg uments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutorymitigating or enhancement factors; (f) any sta tement made by the defendant regar ding sentencing; and (g) the potential or lack of potential for rehabilitation or

treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.4 See Tenn. Code Ann. §§ 39-13 -211(b), 39-12-107(a).

5 The trial court also mentioned as an enhancement fa ctor that t

he Defendant used a gun to commit the of

fense, Tenn. Code Ann. § 4 0-35-114(9), and that the Defen

dant's youth was

a mitigating f

actor. Tenn . Code Ann. § 40- 35- 113(6). However, the court appeared to give these factors littl e or no weight in its sent encing decision.

6 We note that t

he p resente nce repo rt is not included in the record on appe al. It is the appellan t's burden to prepare a complete record. Tenn . R. App. P. 24(b ). The D efendant's failure to do so with re spect to his senten cing issue s results in a presump tion that the trial co urt's findings are sup ported b y sufficient evidenc e. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App., 1991 ).
-10- If our review reflects that the trialcourt followed the statutory sentencing procedure, that the court imposed a l awful s entence after having given due consideration and proper weig ht to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sent

ence eve n if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The Defendant was determined to be a Range I, standard offender. The range of punishment for criminal attempt to commit voluntary man sla ught er, a Cla ss D fel ony, 4 is therefore two to four years.Tenn. Code Ann. § 40-35-112(a)(4). The presumptive length of a sent enc e for a Class D felony is the minimum numberof ye ars in the applicable range. Id. § 40-35-210(c). If there are enhancement

factors, the trial court may sentence above the minimum, but must remain within the range. Id. § 40-35-201(d). If there are also mitigating factors, the court must enhance the sentence within the range as a

ppropriate

for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
Here, the trial court imposedthe maximum sentence based on two enhancement factors and
no mitigatin g factors. The trial court found that the Defendant has a previous history of criminal convictions and that he has a previous history of unwillingness to comply with the conditions of a sentence inv olv ing r ele ase i n th e com mun ity. 5 Id. § 40-35-114(1), (8). A maximum term of years within the applicable range has been found appropriate on the basis of

two enhancement factors and
no mitigating factors. See, e.g. , State v. Ball , 987 S.W.2d 859, 861 (Tenn. Crim. App. 1998); State
v. Ealey , 959 S.W.2d 605, 613-14 (Tenn. Crim. App. 1997). We see no error or abuse of discretion in the trial court's decision in this regard. 6

The trial court ordered that the Defendant's sentences be served consecu

tively on the

basis that he is an offend er wh ose record of criminal activity is extensive and that he is a dangerous offender whose behavior indicates little or no regard for human life,and who had no hesitation about committing a crime in whichthe risk to human life was high. Tenn. Code Ann. § 40-35-115(a)(2), (4). Although we are unable to review the Defendant's criminal history due to his failure to include the presentence report in the record on this appeal, we certainly agre e with the tr

ial court that the Defendant

is a dangerous offender. The Defendant walked into a busy restaurant during lunch hour, walkedup to the line at the counter whe re several pe ople were lo cated, pull ed a gun and be gan firing. He fired a total of

seven shots, four of them hitting an innocent bystander. The Defendant's behavior7 These two factors need not be established when consecutive sentences are ordered on the finding that the

defendant is an offender whose record of criminal activ ity is extensive. See State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999).
-11- could hardly show less regard

for human life, and he certainly showed no hesitation in committing his crimes. The trial court made no err or in designating th

e Defendant a da

ngerous offen

der eligible for consecut ive sentenc ing.
However, consecutive sentences may not be imposed on a dangerous off ender unless there is also a finding that

an extended sentence is necessary to protect the public against further criminal conduct by the defendant. S tate v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). Furthermore, there must also be a

finding t hat the consecutive sentences reasonably relate to the seve rity of the offenses committed. Id. The trial court in this case did not address these two p rerequisites f or consecutiv e sentencin g. 7 Nevertheless, we hold that t he rec ord es tabli shes t hese r equir ement s. In
an effort to avenge himself, the Defendant strode into a public place during regula

r business hours, pulled a gun, and began firing repeatedly at his intended target. He k ept firing after he hit an innocent bystander a

nd after his targ

et fell. Indeed, he shot the innocent bystander more times than he shot the man he was aiming at. Clearly, the presence of the public off

ers no deterren

ce to this Defendant

once he decides to shoot

someone. Just as clearly, the public must be protected from any further shooting rampage by the Defe ndant.

We also find that the Defendant's consecutive sentences are reasonably related to the severity of his offenses. He repeatedly shot two unarmed men in cold blood while they stood in apublic place waiting for their lun c hes. The Defendant killed his intended victim and grievously wounded the other man, someone he di

d not even know. Th

e Defendant' s conduct t errorized everyone in the restaurant. Consecutive sentences are appropriate.

The Defendant's contentions regarding his convictions and sentences are without merit. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE