# FILED
December 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612- CC-00512 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON. ROBERT W. WEDEMEYER FREDDIE MORROW and ) JUDGE DAMIEN DA RDEN, ) Appellants. ) (Direct Ap peal-F elony M urder-C ivil ) Rights Int imidati on)

FOR THE APPELLANT : FOR THE APPELLEE : COLLIER W. GOODL ETT JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 109 S. Second Street Clarksvi lle, TN 37040 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 JOHN CARNEY Distri ct Attorney General ARTHUR BIEBER Assistant Distri ct Attorney 500 S outh M ain Springfi eld, TN 37172

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 The judgments of conviction indi cate that Morrow’s sentences f or attempted aggr

avated kidnapping and civil rights intimidation are to run concurrently with one another but consecutively to the life sentence for f irst degr ee murder. However, a r eview of t he sentencing hea ring tr anscript r

eveals that

the trial court int

ended for all

three (3) sentences to runconsecutivel y to one another. When there is a conf lict betwee n the trans cript and th e judgm ent, the tran script con trols. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App . 1991). -2- 

## OPINION

The appel lants, Fr

ederi ck D. Morrow and Damien Darden, were convi cted afte r a Robertson County benc h trialof one (1) coun t of fel ony murder, one (1 ) count of attem pted a ggrav ated k idnap ping a nd on e (1) co unt of c iv il ri ghts intimid ation. Both appell ants were sente nced to li fe impriso nment for fi rst degree murder. Morrow was sen ten ced as aRang e I off ende r t o co nsec utive termsof four(4) years for civil ri ghts intimidati on and five (5) years for attemp ted aggravated kidnapping. 1 Darden received Range I sentences of three (3) years forcivilrights i ntimidati on and four (4) years for attempted aggrav

ated kidnapping, to run concur rently with e ach other bu t consec utively to the life sentence for fir

st degree murder. On appeal, appellants raise t he following joi nt issues f or our r eview: ( 1) wheth er the trial co urt erred in denying appellan ts’ motion to dismiss Coun ts One , Three and Fo ur of the ind ictmen t; (2) whether they

were denied thei r constit utional right s to d ue process and e qual protection by t he abolition of an acceptance hearing pursuant

to Tenn. Code Ann. § 37-1- 159; (3) whether the e vidence is sufficient to su pport the find ings o f guilt beyond a reasonabledoubt; and (4) whether the t rial cour t erred in imposing consecutive sentences. Appellant

Morro w furth er claim s that th e trial co urt erre d in (1) failing to dismiss the indictment on the basis t hat the grand jury sel ect ion pr ocess under Tenn. Code Ann. § 22-1- 102 violates the Americans wi th Disabil ities Act and the-3-

Rehabilitati on Act of 1973; (2)imposing excessive sentences; and (3) failing to allowMorrow to s erve h is civilrights i ntimidati on and attempted aggr avated kidnapping sentences on probat ion. Appell ant Darden rai ses the addit ional i ssue of whetherthe trial ju dge e rred in failing to recu se him self as a re sult of ex parte communications with the Ass istant District Attorn ey. After a t horough revi ew of the record b efore this C ourt, we find no rev ersible e rror

and affirm the judgment of the trial cou rt.

FACTS

On January 14, 199 5, Michael and Hannah Westerman were traveli ng f ro m their home in Kentucky to Springfi eld, Tennessee, to do some shoppi ng and have d inner. Fro m the back of the Westermans’Chevrol et pic k-up truck fl ew a Confe derate battle flag, whic h was attached to a pole m ounte d on th e truck ’s tool box. On th eir way to Spr ingfield , the W esterm ans s toppe d at Ja nie’s M arket in Guthrie, Kentucky, to get some gas. Mr. We sterm an pa id for the gas, a nd wh ile he and Mrs. Westerman sat in the truck talki ng, Mrs. Westerman noticed a black man in a dark b lue car po inting at the m. Mr. We sterma n pulled th e tru ck onto th e road, a nd as the y crosse d into Tenne ssee, Mrs. Westerman noticed two (2)cars, one l ight blu e and the other dark blue, fol lowing them . Mr . Westerman passed a car in f ront of t hem, and both blue cars were able to catch up with the Westermans. Although t he We stermans ’ truck was traveling a t approxi mately 85 miles per hour , the li ght blue ca r began to pass them on the left. Mr. Westerman push ed Mrs. We sterman on the fl oorboard of t he truck as t he car passed them. Af ter the car-4-

passed, Mrs. Westerman sat up in her seat, and Mr. Westerman told her that he had be en sho t. Mrs. Westerman climbed over to the driver’s si de so thatshe could drive the truck. Suddenly, t he light blue ca r came to a com plete stop in t he middle of the road in front of

the Westermans’ truck, and Mrs. Westerman saw a blackman sitti ng i n th e car point ing a gun at t he truck. The dark blue car whi ch had been followi ng the Westermans completely stopped beh ind the Westerman vehicle, and Mrs. Westerman was forced to drive thr ough a ditch, across an embankment and into a parking lot in an attem pt to flee t he scene. However, because t he two
cars had blocked her access to the paved driveways i nto th e parking lot, Mrs. We sterman had to cross anoth er ditch in orde r to exit the pa rking lot. Mrs. We sterman th en proceeded in t he opposite di rection, towards Guthri e, in an ef fort to seek medical attention for herhusband and avoid f urther conf rontati on with the individuals in the blue cars. M r . We sterma n died the next day a t Vande rbilt Hosp ital as a resu lt of a gunsh ot woun d to the he art. Shor tly after t he i ncident, the poli ce developed appellant Darden as a suspect in the shooti ng. While law enfor cement authori ties were conducting an interv iew with Darden concerning the incident , appell ant Morrow appeared at the police station and confessed to t he shooting. In his statement to the police, Morrow acknowledged that he was a passeng er in Darden’s car when he s hot several times at the W esterm ans’ truck. He stated that they chased t he We stermans after someone i n the truck shook the Confederate flag at them and shoute d a racial e pithet. At the time th e inciden t occurred , both Morrow andDarden were seventeen (17) years of a ge. Tony Andrews and Marcus Merriweathe r, other passen gers-5-

in Darde n’s car du ring the inc ident, were also j uveniles. Andrews was seventeen (17) years of age, and M erriweather wa s fifteen (15) years of age. All four were charged in juveni le court with the del inquentact ofpremeditated first degr ee murder, and upon a transfer hearing in that court, were tra nsferre d to the Robertson County Circuit Court to be t ried as adults. Subseq uently, Darden, Morrow, Andrews and Merriweather were each indicted on on e (1) co unt of c ivil rights i ntimidati on, one (1) count of pre meditated first degree m urder, one (1) co unt of felony mu rd er and one ( 1) count of attempted aggravated ki dnapping. Andrews entered into a plea ag reeme nt with the state wherein he pled g uilty to crimi nally negl igent homici de and was placed
on diversion for

two (2) years. Merriweather was tried on the instan t offens es in a joint trialwith Morrow and Darden. At trial , Andrews test ified f or the state. Andrews stated that on t he afternoon of the inc ident, h e and Dard en we re drivin g arou nd G uthrie in Dard en’s light blue c ar. Me rriwea ther an d Mor row ev entua lly joi ned t hem, and they went to a frien d’s

hous e sothat Da rde n co uldcol lec t so me mon ey o wed to hi m. Wh ile theywere sitt ing in t he car, they noticed a r

ed pick-up wi th a Confederate flag on its toolbox driving by . Subsequently , the y saw the pick- up truck park ed at Janie’s. Darden remarked that he w anted to fi ght the peopl e in the t ruck and drove to a localhangout to i nform others t hat he intended to fight the oc cupan ts of the truck. The group went back to Jani e’s, and the truck was stil l in t he parking lot. The truck then began to pullout of the parking l ot, and when the truck was beside Dard en’s car, Morrow roll ed his window down and began pointing at the flag. Andrews testifi ed that he then saw someone reach out of the truck’ s back window and sh ake the Confe derate flag

.-6- Darden ’s car then pul led out of Janie’s parking lot

and alongside a car containi ng Robe rt Bell, Ricky William s and M ichael M imms

. Octavius Burks and Marcus Darden were in anot her car behind Bell’s. Wh en the W esterman truck began to exit

Janie’s, Appellant Dar den remarked , “there it goes.” Bell and Burks began to foll ow the truck, andthe Dard en ca r turne d arou nd an d follow ed as well. The Da rden car wa s approximately four (4) cars behind the Westerman truck, and Morro w told D arden to “catc h” Be ll. At this point, Mor row informed the other occup ants of the car that he was arm ed. The Darden car caught up wi th Burks and Belland eventually passed both cars, put ting them directly behind the Westerman truck. Darden’s car was travel ing approxima tely 70 to 80 miles p er hour, and the truck began to speed up in front of them. Darden began to speed up, and Andrews heard shots fired f rom the back seat on the driver’ s side , where Morrow was si tting. Andrews turned around and sa w Morro w leaning out of th e wind ow firi ng his gun. Bel l was followi ng the Darden car approxi mately thr ee (3) to four (4) car

lengths behi nd. Because Morrow’ s gun jammed, he began fumbli ng with the weapon. Morrow then toldDarden to pass theWe sterm an truck, a nd as the y started to pass the truck on theleft side, Andrews heard anot her sho t f ired f rom t he s ame directi on. When the car pulle d alongsi de the Westerman t ruck, And rews heard another shot fi red from the back passenger seat. After they passe d the truck, Andrews noticed that t he truck slowed down . Darden be gan to sl ow down and then stopped hi s vehi cle in t he middle of t he road. The tr uck stopped behind the m, and Morrow leaned out of his window, pointed hi s gun at the t ruck and exclaimed, “[I’ ve] got them now.” The tr uck veered off into a di tch, and Morr ow continued to fir

e his gun. Event ually, the truck wa s able to maneuver through t he-7-

di tch, out of the parking l ot and back onto t he road proceedi ng in t he op posit e direction. Morrow test ifi ed on h is ow n behalf at tri al. He stated th at on the day of t he incident, he was carryi ng a gun for protection because hi s life h ad been threaten ed. He testif ied that t hey foll owed the Westerman truck because al l of the occupa nts in the car were “looking for a fight.” Although he acknowledged thattheywanted to fight because some one in the truck wa ved the C onfede rate flag, heinsisted that he di d not shoot at the truck because of theflag. Instead, he testified that as Darden began to pass t he Westerman truck, Dar den, Merriweather

and And rews started yelling, “s ho ot!” Because of the “ pressure” from the others in the car, he started firi ng his gun into the air. He stated that he
nevertold Darden to stop his car in the road and did not point hi s gun at the truck when the car was

stop ped. He further test ified that he never inten ded to harm anyone during the incident. Appellant

Darden also test ified f or the defense at tri al. He clai med that no
o ne in the car dis cussed fight ing with t he occupants of t he truck. He was offended when s omeo ne in th e truck shoo k the fl ag, but had no i ntention of shooting anyone . He was chasing the truc k to “m ess” w ith its occ upan ts and did not k now t hat Mo rrow was armed. He deni ed that anyone i n the car coerced Morrow into shoot ing his weapon. When he heard the gunshots, he as sumed thatthe truck was merely “backf iring. ” He further denied stoppi ng in the roadway or attem pting to “bo x in” the W esterm ans’ truck

. A t the concl usion of

the proof, t he tri al cour t found both Morr

ow a n d Darden guilty

of one (1) coun t o f civilrights int imidation, one (1) count of first degree murder in the pe rpetrat ion of an at tempted agg r avated kidnappi ng and
one (1) count of at

tempted aggravated kidnapping. Merriweather was acquitted-8-

of all charge s. Both Morrow and Darden were sentenced to li fe impriso nment for first degree murder. Morr ow was sentenced as a Range I offen der to conse cutive terms of four (4) years for civi l right s inti midation and five (5) years for attempted aggravated kidnapp ing. Darden received Range I se ntences of thre e (3) years forcivil rights intimidation and four (4 ) years for a ttempted aggravated kidnapping, to run con currently w ith each o ther but c ons ecutively to th e life sentence for firs t degre e murder. From their convicti ons and sentences, appellan ts now b ring this ap peal as o f right.

MOTION TO DISMISS - MORROW AND DARDEN

Both appellan ts mainta in that the trial c ourt erred in failing to di smiss Coun ts One, Three and Fo ur of the ind ictmen t charging them w ith civil rights intimid ation, felony murder and attem pt ed agg ravated k idnapp ing. App ellants claim that they

were transferred on the char ge of premed it ated fir st degree murder only, and there was no determinat ion made in the j uvenile cour t whether appellan ts were s ubje ct to be tr ied as ad ults on the charge s of civil rights intimid ation, felony murder and attempted a ggravate d kidnap ping. Ap pellants therefore argue that t he circui t court lacked jur isdict ion over t he charges not prope rly transferre d from ju venile cou rt, and th ey were erroneously indicted on these ch arges a s a result. T enn. Co de Ann . § 37-1-1 34(a) pro vides for the transfer of a juvenile to criminal court “to be held accordi ng to law a nd to b e dea lt with as an ad ult in the criminal court” once a petiti on allegi ng delinq uenc y has b een file d. Effec tive July 1, 1994, Tenn. Code Ann. § 37-1-134(c) was amended to provi de for the followi ng:-9- (c) The transfer

pursuant to subsection ( a) te rminates jurisdi ction of the j uvenile court with respe ct to an y and a ll delinquent

acts wit h which the chil d may then or ther eafter be charged, and th e child shal l thereaf terbe dealt wi th as an adult as to all pendi ng and subsequent cri minal charges; provided , that if a child transfer red pursuant to this sect ion is acqui tted in c riminal court on the charge or charges resulti ng in such transfer, or if such charge or charges a re dismissed in such court, this subsect ion shall not apply a nd the juvenil e court s hall retai n jurisdict ion over such child. Although the juvenil e courts retain origi nal and exclusi ve juri sdicti on over juvenile matters , seeTenn. Code Ann. § 37-1-103, a transfer pursuant to Tenn. Code Ann. § 37-1-134(a) vests jurisdict ion in the cr iminal cour ts over t he juvenil e. Subsection (c) serv es to d ivest the juvenile court of its juri sdicti on over thechild “with respec t t o any and all delinquent acts wit h which the chi ld may then or thereafter be charged.” Once t he criminal court obtai ns juris dictio n overthe chil d, the child i s to be “deal t with as an adult asto all pending and subsequent cri minal charges.” T enn. Cod e Ann. § 37 -1-134(c). In the case sub judice , the appel lants, u pon being duly transfer red from juvenile court, were subject to indi ctment by the Gran d Jury of Robe rtson Coun ty. The grand jurors fo und p robab le cause to believe t hat appell ants committed not only the offense of pre meditated first deg ree murd er, but al so the offenses of felony murder, attempted aggrav ated kidnappi ng and civil rights intimid ation. W e believe that appellants we re properly “dealt wi th as [adul ts] as to all pendi ng and subsequ ent cr iminal char ges” withi n the meaning of Tenn. Code Ann. § 37-1- 134(c). Furthermore, Tenn. Code Ann. § 37-1-134( e) provi des that “no child, either before or after reaching e ighteen (18) years of ag e, shall be prosecuted for an offense previously committed unless the case has been transferred as provided in subsection (a).” Emphasis added . Generall y, when construing a statute , every-10-

word within t he statute i s presumed to “hav e me aning and p urpos e and shou ld be given full effec t.” State v. Odom , 928 S.W.2d 18, 29-30 (Tenn. 1996) (quoting Marsh v. Henderson , 221 Tenn. 42, 424S.W.2d 193, 196 (1968)). If the legislature had intended for the ju venile transfer hearing to be offense-specific, “offense”

or “charge” sho uld have been sub stituted for the word “ca se.” Similarly, Tenn. Code A nn. § 37-1-13 4(a) provides for t h e transfer of the “chi ld,” not

the “offense .” Certainly, this Co urt in no way aim s to trivializ e the impo rtance of t he proba ble caus e dete rmina tion with in the juve nile transfer hearing context. The juvenile court must f ind that t he re are “reasonabl e grounds” to bel ieve that the child committed the del inquent act in order to properly trans fer the child to criminal court. Tenn. Code Ann. § 37-1-134( a)(4)(A) . However, we do not agree with appell ants’ i nterpretation of t he statute. Moreover, even if this Court were to find that the o ffenses of felony m urder, attempted aggrav

ated kidnappi ng and civil rights intimid ation w ere no t prope rly transfer red from juvenile co urt purs uant to Tenn. Code Ann. § 37-1-134, appellan ts would n ot nece ssarily be e ntitled to relief. “[T]he absence of a transfer ordercannot be said to affect the court’s subject matter jurisdict ion, whic h, in a real sense, is con current with that of t he juvenil e court as to certain offenses committed by childr

en falling within a specified age span.” Sawyers v. State , 814 S.W.2d 725, 72 9 (Ten n. 1991 ); see also State v. Hale , 833 S.W.2d 65, 67 (Tenn. 1992). The failu re to properly tra nsfer a ch ild from juve nile court is s ubject to a harmless error analysis, with this Court’s prima ry inquiry being whether t ransfer from juvenile co urt would have be en app ropriate. Sawyers v. State , 814 S.W.2d at 729.-11- A child may be t ransferred from juvenil e court pursuant to Tenn. Code Ann. § 37-1-134(a), if thejuvenile court fin ds “reasonabl e groun ds to b eli eve th at: ( A) [t]hechild committed the deli nquent act as al leged; (B) [t]he chi ld is not
com mittab le to an insti tution f or the mentally r

etarded or mental ly il l; and (C) [t]he interests of the comm unity require tha t the chi ld be put under legal restraint

or discipline.” Tenn. Code Ann. § 37-1-134( a)(4). In determini ng that tr ansfer was appropriate, the juvenile cour t found that appell ants w ere not co mmittable to a mental ins titut ion and that i t was in t he best interest of t he community that appellan ts be put under l eg a l restr aint. Al though the j uvenile cour t did not specifica ll y find “r

easonable grounds to believe” that appel lants committed the offensesof felony m urder, atte mpted aggrava ted kidna pping a nd civil rights intimid ation, clearly th ere we re reas onab le grou nds in th at appellants we re subsequen tly found guilty of these offenses beyond a reasonable doubt. As a result, we find that

transfer would have been approp riate on t hese offenses, and any error in the t ransfer procedure is at worst harmless. Additionally, this Cou rt notes tha t the state d ismisse d the pre medita te d firs t degree murder count agai nst Darden, and Morr ow was acquitted of that offense. At fir st glance, thi s woul d appear to trigger the s econd clause of Tenn. Code Ann. § 37-1 -134( c) whic h prov ides, “if a child t ransferred pursuantto this section is acquitted in cri minal court on the charge or charges resulti ng in such transfer,

or if such char

ge or charges are dismissed in such court, th is subs ection shall not apply and the juveni le court s hall retain jurisdict ion over such child. ” Because neither appellant

was con victed o f premeditated first degree murder, t he delin q uent act alle ged in juvenile court, a strict rea ding o f that cla use c ould arguably require that

the juv eni le cour

t as sume jurisdict ion over the appellants. Howeve r, as the state points out, a l iteral i nterpretation of the statute would al so-12-

require the juve nile co urt to re tain jurisdic tion in instances wher e the juveni le was acquittedof the charg ed offense, but convicted of a lesse r included offense. W e do not b elieve that th e legislatur e intende d such an abs urd resu lt. This Court’s

primary dut

y in const ruing a statute is “to ascertain and give effect to the legislative intent withoutundu ly restrict ing or e xpand ing a s tatute’s coverage b eyond i ts intended sco pe.” Owen s v. State , 908 S.W.2d 923, 926 (Tenn. 1995); seealso State v. Davis , 940 S.W .2d 558, 561 (Tenn. 199 7). Legislative intent s hould be gleaned from the “naturaland ordinary meaning of the language used, without a forced or subt le const ruction that would l imit or extend the mean ing of the langua ge.” Carter v. S tate , 952 S.W.2d 4 1 7, 419 (Tenn. 1997 ). Furth ermo re, this C ourt sh ould cons true a statu te so that its component parts are consiste nt and re asona ble, and in consiste nt p art s sho uld be harm onized , where p ossible. State v. Odom , 928 S.W.2d at 30. Once a juvenile has be en transferre d o ut of juvenile court pu rsuant to Tenn. Code Ann. § 37-1-134(a) , the cri minal court has jurisdi ction to indi ct and try that juvenile as an ad ult. The criminal co urt thereafter has juri sdicti on overthe child, unless the transfer proceedings ar

e, in eff ect, reversed by reason of acquittalor d ism i ssal of a ll the charges in t he criminalcourt. Tenn. Code Ann. § 37-1-134(c). If the ch ild is completely absolved of all cr iminal char

ges, and the transfer proceeding s are rendere d invalid as a re sult, th e juvenil e court then retains jurisd iction over th e child. Id. We think t hat the second clause in Tenn. Code Ann. § 37- 1-134(c) appl ies only when the juve nile is ful ly exonerated on the charges br ought against

him or her in cri minal court . We think this to be a more sensibl e interpr etation of

the phrase, “charge or charges resulti ng in such transfer.” Principles of d ouble jeopard y might b e implica ted if appe llants were forced to endure a delinquency-13-

hearing after having been found guil ty of these cri mes beyo nd a re ason able doubt. However, if the juven ile court were to re tain jurisdi ction over the appellan ts and a delinquenc y hearing were ba rred by do uble jeop ardy, app ellants would effectively rec eive no p enalty forthese very serious cri mes. Indeed, such
a result would con travene the pri nc iples a nd pu rpose s of the pena l laws o f this state. According ly, we con clude tha t appellan ts were properl y indicted on Coun ts One, Three and Four, charging them wit h civilrights i ntimidati on, felony murder and atte mpted aggrava ted kidna pping. T his issue is without m erit.

CONSTITUTIONALITY OF TENN . CODE ANN. § 37-1-159

MORROW AND DARDEN

Appe llants al so claim that T enn. C ode A nn. § 3 7-1-1 59(d) is unconstit utional in that it denies th em the right to seek an ac cepta nce h earing in criminal court because t hey were transferred out of juveni le court by

a lawyer judge. Darden ar

gues that t he aboliti on of an acceptance hearing under Tenn. Code Ann. § 37-1-159( d) deprives him of due process of law

. Morrow asserts thatthere is no rationalbasis for disti nguishing bet

ween those juveni les transfer red by lawyer and non-lawyer judges; t herefore, the denialof an acceptance hearing for those juveniles transferre d by law yer judges is a deprivation of equal protect ion of the law. Prior to Apr il 15, 19 94, all juvenile s trans ferred from ju venile court had th e right to see k an a ccep tance hearin g in crim inal co urt to determine whether t he criminal court would accept jur isdict ion over the chil d. Tenn. Code Ann. § 37-1- 159 (1991). H oweve r, effe ctive April 15, 1994, the Tennes see Legislature-14-

abolished the right to seek an acceptance hearing for those j uveniles t ransferred by a lawyer jud ge. Ten n. Cod e Ann. § 37-1-15 9(d) prov ides, in pe rtinent part, “[i]f and only if a nonlawyer judge pre sides at th e transfe r hearing in juvenile co urt, then the cri minal court , upon motion of the chi ld fil ed within ten (10) days of the juvenile court order , excludi ng nonjudici al days, s hal l hold a heari ng as exped itiously as possible t o determine whether

it wil l accept j urisdic

tion over

the child.” The right to a transfer hearing is

“suffi cientl y fundamental t o be considered
a matter of due process, in the context of juvenile justice.” Sawye rs v. State , 814 S.W.2d at 729. The tr ans fer heari ng in juveni le court has been likened t o a preliminary hearing with regar d to the i ssue of probabl e cause. State v. Womack , 591 S.W.2d 437, 443 (Tenn. App. 1979) . Howev er, the ac cepta nce h earing in criminal court was cre ated by statute as areview of the juveni le court’ s decision to transfer a ju venile into c riminal co urt. Colyer v. S tate , 577 S.W.2d 460, 463 n. 2 (Tenn. 197 9). Ther e is no constit utional right to such an acceptance hearing in criminal court. State v. Joshua McDaniel , C.C.A. No. 03C01-9605- CC-00178, McMinn Coun ty (Ten n. C ri m. App. fil ed June 5, 1997, at Knoxvill e). Furt hermore, otheravenue s of review exist for a juve nile to appe al the ju venile c ourt’s decision to transfer, including preservin g the issu e on ap peal to this Court. State v. Griffin , 914 S.W.2d 564, 566 (Tenn. Crim . App. 1995). Darden was not denieddue process of law by t he abolit ion of an acceptance hearing under Tenn. Code Ann. § 37-1-159 (d). M or row contends that Tenn. Code Ann. § 37-1-159(d) deprives him of equal protection of t he laws under Article I , § 8 of the Tennesse e Con stitu tion. As no fundamental right or suspect clas sification is involved, this Court’s inquiry i s l imited to a rational ba sis review. State v. Ray , 880 S.W.2d 700, 706 (Tenn.-15-

Cri m. App. 19 93). Und er this review , this Cou rt must u phold the sta tute if the classification is rationally rela ted to a leg itimate go vernm ental intere st. Id. Although the juveni le transf er hearing is consider ed “fundamental”

in the context of juveni le just ice, the re is no ri ght to an at torney j uvenile j udge at the transfer hearing

. State v. Davis , 637 S.W.2d 471, 474 (Tenn. Crim. App. 1982); State v. Bril ey , 619 S.W.2d 149, 152 (Tenn. Cr im. App. 1981). In aboli shing the right to seek an acceptance hearing for juvenilestransfer red by a lawyer judge, the legisl ature saw fit to retain the added tier of review for those ju veniles transfer red by judg es not formally trai ned in t he law. See Tenn. Code Ann. § 37- 1-159(d). Our Supreme Court has recogni zed the signi ficance of lawyer ver

sus non-lawyer

judges w ithin the co ntext of de privation of libe rty. See City of W hite House v. Whitley , S.W.2d (Tenn . 1998); State ex rel. Anglin v. Mitch ell , 59 6 S.W .2 d 779, 791 (Tenn. 1980) . Therefore, due to the si gnificant issues involved in a juvenil e transfer hearing, seeTenn. C ode Ann . § 37-1-134(a ), (d),

we find the distin ction bet ween those transferred by a non-lawyer as oppos ed to
a lawyer to be neither arb itrary nor ca pricious. See State v. Ray , 880 S.W.2d at 706. Ten n. Code Ann. § 37-1-159( d) does not vi olate Morrow’ s rights to equal protect ion of the law. This issu e has n o merit.

TENN. CODE ANN . § 2 2-1- 102 - MORROW

In his next issu e, appell ant Morrow asser ts that Tenn. Code Ann. § 22-1- 102 violates the Americans wi th Disabil ities Act (“AD A”), 42 U .S.C. § 1 2101, et seq. , and the Rehabilitation Act of 1973 (“Rehabi litat ion Act”), 29 U.S.C. § 701, et seq. He ar gues that Tenn. Code Ann. § 2 2-1-102 excl udes “[p]er sons of-16-

unsound mind and habitualdrunk ards ” from jury servi ce. Because these individu als are con sidered “handicapped” wi thin the meani ng of the Rehabil itati on Act and the ADA, he maintai ns that th e state statute ru ns afoul of the federal statutes. As a r

esult, he c lai ms that he was i ndicted by a grand jury which was not comp osed of a rep resentative cross -section of the com munity. The ADAand the Rehabilitation Act prohibit an entity

from discri minating against a qualif ied indi vidual wi th a disabi lity , or excl uding that indivi dua l “from partici pation in or [being] deni ed the benefits of [ its] servi ces, program s, or activities.” 42 U.S .C. § 121 32; see also29 U.S .C. § 794. However, because the Rehabilitation Act ap plies o nly to entit ies receiving “F ederal fina ncial ass istance,” it is inapplica ble in this ca se. 29 U .S.C. § 7 94(a); see State ex rel. McCormick

v. Burson , 894 S. W.2d 739, 747 (Tenn. App. 1994). Therefore, we will restrict
ou r revi ew to M orrow’s c laim und er the AD A, which does a pply to state governments. 42 U.S .C. § 12131( 1)(A); McCormick v. Burson , 894 S.W.2d at 747. U nder the ADA , “ no qualified individual with a d isability shall, by re aso n of such disability, be exc luded from p articipa tion in or be denied t he benefits of the services, program s, or activi ties of a public en tity, or be sub jected to discrimi nation by any such enti ty.” 42 U.S.C . § 1213 2. A “qua lified individua l with
a disabilit

y” is defined as “an indiv idu al with a disabil ity who, with or wi thout
reaso nable modifications to rules, policies, or p ractices . . . meets the essenti al eligibility requirements f or the recei pt of serv ices or the p articipa tion in pro gra ms or activit ies p rovi ded by a publ ic en tit

y.” 42 U.S .C. § 1213 1(2). Th us, in orde r to prove that Tenn. Code Ann. § 22-1-102 contr avenes the ADA, ther e must be a showing that “per

sons of unsound mind and habi tual dr unkard s” are otherwise qualifi ed to serve as j uror s. In other wo rds, app ellant mu st dem onstrate that,-17-

notwithstanding their handicap, these indivi duals meet allof the requi rements of jurors. See Southeastern Community College v. Davis , 442 U.S. 397, 406, 99 S. Ct. 236 1, 2367, 60 L. Ed.2d 980 (1979) ( holding t hat an “other wise quali fied individu al” under t he Re habil itation Act is “o ne who is able to m eet all of a program ’s requireme nts in spite of his hand icap”). The grand ju ry serves a n impo rtant functio n, as its mem bers are call ed on to “exam ine[] and s crutinize[] ev idence in suppo rt of [ a] charg e, and must then say from that whet her there i s probab le cause to believe that the perso n in question committed the of fense and should be formally accused thereof

by an indict ment or presentm ent and brou ght to tri al.” State v. Hudson , 487 S.W.2d 672, 674 (Tenn . Crim. A pp. 197 2). Certainly, t he state has a legiti mate interest in assuring t hat those making determinations involv ing the fundamental interest of liberty poss ess a so und an d sobe r mind. It is illogical to assume that “per sons of unsound mind and habitual drunkards” are able t o rationally

analyze evidence to determ ine whe ther an ind ictmen t should b e issued

. We, therefore, conclude that“persons of u nsound mind and habitua l d runka rds” ar e not p roper ly “qualif ied” within t he meaning ofthe AD A, and a s a result, Tenn. Code Ann. § 22- 1-102 d oes not

viol ate t he ADA. Furthermore, this Cou rt sincerely d oubts thatMorrow has standing to raise
a c laim under t he ADA. The ADA establishes a civilremedyfor those pers on s “allegi ng discri mination on t he b a sis of [a] disa bility.” 42 U.S .C. § 121 33; see also 29 U.S.C. § 794a(a)(2) (establi shing a remedy for “any person aggrieved” by reas on of

his or he r di sabi li ty) . Ther e is no showing that Mo r row was discrimi nated against on the basis of a disab ility. Additionally, even if this Court
we re to find that Tenn. Code Ann. § 22-1-102 violates the ADA, this would no t
neces sitate a reve rsal of Mo rrow’s co nviction or a dismiss al of the ind ictmen t.-18- Morrow also clai ms that, due to the exclus ion of habi tual drunkar ds and persons of unsound mind from the grand jury , he was denied a j ury represent ing
a fair cr oss-secti on of the community in violat ion o f his cons titutional rights . A state is “fr

ee to prescri be relevant qua lificati ons for [its] jur ors and to prov ide
reaso nable exemp tions so lon g as it ma y be fairly said that the jury lists or pan els
are representat ive of t he comm unity.” Taylor v. Louisiana , 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975) . The United States Supreme Court has h eld that, i n order to establish a pr ima facie v iolati on of the fa ir cross-section requirement, the appell ant must demonstrate: (1) that the gr

ou p allege d to be exclud ed is a “distinc tive” gro up in the community; (2) that the representation of this group in veni res from which juri es are selected is not fa ir and re ason able in relat ion to the number ofsuch pe rsons in th e com munity; and (3 ) that this underrepresentation is due to sy stematic exc lusion of

the group in the jury-sel ection process. Duren v. Missouri , 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed .2d 579 (197 9); see also State v. Bell , 745 S.W .2d 858, 860 -61 (Tenn . 1988). Morrow has fail ed to prove any of the afor

emen tioned fa ctors. The ba re allegati on that hewas deni ed a jur y co mp osed of a fair c ross-secti on of the
comm unity as a result of the excl usion of per sons ofunsound minds and habit ual drunkards from jury

service i s insuff icient to establ ish a consti tutional violat ion. As su ch, this argum ent m ust fail. This issu e is withou t merit.

RECUSAL OF TRIA L JUDGE - DARDEN

In his next issu e, Darden claims that the trial judge erred i n failing to recuse hims elf after hav ing ex parte communications with an Assistan t District Attorney.2 The tes timony a t the hearin g som ewhat c onflicts in this re spect. C ounse l for the defe ndants testified that

they were n otifi ed that t he state was fi ling a “ motion” or an “a pplicat ion” to r evoke Darden and Merriwe ather’s bo nd. How ever, it is clear f rom the testim ony that co unsel we re inform ed that the state intended t

o revoke the defend ants’ bond.

3 The trial co urt re vok ed bo nd on the b asis that d efen dan ts’ inc arce ration in Ken tuck y wou ld be in direct violat ion of th e conditi ons of bond requi ring that they remain wi

thin 50 mil es of Springf ield, Tenn essee . -19- He asserts that such communicat ion was improper and created an appearance of impropriet

y. Therefor

e, he maintai ns that th e trialjudge abused it s discret ion in failing to rec use him self. Several months prior t o trialAssistant

Attorne y Gene ral Dent Morriss learned thatDarden and Marcus Merriweat her, who had been rel eased on bond, had felony

charges pending agai nst them in Kent ucky. General Morriss t raveled to Kentucky, verif ied that t his information was co rrect and was inform ed that bo th Darden and Merriwe ather were sche duled to be tra nspo rted to a juvenile facility in Eastern Kentucky . Out of concern that a l engthy ext raditi on proce ss wo uld be
necessa ry in order to secure Darden a nd Merriwea ther’ s presen ce in cou rt, Morriss prepare d an ord er revokin g their bon d. Coun sel for both defend ants were notified of the state’s i ntentions. 2 General Morriss broug ht the order to Jud ge W edeme yer, who was presidingoveranothe r trial at the time

. Morriss and Judge Wedemeyer engaged in a conversation lasting approxim ately thirty (3 0 ) seconds, whereby Morriss in formed him of the si tuation and presented cert ified copies of t he K entuck y charging instruments . Judge Wedemeyer signed the or der revoki ng defendants’ bond, on the condi tion that a full hearing on t he issue would beheld w ithin four (4) days. Fo ur days la te r, a b ond hearing was hel d, and the t rial cour t ordered that defendant

s’ bond remain r

evoked. 3 Subse quentl y, Dard en an d Mer riweath er filed a motio n for rec usal, claiming that Judge Wedemeyer’s impart ialit y was tainted by the e x parte-20-

communications wi th the Ass istant Di strict Attorney. At the concl usion of t he hearing on the motion to recuse, t he trialjudge found t hat he could be impartial despite any ex parte communications wi th the state. The tr ial court stated: The issue on Monday th at brought t his allup, li ke I said, it was proba bly all of

30 seconds, pe rtains to bond. This Court , not on a d aily basis bu t certainly on a week ly basis, he ars bon d matte rs o n cases that are going to even tually go to trial be fore this C ourt. In the process of that th e Cou rt hear s thin gs b oth favor able and unfav orable to defendants on bond issues. Jus t numer ous, numerous times the Co urt has heard on differ ent defendants

on why their bond should be reduced or modified from the Defense and from the State why th e bond sh ould remain at a high leve l from Sessions Court or why bond s ho ul d be revoked, et cetera. The Court b elieves that [ it] is able to go ahead and preside on those cases keeping in min d that th is Court pract iced law for 13 years and has been o n the be nch m ore than 5. I have to f ollow thelaw and not cons id er bond issues later during t he trialunless they somehow work them selves into the evide nce in an ap propriate ma nner.

. . . . I do not fi nd that the recusal moti on should be granted. I do not think

that my impart ialit

y, and I r

ealize i t’s ki nd of diff icult when you are ruli ng on your own impart ialit y, I bel ieve that

I willcontinue to be fair and impartial to the defen dants in th is case d espite signing that order. A motion to recuse is a matter that r ests wit hin the sound di scretion of the trialcourt, whi ch will not be overt urned on appeal unless an abuse of disc retion is evident f rom the r ec ord. State v. Hines , 919 S.W .2d 573, 578 (Tenn. 199 5); State v. Smith , 906 S .W .2d 6, 1 1 (Te nn. C rim. A pp. 19 95). A trial judg e sho uld
recuse himse lf whene ver he ha s any do ubt as to h is ability to pres ide im partially
or wheneve r his “impartiality might reas onably be qu estioned.” S.Ct. R ule 10, Canon 3(C)(1) (1 995); State v. Hines , 91 9 S.W .2d at 578 ; State v. Boggs , 932 S.W.2d 467, 472 (Ten n. C ri m. App. 19 96); State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim . App. 1 993). H owev er, the is sue fo r this Court to consider i s whether the tri al judge“committed an er ror which r esulted i n an unjust di spositi on of the case.” State v. Hurley , 876 S.W .2d 57, 64 (T enn. 1993 ).-21- The trialjudge found t hat he could r emai n impa rtial notw ithstan ding h is communication with t he Assistant Distri ct Attorney. Certai nly, t he fact th at the trialjud g e acquitted M erriweather of all cha rges is indicative of his imp artiality. The trial judge assured the parties that he w ould disregard any irrel evant informati on during the defendants’ trial , and there i s nothing in the record to show otherwise. We find no abuse of disc retion f rom the record. This issu e is withou t merit.

SUFFICIENCY OF THE EVIDENCE - MORROW AND DARDEN

In their n ext issue, both appell ants contend t hat the evi dence was insuffi cientto support their convicti ons. In a bench t rial, the verdi ct of a t rial j udge is entitl ed to the same weight on appeal as a jury verdict. State v. H atchett , 560 S.W.2d 627, 630 (T enn. 19 78); see also State v. Horton , 880 S.W.2d 732, 734 (Tenn. Crim. A pp. 199 4). A guilty ve rdict accre dits the sta te’s witn esse s and all conflicts are resolved in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strong est legitim ate view of the e vidence and all leg itimate
or reaso nable infe rences which m ay be dra wn there from. Id. This Court i s not atlibert y to rewei gh or reevalu ate the ev idence

. State

v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, this Court will not disturb a verdict of gui lt due to the suff ici enc y of the ev idence unless t he defendantdemonstrates t hat the fac ts contai ned in therecord and the infer ences which may be drawn therefr om are insuff icient , as a matter of law, f

or a rati onal trier of fact to find th e accu sed gu ilty beyond a reaso nable d oubt. State v

. Brewer , 932 S.W .2d 1, 19 (T enn. C rim. App . 1996). Acco rdingly , it is this Cour t’s-22-

duty to affirm the co nviction s if the evidence, viewed under these standards, was suffic ientfor any r

ational trier

of fact to have found t he essentialelements of the offense beyon d a rea sona ble doubt. Tenn. R. App . P. 13(e); Jack son v. V irginia , 443 U.S. 30 7, 317, 99 S.Ct. 2781, 2 789, 61 L.Ed.2d 560 (19 79); State v. Cazes , 875 S.W .2d 253, 259 (Tenn. 199 4). A. Civ il Rights Inti midation Appe llants c l aim th at the e videnc e is insu fficient to supp ort their convicti ons for civi l rights i ntimidation because there was no evidence presented at trial that th e victim s in this c ase, M ichae l a nd Han nah W esterman , were exercisi ng a constitution al right at the time of the incident. Tenn. Code Ann. § 39- 17-309(b)(2) (1991) provi des: [a] person comm its the offen se of inti midat ing others from exerci sing civil rights who

. . . [i]nj ures or thr

eatens to i njure or coer ces another person with the intent to unlawfully inti midate another b ecause that otherexercised any

right or privi lege secured by the constit ution or laws of the United States or the const ituti on or laws of the State of Tennessee. Both Darde n and M orrow tes tifi ed at trial tha t they noticed t he Westermans’ truckbecause of the Confeder ate flag, and they wanted t o fight with the occup ants of the truck. A fter beco ming a ngered by one o f the truck’s o ccupa nts shaking the Con federate flag at them, Darden, Morr

ow and their cohorts chased the truck a t exces sive sp eeds until Morrow was in posit ion to fi re his weapon at the truck, resu lting in the death of Mr. Westerman. When Darden was asked whetherhe intended to catch theWe sterma ns’ truck a nd fight, he resp onded , “[i]t might have crossed m y mind.” Taking the evidence in the l ightmos t favora ble to th e state , it is clear that Darden and Morrow intende d to inj ure or thr eaten the Westermans because the C onfed erate flag was d isplayed o n their truck

. See Tenn. Code Ann. § 39-17--23-

309(b)(2) (1991). No matter how offe nsive a sy mbol the Confe derate flag may be to some members of our societ y, it is well -establi shed that di splaying a flag is
cons titutiona lly protected “symbolic spe ech.” See Spence v. Washington , 418 U.S. 405, 94 S.Ct. 27 27, 41 L .Ed.2d 8 42 (197 4); Strombe rg v. Califo rnia , 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). We, ther efore, concl ude that the evidenc e is sufficien t for a rationa l trier of fact to find that appel lants committed the offens e of civil rights intim idation be yond a re asona ble dou bt. This issu e has n o merit.

B. Attempted Aggrav ated Kidnappi ng Appe llants also cha lleng e the s ufficien cy of the eviden ce for th eir convicti ons of attem pted ag gravated kidnapp ing. Aggravated kidnapping i s “false imprisonment. . . comm itted . . . [w]ith the intent t o infli ct seriou s bodily i njury on
or to terr orize the victim or another.” Tenn. Code Ann. § 39-13-304 (a)(3) (1991). False impris onm ent is d efined as “kn owing ly re mov[ing] or confin[ ing] another unlaw fully so as to interfere sub stantial ly wit h the other’ s libert y.” Tenn. Code Ann. 39-13-302 (a ) (1991). A criminal attempt is committed when a person, “acting with the kind o f culpa bility othe rwis e require d fo r the offens e . . . [a]cts with intent t

o cause a res ul t that i s an element of t he offense, and believes the conduct will cau se the result without furt her conduct on the person’ s part.” Tenn. Code A nn. § 39-12-1 01(a)(2) (1991 ). Hannah Westerman testifi ed that after her hus band w as sho t, the li ght blue
car that had passed t hem came to a complete stop i n the roadway i n front o f the m, and anot her car stopp ed behi nd them. As a result of this, she was forced to drive the t ruck through a di tch, acros s an embankment and into a park ing lot in an effort to flee the sc ene. However, when she t ried to ex it the parking lot , the
cars had blocked her access to the p aved driveway , so she drove through-24-

anotherditch to exit t he parking l ot. Allthe while , someone in the l ight blu e car was lea ning ou t of the wind ow poin ting a gun at the truck

. Furthermore, Andrews testi fied that Darden stopped his

carin the m iddle of the roadway, and Morr ow leaned out of the window, poi nted his gun at the truck and exclaime d, “[I’ve] got the m now .” Looking at this e videnc e in the light m ost favora ble to the state , a rati onal trier of fact could concludethat appel lants at tempted to confi ne the Westermans
so as to “i nterfere substanti ally” with thei r liber

ty and wit h the inte nt to inflict seriousbodily injury on or to terrorize t hem. Tenn. Code Ann. §§ 39-13-302 (a), 39-13-304(a)(3) (1991). The evi dence is suff icient to sustai n appe llants ’ convicti ons for att

empted aggravated ki dnapping. This issu e is withou t merit. C. Felony Murder Appe llants also con tend tha t th e e videnc e is insu fficient to susta in their convicti ons for felony murder. Appellant Darden claims t hat the ev idenc e is insuffi cientto support the underlyi ng felony of attempted aggravated ki dnapping; therefore he can notbe convicted of fir st degree murder i n the perpetr ation of t he attempted aggrava ted kidna pping. Mo rrow contends t hat the ki lling of Michael We sterman was collateral to t he attempted a ggravated kidn apping, and therefore
can not be sustaine d under State v. Severs , 759 S.W.2d 935, 938 (Tenn. Cri m. App. 1988 ). Tenn. Code A nn. § 39-13-2 02(a)(2) (19 91) provid es, in pertin ent part, “[f]i rst degree m urder is . . . [a] reckless killing of anothe r c om mitted in the perpetrat ion of, or a ttempt to perpetrate any first degree murder, ar

son, rape, robbery, burgla ry, theft, k idnap ping o r air craft pi racy.” In the c ase of State v. Severs , this Co urt held that “to s ustain a convict ion offirst-degree felony m urder,-25-

the killing must have been in pursuance of , rather than coll ateral to, the unl awful
a ct descr ibed by the statute. ” 759 S.W.2d at 938. However , there i s no requirement

that the murder

occur as a prox imate cause of the underlying felon y. State v. Middlebrooks , 840 S.W.2d 317, 332 (T enn. 19 92). The statute mere ly requiresthat the murd er occ ur durin g the “p erpetr atio n o f, or attemp t to perpetrate” the und erlying felon y. Tenn . Code Ann. § 39-13-202 (a)(2); State v. Middlebrooks , 840 S.W.2d at 332. In this case, the evi dence is cl ear tha t the murder occ urred duri ng the attempted perpetra tion of a n aggravated kidnapping. Dard en and Morrow wanted to fight t he occupants of t he truck as a r esult of seeing the Con fe derate fl ag displayedon the truck . In an eff ort to ca tch the W esterm an vehic le and sto p it, theybegan chasing the Wester mans . As they were passi ng the Westerman truck, Morrow began shooti ng his gun and ki lled MichaelWesterman . Th e shooting occurred in the “pursu ance of” and was not merely coll ateral to the attempted aggrav

ated kidnappi ng. Moreo ve r, because the evidence was sufficient to support appellants’ convicti ons forattem pted a ggrav ated k idnap ping, D arden ’s argument also fails. The evidence was suf ficien t to support

appellants’ convi ctions for fir st degree murder in the perpetrati on of an attempted aggravated ki dnapping. This issu e has n o merit.

SENTENCING - MORROW AND DARDEN

In their f inal i ssues, appell ants contend t hat the trial court erred in i mposing their sente nces . Both a ppella nts ch alleng e the tria l court’s imp ositio n of
consecu tive sent ences . Fur ther , Mo rro w argues that hi s sentences for attempted-26-

aggravated kidna pping and c ivil rights in timidati on are excessi ve, and the t rial court err

ed in fai ling to grant probat ion.

A. Sentencing Standard of Review This Court's review

of the sentence imposed by the tri al court is de novo

w ith a presumption of correctness . Tenn. Code Ann. § 40-35-40 1(d). Thi s presumption is condit ioned upon an affirmative showing in t he record that the tri al judge considered t he sentencing principl es a nd all rel evant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91). If the tr ial court fail s to comply wi th the statutory directives, ther e is no presumpti on of correctness and our review is de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon t he appealing par ty to show that the sente nce is improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts. In conducting our

review, we are required , pursua nt to Ten n. Cod e Ann. § 40-35-210, to consider t he following factor s in sentenci ng: (1) [t]he evi dence , if any, recei ved at the t rial and t he sentencing hearing; (2) [t]he pre senten ce repo rt; (3) [t]he principl es of sentenci ng and arguments as to s entencing alternatives; (4) [t]he nat ure and characte risti cs of the criminal conduct involved; (5) [e]viden ce an d inform atio n offere d by the part ies on the en hancement and mitigat ing factors in §§ 40-3 5-113 an d 40-35-114 ; and (6) [a]ny statement the defendant wishesto mak e in the defen dant's own behalf about

sentencing.-27- Because the trialcourt consi dered the princi ples and purposes of the 1989 Sentencing Act, we wil l revi ew appellants’ sentences denovowith a presu mption of correctness. B. Excessiv e Sentences -

Morrow Morrow claims that

the tri al court erred in imposi ng excessive s entences forhis con victions for attem pted a ggrav ated k idnap ping a nd civil right s intimid ation. Specifically, he asse rts that the trial court misap plied five enhancement factors to his convict ions. Under the 198 9 Sente ncing A ct, th e presu mptive sentence for these offensesis the mini mum within the appl icable ra nge if no mit igating or enh a ncement factors for s entenc ing are p resent. T enn. C ode An n. § 40-35-210 (c); State v. Fletcher , 805 S.W.2d 785, 788 (Ten n. C ri m. App. 1991 ). Howeve r, if such fa ctors do exi st, a trial court should star

t at the mi nimum sentence, enhance the minimum sentenc e within t he range for enhancement factors and then reduce t he sentence within the range for the mitigating f

actors. Tenn. Code A nn. § 40-35-2 10(e). No pa rticular w eight fo r each factor is prescribed by the sta tute, as t he weight giv en to each factor is l eft to t he discreti on of the trial court as long as its f indings are supported by t he record. State v. Sant i ago , 914 S.W .2d 116 , 125 (T enn. C rim. App . 1995); seeTenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments. In imposing Morrow’ s sent ence for civil rights intimidation, the trial court found that t he following enhancement factors appli ed: (1) the offens e involved more than one (1) vi ctim, Tenn. Code Ann. § 40-35-11 4(3); (2) the personal injuri es inflicted upon the victim were p articula rly great, Tenn . Code An n. § 40-35-11 4(6);-28- (3) the defendan t possesse d a firearm during the commission of the offense, Tenn. Code Ann. § 40-35-114(9) ; and (4) the defendant

had no hesitat ion aboutcomm itting a crime whe re the risk to human life washigh, Tenn. C ode Ann . § 40-35-114 (10). The trialcourt als o found as a mitig ating fa ctor tha t the de fenda nt, bec ause of his youth, lacked substanti al judgmentin committi ng the offens e. Tenn. Code Ann. § 40-35-113(6). After weighing the enhancement and mitigating factor s, the tri al court sentenced Morrow to fou r (4) years, the ma ximum R ange I sente nce for a Class D felon y. With regard to Morrow’s convicti on for attempted aggravated ki dnapping, the trialc ourt found t

wo enhancement factor s to be appli cable, namely : (1) t he defendanthad no hesitat ion about committ ing an offense when t he risk to human life was high, Tenn. Code Ann. § 40-3 5-114(10); and (2) the crime was committed under circu mstances under which t he potentialfor bodily injur y to a victim was great, T enn. Cod e Ann. § 40 -35-1 14(16 ). The tri al court al so found that Morrow l acked substanti al judgment dueto his youth and applied that as a mitigati ng factor. Te nn. Co de Ann . § 40-35-113 (6). The trialcourt then i mposed
a sentence of f ive (5) years for attempted aggravated ki dnapping, a Class C felony. 1. Morrow claims that the trial court erred in applying Tenn. Code Ann. § 40- 35-114(3), that the of

fense involved more than one (1 ) victim, to his convicti on for civil rights i ntimidati on. He ma intains that there is no proof in the record to show thathe was aware that there was more than on e (1) person i n the truck during the incident. He fur ther ar gues that H anna h W esterm an is not a “vic tim” with in the mean ing of Tenn . Code An n. § 40-35-11 4(3).-29- We find Morro w’s claim to be to tally without merit. Fir st of al l, the indict ment lists both M ichael an d Han nah W esterm an as victim s of the civil righ ts intimid ation charg e. W hile Mo rrow is correctin his asser tion that a person who has lost a lov ed on e is not a “vi ctim” under t his enhancementfactor, see State v. Raines , 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994), such i s not the case her e. During a high speed car chase, Morr ow fired hi s gun at the Westermans’ truck, not only kil ling MichaelWesterman, but also threaten ing serious bo dily injury to Hannah We sterman. Certainl y, she is a “vict im” as contemplated by Tenn. Code Ann. § 40-35 -114(3). See State v. Raines , 882 S.W .2d at 384 (holding th at a “vi cti m” is one who is “ injured, kill ed, had pro perty stolen , or had p roperty destroyed by the perpetrator of the crim e”). Furthermore, Tenn . Code Ann. § 40-3 5-114(3) does not require t hat the defendantmust be a ware of the number of persons he is v ictimi zing in order f or this enhancement factor to ap ply, nor do es Mor row cite any authori ty that stands forsuch a proposit ion. The trialcourt properly appli ed Tenn. Code Ann. § 40-35- 114(3) as an enhance ment factor. 2. Morrow n e xt contends t hat the appl icatio n of Tenn. Code Ann. § 40-3 5- 114(6), that the offe nse invo lved particu larly great pe rsonal inju ries, w a s inappropri ate. He claims that the parti cularly

greatpersonal i njury sustained by Michael We sterman w as “inhere n t in hi s death and his deat h cannot be separated from th e felony murder count for whi ch he has been sentenced and separa tely applied to the civil rights in timidation count.” W hile Morrow’s argument would be correct if this enhancement fact or wer e applied to a homicide co nvicti on , his reas oning is er roneous with r egard to the civil rights in timida tion ch arge. S erious bodily injury is notan essentialelement-30-

of the offe nse o f civil rights intimid ation. See Tenn . Code Ann. § 39-17-309 (b)(2). Because Michael Westerman died dur ing the co urse o f the offe nse, th is demonstratesgreater c ulpability for the offense. See State v. Nix , 922 S.W.2d 894, 903 (T enn. C rim. A pp. 19 95). T he trial c ourt, the refore , did no t err in applying this enh ancem ent factor. 3. Morrow ne xt insists that thetrialcourt err ed in applyi ng Tenn. Code Ann. § 40-35-114(9), the use of a deadly weap on du rin g the commission of the offense, as an enhancement factor f or his convi ctionsfor attempted aggravated ki dnapping and civilrights i ntimidati on. He alleges that the us e of a d eadl y we apon was the aggravat ing circ umstance in the at tempted aggravat in g kidnap ping conviction and wa s thus an essen tial eleme nt of that offe nse. H e further maintains t hat “the pr oof is not cl ear if t he weapon played any par t in the Civil Rights Intimidatio n convictio n and th us is inap plicable to th at coun t.” We must note that

Morrow is i ncorrect i n his assert ion t hat the trial court applied this enhancement f actor on the attempted agg ravated ki dnapping convicti on. Our review of the record indicates that th e trialcourt did not consider the use of a dead ly weapon as an enhancement factor for t his convi ction. Nonetheless, we find that the tri al cour t wo uld have been j ustifi ed in doing so. Morrow was indicted on attempted aggr avated kidnappi ng with the intent to infli ct seriousbodily inj ury on or to terr orize the victims

. See Tenn. Code Ann. §§ 39- 1 3 -302(a), 39-13-304(a)(3) (1991). The use of a deadly weapon is not an essentialelement of t he offense for which he was conv icted, a nd th e trial court could prope rly have conside red this as an en hancem ent factor. Second ly, contrary

to Mor ro w’s assert ion, the r ecord is abundant ly clear thatthe use of a deadly weapon was inst rumental in injuri ng orthreateni ng to-31-

injure the Westermans during the commission of the civilrights i ntimidat io n offense. See Tenn. Code Ann. § 39-17 -309(b)( 2) (1991 ). The trial cou rt prop erly applied this en hanc eme nt facto r to Mo rrow’s convic tion for c iv il rights intimid ation

. 4. Morrow also clai ms that the t rial cour t erred in fi nding as an enhancement factor that he had no hesitation about committing a crime when the ri sk to human life was high for hi s convict ion for at tempted aggravated kidnapping. Tenn. Code Ann

. § 40-35-114(10) . He argues that this enhancement f

actor was appl ied solely beca use a dead ly weap on wa s use d in the commission of the offens e, and because the use of a deadly weapo n is an e lement of t he offense, this was an inappropriate e nhancem ent factor. Once again , Morro w is inco rrect in h is argument that the use of a de adly weapon is an element of the attempted aggravated ki dnapping convi ction. In any event, the proof sh owed that other motorists

were on the roadway duri ng the high speed chase . Any of the se mo torists were subject to injury or death by Mo rrow’s actions. See State v. Williamson , 919 S.W .2d 69, 83 (T enn. Crim. A pp. 1995). The trial court prop erly applied this enha nceme nt factor. 5. Morrow also all eges that t he trialcourt err ed in fi nding as an enhancement factor for hi s attempted aggrav ated kidnappi ng convicti on that the crime was committed under circu mstances under which t he potentialfor bodily injur y to a victim was grea t. Tenn. Cod e Ann. § 40 -35-114(16 ). The evidenc e at trial show ed that D arden drove his car at exc essive speeds while Morr

ow fired a weapon at the Westermans in an effort to stop t he truckand substanti ally i nterfere w ith Ha nnah Westerma n’s libert y. By his acti ons, Morrow could have shot Mrs. Westerman and injured or ki lled her. He co uld-32-

have caused a serious car acc ident, resulting in injuri es or de ath to Mrs. We sterman. We conclud e that Mo rrow’s ac tions “dem onstrate a culpab ility distinct from and a ppreciably gre ater th an that in cident” t o the attempted aggravated kidnapp ing. S tate v. J ones , 883 S.W .2d 597, 603 (Tenn. 199 4). Therefore, the tri al court di d not err i n applying factor (16) to enha nce M orrow ’s sentence. 6. We find no error with rega rd to the tria l court’s applicat ion of enhancement factors. Furthermore, the we ight give n to m itigating and e nhan cem ent fac tors is left to the discreti on of the trial court as long as its f indings are supported by t he

r ecord. State v. Santiago , 914 S.W.2d at 125. Accordingly, we concl ude tha t M orrow ’s sentences of f ive (5) years for attempted aggrav

ated kidnappi ng an d four (4) years for

civilrights i ntimidati on were appropri ate. This issu e has n o merit.

C. Probati on - Morrow Morrow mainta ins that the trial court erre d in failing to grant probat ion on his sentences for

attempted aggrav

ated kidnappi ng and civi l right s inti midation. He claims th at he is a p roper ca ndidate for proba tion due to his “insignifica nt” criminal history

and there is

no evidence i n the record whi ch wou ld rebu t his statutor y presumption f

avoring al ternati ve sentencin g. An espe cially mitigated or stand ard offen der con victed of a C lass C, D or E felony i s presumed to be a fav orable candi date for al ternati ve sentencin g in the absence of evidence to the co ntrary. Te nn. Code Ann. § 40-35- 102(6). A t rial court m ust presu me tha t a defendant sentenced to eight years or l ess and who is not an offende r for whom inc arceration is a priority is subjec t to alternative sentencing. State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It-33-

is further presu med that a s enten ce oth er than incarc eration would result i n successful rehabilitation unl ess rebutted by suffi cienteviden ce in the reco rd. Id. at 380. Under the 1989 Sentencing Act, sentences which involve con finement are to be based on the following consi derations: (A) [c]on fi neme nt is necessar y to protect societ

y by rest raining a defend ant who has a lon g history of c riminal co nduct; (B) [ c]onfinement is ne cessary to avoid depreciat ing the seriousness of the offens e or confinement is parti cularly

suited to provide an effective deterrence to others l ikely to commit simila r offenses; or (C) [m]easures l ess restri ctive t han confinement have frequent ly or recently b een ap plied uns uccess fully to the de fendan t. Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Cri m. App. 1996). A t rial cour t may consider the enhancement and mitigati ng factors set forth i n Tenn. Code Ann. §§ 40-35-113, 40-35-114 as t hey ar e relevant to the § 40-35 -103( 1) con sidera tio ns. State v. Boston , 938 S.W.2d at 438; State v. Zeolia , 928 S.W .2d 457, 461 (Tenn. Cri m. A pp. 1996). The t rial
c ourt should a lso cons ider the de fendan t’s potentia l for rehabilitati on whe n determiningwhetheran al ternative se ntence would b e appro priate. State v. Zeolia , 928 S.W.2d at 461. In determining whether to gr ant or deny pr

obation, a trialcou rt shou ld consider

the circ umstances of the of fens e, th e defendant's criminal record, t he defen dant's social history and present condi tion, t he need for deterrence, and the best interest of the d efenda nt and the public. State v. Boyd , 925 S.W.2d 237 , 244 (Tenn . Crim. A pp. 199 5); State v. Black , 924 S.W.2 d 912 , 91 7 (Te nn. Cri m. App. 1995 ). Probation m ay b e denied based sol ely upon the c ircumstances surrounding t he offense. State v. Bingham , 91 0 S. W.2d 4 48, 456 (Ten n. C ri m.-34-

App. 1995). How ever, the circ umstances of the of fense as committed must be espe cially “violent, horrif ying, shock ing, repr

ehensible, offensi ve or other wise of
an exces sive or exaggerated degree, and the nature of the off ense mus t outweigh all factors favoring proba tion.” State v. H artl ey , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) (quoting State v. Cleavor , 691 S.W.2d 541, 543 (Tenn. 19 85)). There is no mathematical equat ion to be ut iliz ed in determi ning sentencing
a lterna tives. Not only shoul d the sentence f it the of fense, but it shoul d fit t he offender as well. Tenn. Code Ann. § 4 0-35-10 3(2); State v. Boggs , 932 S.W.2d 467, 476-7 7 (Te nn. C rim. A pp. 19 96). “In deed , individu alized punis hme nt is the
essence of alternative sentenc ing.” State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Cri m. App. 19 94). In sum mary, se ntencing must b e dete rm ined on a case-by-case basis, tailori ng each sentence to t hat parti cular defenda nt based upon thefac

ts of t hat

cas e andtheci rcu ms tances ofthat defen dant. State v. Moss , 727 S.W .2d 229, 235 (Tenn. 198 6). The trialcourt determined that conf inement was necessa ry to avo id depreciati ng the se ri ousn ess o f the offe nses com mitted and w as pa rticularly suited to provi de an effect ive de terrence to others l ikely to commit simila r offenses. As a res ult, the trialcourt deni ed probation on appellants’ convi ctions for attempted aggravated ki dnapping and civ il ri ghts int imidati on. We agree with the tri al court that the circ umstances of the of fenses mand ate incarcera tion in this ca se. After obser ving the Confederate fl ag on the We stermans ’ t ruck, theappellants decided to “ fight” with the occupants of t he truck. T herefo re, they pursu ed the We sterm an truc k, trave ling in excess of the speed limit , and Morrow began fi ring a weapon at the Westermans, endangering not on ly his intended victi ms, but also other motorists

in the area. Darden then-35-

passed the truck on the left, putting M orrow in th e position to fire the fatal sh ot. Darden then b rough t his vehicle t o a stop in f ront of t he Westermans, and Morrow continued to shoot. As a res ult, Mrs . Westerman had to man euver her veh icle off of the paved roa dway in order to elude the gunf ire. We hold that the circumstanc es of t he offense are especiall y viol ent, horr ifyi ng, shocking, reprehensibl e and offensi ve to warrant the denialof probati on in thi s case. This issu e has n o merit. D. Consecutive Sentenci ng - Morrow and Darden In their f inal i ssue, appell ants assert that the t rial cour

t erred i n imposing
consecu tive sentences. Consecut ive sentenci ng is governed by Tenn. Code Ann. § 40-3 5-115 . A trial c ourt may order sente nces to run c onse cutively if it finds that one or m ore of the statu tory criteria exis ts by a preponderance of the evidence. Tenn . Code Ann. § 4 0-35-11 5(b); State v. Black , 924 S.W.2d at 917. Additionally, when a trial co urt imp oses cons ecutive sente nces on the basis that the defendan t is a dangerou s offender, the court must also fi nd that an extended sentence is “necessary to protect the publi c against f urther cr iminal conduct by the defendant and t hat the consecutive sentencesmust reasonably relate to the severity of the off

enses committed .” State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 19 95). The trial cou rt found that bo th app ella nts were dangerous offende rs “whose b ehavior

indica tes little o r no reg ard for hum an life, a nd no hesita tio n abou t committing a cri me in w hich the risk to hu man li fe i s hig h.”Tenn. Co de Ann

. § 40-35-115(b)(4). The tri al court stated: Mr. Darden w as the indivi d ual who decided t hat a figh t was approp riate based on the truckand th e flag. M r. Dard en ba sically recruited the other

vehicle an d its occupants to hel p with what was going to be a fi ght. . . So, the criti cal thi ng for the Cour t is, as far as Mr. Dard en’s in volvem ent, wh at did he d o at theti me that he knew-36- it was potenti ally more t han a fight ? That would have been at the time that Mr . Morrow pull ed out his pi stol and com mence d fire and attemptingto fire and re peated ly firing th e weap on. O bvious ly in retrospe ct, if Mr. Darden had simply st opped his vehi cle reali zing thatthe situ ation h ad go tten ou t of han d we w ouldn ’t be here toda y,

. . . But he did n’t. What he did was speed up. When he learned of the weapo n before it was fire d he sped up and passed the ot her vehicle. He then proceeded to drive 80 mil es an hour paral lel i n the wrong lane to the truck to pu t Mr. Morro w in a positi on to shoot and after shots were fired Mr. Darden then proceed[ed]to pass the truck and stop. . . Then after the truck p ulled th rough the ditch into t he parking lot Mr. Darden proceeded to drive his veh icle i nto that l ot and a further

attempt to b lock the o ccupa nts of the truck. All the while his compani on Mr. Mo rrow wa s continui ng to fir e, and or attem pt to fire, th e pisto l. The court also noted tha t Morrow had “rep eated o pportun ities to refrai n from the
use of a fi rearm” butcontinued “ recklessl y with no hesitation and no indicat ion of any regard for h uman life to repe atedly fire the weap on.” We agree with the trial court that both ap pellants are dangerou s offenders within the meaning of Tenn. Code Ann. § 40-35-115( b)(4). Furthermore, we find thatthe terms i mposed by the trial court are reasonably related to the severi ty of the offenses and are nec essary to protect t he public f rom further criminal acts by the appellan ts. State v. Wilkerson , 905 S.W.2d at 938. Although the trial court did not ma ke the findings req uired by Wilkerson , we find that these fac tors are presentunder o ur powe r of de novo revi ew. See State v. Samuel Paul Fields , C.C.A. No. 01C 01-951 2-CR -00414 , Davidso n Cou nty (Ten n. Crim. A pp. filed February 26, 199 8, at Nas hville); State v. Edward Tho mpson , C. C.A. No. 03C01-9503-CR-00060, Cocke County (Tenn. Cri m. App. fil ed December 12, 1996, at Knoxvi lle). Consecutive sentencing was appropr iate in this case. This issu e has n o merit.-37- CONCLUSI ON

Upon ourreview of

the record, we find that appell ants’ i ssues are wit hout merit. Accor

dingly, the judgment of the tri al court i s affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE