# FILED
October 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST SESSION , 1997

STATE OF TENN ESSEE, ) ) No. 02C01-9703-CC-00126 Appellee ) ) MADISON COUNTY vs. ) ) Hon. FRANKLIN MURCHISON, Judge MELVIN EDWARD

HENNING, )

) (Attempted

First Degree Murder; Appellant ) Attempted S econd Degree Murder; Aggravat

ed Assault - 2 counts; Possession of a deadly weapon duri ng co mmis sion of a f elon y) For the Appellant : For the Appellee : C. MICHAEL ROBBINS JOHN KNOX WALKUP 202 S. Maple, Suite C Attorney General and Repor ter Covington, TN 38019 ON APPEAL ELI ZABE TH T. RYAN Assistant Attorney Gener al GEORGE MORTON GOOGE Criminal Justice Div ision District Public Defender 450 James Robertson Parkwa y 227 W. Baltimore Street Nashville, TN 37243-0493 Jackson, TN 38301 AT TRIAL JAMES G. (JERRY) WOODALL District Attorney General DONALD H. A

LLEN Asst. District Attor

ney General P. O. Box 2825 Jackson, TN 38302

OPINION FILED: AFFIRMED IN PART; MODIFIED AND REMANDED IN PART; REVERSED AND VACATED IN PART David G. Hay

es Judge1 The appe llant w as als o con victed of res isting arres t, a cla ss A mis dem ean or. T his convicti on was not appeale d. 2 OPINION
The appellant, Melvin Edward Henning, appeals his Madison County jury convictions for the cri mes of attempted first degree murder,attempted second degree murder, two counts of aggravated assault, and possession of a dea dly weapon du ring the co mmissio n of a fe lony. 1 Following the senten cing hearing, the trial court sentenced the appellant, as a range I off ender, to twenty-four years for attempted first degree murder and to eleven years for at tempted second degree murder; and, as a range II offender, to nine years for each aggravated assault conviction and to three years for the weapons conviction. The trial court further ordered that the two attempted homicide convictio ns run consecutively to each oth er but con current wit h all rema ining sent ences, f or a total effect ive sentence of thirty-five y ears in the Tennessee Department of Co rrection. On appeal, the appellant raises the following issues: I. Wh ether th e evidenc e is suff icient to support t he appel lant's two attempted homicide convictions; II. Whether the appellan t's convictions for aggravated assault violate co nstituti onal prot ections p rovided by State v. Anthony , 817 S.W.2d 299 (Tenn . 1991). III. Whether the trial court properly charged the jury on reasonab le doubt; IV. Whether the trial court failed to apply applicable mitigating factors in determining the l ength of the appellant's sentences ; and V. Whether the trial court properly ordered the ap pellant's attempt ed homic ide convic tions to r un conse cutively.
After a thorough review of the record before us, we affirm the app ellant's conviction for attempted second degree murder. However, we find the evidence insufficient to support the conv iction for attempted first degr ee murder, and, accordingly, modify the judgment to reflect a conv iction for attempted second2 Michael Smith testified that, earlier that day, the appellant had told him “that some girl had sent him to j ail and ‘ I am going to get the bit ch.’” Smit h said, although he was not cer tain, he believed th e girl to be so meo ne nam ed “Ard el” or “Ade l.”

3 The proof at trial est ablished that earli er in the month, Ms. Washington, who was acquainted with the appellant, had refused to sell the appellant and a female com panion “dope.” Followi ng Ms. Washington’s refusal to sell drugs, a heated argument ensued. The appel lant produced what appeare d to be a pist ol and stat

ed that he woul d be back. Shortl y thereaf

ter, Ms. W ashingto n filed a com plaint with the p olice, resu lting in the app ellant’s arres t. On Fe bruary 17 , the appe llant, upon lea ving a nigh t club in Jac kson , discove red that his car had been va ndalized. The a ppellant be lieved the p erson re spons ible was M s. W ashingto n. 3 degree mu rder and r emand to the trial c ourt for resenten cing. More over, we conclude, as conceded by the S tate in part, that the appellant’s two convictions for aggravated assault violate principles of double jeopardy and, therefore, must be vacated and dismissed.

Background
On February 18, 1995, the appel lant, accompanied by his co usin, Michael Smith, drove to the reside nce of Adel Washington, located at 236 Circl e Drive, Jackson. Smith had agreed to accompany the appellant, beli eving that they were going to visit the appellant’s sick mother. 2 Immediately prior to arriving at the Washington residence, the appellant made a s top at the residence of Ann Smith and inquired as to the whereabouts of the Washington children. Lea rning that the y were with Ms. Smith, th e appella nt replie d, “that’ s all I nee d to know” and proceeded to the Washington residence. 3 After arr iving at the Circle Drive address, the appellant got out of his car and walked to the front door. At this point, the appellant was unaw are that Ms. Washington was not at home and that the only occupant was he r live-in-boyfri end, Keith Fason, who w as unknown to the appellant. The appellant pounded on the door and demanded that the door be opened. Upon receiving no reply, the appellant fir ed two shots at the door. At this point, Smith asked the appellant what was going on and the appellant4 turned and shot his cousin in the chest. Hearing the g unshots, Fason ran to a window on the other end o f the house where he observe d the appellant assisting the wounded Smith back to the passenger side of the car. Fason, while watching the appellant though the window, cal led the police to report the shooting. As Fason w atched the appellant from the wi ndow, he observed the appellant look into the window where Fason was standing, raise his arm and fire one shot. The bullet passed through the window and struck a glass jar. Fason’s arm was cut by a piec

e of the shattered glass.
The appellant returned to his car and left the scene. In the car, the appellant informed his wounded cousin that "I ain't ta king you to the doctor." He proceeded to drive around until he saw Donald Mor row on East Chester Str eet. He stopped the car, threw the bleeding and semi-consc ious Smith out of the car onto the street, and instructe d Morrow to "Take [Smith] [ expletive deleted] to the hospital before he dies."
Jackson Police Officer Monty Belew was dispatch ed to the Jackson Madison County General H ospital at 5:38 p.m., because a g unshot victim was found in the parking lot. At the hospital, Belew lear ned that the victim was Michael Smith. Smith, w hile being prepared for sur gery, stated that he had been shot by the appellant and provided descriptions of both the ap pellant and his vehicle.

Law enforcement officers located the appellant at his mother's home at 125 Otis Street. Officer Kathy Dent repeatedly instr

ucted the appellant to "put his hands up" and "get on his kn ees." The appellant ignored the instructions and exclaimed "I have a gun in my pocket." A strug gle ensued. After subduing the appellant, the officers recovered a loaded.380 handgun on the appellant's person.5 Based upon this evidence, the jury returned a ver dict finding the appellant guilty of the attempted first degree murder of Keith Fason, aggravated assault of Keith Fason, the attempted second deg ree murder of Michael Smith, aggravated assault of Michael Smith, poss ession of a deadly weapon dur ing the commission of a felony, and resisting ar rest.

I. Sufficiency of the Evidence
The appellant contends that the evi dence is insufficient for a ration al trier of fact to find him guilty, beyond a reasonable doubt, of both attempted first degree murder and attempted second degree murde r. Once a jury returns a guilty verdict, the presumption of innocence, with which a defendant is initially cloaked, is removed and is replaced with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence,this court does not rew eigh or reevaluate the evidence which is reviewed in the li ght most favorable to the State

. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover,the credibility of w itnesses, the weight given to testimony, and the reconciliation of conflicts in the testim ony are all matters entrusted exclusively to the jury as the triers of fact, whose determination this court will not disturb on appeal. State v. Oody , 823 S.W.2d 554, 558 (Tenn. Crim. App. 1991). It is the appellate court's duty t o affirm the conviction if the eviden ce, vi ewed un der thes e standa rds, w

as sufficient for

any rational tr

ier of

fact to have found the essential elements o f the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State6 v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994); Tenn. R. App. P. 13(e).

A. A TTEMPTED F IRST D EGREE M URDER First, the appellant contends that he did not have the culpab le mental state necessary to suppor t the offense of attempted first degree murder. In support of this claim, the appell ant argues that, not only did he lack the necessary intent to kill Keith Fason, but also that he was unaware that the house was occupied at the time of the s hooting. In order to conv ict the appellant of attempted first degree murder i n this case, the State was required to prove th at the appellant, acting with the kind of culpability otherwise requir

ed for the offense: (2) Act[ed] with int

ent to cause a result that is an element of the offense, and believes the conduct w ill cause the result w

ithout further conduct on the person's pa rt; Tenn. Code Ann. § 39-12-101(a) (1 991); and that the result intend ed was the (1) intentional, premeditate d and deliberate killing

of another. Tenn. Code Ann. § 39-13-202(a)(1) (1994 Supp.).
In the light most favorabl e to the State, the evidence sh ows that the appellant intentionally fired his weapon at Washington's house. The frightened Fason ran to another room w here he telephoned for help, during which time he observed the appellant assist his wounded companion to the car. W hile watching the appellant r eturn to the driver's side of his vehicle, Fas on noticed the appellant peering throug h the window, behind w hich Fason was standing . Fason testified that the appellant w as able to see him standing i n the window. Rather than return to his vehicle, the appellant made the conscious decision to aim his weapon and then fire his w eapon into this window

.
The State bears the burden of provi ng, beyond a reasonable doubt,the separate and distinct elements of premeditation and deliberation. SeeTenn.7 Code Ann. § 39-11-201(1) (1991) . As proof of premeditation and deliber ation, the State argues that the appell ant made eye contact with Fason, who was standing in the window, and rather than leaving the scene, consciously made a decision to raise his ar m and fire into the window . Premeditation necessitates "the exercise of reflection and judgment," Tenn. Code Ann. § 39-13- 201(b)(2) (1991), "includ[ing] in stances of homicide committed by poison or lying in wait," and "requiring "a prev

iously formed design or intent to kill." State v. West , 844 S.W.2d 144, 147 (T enn. 1992). Deliberation, on the other hand, is def ined as a "cool purpose . . . formed in the abs ence of passion." State v. B rown , 836 S.W.2d 530, 538 (Tenn. 1992) (citations and inter nal quotations omitted). Deliberation also requires "some period of reflection, during which the mind is free from the influence of excitement." Id .; see also Tenn. Code Ann. § 39-13- 201(b)(2).
Althoug h there a re no st rict st andards gover ning what cons

titutes proof of premeditation and deliberation,several relevant circumstances are helpful in the inquiry, including: the use of a deadly weapon upon an unarmed victim; the fact that the killing w

as particularly cr

uel; declarations by the defendant of his intent to kill; and the making of pr eparations before the killing for the purpose of concealing the crime. State v. Bland , No. 02C01-9412-CR-00 281 (Tenn. Cr

im. App. at Jackson, Mar. 27, 1996) , reh'g denied , (Tenn. Crim. App. May 1,1996) (citing Brown , 836 S.W.2d at 541-42). Additional factors from w hich the jury may infer premeditation and deliberation include planning acti vities by the appell ant prior to the killing, the appellant's prior relationship with the victim, and the nature of the killing. Id . (citing State v. Bordis , 905 S.W.2d 214 (Te nn. Crim. App.), perm. to appeal denied , (Tenn. 1995) (quoting 2 W. LaFave and A. Scott, Jr., Substantive Criminal La w Sec. 7.7 (1986))); Gentry , 881 S.W.2d at 4-5 (citation omitted)). Other than the appel lant’s use of a deadly w eapon, we find none of the above circumstances pr esent in the instant case.8 We are unable to conclude from the proof in the record that the appellant’s firing of his w eapon into the window w as premeditated, i.e. as the result of “the e xercise of refle ction and judgm ent with a previously f ormed design or intent to kill.” In fact, Keith Fason confirmed the appel lant's assertion that he and Fason had never previ ously met nor had the tw o men had any prior encounters or dealings. Notwithstanding our finding that the proof is insuffici ent to establish the attempted first degree murder of Keith Fason, we ack nowledge that, once a homicide is establ ished, it is presumed to be a second degree murder. Brown , 836 S.W.2d at 543. Second degree murder is "a k nowing killing of another." Tenn. Code Ann. § 39-13-210( a)(1)(1991). Clearl

y, under the facts of this case, th e appellant ac ted "knowingly" with an awareness that f iring a loaded weapon at the victim was reasonably ce rtain to produce death. See Tenn. Code Ann. § 39-11-106(20) (1991). Thus, we conclude that there is evidence to support "know ing" conduct, and, therefore, an at tempted second degree murder convicti on. Accordingly, th e appellant's convicti on for attempted first degree murder is modi fied to reflect the lesser offense of attempted s econd degree murder. We remand to the trial cour t for resentencing for this o ffense.

B. A TTEMPTED S ECOND D EGREE M URDER The appellant also challenges the jury's verdi ct finding him guilty of the attempted second degree murder of Mi chael Smith. See Tenn. Code Ann. § 39- 13-210(a)(1); Tenn. Code Ann. § 39-12-101(a). Specificall y, he argues that the proof failed to show that he was aware that his conduct was reasonably certain to cause Smith's death. Rather, he asserts that the proof establ ished that the shooting of Michael Smith w as a "drug induced and wi ldly reckless act. "
Again, once a homicide is es tablished it is presumed to be second degree murder. Brown , 836 S.W.2d at 543. In order to support a conv iction for attempted second degree murder, the proof must establish that the appel lant9 knowingly attempted t

o kill Smith, without adequate provocation and w ith the belief that his conduct woul d result in Smith's death w ithout further conduct on his part. See State v. Belle , No. 03C01-9503-CR-00094 ( Tenn. Crim. App. at Knoxville, Mar. 6, 1996), perm. to appeal denied , (Tenn. Sept. 16, 1996) (citati on omitted). The proof at trial establ ished that, once the appellant began firing upon the house, Michael Smith got out of the car and asked the appellant what he was doing. The appellant turned and s hot Smith point blank in the ches t. There is no proof that Smith either provoked or threatened the ap pellant. Moreover, there was no proof introduced at tr ial to indicate the appellant's alleged level of intoxication. Accordi ngly, the proof supports the jury's verdic t finding the appellant guilty, bey

ond a reasonable doubt, of attempted second degree murder. This issue is w ithout merit.

II. Double Jeopardy
The appellant next argues that, under State v. Anthony , 817 S.W.2d at 299, due process dictates that his convictions for the a ggravated assaults of Michael S mith and Keith Fas on are ne cessarily i ncident al to his re spective convictions for attempted firs t and second degree murder and as such, cannot stand. We find, however, that the factual ci rcumstances present an issue of double jeopardy rather than one of due process. See State v. Denton , 938 S.W.2d 373 (Tenn. 1996). Count one of the indictment char ged the appellant with attempted first degr ee murder of Michael Smith, and co unt two charged the appellant with aggravated assault of Michael Smith. It is undisputed that only one shot was fired at the victim Michael Smith, with that bullet striking the victim in his chest. The State concedes that the same evidence was used to convict the appellant of both aggrav ated assault and attempted second deg ree murder. Accordingly, the Stat

e acknowledges that the ap pellant’s conviction for4 The S tate’s pos ition on this iss ue is indica ted in both its opening statem ent and its closing ar

gument. One such ill ustrati on is noted by the prosecutor

’s following remarks: “Ladi es and gentlemen, keep i n mind that we have ag gravated assault, and we al so have attempted mur der. W e are rea lly talking abou t one incident , but we are t alking about

two diff erent individuals.” (emphasis added). 10 ag gr av at ed as sa ul t v io la

te s d ou bl e j eo pa rd y p ri nc ip le s a nd ca nn ot stan d. We agree. We affirm the appellant’s convicti on for attempted second degree murder and reverse and dismiss the appellant’s convicti on for aggravated assault. See, e.g. , Denton , 938 S.W.2d at 382; State v. Hall , No. 02C01-9607-CC-00211 (Tenn. Crim. App. at Jackson, Jan. 28, 1997); State v. Adams , No. 02C01-9512- CC-00376 (Tenn. Crim. App. at Jackson, Jan. 3, 1997), perm. to appeal denied , (Tenn. June 2, 1997).
Count three of the indictment charged the appe llant with attempted first degree murder of Keith Fason and c ount four charged the appellant w ith aggravated assault of Keith Fason. With ref erence to these convictions, however, the State, on appea l, argues that the proof suppor ts the commission of separate and distinct offenses. Speci fically, the State now argues that the aggravated assault w

as established by the appell ant’s act of shooting at the front door. In support of the attempted second degree murder conviction, the State relies upon the gunshot fired by the appellant through the window. Contrar y to the contemporaneous argument now advanced by the State, the r ecord, at the trial level, rev

eals that the State, in its ar gument to the jury, rel ied upon the shot fired through the window to support both convictions. 4 Indeed, the record reflects that the clear intent of the State w as to proceed as to both vi ctims upon charges of aggravated assault as an alternative course o f prosecution should the evidence fail to support conv ictions for attempted homicide. M oreover, the trial judge repeatedly

noted that the appellant should not have convictions for “both attempted homicides and also the ag gravated assaults, but [conceded that he5 As the supreme court noted in Denton , 938 S.W .2d a t 383 , n. 22 , “the t rial co urt sh ould have instructed the j ury that they coul d convict on only aggr avated assault

or attempted hom icide.”

6 "[W]hether each statutory pr ovision r

equires proof

of an addit ional f

act which t he other does n ot." Denton , 938 S.W.2d at 379 (quot ing State v. Black , 524 S.W.2d 913, 919 (Tenn. 1 975) (quoting Blockburger , 284 U.S . at 304, 52 S.Ct. at 18 2 (1932 )).

7 "[T]he tes t is whethe r the sam e eviden ce is nec essary to p rove bo th offens es." Denton , 938 S.W.2d at 380 (quoti ng Duhac , 505 S.W .2d at 241).

8 In State v. T rusty , 919 S.W.2d 305 (Tenn. 1996), our supreme court hel d that aggrav ated assault is neither a lesser grade nor class of the offense of attem pt to comm it first degree murder. 11 did not] know procedural ly how to handle it.” 5

In Denton , 938 S.W.2d at 373, o ur supreme court extended double jeopardy protection under the Tennessee Constitution bey ond that provided by the federal constitution. Hall , No. 02C01-9607-CC-00211. Specifically, the court, going beyond Blockburger v. Uni ted States , 284 U.S. 299, 304, 52 S.Ct. 180, 182 (1932), promulgated the following analysi s to determine whether the punishment for multiple convi ctions for a single cri minal action violates pr inciples of doub le jeopar dy: I. a Blockburger

analysis of the statutory offenses; 6 II. an an alysi s, guid ed by th e principles o f Duhac v. State , 505 S.W.2d 237 (Tenn. 1973), of the evidence used to prov e the offenses; 7 III. a consideration of whether there were multipl e victims or discrete acts; and
IV. a comparison of the purposes of the respe ctive statutes. Denton , 938 S.W.2d.
Clearly, under a Blockburger analysis, the offenses of attempted first degree murder and aggravated assault (1) are separate and distinct statutory offenses, (2) neither offense is included in the other, 8 (3) both require proof of different elements, (4) each req uire proof of additional facts not re quired by the other, and (5) the legislative intent suggests that two separate offenses were9 This ruli ng reflect s our previ ous modificati on of the appel lant’ s convicti on for attempted first degree murder to the lesser offense of attempted secon d degree m urder. 12 intended. Denton , 938 S.W .2d at 379 (quot ing State v. Black , 524 S.W.2d 913, 919 (Tenn. 19 75) (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. at 182 (1932)).
Having surviv

ed Blockburger , we next focus upon whether the evidence used to support both aggrav ated assault and attempted first deg ree murder convictions is the same.Based upon our previous r eview of the State’s posi tion at trial, the trial cour

t’s pronouncements of its positi on relative thereto, and the proof in the record, we con clude that “the same evidenc e [was] necessary t

o prove both offenses.” Denton , 938 S.W .2d at 380 (quot ing Duhac , 505 S.W.2d at 241). Accordingly, we conclude that the appell ant’s convictions for the attempted second degree murder and aggravated assault of Kei th Fason are the “same” for double jeopardy pu rposes. Thus, only one conv iction can be sustained. We affirm the appellant’s convicti on for the attempted second degree murder of Keith Fason. 9 The conviction for agg ravated assault is rev ersed, the accompanying sentence is vacated, and this count of the indictm ent is dismissed.
Parenthetically, we note that, even if we had accepted the State’s argumen t, the ap pellant ’s act of shooting at the fr ont door would not h ave supported a conviction for aggravated assault under a sufficiency of evidence analysis. Our supreme court has recently hel d that a conviction for ag gravated assault cannot stand absent ev idence that the accused knew that the house was occupied during the initi al shooting as the proof cannot e stablish that the accused intentionally or knowingly cause

d a victim to fear imminent bodi ly injury. See State v. Wilson , 924 S.W.2d 648, 65 0 (Tenn. 1996). The proof is clear in this case that the appellant w as unaware of Fason’s prese nce in the house at the time of the initial shooting into the front door. App arently, in view of this10 Ironical ly, we note that challenges t

o the reasonabl e doubt jury instruct ion in t he past have focused almost excl usively upon inclusi on of the moral cer tainty language. 13 ruling, the State argue

s that the facts support a “rec kless” aggravat

ed assault as defined by Tenn. Code Ann. § 39-13-102( a)(2)(B). Howev

er, the predicate assault for this offense requir es the infliction of “bodily injury to another.” Tenn. Code Ann. § 39-13-101(a)(1) . Because no bodily inju ry resulted from the initial shooting by the appellant,this offense is inapplicable.

III. Reasonable Doubt Instruction
Next, the appellant contends that the trial court commit ted error by failing to include langu age instructing th e jury that the Sta te has the burd en of proving a defend ant's guil t to a mora l certain ty. 10 Specifically, he complai ns that the instruction provided by the trial court "emphasize[d] the level of uncertainty which the stan dard of p roof beyo nd reaso nable do ubt would permit." Although we agree with the State that the appellant has waived this issue for failure to request a particular jury instruction and failure to object to the instruction given, we elect to proceed upon the merits of this claim. See Tenn. R. App. P. 36(a). See also State v. Haynes , 720 S.W.2d 76, 85 (Tenn. Crim. App. 1986).

In state criminal trial s, the Due Process Clause of the Fourteenth Amendment protects the accused from conv iction unless the prosecuti on persuades the fact-finder "beyond a reasonable doubt" of the facts necessary to establish each element of the offense charged. Sullivan v. Louisi ana , 508 U.S. 275, 278, 113 S.Ct. 2078, 2080-81 (1993 ) (citations omitted); In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73 (1970); see also Jackson v. Virginia , 443 U.S. at 320 n. 14, 99 S.Ct. at 2790 n.14. The "beyond a reasonable doubt standard" provides concr ete substance for the presumption of inno cence; "that11 Interestingly, we note that some jurisdictions strongly advise against defining the term “reasonable doubt.” See, e.g. , United Stat es v. Reives , 15 F.3d 42, 45 (4th Cr.), cert. deni ed , 512 U.S. 12 07, 114 S .Ct. 2679 (1994); Lawson , 507 F.2 d 433; Com mon wealth v. G oforth , 692 S.W.2d 803 (Ky. 1985). 14 bedrock axiomatic and element ary principle w

hose enforcement lies at the foundation of the administration of our cr iminal law." Winship , 397 U.S. at 364, 90 S.Ct. at 1072; see also Victor v. Nebraska , 511 U.S. 1, 5, 114 S.Ct. 1239, 1243 (1994). However, the Constitution does not r equire courts to define reasonable doubt for the jury, or, if they elect to define reaso nable doubt to use any particular formula or words. See Holland v. United States , 348 U.S. 121, 140, 75 S.Ct. 127, 138 (1954); see also Victor , 511 U.S. at 5, 114 S.Ct. at 1243. Indeed, the Court noted that "attempts to explain the term "reasonabl e doubt" do not usually result in

making it any clear

er to the minds of the jury." 11 Holland , 348 U.S. at 140, 75 S.Ct. at 138; see also United States v. Headspeath , 852 F.2d 753, 755 (4th Cir. 1988) ; United States v. Olmstead , 832 F.2d 642, 645 (1st Cir. 1987), cert. denied , 486 U.S. 1009, 108 S.Ct. 1739 (1988) ("reasonable doubt is a fundamental concept that does no t easily lend itself to refinement or definement"); United States v. Laws on , 507 F.2d 433, 443 (7th Cir. 1974), cert. denied , 420 U.S. 1004, 95 S.Ct. 1446 (1975) overruled on other gr ounds by United States v. Holl inger , 553 F.2d 535 (7th Cir. 1977)

.
Nonetheless, a jury i nstruction that permits conv iction on a lesser standard -- by shifting

the burden of proof from the prosecution to the defendant, or by suggesting that a higher degree of doubt than 'reasonable doubt' is necessary for acquittal

is constitutionally

deficient and grounds for rev ersal. Sullivan , 508 U.S. at 280, 113 S.Ct. at 2080-2082. Accord Lanigan v. Maloney , 853 F.2d 40, 48 (1st Cir. 198 8), cert. denied , 488 U.S. 1007, 109 S.Ct. 788 (1989) (although the court need not define reasonable doubt, any definition given must not reduce the government 's burden of proof). In determining whether the instruction is constitutionally deficient, the r eviewing court must examine the charge as a whole and consider how reasonabl e jurors could have under stood12 See T.P.I. Crim. 2.03(a) (4th ed.). 15 the charge as correctl

y conveying the concept of reasonable doubt. Victor , 511 U.S. at 6, 114 S.Ct. at 1243; Cage v. Louisiana , 498 U.S. 39, 41, 111 S.Ct. 328, 329 (1990) ( per curium ) (citation omitted); Cupp v. Naughten , 414 U.S. 141, 146-147, 94 S.Ct. 396, 400-01 (1973) . Accordingly, an a sserted error in a reasonable doubt instruction may be innocuous or inconseq uential when view ed in the context of the charge as a whole. See Vargas v. Keane , 86 F.3d 1273, 1277 (2nd Cir.), cert. denied , -- U.S. --, 117 S.Ct. 240 (1996).
In the pre sent case , the tria l court ins tructed t he jury: The law presume s that the def endant is inno cent of the ch arge against him. This presumpti on remains with the defendant thoug ht every stage of the tri al, and it is not overc ome unless from all of the evidence in the case, you are convinced beyond a reasonable doubt that the defendant is guilty

. The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and thi s burden never shifts, but remains on the State throughout the trial of the case. The defendant is not required to pr ove his innocence. A reasonable doubt is a doubt based upon reason and common sense after careful and im partial consideration of a ll of the evidence in the case. It is not necessary that the defendan t's guilt be proved beyond all possible doubt, as absolute certainty of guilt is not demanded by law to conv ict of any criminal

charge. A reasonable doubt is just that - - a doubt that is reasonabl e after an examination of all of t

he facts in the case. If you find that the State has not proven every element of the offense beyond a reasona ble doubt, then you should find the defendant not guilty .[ 12 ] The State must prove beyond a r easonable doubt all the elements of the crime charged. . . (Emphasis added to challenged portion of instruction).
Again, the appellant claims that the instruction defining "reaso nable doubt" is constitutionally deficient. In support of his arg ument, the appellant adopts the position of one panel of this court. See State v. Denton , No. 02C01- 9409-CR-00186 (Tenn. Crim. Ap p. at Jackson, Aug. 2, 1996).The reviewing panel, in Denton , expressed concerned that the pattern instruction, 2.03( a), does13 The most notable excepti on between the Tennessee Pat tern Inst ruction andthose emp loyed by the fe deral cou rt is the Te nness ee instruc tion's om ission of th e langua ge "hes itate to act." Althou gh the S uprem e Cou rt has indic ated a pr eferen ce for the se term s, see Holland , 348 U.S. at 12 6, 75 S.C t. at 130; accord United Stat es v. Conley , 523 F.2d 650, 655 (8th Cir. 1975), cert. deni ed , 424 U.S. 920, 96 S.Ct. 1125 ( 1976) (reasonabl e doubt inst ruction must be couche d in terms of hesitation to act), om ission of th is langua ge from an instruc tion does not am ount to reversible error. See, e.g. , United Stat es v. Clevel and , 106 F.3d 1056, 1062 (1st Cir. 1997), petition for cert.filed , (Apr. 30, 1 997); United Stat es v. Barrer

a-Gonzales , 952 F.2d 1269, 1272 (10th C ir. 1992); Unite d Sta tes v. Bus tillo , 789 F.2d 1364, 1368 (9th Cir . 1986);. Moreover, t he use of th is term inology has repeate dly been cr iticized. See, e.g. , Victor , 511 U.S . at ---. 114 S .Ct. at 1252 (Ginsber

g, J. concurring in par t and concurri ng in judgment) (commenting that the 1987 Report to t he Judicial Conference of the United Stat es regards the ana logy underlyi ng the "hesitation to act" form ulation as b eing m isplaced ); Gilday v . Callaha n , 59 F.3d 257, 264 (1st Cir. 1995), cert. deni ed , -- U.S. --. 116 S.Ct. 1269 (1996) ("hesitate to act" language is unhelpful); Vargas , 86 F.3d at 1274; United Stat es v. Reese , 33 F.3d 166, 172 (2nd C ir. 1994), cert. deni ed , 513 U .S. 1092 , 115 S.C t. 756 (199 5); United Stat es v. O'Bri en , 972 F.2d 12, 15 (1st Cir . 1992) ("hesitation to act" langu age trivializes b urden o f proof); United Stat es v. Noone , 913 F.2d 20, 28- 29 (1st C ir. 1990), cert. deni ed , 500 U.S. 906, 111 S.Ct. 1686 ( 1991)). Thus, f ailure to incl ude "hesitation to act" language in the Tennessee Pattern Instruction is not error. 16 not adequately convey the evidentiary certainty required under the reasonable doubt standard. Denton , No. 02C01-9409-CR-00186. Specifically, the panel quoted two excerpts

from the instruction, i.e., "a doubt based upon reason and common sense after careful and impartial consideration of all the ev idence" and "absolute certainty of the defendant's guilt is not necessar y to convict him."

Tennessee Pattern Instruction 2.03 (a) tracks virtu ally identical lang uage of pattern reasonable doubt instr uctions approved by a maj ority of the federal circuits. 13 See, e.g. , United States v. Velasq uez , 980 F.2d 1275, 1278 (9th Cir.

1992), cert. denied , 508 U.S. 979, 113 S.Ct. 2979 (199 3); United St ates v. Campbell , 874 F.2d 838, 841 (1st Cir.1989); United States v. Hall , 854 F.2d 1036, 1039 (7th Cir. 1988); United States v. Kirby, 838 F.2d 189, 191-192 (6th Cir. 1988); United States v. Colon , 835 F.2d 27, 31-32 (2nd Cir. 1987), cert. denied , 485 U.S. 980, 108 S.Ct. 1279 (198 8); United States v. Dilg , 700 F.2d 620 (11th Cir. 1983); United St ates v. Alo nzo , 681 F.2d 997, 1002 (5th Cir.) , cert. denied , 459 U.S. 1021, 103 S.Ct. 386 (198 2); United States v. Roberts on , 588 F.2d 575, 579 (8th Cir. 1978) , cert. denied , 441 U.S. 945, 99 S.Ct. 2166 (1979). Moreover, the questi oned language "based upon reason and common sense"17 and "absolute certainty is not required" has repeatedl y been upheld as passing constitutional muster. See, e.g. , United State s v. Kime , 99 F.3d 870 (8th Cir. 1996), cert. denied , -- U.S. --, 117 S.Ct . 1015 (1997); United States v. Mil ler , 84 F.3d 1244 (10th Cir.), cert. denied , -- U.S. --, 117 S.Ct. 443 (1996) overruled on other grounds by United States v. Holl and , 116 F.3d 1353 (10th Cir. 1997); United States v. Campbell , 61 F.3d 976, 980-981 (1st Ci r. 1995), cert. denied , -- U.S. --. 116 S.Ct. 1556 (1996); Hall , 854 F.2d at 1038-1039; United St ates v. Rahm , 993 F.2d 1405, 1412 (9th Cir.1993).
We do not find that the instruction taken separatel y renders the reasonable doubt instruction constitutionally defici ent. Additionally, cons idering this language in the cont ext of the full charge, w e find no reasonable likelihood that the jury understood the instruction to permit conv iction after anything but a process of careful deliberation or upon less than proof beyond a reasonable doubt. This issue is wi thout merit.

IV. Sentencing
In his final challenge, the appellant avers that the tr ial court erred by imposing excessiv

e sentences and by ordering his convictions for att

empted homicide to run consecutiv ely. Initially,we note that, in view of our previous rulings in this opini on, our review ex tends only to his conv

ictions for attempted second degree murder of Michael Smith and possession of a deadly weapon during th e commis sion of a felony.

Review, by thi s court , of the l ength, r ange, or manner o

f servi ce of a sentence is de novo

with a presumption that the determination made by the tri al court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presum ption only18 applies, however, if the record demonstrates that the trial court properly considered relevant sent encing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the case before us, the trial court consider ed relevant sentencing principles;thus, the presumption applies. Moreover, this court may only modify a sentence if the sentence is excessive or the manner of service is inappropriate. State v. Russell , 773 S.W.2d 913, 91 5 (Tenn. 1989). On appeal, the appellant bears the burden of show ing that the sentence imposed w as improper. Sentencing Commis sion Comments, Tenn. Code Ann. § 40-35- 401(d).
The proo f at the s entenci ng hearin g revealed that the appellan t is a fort ytwo year old father of two children, a ninth grade drop out, and a chronic

substance abuser. He recei ves disability ben efits for a back problem and was unemploy

ed prior to the pr

esent offe nses. H is prio r crimi nal rec ord cons ists of a conviction for the unlaw ful use of a weapon in Illinoi s in 1993; a 1982 convicti on for escape; a 1977 conviction for armed robbery; and 1973 conv ictions for auto theft and grand larceny.
Michael Smith, the only witness at the sentencing hearing, testified that he is the appellant's cousin and is also a victim of the instant offenses. He stated that the appellant shot him one inc h from his heart. As a conseq uence of the shooting, Smith was hosp italized for one month, consi sting of nine days in the Intensive Care Unit. Smith underwent two su rgeries due to the injur ies received to "his kidney, spleen, l iver, heart, and lungs . . . ." As a result of this incident, Smith asserted that "I am destroy ed for the rest of my life."14 Before imposing sent ences, the t rial co urt found t hat the appro priate sent encing range was with in range I fo r the attem pted hom icide offen ses, bu t range II for the aggr avated a ssaults and wea pon s ch arge . The appe llant d oes not c hallen ge th is clas sifica tion o n app eal. 19 A. L ENGTH OF S ENTENCES In determining the appropri ate sentence for the attempted second deg ree murder of Michael Smith, the trial court found the f ollowing enhancement factors applicable: (1) the defendant has a previous history of criminal convictions or behavior, Tenn. Code Ann. § 40-3 5-114(1) (1995 Supp.); (6) that the personal injuries inflicted w

ere particularly g reat, Tenn. Code Ann. § 40-35-114(6) ; and (9) the defendant possessed a firearm during the commission of the offense, Tenn. Code Ann. § 40-35-114(9). Regarding the weapons charge, the trial court applied enhancement factor (1) that the defendant has a previous hist ory of criminal convictions

and behavior. Tenn. Code Ann. § 40-35-114(1). The trial court concluded that no mitigating factors were appl icable. Accordingly, the court imposed a sentence of elev en years for the attempted second d egree murder convictio n and three years f or the possessio n of a weapon du ring a felony conviction. 14

The appellant does not dispute the appl icability of the enhancement factors utilized by the trial court; rather h e contests the trial court 's refusal to find as mitigating factors ( 1) the appellant's long hi story of substance abuse and ( 2) that the appellant aided Smith by ensuring treatment for his injury. We conclude that the trial court proper ly rejected these proffered mitigating factors. As the appellant concedes, the 1989 Code ex pressly excludes the voluntary use of intoxicants as a "mental or physical condition that significantly reduc

e[s] [a defendant's] culpability." See Tenn. Code Ann. § 40-35-113(8) ( 1990). Nonetheless, he argues that this factor should be considered in light of the fact that "the shooting . . .w ould not have occurred apar t from the influence of the drugs." In other wor

ds, the appellant concedes that hi s drug abuse should not reduce his culpability as to his guilt of the crimes, but should be considered "in20 fashioning an appropriate senten ce." Again, the 1989 Sentencing Reform Act excludes involuntar

y intoxication as a mitigating factor in sentencing . Tenn. Code Ann. § 40-35-113(8). M oreover, the appellant has failed to present any evidence that he was, in fact, intoxicated at the time the off enses were committed. This contention is w ithout merit.
The appellant also argues that his efforts to assist the injur ed Smith should be considered in miti gation of his punishment. Tenn. Code Ann. § 40-35- 113(13). The proof does not support th is assertion. Indeed, the tes timony at the sentencing hearing rev ealed that the appellant refused to tr ansport the victim to the hospital. Fortunately for Smith, the appellant met Donald Morrow on the street. It was only

by this chance encounter that medical attention for Smith w as foreseeable, but only after the appel lant pushed the victim out of hi s vehicle and onto the street. This factor w as properly rejected by the trial court.
Upon de novo

review, we ag ree with the trial c ourt that no mitigating factors are applicable to the i nstant offenses. Moreover, w e conclude that the proof supports the trial cour t's application of three enhancement factors to the offense of attempted second degree murder of Mi chael Smith and one enhancement factor to the weapons char ge. When there are enhancement factors and no mitigating fact ors, the trial court may

set the sentence above the minimum within the applicab le sentencing range, but still within the r ange. Tenn. Code Ann. § 40-35-210(d). The appel lant was convicted a s a range I offender of a class B felony, and as a r ange II offender of a class E felony. Thus, the sentence range for the appellant is eight to twelv e years for the attempted second degree murder conv iction, and two to four y ears for the weapon conviction. See

Tenn. Code Ann. § 40-35-112(a)(2); -112(b)(5). The court imposed sentenc es of ele ven years an d three yea rs for the respecti ve convictions. We find the length of these sent ences to be justified and not21 excessive under the g uidelines of the 1989 Sentencing A ct. This issue is wi

thout merit.

B. C ONSECUTIVE S ENTENCES If a defendant is convicted of more than one criminal offense, the court may order the sentences to r un consecutively. Tenn. Code Ann. § 40-35- 115(1990). In the present case,the trial court ordered that the two attempted homicide convictions r

un consecutively based upon the appellant's classification as a dangerous offender and the appellant's extensive cri minal background. The appellant contests the trial court's classification of him as a "dangerous offender," arguing the lack of ag gravating circumstances to support this status. Because we have modified the appellant's conviction fr om attempted first degree murder to attempted second degree murder and remanded this convi ction to the trial court for resentenci ng, we are precluded from reviewing w hether the aggregate sentence impos ed is reasonably relat

ed to the severity of the o ffenses and is necessary to prot ect the public from further cri minal acts of the appellant. See State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). The determination of this issue remains with the trial court on remand. However, we ar e able to evaluate the appellant’s classification as a “danger ous offender.”

In Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976), our supreme court held that "[a] defendant may be classified as a dangerous offender if the crimes for which he is convi cted indicate that he has littl e or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." (Emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4); Wilkerson , 905 S.W .2d at 93 7. If a co urt decid es to impo se consec utive sentences based upon the inherently dangerous nature of the instant offenses, the court should base its decision upon the presence of agg ravating circumstances and not merely on the fact that two or more dangerous crimes22 were committed. Gray , 538 S.W.2d at 393. In the present case, the appell ant armed himself with a loaded .380 handgun, drove to 236 Cir cle Drive to "get even" with Ms. Washington for having him arrested, and procee ded to wantonly fire the weapon at the house. D uring this episode, tw o victims were i njured, i.e., Mr. Smith suffering a direc t gunshot wound to the chest , and Mr. Fason receiv ing injuries from flying debr is. Immediately after the shoo ting, the appellant refused to seek medical attention for the s emi-conscious Smith. The proof before us clearly e stablishes

that the appel lant had no hes itation about committing a crime when the risk to human life was high and that the appellant has little or no regard for human life. Accordingly, the trial court's classification of the app ellant as a dangerous offender is warr anted.

V. Conclusion
After a thorough review of the record and the applicable law, we conclude that the evidence is insufficient to support a conviction for the attempted first degree murder of Keith Fason. We revers e the appellant's conviction for attempted first degree murder, modi fy the judgment to reflect a con viction for attempted murder in the second deg ree, and remand to the trial c ourt for resentencing. Additional ly, in accordance w ith the principles announced in State v. Denton , 938 S.W.2d at 373, we dismiss the appellant's convictions for aggravated assault an d vacate the accompanying sentences. We affirm the appellant's remaining conv ictions for attempted second degr ee murder of Michael Smith and possessio n of a deadly weapon. Moreo ver, we affirm the length of the sentences imposed for th ese convictions and the tr ial court’s finding that the appellant is a dangerous offende r. Accordingly, we remand this cause to the trial court for entry of judgments of conviction con sistent with this opi nion and for re-sentencing regarding the modified convic tion for the attempted second23 degree mu rder of K eith Faso n and fo r determi nation o f whethe r consecu tive sentencing is appropriat e.

________________________________

DAVID G. HAYES, Jud ge

CONCUR:

_______________________________ JERRY L. SMITH, Jud ge

_______________________________ THOMAS T. W OODALL, Judge