# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AU GUST 1997 SESSIO N
STA TE OF TENN ESSEE ) C.C.A . NO. 01C01-9 609-CR-00406 ) APPE LLEE ) DAVIDSON COUNTY ) ) Hon. Ann Lacy Johns VS. ) Judge ) TH OM AS E . B RAD SH AW ) (Attempted Second Degree Murder) ) (Burglar

y of a Vehicl e) APPELLA NT ) (Resisti ng Arrest ) ) (Evading Arrest) ) (Criminal Impersonation)

FOR THE APPELLA NT: FOR THE A PPELLEE: JEFFREY A. DEVASHER JOHN KNOX WALKUP J. MICHAEL ENGLE Attorney Gen eral and Repor ter Assistant Public Defende rs 1202 Stahlman Build ing EUGENE J. HO NEA Nashvil le, Tennessee 37201 Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37203 SHA RON BROX ROGER MOORE Assistant D istrict A

ttorneys G eneral Washington Square Buildi ng, Suite 500 222 Second Avenue, North Nashvil le, Tennessee 37201

OPINION FIL ED:_______________________

AFFIRMED:

JOE H. WA LKER, III Sp. JUDGE

OPINION2

The appellant was convicted by a jury of attempte d second degree murder, burglary of a motor vehi cle, resisting arrest, evadingarrest, and c riminal imper sonation. The appellant was sentenced to ei ghteen year s, as a multipl e offender for attempted second deg ree murder; thr ee years s ix months as a multiple offender for burglary , consecutive to the sentence for attempted second deg ree murder; si x months for resistin g arrest, concurrent; 11 months and 29 days for evadingarrest, con current; and six months for criminal imperson ation, concurrent. The ef fective sentence is twenty- one years, six months as a Range II , multiple offender. No fine was assessed.

Issues Appellant pres ents three is sues for rev iew. ( 1) Appellant contends that the evidence i s insufficient, as a matter of law , to support the convicti ons of attempted second degree murder, and cr iminal impers onation. (2) That the trial court committed reversible error in declining to instruct the jury on the offense o f attempted reckless homicide as a l esser incl uded offense of attempted second deg ree murder. ( 3) That the trial court imposed excessive sentences for attempte d second degree murder and burglary of a motor vehi cle, and the tr ial court committed error by imposingpartial consecutive sentences. For the reasons stated herein, th e judgment of the trial court is affirmed

.

Facts
On August 3, 1995, at abou t 10:00 p.m., the victim, Richard McMullan, and his friend, Gayla York, were returning to his truck which was parked in Riverfront Park, in Nashvil le. As they appr

oached the parki ng lot, the v ictim noticed that the “camper top lid” on his truck was “up.” He was concerned about his carpentry tools and his guitar, which he had left in the tr uck, and wen t to the back of the t ruck to check and see if anyt hing had been stolen. He fo und the appellant climb ing out of the back of th e truck.3

McMullan tried to shove the appellant back in the truck in an attempt to hold him until the poli ce could be cal led. The appellant managed to cli mb out of the truck, and he an d McMu llan bega n to s truggl e. Th e victi m tes tif ied t hat h is ass aila nt co uld h ave run off after he exit ed the truck i f had wanted to r un instead of fighti ng. Duri ng the course of the struggle, the victim realized that his hand ha d been cut pretty badly. He began actingdefensively in an effort to keep t he appellant from cut ting him ag ain. W hen the police arrived, the appellant fled. The victim had been cut on his hand, his arm, and stabbed in the stomach. His ar m was rai ning blood. Officer Jones testi fied that she was in the area responding t o the call regarding the appellant-- then a suspect i n the stabbing --in her mar ked police car when she encountered the appel lant. She said that she and the appe llant made “eye contact,” and the appellant t hen fled. She then act ivated the bl ue lights in her car a nd chased the appellant on foot. She yelled to the appellant “stop,” but hecontinued to r un. Other officers, includi ng officers on foot and in patrol car s joined in t he chase. The appell ant
was corne red in a dead-en d alley, a nd had been ordered to surrender. He continued trying to f ind a way out of t he al ley. He did not obey

the officers’ in structions when they attempted to arrest him, and they had to use force to put h im on the ground and hand cuff him. It took th ree officers to re stra in th e app ella nt. T he ap pell ant wa s cove red in bloo d and sweat ing pr ofu sely. The appellant was placed in a police car and driven back to the scen e. The officer advised the app ellant of his Miranda rights. The appe llant asked Officer Ant le why he w

as being ar rested, and Officer Antle told him t hat he was a suspect in a stabbing, to which the appellant respo nded: “I didn’t cut nobody, I was just scrapping with him.” One officer identif ied the appellant as the susp ect she pursued in response to the call s he received givi ng a descri ption of the suspect . Ms. Yor k identified the appellant as the man she saw fig hting w ith Mr. M cMullan and as the man who was brought to the scene by the police. The appellant told Officer Antle that h is name was “James Huey

Thomas,” and he refused to gi ve the officer any other information. The appellant eventually r evealed his true iden tity to D etective F rank Pierce

.4

The victim w

as cut and stabbed. He had a puncture wound to the stomach; and a wound to the arm that severed a nerve and required a nerve g raft. The vic tim has not been able to retur n to his work as a car penter nor has h e been able to res ume playing the guitar, which was his other vocation.
Sufficiency

of the C onvict ing Evi dence

W hen an accused challenges the sufficiency of the con victing evidence, this court must rev iew the record to determi ne if the eviden ce adduced duringthe trial w as sufficient to suppor

t the finding by

the trier of fact of guilt beyond a reasonable do ubt. Tenn. R. App. P. 13(e). Th is rule is applicable to findings of guilt predicate d upon direct evidence, c ircumstantial evidence, o r a combination of direct and ci rcumstantial evidence. Stat e v. Mat thews , 805 S.W.2d 776, 779 (Tenn. Crim. App .), per app. denied (Tenn. 1990). This court does not rewei gh or re- evaluate the evidence w hen called upon to determine the suffici ency of the ev idence, nor may this court substitute its inferences for those drawn by the jur

y from circ umstantial ev idence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State , 199 Tenn. 298, 305; 286 S .W.2d 856, 859 (1956). A guilty verdict by the jur

y, approved by the tr ial judge, accredits the testimony of the witnes ses for the State an d resolve s all conflic ts in favor of the theory of the State. State v. Grace , 493 S.W .2d 474, 476 (Tenn . 1973). For this court to reverse a jury verdict of guilty on the basis of ins ufficiency of the ev idence, the facts contained in the record and the inferen ces which may be drawn from the facts must b e insufficient, as a matter of law, for a rational trier of fact to find the accu sed guilty beyond a reasonable doubt. Stat e v. Mat thews , 805 S.W .2d 776, 780 (Tenn . Crim. App.) per app. denied (Tenn. 1990).
The appellant challen ges the sufficiency of the evidence for two of his convicti ons: attempted second degree murder , and criminal impersonation.5 Attempted Sec

ond Degree Mur

der Second degree mur

der is the kn owing k illing of another. T.C.A. 39- 13-210 (1990). Criminal attempt includes when on e acts with the kind of culpability otherwise required for

the offense, and acts w ith intent to complete a course of action or caus e a result that w

ould constitut e the offense, under the ci rcumstances su rrounding the conduct as the per

son believes them to be, and the conduct consti tutes a substanti al step toward the commission of the offense . T.C.A. 39-12-101(a)(3). T.C.A. 39-12-101( b) provi des that conduct d oes not constit ute a substantial step under subdiv ision (a)( 3) unless thi s person’s en tire cours e of action is corroborativ e of the intent to commi t the offense. The appellant cont ends that the evidence presen ted to the jury does not support a finding by

a rational fact finder that the condu ct of appellant constituted a substa ntial step in the commission of a knowing killing. This court disagrees. The appellant was caught in the back of the v ictim’s tr uck. The vi ctim attempted to shut the topper

lid to detain the appellant un til the poli ce could arr ive. The appel lant proceeded to qu ickly climb out of the tr uck, and at that t ime could have run away . Instead, the appell ant scuffled wit h the vict im and cut his hand. The vict im realiz ed that the appellant had c ut him, and he beg an tryingto keep him from cut ting him ag ain. The victim r aised his hands

up tryin g to keep his

face protected. The ap pellant contin ued cutting the victim, stabbing him i n the stomach, and c utting his arm severely. The appellant did not

stop his attac k until the pol ice arriv ed with the blue lights on the patrol car activated, and at that ti me the appellant r an. One of the wounds inf licted by the appellant on the victim was a stab or puncture wound to the v ictim’s stomach; another was a stab or c ut to the arm that severed a nerve; another

was to the hand. The vict im testified he had five or si x cuts to his body. Due to the natureof the injuries inflicted on the victim, t he jury could infer that the appellant succ essfully di sposed of a weapon while fleei ng, and before he was apprehended by the police. There was evidence presented from which the trier of fact could determine that the appellant attacked the v ictim wi th a weapon ca pable of inflicting deadly wounds, that the appellan t intentionally cut and stabbed th e victim6

numerous times, w

ounding him ser iously. The jury cou ld determine from th e facts that appell ant’s co urse of action is corrobo rative of the inte nt to com mit a kno wing killing. Crimi nal Imper

sonation The appe llan t alle ges th at th e evid ence was no t suf fici ent f or th e jury t o have found him guilty

of criminal i mpersonation. Criminal i mpersonation is defined in T.C.A. 39- 16-301(a)(1) as follows : a person commits crimi nal impersonati on who, w ith intent to i njure or defraud another person: (1)
assu mes a fals e ide ntit y. After the appellant had been apprehended, he was placed in a police car. When he was in the police car with an officer

who was tryi ng to fill out an arrest report, the officer asked appell ant his name. The appel lant replied that his name was “James Huey Thomas.” W hen asked his date of birth, he refused to give the date of birth. He then replied he was not tel ling the officer anything other than his name. He told t he officer he could lo ok up the other i nformation. Appellant maintai ns that there was no evidence that the he attempted to injure or defraud the officer by

assuming a fals e identity . Alternati vely, appellant submits that the convic

tion of criminal impersonation s hould not stand because the police did not rely up on th e def end ant’ s mis repr esen tati on of his id enti ty. In State v. Brooks , 909 S.W .2d 8 54 (T enn . Crim . App . 199 5), t he de fen dan t gave a false name when h e was arr ested. The Court held that to estab lish the offense of criminal i mpersonation, the State is not required to s how proof of w hy the defendant sought to defraud t he police, onl y that he in tended to misrepresent his tru e identity

. From that fact the j ury could conclude that t he defendant acted w ith the intent t o defraud. A similar a rgument was made by the ap pellant in State v. White , No. 02C01- 9501-CC-00025, filed September 20, 1995, (Tenn. Cri m. App. 1995). The defendant asserted that t he evidence w as insufficient si nce there was no evidence that he intended to injure or def raud the police by giving them a false name, and the police quickly determined that the def endant was in fact giving false informatio n. This Court found the evidence sufficient, and held t hat the jury was entit led to conclude that the7

appellant intended to misrepres ent his identi ty to the officer , and that was sufficient for the jury to find that the appel lant intended to “ defraud” the officer. The fact that the false name was q uickly discovered does not vi tiate the cri minal intent w hich the appellant had when he gave the fa lse name to the off icer.

The evidence i n this case i s sufficient to supp ort the finding by a rati onal trier of fact that appellan t is guilty of attempted second degree m urder beyond a reasonable doubt, and guil ty of crimi nal impersonati on beyond a rea sonable doubt. This issue is

without mer it.

At tempted R eckless Homicid e as a Lesser Incl uded Offe nse
Appellant requested that th e trial court charge attempted reckless hom icide as a lesser inc luded offense of attempted second d egree murder . The trial court refused, and the appellant asse rts that was error.

Tenn.Code Ann. Secti on 40-18-110(a) (1990) req uires tri al judges t o instruct t he jury on lesser included offense s. An offense is necessar ily inc luded in another if the elements of the g reater offense include, but are congruent w ith all the el ements of the lesser

. Howard v . State , 578 S.W .2d 83, 85 (Tenn. 19 79). A prerequisite to a jury instruction on a lesser included off ense is that the off ense must be encompassed by the wordi ng of the indict ment, in order to ensure adequ ate notice to the defendant of the offenses for whic h he is call ed upon to answer. Stat e v. Smith , 627 S.W .2d 356, 357 (Tenn . 1982). Tenn. Code An n. Section 40-18-110 on ly requires a jury instruction on all reasonable lesser included of fenses. The indictment, Co unt One, charg ed that the appell ant did know ingly attempt to kill Ri chad McMull an, in vio lation of Tenn. Code Ann . Section 39-12- 101... Reckless homi cide is defined as the reckles s killin g of another. T.C .A. 39-13- 215.8

Under Tennessee Law , a person acts knowing ly w ith respect t o the conduct or to circumstances

surroundingthe conduct w hen the person is aware of the nat ure of the conduct or that the circumstan ces exist. A person ac ts knowi ngly w ith respect t o the result of the person’s cond uct when the person is aware that the conduct is reason ably certain to cause the result. Ten n. Code Ann. 39-11-106 (a)(20). A person may act knowi ngly whe n the pers on ac ts int enti ona lly. An attempt to commit a knowing or intentional act is a spec ific intent cr ime. An attempt, by natur

e, is a failure to accomplish what one in tended to do. Attempt means to try; and it means an effort to br ing about a des ired resul t. The concept of attempt seems necessari ly to inv olve the noti on of an intended conseq uence, for when one attempts to do somethi ng one is endeav oring or trying to do it. He nce, an attempt requires a desired, or

at least an i ntended, consequen ce. The nature of an att empt, then, is that i t requires a specific i ntent. State v. K imbrou gh , 924 S.W.2d 888, 890 (Tenn. 1996). Although murder

may be committed without an intent to kil l, attempt to commit murder requi res a specific intent to kil l. Braxton v .United States , 500 U.S. 344, 351 , 114 L.Ed.2d 385, 111 S.Ct. 1854 (1991). The reckless k illing of another is not an intentional ac t. A reckl ess act req uires the actor to disregard a substantial and unjustifiable risk, which disregard constitutes a gross dev iation from the st andard of care that an ordinary person wou ld exerci se. See, T.C.A. 39-11-106(a)(31). Recklessnes s and neglig ence are incompati ble with desire or i ntention. Stat e v. Kimbro ugh , supra, at 891. The trial court properly declined to charge attem pted reckless homicide as a lesser included offe nse of attempt ed second degree murder. This issue is

without mer it. Whe the r the Sen ten ces we re E xce ssi ve Whether Con secutive Sentences were Prop er
The appellant concede d at the sentenci ng hearing that he should be sentenced9

as a Range II offender. Attempted second degree murder is a Clas s B felony. Tenn. Code Ann. Section 39-12 -107; T.C.A. 39-13-210 . A Range II offende r for a Class B felony can be se ntenced wit hin the rangeof twelve years to twenty years. T.C .A. 40- 35-112. Burg lary of a motor vehicle is a Class

E felony. Tenn. C ode Ann. Section 39- 14-402. A Rang e II offender can be senten ced or a Clas s E felony from tw o years to four years. Tenn. Code Ann. 40-3 5-112. The appellant rece ived a sente nce of eighteen years on his conviction for attempted second deg ree murder; thr ee years and six months on his conv iction for burglary of a motor vehi cle; and the max imum sentence for each misdemeanor convicti on. The trial court further or dered that the sent ences for attempted se cond degree murder

and burglar

y of a motor vehicle be ser ved consecut ively

to one another. The misd eme ano r sen tenc es were to be serve d con curre ntly. The appellant cont ends that the trial court impose d excessive sentences on his convicti ons for attempted seco nd degree murder , and burglar y of a motor vehicle; and further that the trial court erred in orde ring consecutive sentences of these counts.

W hen an accused challenges the length and manner of service of a sentence, it is a requi rement of this cour t to conduct a de no vo review on the record, with the presumption that t he determinations made by the cour

t from which the appeal is ta ken are correct . Tenn. Code Ann. 40- 35-401. In conducting a de no vo review of the sentence, thi s court must consider (a) any evidence received at t he trial and/or sentencing hearing, ( b) the pre-s entence report, (c)the pri nciples of sentenc ing, (d) the arguments of counsel relati ve to sentenc ing alternatives, (e) the nature and charac teristics of the offense (f) any mi tigating or enhancing factor

s, (g) a ny statements made by the acc used in his ow n behalf, and (h) the accused potenti al or lack of potential for rehab ilitation or treatment. Tenn. C ode Ann. Section 40- 35-103, and 210; State v. Scott , 735 S. W.2d 825, 829 (Tenn. C rim. App.), per app. denied (Tenn. 1987).
The trial court specified the enhancement f actors that were applied in10

determining the length of th e sentences, but the cou rt failed to specify which enhancement f actors applied to attemp ted second degree murder, an d which enhancement factors appl ied to burgl ary of a vehicle. Thus, t he statutory presumption of correctness afforded by Tenn. Code An n. Section 40-35 -401(d) does not apply. State v. Ash by

, 823 S.W .2d 166, 169 (Tenn . 1991). This Court w ill address each enhancement factor without a presumption of correctness.

The trial court found the following enhancement factors: (1) the appellant had a previous history of crimina l behavior and convictions in addition to thos e necessary to establish the appropriate range. (6) the pers onal injuri es inflicted upon the victi m are particul arly g reat. (8) the appell ant had a prev ious histor y of unwil lingness t o comply w ith the cond itio ns of a sen tenc e invo lving re leas e in t he co mmu nity; (9) the appell ant possessed or employed a deadl y weapon during the commission of the offense.
With regard to the sentence for attempted second deg ree murder, the four enhancement factors would apply. The appellant had a pr evious history of cri minal behavior and convicti ons in additio n to those necess ary to est ablish the Ran ge II for which he w

as sentenced. ( Factor One) The personal inj uries that were inflicted u pon the vict im were par ticularly great. (Factor Six). The trial court made specific find ings that the personal injuries were extensive, both in the immediate sen se in terms of pain and suf fering, and the time it took to heal; and in addition, t he fact that the v ictim wi ll never be whole. The injuries placed the v ictim in a pos ition wher e he could not per

form his vocat ion, nor coul d he perform his avocation, and put t he victi m in a situati on where i t is difficult for him to even support himself, let alon e enjoy working and enjoy his avocation of musi c. The trial cour t found that the delib erate acts of the app ellant had denied the victi m for the rest of his li fe his ability to work at his former v ocation, and denie d him his abil ity to11

enjoy his avocation of music. The trial court found that there was more than one instan ce in the defenda nt’s criminal hi story w here he had a prev ious histor y of unwil lingness t o comply w ith the conditions of a se ntence invol ving release in the community (Fa ctor Eight). This was evident from the information in the pre-sentence r eport. The trial cour

t also determi ned that the defendant poss essed a deadly weapon during the commission of the offense. (F actor Nine) . While the appellant complain s that no weapon w

as found, the circ umstantial ev idence was strong that

the appellant
was e mploy ing a

deadly weap on in h is att ack upo n the v icti m.

With re gard to t he se nten ce i mpos ed by the t ria l co urt

for t he bu rgl ary

of a vehicle, enhancement factors one, that the appellan t had a previ ous history of criminal behavior and convicti ons; and enhancement ei ght, that the ap pellant had a previous history of unwillingness to comply with the conditions of sentencin g involving release into the c omm unit y, woul d app ly.
The trial court reviewed the mitigating factors and f ound that none ap ply. This court finds that none of those mitig ating factors set out in Tenn. C ode Ann. 40-35-113 applies.

Consecutive The trial cour

t ordered the s entences imposed to be served consecutively. The trial cour t found that the appell ant was a dang erous offender wi thin the meaning of Tenn. Code Ann. Se ction 40-35-115(b)(4). An accused qualifies as a dangerou s offender when his beh avior indicates little or no regard for human life , and he has no hesitation about committing a crime in which the risk to human life is high. W hile the appellant qualifies as a d angerous offen der, that fact, standingalone, wi ll not justi fy consecutiv e sentencing. In State v. Wilkerson , 905 S.W.2d 933, 938-39 (Tenn. 1995), the Supreme Court stated that the impos ition of12

consecutive sentences on an of fender fou nd to he a dangerous of fender requires, in addition to the ap plication of g eneral princ iples of sentenci ng, the findingthat an extended sentence is necessar y to protec

t the public ag ainst further c riminal conduc t by the defendant and that the consecutive sentences must reasonably relate to the severity of the offenses committed.

The trial court found that the appellant is a dangerou s offender. T he trial court further found that the ac tions of appellant had a grave effect on the vic tim, putting the victim i n a situation w here it is difficult for the v ictim to suppor t himself, and makin g the victim unable to enjoy working, and unable to enjoy his avocation of mu sic. This court is

of the opinion cons ecutive se ntences should be imposed to prevent the appellant from harming someone else, and that an extended senten ce is necessary to protect the pu blic agai nst further cr iminal conduct by this appe llant. In addition, appel lant quali fies for consecuti ve sentenci ng under T.C.A. 40-35- 115(b)(2), the preponderance of the evidence establishing that the appellan t is an offender whose record of criminal activit y is ex tensive. He has a prio r history of felony convicti ons. He has a p rior hist ory of misdemeanor convicti ons. In additi on, the appellant has been arrested a number of other times. H e has had his pr obation revoked, and he has had parole violated. This court is

of the opinion that t he sentences impos ed are justifie d givi ng the number of enhancement factors established by

the evidence, the circumstances of the offenses, and the remaini ng factors w hich this co urt must consi der in conducti ng a de
novo rev iew. The l ength of the sentenc es and the manner of how the sentences are to be served ar

e affirmed. This issue has no merit. The trial court is affirmed

.

__________________________ JOE H. WALKER, III Sp. JUDGE CONCUR:13

_______________________ JOE G. RILEY , JUDGE

______________________ J. CURWOOD WITT, JR., JUDGE