### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 14, 200 9
ST A TE OF TE N N ES SE E v
. P A TR IC K B R OW N

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 06-09028 Paula Skah an, Jud ge

No. W2008-00108-C CA-R 3-CD

The defenda

nt, Patrick Brown, was convicted of criminal attempt to commit second deg ree murder, a Class B f

elony , and was sentenc ed to twelve year s as a Rang e I , standard of fende r. On a

ppeal, he argues that: the evidenc e wa s insufficient to support his conviction; the trial cour t erre d in allowing the State to reope n its case in chie f; and he was sente nced imprope rly . After ca re fu l re v i ew, we a ff ir m th e jud g me nt f

ro m th e tr ia l c ourt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which A LA N E. G LE NN a ndJ. C. M C L IN , JJ., joined.

Rebec ca G . Coffee , Memphis, Tennesse e, for the appe llant, Patrick Brown.

Rob e rt E. Coo pe r, Jr ., At torne y Ge ne ra l andRe po rt e r; Cla re nc e E. Lu tz , A ssi sta nt A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Gen era l; and Colin C ampbell, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

This case involves a car

chase and shooting in which the def endant a nd an ac complice c hased the victim while the def endant shot a .9mm handgun. The de fen d an t shot out the victim’s windshield, causinghim to crash his ca r into a semi-tra iler. The c ar burst into flames af ter the
c oll isi on , a

nd , a s a re su lt, the vic timwa s b a dly burn e d a nd los t bo th l e g s.
Trial

Th e vic timte sti fi e d th a t he kn e w bo th the de fe nd ant a nd the c o- de fe nd ant, Phi lli p Wil liams, pr ior to t he nig ht o f t

he sh oo tin g . H e sa id t

hat he ob ser ve d b oth

me n d ri vin g aro un d in

a purp le Nissan Altima sever al times prior to the shooting. T he victim testified that the defe ndant was in the p as s en ger s ea twh en h e s aw t h e c ar

an d t h at t h e c o -d ef

en d an t wa s dri v i n g. J u s tb ef o re t h e s h o o t i n g, he noticed that the purple Altima w as following him and saw the c ar stop behind him at a f our-wa y-2-

stop sign at Polk and Walnut. The victim testified t hat he was unarmed when he saw the defe ndant shoot at him. He tried to flee when he hear d the first two shots. He said that he hear d seven or eig ht additional shots fired after the i nitial volley

. The victim rec alled that his windshield shattere d, he lost control of his car , and cr ashed into a se mi-trailer. The injured victim exi ted his car and noticed that hi s pants wer e on fire . Two men he lped him move awa y from the wr eck be fore the ca r exploded.

A fourte en-y ear -old testified that he wa s watchingtelevision when he hear d g unshots and a
c ra sh . H e we nt t o th e wi nd owin t ime to s e e a purp le Al tim a

dr ive by fa st.
Of fi c e r D a vid

Ga llo wa y , a cr ime sc e ne inv e sti g a tor wi th the Me mph is Poli c e De pa rtme nt, testified that he r esponded to the s cene

. He r ecove red twe lve shell ca sings at the crime sc ene, w hich
e nc omp a sse d mo st o f t

he str e e t. H e te sti fi e d tha t poli c e a lso dis c ov e re d th e vic tim ’s burn e d p ants and wa llet at the sce ne, nea r the victim’s burne d vehicle.

Offic er J eff Her

bison te stified that he was a member of the Memphis Police De partment’s
un if or me d p a tr ol at the tim e of the sh oo tin g

. He sa id that he co nta c te d the de fe nd ant a nd too k h im i n t o c u s t o dy.
Phill ip Wi lliams testified that he was the owner of the purple N issan Altima involved in the shooting duringthe ea

rly morning hours of July

30, 2006. He c laim ed t h at the def endant wa s responsible for firing the s hots from the car

. He testified that the defendant believed t he victim had “shot up his house ” ear lier that morning

. Wil liams believed that the vic tim also fired shots during the incident. He acknow ledg ed telling office rs that the victim and the def endant we re f

ightingover a g ir l, t ho ug h h e sa id h e ha d n o d ir e c t kn ow le dg e of the so ur c e of

the c on fl ic t. H e a lso acknow ledg ed that his testimony was differ ent from the statements he made to police at the time of his arre st. He testified that he previously told police that the defenda nt fired shots while outside the
car

. Th e de fe nd ant’ s g ra ndmot he r t e sti fi e d o n h is b e ha lf and sa id t hat sh ots we re fi red a t th e ir house in the ea

rly morning hours of July

30, 2006. She acknow ledg ed that she did n o t t el l police about t he shoot ing. She testified t hat t he defenda nt was not in his room at the time the shots were fired at their home and could not have shot at the victim beca use he w as in his room at the time of t h e s h o o t i n g. SentencingHea ring Duringthe sentenc ing he aring, t h e t ri al court found that the def endant ha d a history

of criminal convic tions sufficie nt to enhanc e his sentenc e. The defe ndant’s prior c onvictions included driving while his licence was suspende d, revoke d, or ca ncelled, a nd a prior misdeme anor c onviction for possession of dr

ug s. He also had a juvenile adjudication for ag g ravated assault, which included a shooting . The trial court also applied sentencing enhanc ement factors that: (2) the de fenda nt was a lea der in the commission of an offe nse involving two or more c riminal actors; (9) the def endant-3-

possessed or e mploy ed a f irea rm, explosi ve devic e, or other dea dly wea pon during the commission of the of fe ns e ; (16 ) the de fe nd ant wa s adj ud ic a te d to hav e c omm itt e d a del inq ue nt ac t or

a c ts a s a juvenile t hat would consti tute a fe lony if committed by

an adult. See T.C.A. § 40-35-114 ( 1), (2) , (9), a nd (16) ( 2006). The tr ial court sentenced the defe ndant as a Rang e I , standard of

fende r to the
ma ximumse nte nc e of

tw e lve y e ars

. An a ly sis
On appe al, the defe ndant argues that the evidenc e was insuffic ient to support his conviction. T h o u g h t h e d e f

e n d an tl a b e l s h i s ar g u m e n t a s a c h a l l e n g e t o t h e s u f f i c i e n c y o f t h e e v i d e n c e , i nr e a l i t y, he cha lleng es the testimony of both the victim and the c o-def endant a nd alleg es t hat t heir testimony was “ emotional, contra dictory to the phy sical evidence, and

. . . self-se rving .” Further, the defe ndant argues that t h e t rial cour

t erre d in admitting technic al evidenc e alleg edly not provided in pretr ial d i s c o v e r y.

I n deter mining the suff

iciency of the e vidence , this court does not rew eig h or re evaluate the evidenc e. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 1978). A j ury verdic t approve d by the trial judge acc redits t he State’s witnesse s and re solves all conflicts in favor of the State. State v. Bigbee , 885 S.W .2d 797, 803 (Tenn. 1994) . On appe al, the State is entitled to the strong est leg itimate view of the evidenc e and all leg itimate or rea sonable infe renc es which ma y be dra wn there from. Id. Th is court will not disturb a verdic t of g uilt due to the sufficienc y of the evidenc e unless the def endant demonstrates that the facts contained in the record a nd the infer ence s which may be dra wn there from
are insufficient , as a m atter of law, for a rational trier of f

act to find the a ccuse d g uilty bey ond a
rea sonable doubt. State v. Brewe r , 9 32 S.W. 2d 1, 19 (T e nn . Crim . App . 199 6) . A c c or din g ly , it is the appellate cour

t’s duty to affir m the conviction if the e vidence , viewed unde r these sta ndards, wa s sufficie nt for any

rational trier

of fa ct to have f

ound the essential elements of the of fense bey ond a
re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); J ac k so n v . V irg ini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 27 89 , 6 1 L . E d. 2d

56 0 ( 19 79 ); State v. Cazes , 875 S.W .2d 253, 259 (Tenn. 1994)

. The de fenda

nt was convic ted of the of fense of cr iminal attempt to commit s ec o n d deg ree murder, a Class B fe lony . Second degr ee murder is a knowingkilling of a nother. T.C.A. § 39-13- 210(a) (1) ( 2006). As re levant her e, a pe rson commits crim i n al at tempt who, actingwith the kind of c ulp a bil ity oth e rw ise re qu ir e d f

or the of fe ns e : (2) Acts with intent to c ause a result that is a n element of the offe nse and be lieves the conduct will ca

use the re sult without further conduct on the pe rson’s par t; or ( 3 ) Ac ts wit h in t e n tt o c o mp l e t e a c o u r s e o f

a c t i o no r c a u s e a r e s u l tt h a tw o uld constitute the offe nse, under th e circumstance s surrounding the conduc t as the person be lieves them to be, a nd the conduc t constitutes a substantial step toward the commission of the offe nse. T.C.A. § 39-12-101( a)( 2)-( 3) (2006)

.-4-

The de fenda

nt concludes that it was the emotional nature of the victim’s testimony

and not the evidence pr esente d at trial that per suaded the jury to convict him. At trial, the victim identified the defe ndant as the person who shot at him multipl e times. One of the shots shattered the victim’s windshield and cause d him to lose control of the ve hicle and the n cra sh into a parke d semi-trailer

. Th e vic timlos t bo th of his le g s a s a re su lt. Of

fi c e rs re c ov e re d . 9mm

sh e ll c a sin g s f

ro m th e or ig in of the attack to the interse ction wher e the victim’s burne d vehicle was di scover ed. F urther, the code fe nd ant t e sti fi e d th a t th e de fe nd ant s ho t a .9 mm p ist ol at th e vic timwh ile the y we re c ha sin g him

. The e viden ce contained in the r ecor d was suff icient to support the def

endant’ s convictions. The evidenc e demonstrated that the defe ndant knowing ly fired a pistol at the victim whil e eng ag ed in a
c ar c ha se on

a Me mph is c ity

str e e t at a

fa st r a te of

sp e ed. Th e defe nd ant’ s f ir inga t th e vic timis sufficie nt to demonstrate that the de fenda nt acted w ith the intent to cause ha rm to the victim.

Withre g ard t o th e de fe nd ant’ s argume nt t hat th e tr ia l c ourt

c oe rc e d th e c o- de fe nd ant i nto testifying a

nd that the trial cour

t err ed in admitting the technica l proof, these issues are waived due to the defe ndant’s fa ilure to raise a conte mporane ous objection. Th e d ef en d an t did not raise an ob je c tio n at tri a l or in h is m oti on fo r n e w tri a l. B y

fa ili ngto m a ke a

c on te mpo ra

ne ou s o bje c tio n to testimony , a defenda

nt waives a

ppellate c onsideration of the issue. State v. Adler , 71 S.W .3d 299, 30 2 ( Te nn . Cr im. Ap p. 20 01 ); State v. Thompson , 36 S.W .3d 102, 108 (Tenn. Crim. App. 2000)

. Next, the defe ndant argues that the trial court err ed in a llowing the State to reope n its proof to a llo w the c o- de fe nd a

nt t o test if

y . A t th e c los e of

pr oo f o n Se pte mbe r 1 1, 20 07 , th e State
announce d that it would conclude its proof. Be fore further proce eding s on September 12, 2007, the State moved to r e o p e n it s c a s e

. T h e St a te n o te d th a t th e d e f e n s e h a d n e it

h e r ma d e a mo ti o n for
a c qu itt a l no r c a lle d a

ny wi tne sse s o r p ut o n p ro of . T he tr ia l c ourt

fo un d th a t r e op e nin g t he c a se would prese nt no unfair surpr ise to the defe ndant bec ause the defe ndant had pr esente d no proof.

The de cision to allow a par ty to reope n its proof afte r closing r es t s within the sound discretion of the t ri al judg e. State v. Anthony Paul Alde rson, No. 01C01-9611-CC-00461, 1997 Tenn. Crim. App. L EXI S 1174, at *4 ( Tenn. Crim. App. at Nashville, Nov. 21, 1997) ( c iti ng Sta te
v . Tu ttl e , 914 S. W .2d 926, 931 (Tenn. Crim. App. 1995) ). When the def endant ha s y et to make a mot ion fo r j ud g me nt o f a c qu itt a l o r ot her wi se pr e se nt h is c a se , th e tr ia l c ourt do e s n ot a

bu se its discretion by

g rantingthe State’s motion to reopen its pr o o f. P rejudice cannot r esult from the reope ning of the State’s case nor fr om the introduction of the testimony

. State v. Harrington , 627 S.W .2d 345, 348 (Tenn. 1981) . There fore , we c on cl u d e t h e t ri al court did not err in allowing the State to reope n its proof.
Next, the defe ndant arg ues t hat he wa s improperly sentenc ed. Specif

ically , he conte nds that the trial cour

t held the defendant’s decision not to testify at t he sentencing hear ing ag ainst him. He also contends that the tr ial court improper ly applied the s entencing e nhance ment fac tor for pr ior
c ri min a l be havio r. F ina lly , h e argue s that th e le ng th o f t he se nte nc e imp os e d is no t r e a so na bly related to the seve rity

of the off ense.-5-

The de fenda

nt was sentenced in 2007 for a crime he committed on J uly 30, 2006. He wa s sentenc ed as a

Rang e I , standard of

fende r to the maxim um of twel v e y ea rs . A def endant who challeng es his sentenc e has the burden of proving the sentenc e im posed by the trial cour

t is im proper

. T. C.A . § 40 -3 5- 40 1 (20 06 ), Se nte nc ingCom mis sio n Co mme nts ; State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . I t is thi s court’s d u t y t o co nduct a de novo revie w of the r ecor d with a presumption the trial cour t’s deter minations are corr ect when a defe ndant appeals the l eng th, rang e, or mann e r o f s e rv ic e of

his se nte nc e . T .C. A. § 4 0- 35 -4 01 (d ). Th e pr e sumpt ion of corr e c tne ss i s conditioned upon the af

firmative showingin the re cord tha t the trial court c onsidered the sentenc ing principles and all rele vant fa cts and c ircumstance s. State v. Pe ttus , 986 S.W .2d 540, 543-44 (Te nn. 1999). I f t h e t ri al cour

t has imposed a lawf

ul sentence by

following the statutory

sentenc ing proce dure, g iven due c onsideration and proper weig ht to the fa ctors and se ntencingprinciples, and
m ade f indings of f

act a dequate ly

supported by

the re cord, this cour

t may not modify

the sentenc e even if it had pref

err ed a dif fer ent re sult. State v. Fletc her , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). Howe ver, if the trial court doe s not c omply with statutory sentenc ing pr ovisions, our review of the se nte nc e is de novo with no presumption the trial court’ s determinations we re c orre ct. Sta te
v . W inf ie ld , 23 S.W .3d 279, 283 (Tenn. 2000)

.
I n conducting a de novo revie w of a sentenc e, this court must consider: (a ) the e vidence adduce d at the trial a

nd the sentenc ing he aring ; (b) the pr esente nce r eport; (c ) the principles of sentenc ing a

nd arguments as to sentenc ing al t ernatives; (d) the nature a nd char acte ristics of the crimi nal conduc t involved; (e) the e vidence and information offer ed by the par ties on the enhanc ement and mitigating fac tors set forth in T ennesse e Code Annotated sections 40-35-113 a nd 40 -3 5- 11 4; ( f) any

statis tic a l in fo rm a tio n p ro vid e d b y the Ad min istra tiv e Of fi c e of the Court s a s to Te nn e sse e se nte nc ing pr a c tic e s fo r sim ila r of fe ns e s; and (g ) any state me nt the de fe nd ant w ish e s to
make his ow n b e ha lf

a bo ut s e nte nc ing . T .C. A. § 4 0- 35 -2 10 (b ); see also Stat e v. Carter , 254 S.W .3d 33 5, 34 3 ( Te nn . 2 00 8) ; Sta te v . I mf e ld , 70 S.W .3d 698, 704 (Tenn. 2002)

. The de fenda

nt’s conduct oc curr ed af ter the e nactment of

the 2005 amendme nts to the Se nte nc ingAc t, w hic h b e c a me e ff e c tiv e June 7, 20 05 . T he a me nd e d s tatut e no lon g e r i mpo se s a presumptive sente nce. Carter , 2 54 S.W. 3d a t 34 3. As fu

rt her ex pl ained

by our s up re me c ourt

in Carter , the trial cour

t is free to selec t any

sentenc e within the applica ble ra ng e so longas the leng th of the sentenc e is “c o n s i s tent with the purposes a nd principles of [the SentencingAct].” [T.C.A.] § 40-35-210( d). Those purpose s and principles inc lude “the imposition of a sentenc e justly deser ved in re lation to the seriousness of the
o ff en s e,” [ T.C.A.] § 40-35-102(1), a punishment sufficient “to pr event c rime and promote re spect for

the law,” [T.C .A.] § 40-35-102(3), a nd consideration of a defe ndant’s “pote ntial or lack of potential for

. . . reha bilitation,” [ T.C.A.] § 40-35- 103(5).-6-

Id. (f oo tno te omi tte d) ; se e als o S tate v

. Ed dr ic k De v on Pe witte , No. W2008-00747-CCA-R3-CD, 2009 Tenn. Crim. App. L EXI S 5, at *23 (Tenn. Crim. App. at Jackson, J an. 5, 2009).

The 2005 Ame ndment to the SentencingAct dele ted appe llate re view of the weig hing of the
e nh anc e me nt a

nd mit ig a tin g fa c tor s, a s it

re nd e re d th e se fact ors mere ly a dv iso ry , a s o pp os e d to bindi ng , upon the trial cour t’s sentenc ing de cision. Carter , 254 S.W .3d at 343

. Under curr ent sentenc ing la

w, the trial c ou rt i s , n onetheless, r equire d to “consider ” an a dvisory sentenc ing g uideline that is r eleva

nt to the sentencingdeter

mination, including the a

pplication of enha

ncing and mitigating fac tors. Id. at 344. The trial court’s weig hing of various mi tigating and enhanc ing f actor s is no w l ef

t t o the trial cour

t’s sound discretion. Id. Thus, the 2005 re vision to Tennessee Code Annotated se ction 40-35-210 incr ease s the amount of discre tion a trial court e x erc ises when imposing a se ntencingterm. Id. at 344.

The State a

rg ued for the application of the following enhanc ement fac tors under Te nnessee Code Annotated se ction 40-35-114: ( 1 ) Th e de f

e n d an t h a d a p r e v i o u s c r i m i n a l h i s t o r y o r b e h a v i o r i n a dd iti on to tho se nece ssary to establish the appropr iate ra ng e, (2 ) Th e de fe nd ant w a s a le a de r i n th e of

fe ns e inv olv ingtw o o r m or e c ri min a l a c tor s, (9 ) Th e de fe nd ant p os se sse d o r e mpl oy e d a fi re arm , (10) The de fenda

nt had no hesitation about commi tting a c rime whe n the risk to human life wa s high. (1 6) Th e de fe nd ant w a s a dju dic a te d to ha ve c omm itt e d a

delinq ue nt a c t or

a c ts a s a juv e nil e that w ou ld c on sti tut e a fe lony if c omm itt e d a s a

n a du lt.

The trial c ourt did not apply enhanc ement fa ctor (10) in setting the de fenda nt’s sentenc e. The rec ord ref lects that the defe ndant had prior a djudications as a juvenile that would have be en fe lonies had he been an ad u l t , including a n ag g ravated assault that involved the de fenda nt shooting at a

nother person. The prese ntence repor t r efle cts that the def

endant ha d two convictions as an a dult: driving with a license that was suspende d, can ce l ed , o r revoke d and possession of drug s, but neither conviction was a

felony

. The defe ndant argues that the trial court err ed in using a prior arr est ag ainst him as proof of criminal beha

vior. The a

rre st to whic h the defe ndant ref ers involved the defe ndant shooting a g un at an o th e r p e r s o n in 2 0 0 6

. T h e d e f e n d an t w a s ar

r e s te d b u t w a s n o t f

o r ma ll y c h ar g e d. The sentenc ing court m entioned this prior incident but spec ifically stated that the c ourt was “ not going to consider it aga inst him other than the fac t that he’s g ot a ver y violent history .” The prese ntence repor t refle cts that the def

endant ha d a sepa

rate adjudication as a juvenile for shooting at someone, and the tria l court consider ed that adjudication but did not use the 2006 a rr es t t o en h an ce the-7-

defe ndant’s convic tion. Further , during the hea ring on the m otion for new t rial, t he trial court stated that it “[di d not] use (the a rre st) to enhanc e Mr. B rown’s se ntence .” This issue is without merit.
Next, the defenda

nt argues that the trial c ourt err ed in applying s entencing e nhance ment fa c tor s ( 2) and

(9 ): the de fe nd ant w a s a

le a de r i n th e of

fe ns e inv olv ingtw o o r mor e c ri min a l a c tor s, and the de fenda

nt possessed or e mploy ed a f irea rm. During the m otion for new t rial, the c ourt stated t h at t h es e enhancement f actor s were not determined by the jury and we re not a dmitted by the defe ndant and that ther e could be an is sue wit h applying those fac tors. The trial c ourt furthe r stated that it would no longer

g ive any weig ht to those enhanc em en t fa ctors but dec lined to reduc e the defe ndant’s sente nce be cause of his criminal history

. Be cause the trial cour t’s weig hing of

the various enha

ncing fac tors is left to the trial court’ s sound discretion, we conclude that the def endant was prope rly

sentenc ed and that the trial court wa s free t o gi v e wh ateve r we ight it consider ed appropr iate to the existi ng enhanc ement fa ctors. See Carter, 254 S.W .3d at 344

. Next, the defe ndant contends that the t rial cour t held the def

endant’ s decision not to testify at the sente ncing hear ing a g ainst him whe n it se t his sentenc e. The trial c ourt addre ssed this issue during the hea

ring on the m otion for new t rial and stated that it was the def endant’ s rig ht to not take the stand. The tr ial court c larified that the d efe ndant’s re morse or la ck ther eof w as not an
a g g ra vatin g or mit ig a tin g fa c tor

c on sid e re d b y

the cou rt and state d th a t th e c ourt wa s o nly commenting that the defendant had an opportunit y to express remorse a

nd declined to do so. The transcr ipt from the sentenc in g h ea ri n g reflects that the trial c ourt advised the de fenda nt that he should have a

pologized for

his actions.

I n Mitchell v. U

nited States , 526 U.S. 314, 330 119 S. Ct. 1307 (U.S. 1999), the United States Supreme Court concluded t hat hol ding a defendant’s silence aga inst him in determining the fa cts of the offe nse at t he sente ncing hear ing imposed a n impermissible burden on the e x erc ise of the constitutional right aga inst compelled self-incrimination. Her e, whe n the cour t set the defe ndant’s sentenc e, it mentioned the def endant’ s “attitude throug hout” the ca se. Ho we v er , the trial cour t’s statements duringthe hea ring for the motion for ne w trial make it c lear that it did not consider the defe ndant’s silence in setting his sentenc e. The trial court s et the def endant’ s sentence at the
ma xim u m i n t h e r an g e b a s e d o n h i s p r i o r c r i m i n a l h i s t o r y an d t h e c i r c u m s t an c e s o f t h e c a s e

. We conclude that the trial court’s statements reg arding the defendant’s decision not to testify during the sentenc ing he aringwer e harmless beca use they wer e not f

actor ed into the setting of the def endant’ s sentenc e.

Conclusion

Ba sed on the for eg oing a nd the re cord a s a whole , we af fi rm the judg ment from the tria l court.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE