IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2019

STATE OF TENNESSEE v. TORY BLACKMON

Appeal from the Criminal Court for Shelby County

No. 15-00959 Lee V. Coffee, Judge

No. W2018-01061-CCA-R3-CD

The Defendant, Tory Blackmon, was convicted by a Shelby County Criminal Court jury 

of attempted first degree murder, a Class A felony; employing a firearm during the 

commission or attempted commission of a dangerous felony, a Class C felony; and 

aggravated assault, a Class C felony. See T.C.A. §§ 39-12-101(a)(1)-(3) (2018) (criminal 

attempt), 39-13-202(a) (2014) (subsequently amended) (first degree murder), 39-13-

102(a) (2014) (subsequently amended) (aggravated assault), 39-17-1324(b)(2) (2014) 

(subsequently amended) (armed dangerous felonies). The court imposed a twenty-year 

sentence for attempted first degree murder, a six-year sentence for the employing a 

firearm conviction, and a four-year sentence for aggravated assault. The court merged 

the aggravated assault conviction with the attempted first degree murder conviction, and 

it ordered the firearm conviction to be served consecutively to the attempted murder 

conviction as required by Tennessee Code Annotated section 39-17-1324(e)(1) (2014) 

(subsequently amended). On appeal, the Defendant contends that the court erred in 

sentencing. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Gerald S. Green (on appeal), and Joseph McClusky (at trial), Memphis, Tennessee, for 

the Appellant, Tory Blackmon.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior 

Assistant Attorney General; Amy P. Weirich, District Attorney General; Jeffrey D. Jones 

and Jamie Bowers Kidd, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

07/17/2019
-2-

OPINION

The Defendant’s convictions relate to his September 25, 2014 shooting at the 

victim, who was his daughter’s mother, as the victim left work. A juvenile court hearing 

was scheduled for the following day to establish the Defendant’s obligation for child 

support for their daughter. 

At the trial, the victim testified that she and the Defendant had been coworkers and 

had been sexually involved. After the victim became pregnant, she and the Defendant 

remained on friendly terms until the Defendant learned in Summer 2013 that the baby 

was a girl. The victim said the Defendant stopped communicating with her, although 

they remained coworkers. She said the Defendant’s learning the child was a girl was the 

reason the relationship ended. She said they had not fought or had a contentious breakup. 

She said that their daughter was born in September 2013. The victim said that the 

Defendant was not involved with their daughter and that the victim sought to establish 

paternity and child support through the juvenile court. She said that the Defendant 

initially did not appear for a paternity test but that he appeared after a warrant was issued. 

She said the paternity test showed that the Defendant was the child’s father.

The victim testified that she left work on the evening of September 25, 2014,

around 11:00 p.m. She said that as she slowed at a stop sign, she saw the Defendant 

jump from behind a car and point a gun at her. She said she was able to see him in her 

headlights. She said the Defendant fired four or five shots at her, striking her car. She 

said she ducked and drove home. She said that until the shooting, she had not seen the 

Defendant for about one year and that they had known each other for about one and onehalf years.

The State offered testimony of police officers relative to consensual searches of 

the Defendant’s and the Defendant’s cousin’s SUVs, which were conducted after the 

Defendant arrived at juvenile court the next day. The Defendant had arrived in his SUV 

and had entered his cousin’s SUV after he arrived. The contents of the Defendant’s 

cousin’s SUV included a loaded .40-caliber handgun. The contents of the Defendant’s 

SUV included latex gloves and a box of .38-caliber ammunition, an Arminius Titan Tiger 

.38-caliber revolver, two prescription medication bottles labeled with the Defendant’s 

name, a camouflage backpack, and the Defendant’s work identification badge. The .38-

caliber revolver contained six cartridge casings. A firearms expert was unable to 

determine whether the cartridge casings collected as evidence had been fired from the 

.38-caliber revolver.

The jury found the Defendant guilty of the charged offenses. At the sentencing 

hearing, the State offered a handwritten statement from the victim as evidence. In the 

statement, the victim stated that even though the Defendant had been in jail after the 
-3-

incident, she had been afraid someone else would harm her. She said that she had been 

unable to eat and sleep and that she had lost weight after the incident. She said she had 

psychological problems after the incident and described hearing noises and thinking 

someone was going to kill her. She said she was afraid the Defendant would kill her after 

he was released.

The presentence report reflects that the Defendant was age thirty-one on the date 

of the sentencing hearing. He was a high school graduate and reported he had last 

worked for the same employer as the victim, although the presentence officer was unable 

to verify the past employment. The Defendant reported that he had one child and a 

brother and that he planned to live with his parents after his release. No prior criminal 

history was reported. The Defendant denied alcohol and drug use.

The Defendant did not offer proof at the sentencing hearing. In sentencing the 

Defendant, the trial court applied enhancement factors based upon the victim’s 

particularly great physical or emotional injuries and the Defendant’s use or employment 

of a firearm during the offense. See T.C.A. § 40-35-114(6), (9) (2014) (subsequently 

amended). The court stated that factor (9) applied to Count 1, the attempted first degree

murder conviction, but did not apply to Count 2, the firearm offense, and Count 3, the 

aggravated assault. The court weighed the enhancement factors heavily. The court found 

that the evidence did not support the application of any mitigating factors. See id. § 40-

35-113 (2014). The court sentenced the Defendant to twenty years for Count 1, six years 

for Count 2, and four years for Count 3. The court merged Count 3 with Count 1 and 

imposed consecutive service of Count 2 with Count 1 by operation of law. See id. § 39-

17-1324(e)(1). This appeal followed.

The Defendant contends that the trial court sentenced him excessively based upon 

the erroneous application of enhancement factor (6). The State counters that the 

Defendant has not shown that the trial court abused its discretion in sentencing the 

Defendant. We agree with the State.

This court reviews challenges to the length of a sentence within the appropriate 

sentence range “under an abuse of discretion standard with a ‘presumption of 

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must 

consider any evidence received at the trial and sentencing hearing, the presentence report, 

the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature

and characteristics of the criminal conduct, any mitigating or statutory enhancement 

factors, statistical information provided by the Administrative Office of the Courts as to 

sentencing practices for similar offenses in Tennessee, any statement that the defendant 

made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 

823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727 
-4-

S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 

1987)); see T.C.A. § 40-35-102 (2014).

Likewise, a trial court’s application of enhancement and mitigating factors is

reviewed for an abuse of discretion with “a presumption of reasonableness to withinrange sentencing decisions that reflect a proper application of the purposes and principles 

of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of 

an enhancement or mitigating factor does not invalidate the sentence imposed unless the 

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long 

as there are other reasons consistent with the purposes and principles of sentencing, as 

provided by statute, a sentence imposed . . . within the appropriate range” will be upheld 

on appeal. Id.

We note, first, that the Defendant’s sentence for the firearm offense was statutorily 

set at six years, and the trial court did not have discretion to establish a sentence of a 

different length. See T.C.A. § 40-35-1324(h)(1) (subsequently amended) (specifying that 

the sentence shall be six years). As such, we limit our review to the court’s sentencing 

determinations regarding the attempted first degree murder and aggravated assault 

convictions.

The Defendant argues that the evidence of the victim’s psychological trauma from 

the crimes was limited to the victim impact letter submitted at the sentencing hearing, 

which he argues “is subject to exaggeration and hyperbole,” and he notes the lack of 

evidence that the victim received counseling or other mental health treatment. Curiously, 

he argues, “All victims of crime, certainly victims of rape, must surely experience mental 

trauma, no two crimes are exactly the same, and no two victims react to a crime in the 

same manner.” We note that the Defendant was not convicted of a sexual offense. 

With regard to the type of proof necessary to support the application of 

enhancement factor (6), our supreme court has said that expert testimony is not required 

and that lay testimony or a victim impact statement detailing specific, objective examples 

of the crime’s effect on the victim is appropriately relied upon by a trial court. See State 

v. Arnett, 49 S.W.3d 250, 261 (Tenn. 2001). “Particularly great injuries are not essential 

to the commission of [attempted first degree murder], but prove greater culpability.” 

State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Although this enhancement 

factor is inappropriate for cases of aggravated assault in which serious bodily injury is an 

element, the indictment in this case charged the Defendant with aggravated assault by 

causing the victim to reasonably fear imminent bodily injury. See State v. Jones, 883 

S.W.2d 597, 602 (Tenn. 1994). 
-5-

The record reflects that even though the Defendant was in jail, the victim thought 

someone else would kill her. She was fearful, as well, that the Defendant would kill her 

after his release. She was unable to eat and sleep, and she lost weight following the 

shooting. She said she had psychological problems and described hearing noises and 

thinking someone was going to kill her. The victim impact statement describes specific, 

objective examples of the long-lasting and significant effects that the Defendant’s 

conduct had and continued to have on the victim. The trial court did not abuse its 

discretion in applying enhancement factor (6).

The Defendant also argues that the trial court failed to apply any mitigating 

factors, but he has not identified the mitigating factors he claims the court should have 

applied and the evidence which would support the application of those factors. We 

decline to speculate in this regard. See Tenn. Ct. Crim. App. R. 10(b) (stating that issues 

which are not supported by argument are waived).

As a Range I offender, the Defendant faced a sentence of fifteen to twenty-five 

years for attempted first degree murder and three to six years for aggravated assault. The 

trial court imposed mid-range sentences of twenty and four years, respectively. Upon 

review, we conclude that the Defendant has failed to show that the court abused its 

discretion in establishing the length of these sentences.

In consideration of the foregoing and the record as a whole, the judgments of the 

trial court are affirmed.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE