IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 7, 2011

STATE OF TENNESSEE v. MYRON MCNEAL

Direct Appeal from the Criminal Court for Shelby County

No. 09-03099 James C. Beasley, Jr., Judge

No. W2010-01130-CCA-R3-CD - Filed February 16, 2012

A Shelby County Criminal Court jury found the appellant, Myron McNeal, guilty of

attempted second degree murder and employing a firearm during a felony. For the

convictions, the trial court imposed a total effective sentence of thirty-eight years. On

appeal, the appellant challenges the sufficiency of the evidence supporting his convictions

and the sentences imposed by the trial court. Upon review, we affirm the judgments of the

trial court.

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

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ALAN E. GLENN, JJ., joined.

Stephen Bush and Phyllis Aluko (on appeal) and Russell White (at trial), Memphis,

Tennessee, for the appellant, Myron McNeal.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant’s convictions arose from the shooting of the victim, LeRico Bland, in

East Memphis. The proof at trial revealed that on December 9, 2008, two days before the

shooting, the appellant, a man named “Bay Bay” and some other men were in the victim’s

apartment in the Wood Dale Condominiums at a time when the victim was not there and
without the victim’s permission. When the victim returned home, he asked the men to leave,

and they complied.

Later that day, the victim saw that a window in his apartment was broken. The victim

walked outside to see if his father, Lee Wright, who also lived in the apartment complex, was

home. Bay Bay approached the victim and provoked a fight. Bay Bay’s brother, Mike; the

appellant; and two other men joined the fight against the victim. During the fight, the victim

heard a gunshot and saw the appellant point a gun at him. Another man hit the right side of

the victim’s face and knocked him down. One of the victim’s friends helped him up and

guided him to Wright’s apartment.

The victim testified that he did not see the appellant for two days, and he assumed the

dispute was over and “water under the bridge.” On December 11, 2009, as the victim was

leaving Wright’s apartment, he saw the appellant, Bay Bay, and Mike in a field about twenty

or thirty feet away. The men told the victim that he needed a gun because they planned to

kill him. The victim, who was unarmed, took off his shirt to prepare for a fight.

The victim said that he knocked on the door of Wright’s apartment to let him know

the men were outside. The victim’s pregnant stepsister, Victoria Powell, came out of the

apartment and began arguing with the men who were harassing the victim. When the men

approached Powell in a threatening manner, the victim and Powell walked toward the

apartment. Powell looked back and told the victim that one of the men had a gun. The

victim saw the gun and pushed Powell out of the way, fearing the appellant would shoot her.

The victim heard a gunshot and realized that he had been shot. The bullet went into one side

of the victim’s stomach, out the other side, and lodged in his right forearm. The victim was

taken to the hospital where he was placed in a medically-induced coma.

Shortly after the shooting, Officer Anthony Billingsley heard that the appellant was

seen running toward the Fox Hollow Apartments, which were located across from the Wood

Dale Condominiums. Because he was nearby, Officer Billingsley joined in the search and

found the appellant hiding in the corner of a building. Officer Billingsley took the appellant

into custody and handcuffed him. Although officers searched the appellant and the

surrounding area, they were unable to locate a gun.

Detective Robert Wilkie spoke with the appellant on December 13, 2008. After being

advised of his Miranda rights and signing a waiver of those rights, the appellant denied any

involvement in the shooting. He explained that he went to the Wood Dale Condominiums

that day to see a friend. Upon his arrival, he saw police cars and tried to avoid the police

because he was in possession of marijuana. The appellant said that he did not know about

the shooting until after he was arrested.

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When the victim woke from his coma on December 26, he informed Detective Wilkie

that the appellant had shot him. While in the hospital, the victim underwent several

procedures. At the time of trial, the victim had a “JP drain” because of damage to his

stomach and the loss of half of his liver. The victim left the hospital on January 6, 2009, but

had to return on January 8. He was discharged for the last time on January 16.

While the victim was in the hospital, he had two female visitors whom he had never

seen before. One of the women was wearing a visitor’s pass that revealed her name was

Ariel. She asked if the victim could remember who shot him and if she could bring him a

gift. The victim told Detective Wilkie about the visit. Detective Wilkie checked the visitor’s

registry and found the name and picture of the victim’s visitor, Ariel Boyd. The appellant

later told Officer Wilkie that Boyd was his girlfriend.

The State rested its case, and the defense did not put on proof. The jury found the

appellant guilty of attempted second degree murder and employing a firearm during a felony.

The trial court imposed a total effective sentence of thirty-eight years. On appeal, the

appellant challenges the sufficiency of the evidence and the sentences imposed.

II. Analysis

A. Sufficiency of the Evidence

On appeal, a jury conviction removes the presumption of the appellant’s innocence

and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to

this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The appellant was convicted of attempted second degree murder and employing a

firearmduring the commission of a dangerous felony. Second degree murder is the knowing

killing of another. Tenn. Code Ann. § 39-13-210(a)(1). A person acts knowingly with

respect to a result of the person’s conduct when the person is aware that the conduct is

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reasonably certain to cause the result. Tenn. Code Ann. § 39-11-106(a)(20); see also State

v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Criminal attempt requires that one act “with

the kind of culpability otherwise required for the offense . . . [and] with intent to cause a

result that is an element of the offense, and believes the conduct will cause the result without

further conduct on the person’s part.” Tenn. Code Ann. § 39-12-101(a)(2). The appellant

was also convicted of possessing a firearm during the commission or attempt to commit a

dangerous felony, such as attempted second degree murder. See Tenn. Code Ann. § 39-17-

1324(b) and (i)(1)(B).

The appellant argues that there was insufficient proof that he was the shooter, noting

that one of the witnesses believed the shooter to be “light skinned” but that the appellant “is

dark skinned.” The appellant also contends that the evidence does not prove that the

shooting was committed “knowingly.” In support of this claim, the appellant asserts that he

and the victim were friends and that the disagreement was with the appellant’s friends, not

the appellant. Additionally, the appellant argues that the fact that only one shot was fired “is

more indicative of the shooter trying to warn the victim or break up the fight between him

and Bay Bay.”

The appellant’s arguments are unavailing. The victim and Powell identified the

appellant as the shooter, noting that the appellant was pointing a gun at the victim

immediately prior to the shooting. The victim specifically saw the appellant aiming the gun

to shoot. The appellant complains that a witness identified a “light skinned boy” as the

shooter and notes that he has a dark complexion; however, the jury heard the testimony and

saw the appellant and, as was its prerogative, accredited the victim and Powell’s

identification of the appellant as the shooter.

Moreover, the proof adduced at trial revealed that two days prior to the shooting, the

victim had two altercations with the appellant and the appellant’s friends. First, the appellant

was in the victim’s apartment without permission, and the victim asked him to leave. Second,

a few hours after leaving the victim’s apartment, the appellant was among a group of men

who gathered to beat the victim. During the fight, the appellant fired a shot then pointed his

gun at the victim. On the day of the shooting, three of the men who beat the victim,

including the appellant, saw the victim and told him that he needed to have a gun because

they were going to kill him. The victim saw the appellant aim his gun immediately prior to

the shot being fired. We conclude that a reasonable jury could find from this proof that the

appellant knowingly attempted to kill the victim and that he used a gun to commit that

dangerous felony.

B. Sentencing

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The appellant argues that the sentences imposed by the trial court were excessive

because the court erred in applying certain enhancement factors and in failing to apply certain

mitigating factors. Appellate review of the length, range or manner of service of a sentence

is de novo. See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this

court considers the following factors: (1) the evidence, if any, received at the trial and the

sentencing hearing; (2) the presentence report; (3) the principles ofsentencing and arguments

as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on enhancement and mitigating

factors; (6) any statistical information provided by the administrative office of the courts as

to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant

in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The

burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code

Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial

court adequately considered sentencing principles and all relevant facts and circumstances,

this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);

Ashby, 823 S.W.2d at 169.

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly

set the minimum length of sentence for each felony class to

reflect the relative seriousness of each criminal offense in the

felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should also consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State

v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of

various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”

Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence

within the applicable range so long as the length of the sentence is ‘consistent with the

purposes and principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts are

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therefore left with a narrower set of circumstances in which they might find that a trial court

has abused its discretion in setting the length of a defendant’s sentence . . . [and are] bound

by a trial court’s decision as to the length of the sentence imposed so long as it is imposed

in a manner consistent with the purposes and principles set out in sections -102 and -103 of

the Sentencing Act.” Id. at 345-46.

In the instant case, the trial court found that the appellant was a Range III persistent

offender. See Tenn. Code Ann. § 40-35-107(a)(1). The court applied enhancement factor(6),

that the personal injuries inflicted upon the victim were particularly great; enhancement

factor (10), that the appellant had no hesitation about committing a crime when the risk to

human life was high; and enhancement factor (16), that the appellant had been adjudicated

to have committed a delinquent act or acts as a juvenile that would constitute a felony if

committed by an adult. See Tenn. Code Ann. § 40-35-114(6), (10), and (16). The court

further found that these enhancement factors were applicable to both of the appellant’s

convictions. Further, the trial court applied enhancement factor (9), that the appellant

possessed or employed a firearm during the commission of the offense, to the attempted

second degree murder conviction. See Tenn. Code Ann. § 40-35-114(9). The trial court

found no mitigating factors. See See Tenn. Code Ann. § 40-35-113. Based upon the

foregoing, the trial court sentenced the appellant to twenty-five years for his Class B felony

conviction for attempted second degree murder and to thirteen years for his Class C felony

conviction for using a firearm during a dangerous felony. The trial court ordered the

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appellant to serve one hundred percent of the first ten years of his thirteen-year sentence in

confinement.

Generally, an enhancement factor may be applied “[i]f appropriate for the offense and

if not already an essential element of the offense.” See Tenn. Code Ann. § 40-35-114. On

appeal, the appellant argues that the trial court improperly applied enhancement factors (6),

(9), and (10) because the factors are inherent in the offense of attempted second degree

murder. Additionally, the appellant complains that the trial court failed to properly find that

the appellant’s remorse was a mitigating factor.

First, the trial court found that the personal injuries inflicted upon the victim were

particularly great. Tenn. Code Ann. § 39-35-114(6). In making this determination, the trial

court noted that the victim testified in “very graphic detail” about “post-surgery problems .

. . [he] still suffers from . . . and some two years later [he] still has some type of drain tube

and he obviously has a lot of personal problems because of the injuries inflicted.” This court

The jury, in a bifurcated proceeding, found the appellant guilty of having a prior conviction for 1

a dangerous felony, making the statutory minimum sentence for the offense ten years at one hundred percent

in the Tennessee Department of Correction. See Tenn. Code Ann. § 39-17-1324(h)(2), (i)(2)(A). 

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has previously stated that “personal injuries, great or small, are not an element of attempted

murder.” State v. Alexander, 957 S.W.2d 1, 7 (Tenn. Crim. App. 1997). We conclude that

the trial court did not err in applying this enhancement factor.

Next, the trial court applied enhancement factor (9), that the appellant used a firearm

during the commission of the offense, to the attempted second degree murder conviction.

Normally, this enhancement factor may be applied because “[t]he use of a gun is neither an

element of [attempted] second degree murder nor inherent in the offense.” State v. Hampton,

24 S.W.3d 823, 832 (Tenn. Crim. App. 2000). However, this court has previously stated that

enhancement factor (9) should not be used to enhance an “attempted murder conviction

[when] the defendant was separately indicted and convicted of the offense of employing a

firearm during the commission of the attempted murder.” State v. Brian Hervery, No.

W2010-00675-CCA-R3-CD, 2011 WL 1225725, at *9 (Tenn. Crim. App. at Jackson, Mar.

31, 2011), , perm. to appeal denied, (Tenn. 2011). Therefore, the trial court erred in applying

this enhancement factor to the appellant’s attempted second degree murder conviction

because the appellant was separately convicted of employing a firearm during a felony.

Regardless, the remaining enhancement factors support the sentence imposed by the trial

court.

The trial court also found that the appellant had no hesitation about committing a

crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10). The

appellant is correct that factor (10) is inherent in every homicide or attempted homicide in

relation to the named victim; however, “the trial court may consider this factor when the

defendant endangers the lives of people other than the victim.” State v. Kelly, 34 S.W.3d

471, 480 (Tenn. Crim. App. 2000). The trial court noted that Powell and her mother were

nearby when the appellant fired the weapon and that Wright and the victim’s stepbrother

were in an apartment toward which the appellant was shooting. Therefore, we conclude that

the trial court properly applied this enhancement factor.

Finally, the appellant contends that the trial court failed to properly consider

mitigating factors, specifically contending that his remorse should have been considered in

mitigation. At the sentencing hearing, the appellant apologized to the court and the victim,

but the trial court found that no mitigating factors were applicable. This court has explained

that “remorse is best left to the determination of the trial court. A defendant’s bare assertion

of remorse or hollow apologies at the sentencing hearing do not automatically grant

entitlement to mitigation in the sentencing process.” State v. Carl M. Hayes, No.

01C01-9509-CC-00293, 1996 WL 611167, at *4 (Tenn. Crim. App. at Nashville, Oct. 24,

1996).

As a Range III persistent offender, the appellant was subject to a sentence of between

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twenty and thirty years for the Class B felony conviction for attempted second degree murder

and between ten and fifteen years for the Class C felony conviction for possession of a

firearm during a dangerous felony. See Tenn. Code Ann. § 40-35-112(c)(2)-(3). The trial

court sentenced the appellant to twenty-five years for the attempted second degree murder

conviction and to thirteen years for the possession of a firearm during a dangerous felony

conviction. We discern no error in the sentences imposed by the trial court.

III. Conclusion

In sum, we conclude that there was sufficient evidence adduced at trial to sustain the

appellant’s convictions and that the trial court did not err in imposing a total effective

sentence of thirty-eight years. The judgments of the trial court are affirmed.

_________________________________

NORMA McGEE OGLE, JUDGE

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