# FILED
September 30, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE MAY 1997 SESSI ON
STATE OF TENNESSEE, ) ) No. 03-C-01- 9606-CR-00217 APPELLEE, ) ) Knox County v. ) ) Ray L. Jenk ins, Jud ge ROBERT W ILLIAM BREEDEN, ) ) (Attempted First Degree Murder) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: William C. Talman John Knox Walkup Attorney at Law Attorney Gen eral & Repor ter P. O. Box 506 500 Charlotte A venue Knoxvil le, TN 37901-0506 Nashvil le, TN 37243-0497 Elizabeth T. Ryan Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Randall E. Nichols Distric t Attorney General P. O. Box 1468 Knoxvil le, TN 37901-1468 Robert L. Jolley, Jr. Assistant D istrict A

ttorney Gener

al P. O. Box 1468 Knoxvil le, TN 37901-1468

OPINION FILE D: ___________________________
AFFIRMED
Joe B. Jo nes, Pre siding Jud ge 

## O P I N I O N1 The appellant, Robe rt William Breeden (defendant), was conv icted o f an a ttempt to commi t murder i n the first deg ree, a Class A felony, by

a jury of his peers. The tr ial court, finding the d efendant to be a standard off ender, imposed a Range I sente nce consisting of confinement for twenty-three (23) years i n the Department of C orrection. In this Court, the defenda nt contends the evidence is insufficient to supp ort his convicti on, the trial court erro neously refused to charge attempt to comm it voluntary manslaughter, and the sentence imposed was excessive. After a thoro ugh re vi ew of the rec ord, the b rie fs submitted by the parties, and t he law g overning the issues pres ented for revi ew, it i s the opinion of this C ourt that the j udgment of the tri al court shoul d be affirmed. Calvin C. Sti nnett, the victi m, and his w ife, Iva G. St innett, lived next door to the defendant and his family for several years. The defend ant and his family testified the re had been a few disp utes and arguments between the Stinnettsand t he de fen dan t’s f amil y. W hile one of the defendant’s step sons testified the problem exi sted before the defendant and his mother were married, the defendant testi fied the problems bega n when the defendant prosecuted the v ictim’s daug hter for threateni ng one of his stepsons w ith a deadly weapon in 1992 or 1993

. On the eveningof May 28, 1994, the Stinnetts v isited the victi m’s brother, William S. Stinnett, w ho was dy ing from cancer . When the Sti nnetts retu rned home, later that evening, the defend ant’s two steps ons were standing in a window of their home. The victim th ought he heard t he two boys make a derogator y remark. The victi m went to the window and a sked the t wo boys w hether they madea derogator y remark or had a prob lem. They denied maki ng any ty pe of remark. The v ictim then ret urned to his home. One of the boys ra n and told the defendant w hat had occurred. The defendant exited the residence, charged in to his front yard, and began an argument wit h the v icti m. The victim w

as near his por

ch when the de fendant began the arg ument, an d th e victim remained there duringthe entire epi sode. Althoug h the defendant said he w as notafraid of the v icti m, he went ins ide his res idence, obtained a .22 caliber semi-automatic

rifle, and returned to the front yard. T he defend ant and the vi ctim continued t o argue. The defendant fired the rifle into the air until he emptied the magazi ne. He wal ked briskly to his2

residence, reloaded the r ifle, and returned to the front yard . During the entire episo de, the distance between the l ocation of the defendant and t he location of the victim was 120 feet. The victim a sked the defendant toplace the ri fle on the ground and meet him at the drivewayto settle the dispute. According to the de fendant’s version, the victim, who held
a black belt i n karate, asked him to meet the victim in the street to settle the matter like men. The victi m was not ar med with a weapon. When the defendant refused todisarm hims elf, the victim kept tel ling him to “s hoot me if you have the guts.”One of the defendant ’s stepsons testi fied the defendant fired several times at the victi m. One of the projectiles

struck the v ictim in hi s head. The projectile that struck the victim d id extensi ve damage to the left side of his brain. The left side of the bra in, called the domi nant hemisphere, cont rols the abil ity to tal k, the ability to understand, t he vision in the rig ht eye, and the right motor functions. The victim has no sensation in his legs, has lost his memory ofpast exper iences, and is paralyz ed on his rig ht side. The defendant testified the victi m was in hi s front yard when he exited hi s residence. Both of his stepsons t estified the victim l eft the yard and was near his ow n porch whe n the defendant began the arg umen t with the victim, a nd the vict im never l eft his yard. The defendant also testified he did not aim the rifle at the victim, and he did not know how the victim g ot shot. I.

The def end ant c onte nds t he evi denc e contained in the record is insuf ficient, as a matter of law, to support his conviction for attempting to com mit murder in the first degree. He arguesthe State of Tennessee fail ed to prove t he element of deliber ation because he did not have the oppor tunity to r

eflect upon his ac

tions after his

mind was freefrom th e influence of exci tement or passio n.

A.

When an accused challenges the sufficiency

of the convic

ting evi dence, this Court3

must review the record to determine if theevidence addu ced at trial is sufficient "to supp ort the finding by

the trier of fact of guilt beyond a reasonable doubt ." Tenn. R. App. P. 13(e). This rule is appl icable to findin gs of guil t based u pon dire ct evidenc e, circumstant ial evidence, or a combinati on of direct and ci rcum stan tial evi dence. State v. Dy kes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determinin g the suf ficiency of the convicti ng evidence, this Cour t does not reweigh or reeval uate the evide nce. Stat e v. Mat thews , 805 S.W.2d 776, 77 9 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). N or may this Court substitute its inferences f or those drawn by the trier of fact from circumst antial evid en ce. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert

. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview

of the evidence contained i n the record as well as all reasonabl e and legitim ate inferenc es which may be draw n from the evidence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Questions concerning the credibili ty o f t he witness es, the wei ght and val ue to be given the evidenc e, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jur

y, approved by the trial jud ge, accredi ts the testimony of the witnesses fo r the State and resolves all conflicts in fav

or of the theory

of the State." Since a verdic

t of guilt removes the presumption of innocence and replaces it wit h
a presumption of guilt, the accu sed, as the appellant, ha s the bur den in this C ourt of illustrat ing why t he evidence i s insufficient to support the verdicts re turned by thetrier of fact. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). This C ourt wil l not distur b a verdict of guilt due to the sufficiency of the evidence un less the facts contained in th e record are in suf fici ent, as a m atte r of l aw, for a rational trier of fact to find that the accused is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.4 Before the defendant could be conv icted of attempting to commit murder in the f irst degree, the State of Te nnessee was required to prove the attempt and the elements of f irst degree murder. In this cas e, the state was required to establis h (a) there w as an attempt to kill the v ictim, and (b) the defendant’s conduc t was int entional, prem edit ated and deliberate. Tenn. Code Ann. §§ 39- 12-101 and 39 -13-202(a) (1). The state established these elements beyond a reasonable do ubt. When this offense was committ ed, a deliberat e act was defined as “one performed with a c ool purpose.” Tenn. Code Ann. § 39- 13-201(b)(1) . A premeditate d act was defined as an act “done after the exercise of reflection and judgme nt.” Tenn. Code Ann. § 39-13-201(b) (2). It is uncontradi cted the vi ctim was unarmed and never made an effort to harm the defendant. Furthermore , the victi m never left thearea near his porch. The victi m and the defendant were never closer than 120 feet. The defen dant o pted to obtain a rifle. He emptied the magaz ine of the rifle sh ooting towards the sky . He then rel oaded the rifle, returned to his front yard, and he began shooting the rifle in thedirection of thevictim. One of the projectiles struck t he d efendant in his hea d. The defen dant admitted to a po lice officer he had s hot thevic

tim. A rati onal j ury could find bey ond a reasonab le doub t the de fendant h ad ampl e time to reflec t upon h is con duct, m ade the judgm ent to a rm hims elf, fired a full ma gazine of shells into the air , and, thereafter, r eloaded the we apon, returned to the front yard , and coollybegan shooting at the victi m. There can be no doubt the defendan t attempted to kill the victim by shooting him in the head. Tenn. R. App. P. 13( e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).1 We note that there i s a split of autho rity over this q uestion wit hin this Cour t. In State v. Wi llie William s, Jr. , Hami lton C ounty No. 03 -C-0 1-9501 -CR- 00330 (Tenn. C rim. App., Knoxville, November 8, 1996), per. app. granted (Tenn. 1997), tw o members ofthis Court expressed the view that the failure to give a voluntar y manslaug hter instruc

tion is not rendered harmless merel y because the jury found t he defendant had committed firstdegree murder. A di ssenting member of this Court expr essed the v iew we ad opt t oda y. W here the jury i s instructe d on first- and second-degree murder, first -degree murd er being defined as one occurr ing in the absenc e of passion, a findin g of first-deg ree murder renders a failure to give voluntary manslaughter instructions harmless. 5 II.

The defendant contends the tr ial court er red by faili ng to instr uct the j ury on th e lesser included offense of

attempted volu ntary mansl aughter. The co urt instruc ted the jury
on attempted first-and second-deg ree murder. The trial co urt explai ned that to be gui lty of attempted first-degree m urder, the defend ant must have acted w ith the intent to kill t he victim and with pr

emeditation and deliberati on. The trial co urt further ex plained that to be guilty of attempted first-deg ree murder, the de fendan t, at the time of the offense, m ust have been “suf fici entl y f ree from excitement and passion as t o be capable of premeditation.” Init ially, this Court

is of the opinion t hat the refusal to give this instruction, if error,
was harmless. Voluntary manslaughter is defined as “t he intentional o r knowi ng killingof another in a state of pass ion produced by adequat e provocati on sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39- 13-211. Had the juryfound the defendant was acting in such a state of pass ion when he shot the victim, it would have been unabl e to find him sufficientl y “free from the passions of the moment” as to be capable of premedi tation. See State v. West , 844 S.W .2d 144, 147 (Tenn . 1992). 1 The record establishes the victim walke d up on the defendant’s prop erty and returned to his ow n property before the defendant exited his residence and provoke d a verbal figh t with thev ictim. The defendant was either ar med with the rifle when he appeared in his front yard, or retrieved the rifle during the argument after beco ming angry with the victi m. The defendant emptied the mag azine by shoo ting in the air. He then reloaded the rifle and began shooti ng at the v icti m. He t old thepolic e he shot the v icti m. This factual scenario describes an act of murder, not manslaughter

. See Evere tt v. State , 528 S.W .2d 25, 27-28 (Tenn . 1975).6 The victim d i d approach the defendant’s stepchildren. There is ev idence in the record that the vi ctim may have been rude, but he d id not threaten t hem. After speaking to the children , the vict im immediately left the def endant’s pr operty. The victim did threaten the defendan t. However, the victim’s threats were made while he stood unarmed in front o f the defendant, a man firing a semi-automatic rifle in his

direction. Even if the victim’s threats were serious, he utterly lacked themeans to immediatel y carry them into action. Further, w hen the defendant ’s gu n ran out of bullets, the victim, a blackbelt in karate, made no attemptto attack the defendant. In short, thi s Court cannot find that the victim’ s actions constituted reasonabl e provocati on. “[W ]here the evidenc e in a recor d clearly shows that

the defendant was g uilty of the greater offense and is devoi d of any evi dence permittingan inference of guilt of the l esser offense, it is not er ror to fail to charge on a lesser offen se.” Stat e v. Bo yd , 797 S.W.2d 589, 593 (Tenn. 1990); State v. Ki ng , 718 S.W .2d 241, 245 (Tenn . 1986). This issue is

without mer it.

III.

The defendant contends his sentenc e was excessive. He neither contests the enhancement factors found by the trial court, nor claims the trial cour t erroneously

failed to apply mitigation factors. He argues this Court should reconsider his sentence i n light of the fact he has no cr iminal recor d. When an accused challengesthe length and manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the record w ith a presumpti on that "the determinations made by the court from w hich the appeal is taken arecorrect." Tenn. Code Ann. § 40-35-401(d). This presumpti on is "conditi oned upon the affirmative showing in the record th at the trial court consi dered the sentenci ng princi ples and all r elevant facts and circumstanc es." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The pres umption does not apply t o the legal conc lusions reac hed by thetrial cour t in sentencin g the accused
or to the determinat ions made by the trial cour

t which ar

e predicated upon uncontrover ted facts. State v. Butl er , 900 S.W.2d 305, 311 (Tenn. Cri m. App. 1994); State v. Smit h , 8917

S.W.2d 922, 929 (Tenn. Cr im. App.), per . app . denie d (Tenn. 1994); State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993) . Howeve r, th is Cou rt is re quire d to gi ve greatweight to the trial court's determination of con troverted facts as the trial c ourt's determination of these facts is pr edicated upon the witnesses' demeanor and ap pearance when test ifying. In conducting a de novo review of a sentence, this

Court must co nsider (a) any evidence received at the trial and/or sentenci ng hearing , (b) thepresentence report, (c) the principles

of sen tencin g, (d) the arg uments of counsel relative to sentencing alternatives, (e) the nature and characteri stics of the offense, (f) any mitig ating or enhan cing fac tors, (g) any statements made by

the accused in his own b ehalf, and (h) the accused's potent ial or lackof potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App .), per . app . denied (Tenn. 1987). When the accused is

the appellant, t he accused has theburden of establis hing that the sentence imposed byt he trial cour t was err

oneous. SentencingCommission Comments to Tenn. Code Ann. § 40-35-401; Ashby , 823 S.W .2d at 169; Butler , 900 S.W.2d at 311. The trial cour

t found the personal injuries sustained by the victim were particularly great, Tenn. Code Ann. § 40- 35-114(6); the defendant used a firearm dur ing the commission of the offense, Tenn. Code Ann. § 40-35-1 14(9); the defendant had no hesitation about committing a crime w hen the risk to human life was high, Tenn. Co de Ann. § 40-35-114(10); and the po tentia l f or bodily injury to the vic

tim was g reat, Tenn. Code Ann. § 40-35-114(16). The defendant used a rifle to s hoot the victim in the head causing the victim paralysis in the leg and hand and lo ss of his peripheral vision. Factors (6) and (9) are therefore clearly

applicable. According to the testimony of the victi m’s wife, thedefendant shot in the gener

al directi on of her husband while she was on the porch. W hile creation of a high ri sk to human life i s inherent in the crime of attempted murder, the defendant created a risk to persons beyond the intended v ictim, just ifying theapplication of factor (10). State v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App.), per . app . denied (Tenn. 1994); State v. Shane Wendall Yankee , Hawkins County No. 03-C-01-9507-CC- 002 008

(Tenn. Crim. Ap p., Knoxv ille, Aug ust 6, 1996), per . app . denied (Tenn. 1997). Factor (16) may be used to enhance the defendant’s s en tence. The victim most assuredlysuffered serious bo dily injury. However, this fact is not an ele mentof the offense. See State v. Jone s , 883 S.W .2d 597, 603 (Tenn . 1994).

__ ________________

_____________________ _ JOE B . JONES, PRE SIDING JUD GE
CONCUR:

____________________________________ JOSEPH M. TIPTON , JUDGE

____________________________________ CURWOOD WITT, JUDGE