# FILED
May 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9806-CR-00169 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. Joseph B. Brown, Jr., Judge RICKEY CRAWFORD, ) ) (Theft of

Property

over $1000 ; Appellant ) criminal attempt to commit first ) degree murder) For the Appellant : For the Appellee : AC Wharton Paul G. Summers Shelby County Public

Defender Attorney General and Repor ter Tony N. Brayton J. Ross Dyer Asst. Public Defender Assistant Attorney Gener al 201 Poplar, Suite 2-01 Criminal Justice Div ision Memphis, TN 38103 425 Fifth Avenue North 2d Floor, Cordell Hul l Building (ON APPEAL) Nashville, TN 37243-0493 Tarik Sugarman Criminal Justice Center Second Floor William L. Gibbons 201 Poplar Avenue District Attorney General Memphis, TN 38103 Thomas Hoover (AT TRIAL) Asst. District Attor ney General Criminal Justice Comple x Suite 301, 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION
The appellant, Rickey Cr awford, was found guilty by a Shelby County

jury of theft of property over $1,000 and of criminal attempt to commit firs t degree murder. The trial court subsequentl y imposed consecutive TDOC sentences of four years for the theft conviction and tw enty-five years for the attempted murder convicti on, resulting in an effective sentence of twenty-nine y ears. In this appeal as of ri ght, the appella nt raises two issues for our re view: I. The sufficiency of the evidenc e necessary to affirm his conv iction for criminal attempt to commit firs t degree murder; and II. The p ropriety o f the tria l court’s i mpositio n of cons ecutive sentences.
Finding no error of law

requiring rev

ersal, we affirm the judgments of conviction and sentences i mposed by the trial court

.
Background
In early 1996, the appellant and Angela Boxley, the victim, were inv

olved in a romantic relationship. The r elationship was such tha t, in February, the appel lant moved into Boxley’s

North Memphis apartment w hich she shared with her minor children. During thi s time, the appellant and Boxl ey purchased a 1980 Chevr olet Caprice. Although the appel lant gave Boxley $800 for the down payment, the vehicle was in Box

ley’s name and she was responsible for making all of the installment payments. By the end of March, Boxley ended the relationship, due primarily to the appell ant’s ongoing physi cal abuse of her. After the parties separated, Boxley traded the 1980 Chevy Caprice for a white 1989 Toyota Tercel.
The appellant moved out of the North M emphis residence, and, soon thereafter, began to stalk Box ley. His actions i ncluded harassing Boxl ey at her3

place of employment and making v erbal threats that he was going to kill her.On June 9, 1996, the appellant went to Boxley’s apartment and knocked on the door. Whe n Boxley ref used to le t him ent er, he went around to her bedro om window, knocked out the glass panes, and threatened to kill Box ley. The appellant was prevented from gaining access to the interior of the apartment at this time because Boxley had installed iron bars on her window s. He continued beating on the front door and Boxley was ultimately forced to contact the police. The appellant’s pursuit of his victim was onl

y temporarily thw

arted.
The next morning, as Box ley was walki ng with her childr en to her car, the appellant came running out of the bushes. Th e appellant threatened, “Bitch, I told you I was going to kill you.” Box ley attempted to talk with the appellant, but without success. At this point, the appellant brandished a pistol . A struggle then ensued between the two over

control of the weapon. Box ley released her hold on the weapon and attempted to back away. The appellant looked at Boxley and shook his head. He then shot Boxley hitting her in the shoul der. The appellant shot Boxl ey again, this time, hitting

her in the arm and causing her to fall to the ground. H e then walked over to w

here Boxley lay injured, stood over her, and continued to fire the weapon. He then demanded that Boxley relinquish the keys to the Toyota, which she did.
The appellant then left the scene in Box ley’s Toyota Tercel. Late that evening, the appellant was apprehended by law enforcement authorities in Marks, Mississippi, a tow

n approximately six

ty miles south of Memphis. The arresting officer, Rickey Bridg es, searched the vehicle and discovered a .38 cali ber Smith and Wesson revolver with five spent rounds in the trunk of the c ar. The appellant advised Officer Bridges that he had shot his girlfriend in Memphis earlier that morning.1 The appe llant d oes not c hallen ge th e suf ficien cy of th e evid enc e sup portin g his convicti on for theft

of propert

y over $1000. 4 At his subsequent trial,the appellant provided tes timony to the effect that he believed that he was the rightful owner of the Toy ota Tercel because he had paid for the Chevrolet Capric

e. Additionally, althoug h he did not deny his inv olvement in the shooting, he explained tha t he did not intend to kill Boxley, that he had only carried the weapon for his own protection, and that he had only shot her because he “lost control.”

I. Sufficiency of the Evidence
In his first assignment of er ror, the appellant avers that the evidence was insufficient for a rational trier of fact to f ind him guilty of criminal attempt to commit first degree murder. 1 Specifically, the appell ant maintains that the State failed to show that the attempted murder w as premeditated and not the result of passion.
When reviewing a trial cour t's judgment, the appellate c ourt will not distur

b a verdict of guilt unle ss the fa cts of th e record a nd infer ences whic h may be dr awn from it are insufficient as a matter of law for a rational tri er of fact to find the defendant guilty beyond a r easonable doubt. Tenn. R. App. P. 13( e); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.1982). In other words , this court will not reevaluate or reweigh the evidence bro ught out at trial. It is presumed th at the judge or jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in fav or of the State. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn.1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn.1973). Since a verdi ct of guilt removes the pres umption of a defendant's innocence and replac es it with a5

presumption of guilt, the defendant has the burden of proof on the sufficiency of the evidence at the appellate le vel. Grace , 493 S.W.2d at 476.

Once a homicide is establis hed it is presumed to be second degree murder. State v. B rown , 836 S.W.2d 530, 543 (Tenn.1992). The State, then, has the bur den of proving the element of premedit ation to elevate the offense to first degree murder. Id. Premeditation necessitates "the exercise of reflection and judgment," requiring a "prev

iously formed design or intent to kill." State v. West , 844 S.W.2d 144, 147 (Tenn.1992).
The element of premeditation is a ques tion for the jury and may be inferred from the circumstances surroun ding the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn.Crim.App.1993), perm. to appeal denied , (Tenn.1994). Because the trier of fact cannot speculate as to what was in the killer's mind, the existence of facts of premeditation must be determined from the appellant's conduct in li ght of the surrounding circumstanc es. State v. Wright , No. 01C01-9503-CC-00093 (Tenn.Crim.App. at Nashville, Jan. 5, 1996). Although there is no strict standard governing what constitutes proof of premeditation, s everal relevant ci rcumstances are helpful, including: the use of a deadly weapon upon an un armed victim; the fact that the killing w

as particularly cr

uel; declarations by the defendant of his intent to kill; and the making of prepar ations before the killing for the purpose of concealing the crime. State v. Bland , 958 S.W.2d 651, 660 (Tenn.1997), cert. denied , -- U.S. -- 118 S.Ct. 1536 (1998) (citing Brown , 836 S.W.2d at 541-54 2). Additional factors from which a jury may

infer premeditation include pl anning activities by the appellant prior to the killing , the appellant's prior r elationship with the v

ictim, and the nature of the killing. Gentry , 881 S.W.2d at 4-5 (citation om itted).
Reviewing the ev

idence in the light most fav orable to the State, the appellant , on the morning of the murder, hid outside the victim’s apartme nt concealing himself6

behind the existing shr ubbery, lying i n wait for his victim. When she finally emerged from her apartment, the appellant ambushed the unarmed victim in the pr esence of her young children and announced his intent to kill her. Boxley attempted t o escape; however, the appel lant followed, firing fiv e shots, two of which s truck the victim and three whi ch were fired after the v ictim had fallen to the ground. The appellant’s conduct on this da te followed previous th reats to the victim that he was going to kill her. Based upon this proof, we conclude that there is overw helming evidence concerning the appellant's planning acti vity, his motiv

e, his previous threats to the victim, and the circumstances of the shooting to sup port the jury's finding of premeditation. This is sue is without merit.

II. Consecutive Sen

tences
At the sentencing hearing , the trial court imposed a sentence of four years for the appe llant’s co nviction o f theft of prope rty and imp osed a se ntence o f twenty-f ive years for the appellant’s conviction of attempted first deg ree murder. The appellant does not contest the length of these sentences on appeal. Rather, i n his final assignment of error, the appel lant contends that the trial court erred in ordering that these sentences be served c onsecutively, resul

ting in an effective sentence of twenty-nine year

s.
Consecutive sentences may be imposed when a defendant is conv icted of more than one criminal offense. Ten n. Code Ann. § 40-35-115 (1997). However, prior to the imposition of cons ecutive sentences, the tr ial court must determine that one or more of a statutorily enumerated list of criteria exists. At the sentencing hearing, the trial cour

t based its imposition of consecutive sentences upon finding (1) that the appellant is “ an offender whose record of crimi nal activity is extensive” and (2) that the appellant is “a dangerous offender whose behav ior indicates little or7

no regard to human life and no hesitation about co mmitting a crime in which the risk to human life is high.” Tenn. C ode Ann. § 40-35-115(b)(2) and (4).
i. Dangerous Offender The appellant contends that the tri al court’s finding that he is a “dangerous offender” is erroneous because theft of property is not an inherentl y dangerous crime. In Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976), our supreme court held that "[a] defendant may be class ified as a dangerous offender if the crimes for which he is convic

ted indicate that he has littl e or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." (emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4 ); State v. Wilkerson , 905 S.W.2d 933, 937 (Tenn.1995). No prerequis ite exists in Tenn. Code Ann. § 40-35-115(b)(4), Gray v. State , or State v. Wilkerson that the offense, by statutory definition alone, be a dangerous off ense. In determining the inherently dangerous nature of the instant offe nses, the focus is not whether the crimes were dangerous crimes, but w hether there exists ag gravating circumstances in the commission of the instant offenses

. See Gray , 538 S.W.2d at 393.
In the present case, the appellant armed himself with a w eapon and strategically pl anned the ambush on his ex-gi rlfriend and the theft of her vehic le. The fact that the appellant fired multipl e shots at Ms. Boxley as she lay injured upon the ground and then demanded the key s to her automobile showed l ittle regard for human life. Moreover, despite the fact that Ms. Boxley ’s minor children w

ere with her at the time of the incident, the appellant continued firing th e weapon with callous disregard for the safety of the children. This proof clearl y establishes that the appella nt had no

hesitation about commit ting a crime when the r isk to h uman life was high an d that th e appella nt has lit tle or no re gard for h uman lif e. Accord ingly, the trial court's clas

sification of the appellant as a dangerous offender is warranted.2 The record indi cates that at least nine of t hese prior convicti ons arose from the same incident.
3 These criteri a include:(1) the pr ofessionalcriminal;(2) the mult iple of fender; (3)the dange rous m entally abno rma l offende r and (4) th e dang erous o ffende r. Gray containe d a fifth criterion, the persistent offender, which was not codified in section 115(b). 8 This Court's review of the sentences imposed by the trial court is de novo with a presumption of corr ectness. Tenn. Code Ann. § 40-35-40 1(d) (1997). The evidence clearly s upports the trial judge's rationale for consecutiv e sentencing. See supra . Furthermore, the terms i mposed by the trial judg e are reasonably related to the severity of the offenses and ar e necessary to protect the public from further criminal acts by the offender. Wilkerson , 905 S.W.2d at 938. Although the trial court did not make the find ings requir ed by Wilkerson , we find that these factors are present under ou r power

of de novo

review. State v. Adams , 859 S.W.2d 359 (Tenn.Crim.App.1993). Consecutive sentencing is appr opriate.
ii. Extensive Record of Prior Criminal Activity The record reflects that the appel lant has a prior criminal record consisting of two convictions for a

ggravated assault, nine convictions for armed robbery, and one convictio n for sec ond degre e burglary. 2 The appellant challenges hi s classification “as an offender whose record of cr iminal activity is extensive,” Tenn. C ode Ann. § 40-35-115(b)(2), argu ing that the criteria for this classification is predicated not upon an offender’s prior record, but the convictions for which consecutive senten cing is sought. The consecutive s entencing classification provisions of Tenn. Code Ann. § 40-35-115 are, in essence, a c odification of the holdings in Gray v. State , 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor , 739 S.W.2d 227 (Tenn. 1987). See Sentencing Commission Comments,Tenn. Code Ann. § 40-35-115. The first four criteria, which include section 115(b)(2), record of extensive criminal history, were taken direc

tly from Gray . Sentencing Commission C omments, Tenn. Code Ann. § 40-35-115. 39 Gray did not contain a category captioned, “The defendant is an offender whose record of criminal activity is ex

tensive.” Howev

er, Gray did establish, for consecutive sentencing purposes, a “multiple offend er category.” The multiple offender definition in Gray tracks almost verbati m the statutory languag e of section 115(b)(2), “one whose reco rd of crim inal acti vity is exten sive .” (Emphasis added). Moreover, Gray

provides t hat “[T] he prior re cord of t he multi ple off ender ma y have been good, but the crimes for w hich he has been convicted i ndicate criminal activ ity so extens ive and con tinuing f or such a p eriod of time as to warrant co nsecutive sentencing.” Gray , 538 S.W .2d at 393 [citi ng MODEL PENAL CODE Section 7.03]. Section 7.03, MODEL PENAL C ODE , recognize s three sit uations in which con secutive sentencing may apply to those classified as multiple offen ders: (1) when the court is actually imposin g sentences fo r more than one felony, (2) when it is imposing a sentence that will run concurrently with a felony sentence already imposed, and (3) when it is imposing a sentence for one felony but the defendant has asked that the sentence cover other felonies admitted in open court.

Thus, it is appar ent from a

reading of Gray and its origin, Secti on 7.03 of the
MODEL PENAL C ODE , that the “multiple offender” cla ssification in Gray , which was codified in section 115(b)(2), was not intended by our legislature to encompass those offenders who were before the court for consecutive s entencing based upon their r ecord of prior

felony convictions. Indeed, our supreme court in Gray classified this offender within the “per sistent offender” category.As noted in the Sentencing Commission Comments to § 40-35-115 , the “persistent offender” clas sification was not codified because “[t]his additional category has been built into the sentencing structure which enhances the sentence ranges depending upon the types and severity of the prior

felony convictions.”

Sentencing Commission Comment s, Tenn. Code Ann. § 40-35-115. Thus, the appel lant’s classification as an offender whose4 Two mem bers of thi s panel would affirm consecuti ve sentencing pursuant to Tenn. Code Ann. § 40-35-115( b)(2) based upon the appellant ’s prior reco rd of crim inal ac tivity, wh ile acknowledging t hat other i nterpretations are tenable. Their affi rmance relies, in lar ge part, upon (1) thi s court’s ho ldings i n numerous cases over the past eight y ears that Tenn. Code Ann. § 40- 35-115(b)(2)applies t o “offenders who ha

ve an extensi ve histor y of cri minal convict ions, not limited to the off

enses before the sen tencing cour t” and (2) this i nterpretation l ogically fil ls the “gap” between t he professional criminal an d the multi ple offender as defined i n Gray

. Judges Tipton and Lafferty rely upon prior judici al decisions which support their position, however, other pa nels of this court ha ve, on oc casion, re ached different re sults. See, e.g. , State v. Blazer , No. 03C01-9405-CR-00185 (Tenn. Cri m. App. at Knoxvil le, Feb. 3, 1995) (r ecognizi ng that past record was not cont

emplated in Gray to consti tute an extensive recor d of criminal

activity for conse cutive se ntencing pursua nt to section 115(b)( 2)); State v. Gr uzella , No. 01C01- 9401- CC00002 (Tenn. Crim. App. at Nashvil le, Aug. 23, 1994)(prior recor d of the multi ple offender good, but his crim es indica te extens ive crim inal activity warra nting con secutive senten cing purs uant to section 1 15(b)(2 )); State v. Miles , No. 01C01-9210-CC-00333 ( Tenn. Crim. App. at

Nashvill e, Sept. 16 , 1993), perm. to appeal de nied , (Tenn. Feb. 2 2, 1994) (hol ding that offender was bot h a multiple a nd pers istent offen der); State v. Bryant , No. 327 (Tenn. Cr im. App. at Knoxvi lle, Apr. 3, 199 1) (c ons ecu tive se nten ces appr opria te pu rsua nt to s ectio n 115 (b)(2 ) bas ed up on of fend er’s extensive r

ecord of cri minal acti vity before the cour

t with no prior criminal hi story) . No prior opinion of this cou rt indi cates the benef it of f ull briefing and argument on thi s matter wit h the excepti on of the case sub judice

and Blazer , No. 03C01-9405-CR-00185, which held that the past record of t he defend ant was not conte mpla ted by the leg islature in the ir enactm ent of Se ction -115 (b)(2). See Hohn v. United States , -- U.S. --, 11 8 S.Ct. at 1 968, 198 1 (1998 ) (Scalia, J., d issenting ). Moreover, notwithstanding the notable inconsistencies in the decisions of this court on this ma tter, abandonment of an establ ished legal precedent i s mandated where the deci sion in question has been p roven m anifestly erro neous . See Payne v. Tennessee , 501 U.S . 808, 828 -830, 11 1 S.Ct. 2597, 2609-2611 ( 1991). Thus, where judici al decisi ons are unworkable, badly r easoned, or contrad ictory to the legis lature’s inten t, we can not feel co nstrained to follow su ch prec edent. See Smith v. All

wright , 321 U.S . 649, 665 , 64 S.Ct. 7 57, 765 ( 1944). Star e dec isis is not an ine xora ble command; rather, it

“is a pri nciple of

policy and not a mechanical formula of adherence t o the latest decision.” See Payne , 501 U.S . at 828, 11 1 S.Ct. at 2 609. Moreover, whi le it

is true that the separate concurring’s i nterpretations of extensive criminal activity may “fill the g ap,” it would a ppear th at this “gap ” was inten ded by ou r legislature in its express reject ion of th e “persist ent offender”

classifi cation. While it i s the provi nce and duty of the judiciary to interp ret the law, the legislative bra nch ha s the ex clusive po wer to for mula te the law. See Ten nes see Valle y Auth ority v. H ill , 437 U.S . 153, 194 , 98 S.Ct. 2 279, 230 1-02 (19 78). 10 record of criminal activity is extensive, Tenn. Code Ann. 40-35-115(b)(2) was error. 4 Notwithstanding this

error, only one statut

orily enumerated crite ria in Tenn. Code Ann. § 40-35-115 is requir ed to warrant the imposition of consecutive sentences. Because the appellant was pr operly classified as a “dangerous offender,” consecutive sentences w ere proper.11 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JOSEPH M. TIPT ON, Judge

___________________________________ L. T. LAFFERTY, Senior Judge