# FILED
April 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 03C01-9702-CR-00053 Appellee ) ) KNOX COUNTY vs. ) ) Hon. Richard Baumgartner, Judge THOMAS JEROME ELDER, ) ) (Attempt t

o Commit Murder Appellant ) in the second degree)
For the Appellant : For the Appellee : Julie A. Marti n John Knox Walkup Attorney at Law Attorney General and Repor ter P. O. Box 426 Knoxville, TN 37901-0426 Peter M. Coughlan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Randall E. Nichols District Attorney General Robert Jolley Asst. District Attor

ney General City-County Buil ding Knoxville, TN 37902

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant was indicted for criminal attemp t to comm it first degree murder. 2 O P I N I O N

The appellant, Thomas Jerome Elder, appea ls as ofright from his conviction for criminal attempt to commit murder in the second deg ree. 1 Following his jury trial, the Knox County Criminal Cour t imposed a twelve year sentence in the Tennessee Departmen t of Correction to be serv ed consecutively to feder al sentences for convictions

for cocaine distribution an d rela ted crimes. On appeal, the appell ant present s three iss ues for o ur review: (1) Whether t he evide nce was sufficient to support his conviction for criminal attempt to commit second degree murder; (2) Whether the trial court committed reversi ble error by failing to instruct the jury on the charge of attempted voluntary manslaug hter; and, (3) Whe ther th e trial court erred by imposing the maximum sentence allowed f or a Range I , standa rd offe nder of a Class B fe lony. After review, we affirm the trial court’s judg ment.

Facts

The proof at tri al establis hed that, in 1 992, the appel lant and the v ictim in this case, Steven Drew, were jointly engaged in the criminal enterprise of distributing drugs. The appellant supplied drugs to Drew who, i n turn, s old those drugs on the str eet. Because Drew

purchased his drugs from the appellant, the appellant permitt ed him to
use one of the str eet corners in the appellant’ s “territory,” which was know n as “po sting.”The area “posted” by Dre w was a street cor

ner in Austin Homes, an eas t Knoxville neighborhood. During an encounter between thetwo on February 19, 1992, the appellant initially

spoke with Drew about a mutual acquaintance, Lis a, whom the appellanthad casually dated. The two briefly argue

d about the fact that Lisa had been “coming to se e [the victim ] over in Austin Homes.” Drew related that Li sa and the appellantdid not have a “real close relationship” and that they both “saw other people3

. . . .” The conversation the n change d to the sale of drugs. When Drew told the appellantthat he had found a new supplier of drugs, the appellant ordere d Drew to leave the area he had “posted. ” Half an hour later, the appel lant returned and asked Drew why hestill remained on the street corner. Drew then informed the appel lant that “it’s a free country.” The appella nt replied, “You t hink I’m playin ’; I’ll kill y ou.” Four hours later, the appellant retur ned to the street

corner. Drew had j ust completed a drug sale when he was

shot twice by the appel lant from an approximate distance of si x feet. The bullets struck the v ictim in his leg and l ower back. F ifteen to tw enty people witnessed the crime but no one came forward to testify to the events they observ ed.

At tri al, Dr. Hugh Hyatt, the attending surgeon, testi fied that he examined the victim when he was brought into the hospital in Februar y 1992. Dr. Hyatt

characterized the wounds as serious. One bullet struck the victim’s left leg and the other entered the
sacrum in the lower back are a. Dr. Hyatt further t

estified that the gunshot wo und, located near a ma jor artery, was “a penetrating w ound which involve

d the entire depth of the body.” After opening the victim’s abdomen, a div erting colostomy w

as performed which involves

“a division of the colon to prevent any further spillage of fecal materi al into the pararectal tissues.” The defense presented no proof. At the conclusion of the evidence, the jury found the appellant gui lty of the lesser offense of attempted second degree murder.
I. Sufficiency of the Evidence In t he appellant’s first issue,he contends that the evidence i s insufficient t o support his conviction for attempt to commit second degree murder. When reviewing
a trial court’s judgment, the appellate court will not disturb a verdict of guilt unless the facts in the record and inferences which may be drawn from it are insufficient as a matter of law for a rational tri er of fact to find the defendant guilty beyond a reasona ble do ubt. Tenn. R. App. P. 13(e); State v. Tuggle , 639 S.W.2d 913, 914 (Ten n. 1982)

. In other words, this court will not reevaluate o r reweigh the evidence introduced at trial.2 W e not e tha t the tr ial cou rt’s jur y instru ction on cr imin al atte mp t was incor rect. Rath er than chargi ng the appli cable provi sion, Tenn. Code Ann. § 39-12-101(a) (2), th e trial court charged § 39-12-101(a)( 1), which i nvolves conduct measured by the defenda nt accordingto the circumstances as he bel ieves them to be, rather t han as they exi sted. For fu rther analysis, see the discussion below. Notwithstanding, we find the error harm less. Tenn. R. App. P. 36(b).

For instr uctionalpurposes, i t must be recognized that our criminal code has establi shed three distinc t types of crim inal attem pts:

(1) In tentio nally en gag ing in a ction or ca usin g a re sult th at wo uld constitu te an offense i f the cir cumstances surrounding t he conduct were as t he person beli eves them to be. Tenn. Code Ann. § 39-12-101(a)(1). Thi s type of 4 I t is pr esumed that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the State. See State v. Sheffield , 676 S.W.2d 54 2 , 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973). Since a verdict of guilt
removes the presumption of a defendant’ s innoce nce and replaces it with a presumption of guilt, the defendant has the burden o f proof on the s uf ficiency of the evidence at the appellate le vel. Grace , 493 S.W.2d at 476.

In support ofhis argument, the appellant c ontends that the State fa iled to pr ove that the shooting was

a “knowing” attempt to murder the victim. In effect, the appellant argues that his conduct was notreasonably certain to cause death, as evidenced by the fact that the victim was shot at close range in the l eg and lower back. This argument, however, ignores the fact that, previous to the shooting epis ode, the appellanthad clearly told the victim, “You think I’m playin’; I’ll kill you.” After sil ent ly approaching Drew from the rear, the appellant shot the victim twice. The wounds were described as serious, near a ma jor artery, and requir ed surgery. In sum, in reviewi ng the issue of the appellant’s intent, we are guided not by his marksmanship but, rather, by the circumstan ces surrounding t he shooting.

In order to obtain a

conviction for attempted seco nd degree murder in this case, the State is required to pr ove that the appellant acted w ith the intent to cause the knowing killing

of another, believing hi s conduct would cause the r esult without f urt her conduct on his part. See Tenn. Code Ann. §§ 39-12-101(a)( 2) and 39-13- 210(a). 2attempt is desi gned to reject the defense of i mpossibili ty. Examples include receivi ng stolen pr

operty that was not, in fact,stolen, attempt to st eal from an empty house or empty pocket , offeri ng a bribe t o a person beli eved to be a ju ror who is no t, etc.

2) Acts wit h intent

to cause a result that is an element of the offense, and believ es th e con duc t will ca use the re sult w ithou t furth er co ndu ct on the p erso n’s part. Tenn. Code Ann. § 39-12-101(a)(2). Thi s is the most common type of attem pt. Ex am ples wou ld inclu de th e inte ntion al or k now ing sh ootin g of a victim not resulting in death, an unsuccessfulrape, robber y, etc.Both types (1) and (2) deal wit h situat ions where th e actor has done al l he int ends to do, but

where the crime neverthe less has not been com mitted.

(3) Acts wi th intent to complete a course of acti on or cause a resul t that would consti tute the offense, under the circumstances sur rounding t he conduct as the person bel ieves them to be, and the conduct constitutes a substanti al step toward the commission of the offense. Type three at tempts invol ve those situations where the actor has taken a “subst antialstep” in preparing and planning the com miss ion of the o ffense , yet has not d one all that h e intends to do. The problem is to di stingui sh between acts of perpetrat ion (whi ch may not be criminal)and a criminalattempt. I n this i nstance, cri minal li ability depends upon the actor hav ing taken a “su bstanti al step” i n a corroborated course of conduct planned to cul minate in t he commission of a crime. Tenn. Code Ann. § 39-12- 101(a)( 3) and (b ); see also MODEL PENAL CODE Crim inal Attem pt, Section 5.01. Examples would incl ude reconnoitering the place for t he commission of the crim e, the poss ess ion of ma terials to be em ployed in the c om mis sion of the crim e that are speci

ficall y designat

ed for such unl awful use or t hat can serve no l awful purpose of the act

or under the ci rcumstances, and ly ing in wai

t for t he contemplated vi ctim of the cri me. For a general di scussion of i nchoate crimes and crim inal liability, see Section 5 .01, MODEL PENAL CODE
. 5 Whether the appellant “knowingly” attempted to kill h is victim is a questi on of fact for the jury . Inte nt, which can seldom be pr oven by direct ev

idence, may be deduced or

inferred by the trier

of fact from the character of the assault, the nature of the act and from all the circumstances of the case in evidence. See State v. Holland , 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). We fin d the evidence sufficient to support the jury’s verdi ct of attempted second degree murder, i.e. , that the appellant’s conduct wasreasonably certain to c ause the victim’s death, ba sed upon the use of

a deadly weapon, the number of wounds inflicted, the seriousness of the wounds and the appellant’s express statement, hours before the shooting, that he intended to kill the victim. Tenn. R. App. P. 13( e). This issue is without merit.
II. Proposed Jury

Instruction Concern ing Attempt ed Voluntary M anslaughter
In the appellant’s second issu e, he contends that the trial c ourt committed reversible error by failing to charge the jury on attempted voluntary manslaughter. The appellantargues that

the victim’s testimony

concerning their disc

ussion of the girlfriend, Lisa, supported proof that he shot the victim durin g a state of passion induced by6

adequate provocation, thus wa rranting an instructi on on manslaughter. The appellant argues that, if “any” evidenc e is introduced of alesser offense, the trial cour t is under
a duty to charge the les ser, contendin g that to do otherwise would usurp the jury’s function.

A trial court has the duty , in criminal cases, to fully instruct the jur y on the general principles of law relevant to the issues

raised by the evidence. In other words, the court must instruct the jury on those principles closel y and openly connected w ith the facts before the court, and whi ch are necessary for the jury’s understandi ng of the
case. This obl igation includes giv ing instructions on l esser offenses included in the indictment, without

any request on the part of the defendant. See Tenn. Code Ann. § 40-18-110(a)(1990). However, there is no constitutional right to a jury i nstruction on
a lesser offense in every case. Se e Keeble v. United States , 412 U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973).

Before an instruction on a lesser offense is warranted, the trial court must make two essentia l deter minations. First, in order to comport with the constitutionally guaranteed notice requirements, the i nstruction must set out an offense which is a lesser offense of the offense charged in the indictment. See St ate v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); se e also U.S. C ONST . amend. VI; Hagner v. United States , 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932). A lesser “grade or class” of off ense is es tablished by the legis lature and is determined simpl y by looking at th e offenses set forth in a statutory c hapter and part. Trusty , 919 S.W.2d at 310 . In contrast, an offense is “lesser included” in another “only if the el ements of the greater offense, as those elements are set forth in the indictment, include but ar e not congruent with, all the elements of the lesser.” Trusty , 919 S.W .2d at 310-311 (quoting Howard
v. State , 578 S.W.2d 83, 85 (Te nn. 1979)). Thus, as presented in the case sub judice , attempted voluntary manslaughter is a lesser offense of attempted f irst degree murder because it is a lesser grade or class of that offense. See generally Tenn. Code Ann.3 The te rm “les ser offe nse,” as used thr ougho ut the rem ainder of this opinion, re fers both to a lesser

grade offense and a l esser incl uded offense.
4 This sta ndard p reserve s the fac tfinder’s role as the w eigher of the eviden ce. See Clew is v. State , 922 S.W .2d 126, 148 (Tex. Crim . App. 1996). 7 § 39-13-201 et

seq. (1991). However, attempted voluntary manslaughter is not a les ser included offense of attempted first degree murder bec ause the elementsof first degree murder are not congruen t with the elements of vol untary manslaughter. Compare Tenn. Code Ann. § 39-13-202 with Tenn. Code Ann. § 39-13-211.
Although voluntary manslaughter is a lesser offense 3 of first degreemurder, the trial court’s inquiry

is notcomplete. The trial court mus t next determine whether such
an instruction on attempted voluntary manslaughter is warranted by the evidence. See State v. Vance , 888 S.W.2d 776, 780 (Tenn. Crim. App. 1994). Obv ious ly, w here “there is no proof in the record which woul d support the instruction,” no jury instruction
on a lesser offense need be submitted to the jury. See Trusty , 919 S.W.2d at 311. Nonetheless, the dilemma facing the trial court rem ains: what quantum of proof is necessary to warr

ant the charging of a lesse r offense.

In determining when an ins truction should be giv en, we are mindful that the ultimate goal of criminal proceedi ngs should bea solemn search for the truth, so that
one accused ofa crime will be conv icted or acquitted depending on the sufficiency of the evidence when measured against the r easonable doubt standard of proof. See Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 2789 (1979); In re Winship , 397 U.S. 358, 34, 90 S.Ct. 1068, 1073 (1970). The Due Process Clause of the Fourtee nth Amendment prote cts a defendant in a criminal case against conviction “ex cept upon proof beyond a reasonable doubt of every fact necessary to constitute the crime w ith which he is charged.” Jackson , 443 U.S. at 315, 99 S.Ct. at 2789; In re Winship , 397 U.S. at 364, 90 S.Ct. at 1073. The relevant question upon review of a crim ina l conviction, be it th e trial c ourt or an appellate court, i s whether, “after vi ewing the evidence in the light most favorable to the prosecution,[4 ] any rational trier of fact could5 See also Jac kso n v. Vir ginia , 443 U.S. at 317-319, 99 S. Ct. at 2788- 2789.
6 Previous appel late deci sions in t his state have employed di ffering t erminology when defining th e me asure o f proof ne cessa ry to require th e giving of a n instructio n on a les ser offe nse. Such terminology

is il lustrat

ed by the f

ollowi ng: (1) where th ere is any evidence i ntroduced as to a lesser off

ense, regardl ess of the am ount or c onvincing force. Vance , 888 S.W .2d at 781. “[T]he cases are clear that

if ther e is any evide nce which reasonabl e minds could accept as to any such offenses, the acc used is entitled to the appropriate instructions.” Id

. (quoting Johns on v. State , 531 S.W .2d 558, 559 (Tenn. 1975 ) (emphasis add ed); (2) where th ere are “ any fa cts th at are sus cep tible o f infe rring guilt of any l esser included offense.” Trusty , 919 S.W.2d at 310 (quot ing State v. Wright , 618 S.W .2d 310 ( Tenn . Crim. A pp.), perm. to appeal de nied , (Tenn. 1981)); (3) only if ther e is evi dence intro duced which would support a convi ction for that offense. “[ D]efendants are entitl ed to jury instruct ions on all

lesser i ncluded offenses as defi ned in Howard and on all offenses which ar e a lesser grade or class of the char ged offe nse, if the ev idence would sup port a convi ction for the offense.” Trusty , 919 S.W .2d at 311 ; State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). Applicat ion of any

one of these t hree standards, when reviewi ng the evid ence in the l ight most favorable t

o the defendant ’s theory of the case, are consisten t and are necessari ly encompassed withi n the standardannounced in Kee ble and adopted by this court in the present case. Howe ver, we note that other v ariations o f the stan dard, e.g., State v. Howard , 926 S.W.2d 579, 586-587 (Tenn . Crim. A pp. 1996 ).(“relatively sca nt testim ony”); State v. Ruane , 912 S.W.2d 766, 782 (Te nn. C rim . App . 199 5) (“s light” e viden ce); w ould b e inco nsis tent w ith the stan dard anno unc ed in Kee ble

. 8 have found the essential eleme nts of the crime beyond a reasonable doubt .” 5 See Tenn. R. App. P. 13(e); Tenn. R. C rim. P. 29(a). Consis tent with the du e pr ocess p rinciples announced in In re Winship , 397 U.S. at 364, 90 S.Ct. at 1073,the United States Supreme Court held, in Keeble , that: it is no w beyond di spute that the defendant is entitled t o an instruction on a lesser included offense if the evidence would permit a jury to rationally find him gui lty of the lesser offense and acquit him of the g reater

. Kee ble v. United States , 412 U.S. at 208, 93 S.Ct. at 1995 (internal footnote omitted)(emphasis added); see also Trusty , 919 S.W.2d at 311; Fed. R. Crim. P. 31(c). Accordingly, before instructing a jury on a lesser offense, the trial court must determine whether the evidence, when v

iewed in the light mos

t favorable to the defendant’s theory of the case, would justify a jury verdict in accord with the defendant’s theory, and would permit a rational trier of fact to fin d the defendant guilty of the less er offense and not guilty of the greater offense. 6 See Trusty , 919 S.W.2d at 311; s ee also People v. Austin , 57 6 N.E.2d 5 05, 507 (Ill. App.), perm. to appeal denied , (Ill. 1991); State v. Pierce , 927 P.2d 929, 934 (Kan. 1996); State v. Wilkins , 415 N .E.2d 303 , 308 (Ohio 1980); Brandau v. Commonwealth , 430 S.E.2d 563, 564-565 (Va. App. 1993); State v.7 We acknowledge the vitalrole of t he trial court in whose hands the Consti tution places “the responsi bili ty for safeguarding the integri ty of t he jury t rial,includi ng the ri ght to have a case withheld from the jury when the evidence is insufficient as a matter of law to suppo rt a conviction.” See United Stat

es v. Gainey , 380 U.S. 63, 68, 85 S.Ct. 754, 758 (1965) . The tri al court h as the duty to reasonably

assist and i nstruct t he jury so as to avoid a miscarriage of justice . Thus, the determinati on of whether an i nstructi on on a lesser of fense is requi red, becomes a crucial factor essen tial to main taining the inte grity of judicial pro ceeding s. 9 Foster , 528 N.W.2d 22, 26 (Wis. Ct. App.), perm. to appeal denied , (Wis. 1995).
Again, the ap pellant argues that the trial co urt’s determination that a l esser offense wo uld not su pport a conviction constitutes an impermissible i nvasion of the jury’s role as fact finder. Cf

. Howard , 926 S.W.2d at 586-587; State v. Summerall , 926 S.W.2d 272, 278 (Tenn. Crim. App. 1995); Ruane , 912 S.W.2d at 782. We disagree. The standard pronounced in Keeble and adopted herein preserves the integrity

of the juryas fact finder

by ensuring that the j ury is instructed as to a lesser offense only w hen that offense co nstitut

es a val id, rat ional al

ternati ve to th e charg ed offense . If a jury were instructed o n a lesser offense even though the evidence did not raise i t or the offense was only raised by “slight” or “r

elatively scant”

evidence, then the instruction would constitute an invitati on to the jury to return a compro mise or otherwise unwarranted verdict. See State v. Piper , 261 N.W.2d 650, 654 (N.D. 1977); Arevalo
v. State , 943 S.W.2d 88 7, 889 (Tex. Crim. App. 1997); State v. Melvin , 181 N.W.2d 490, 494 (Wis. 1970), overruled on other grounds by , 198 N.W.2d 63 (Wis. 1972). Thus, a determination of whether an i nstruction on a lesser offense should be given to the jury is not

solved by merely

determining that the

crime charged includes the lesser offense because juries are not g iven the freedom or discretionto pick and choose what offense the accused should be found guilty of. See State v. Williford , 307 N.W.2d 277, 282 (Wis. 1981) (citations omitted). Indeed, a bsent su ch a standard regarding the quantum of proof necessary to trig ger an instruction on a lesser offense, the trialjudge who charges a lesser offense based upon less than sufficient ev idence would be

faced with the absurd nece ssity, predicated upon its own invited error, of enter ing a judgment of acquittal following the jury’s guilty verdic t on the lesser offense. 7 See Tenn. R. Cr im. P. 29(a). Thus, we conclude: the jury is bound by the evidenc e and should be limited8 A defendant is entitled to an instruction on a lesser offense only in cases where the jury could rati onally

find hi m guilty

of the l esser offense and not guilt y of the greater cri me. Thus, for example, a person charged with rape who denies any i nvolvement in the crime is ei ther guil ty of rape or o f no offe nse at all. See State v. Fields , No. 11 (Tenn. Cri m. App. at Jackson, Mar. 20, 1991), perm. to appeal de nied , (Tenn . Jul. 1, 1991 ); see also People v. Thompson , 342 N.E.2d 445 (Ill. App. 1976). 10 to those lesser offenses which a rational v

iew of the evidence will sustain and does not convince beyond areasonable doubt that the elements of the greater crime exi st. 8 See Melvin , 181 N.W.2d at 494.

In the case now before us, the appellant argues that the jury should ha ve been instructed on the lesser grade offense of attempted voluntary manslaughter. Reviewed in the light most favorable tothe appellant, the evidence a t trial indicated that pr

ior to the shooting the appellant and the victi m had “argued” over thei r mutual acquaintance with Lisa. This discussion termin ated an d the conversation turned t o business, i.e. , “sale of drugs.” This conversation ended w ith the appellan t orderin g the victim to leave the area. Th irty min utes later, the appellant returned and threatened to kill the appellant. Four hours later, the appel lant again visited the street corner, approached the victim from behind, and shot the victim twice.

The trial court found that there is no “evidence in my judgment that the jury could possiblyhave used to fin d provocation suf ficient unde r the statute to justify a charge of attempted voluntary mans laughte r.” We agree. Even though evi dence of an argumentwas introduced at tri al, this evidence is n ot sufficient for a rational tri er of fact to find the element

of provocation nor the requisite “state of passion.” See Tenn. Code Ann. § 39-13-211. The “argument” was followed by an interval of four and one-half hours before the appellant’s return t o the scene. Moreover, the appellant’s threat, “I’m going to kill you,” and su bs equent attack on the victim from behind would not necessarilyacquit the appellant of the g reater offense. Under these circumstances , the evidence, when vi ewed in the light most favorable to the defendant’s theory of attempted voluntary manslaughter, would not have permitted a jury to have rationally found him guilty of attempted vol untary manslaughter and ac quitted him of thegreater9 The trial court also found three enhancing factors, howe ver, the propriety of these factors are not c hallenge d on app eal. 11 offenses. Accordingly, the trial court was u nder no duty to instruct on thi s lesser offense.
III. Sentencing In the appellant’s last iss ue, he contends that the trial c ourt erred in its imposition of a twelve year s

entence. Review, by

this court, of the length, r ange, o r manner o f service of a sentence is de novo with a presumptionthat the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only
a pplies, however, if the recor d demonstrates that the trial c ourt properly consider

ed relevant sentencing principles

. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In making our review, this court must consider the ev idence heard at t rial an d at sentencing, the present ence rep ort, the arguments of counsel, the nature and characteristics of the offense, any mitigating and enhancement factors, the appellant ’s statements, and the appellant’s potential for rehabilitation. Tenn. Code Ann.§§ 40-35- 102,-103(5),-210(b)(1990); see also State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim

. App. 1993) (citing Ashby , 823 S.W.2d at 168). The burden is on the appellant to show that the sentence imposed was improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).

The appellant contends that the tri al court erred in failing to consider

two relevant mitigating factors when imposing hi s sentence. 9 First, he claims that, because he w as twenty years o ld on the date of the offense, he lacked sub stantial judgment while committing the offense. Tenn. Code Ann. § 40-35-113(6) (1990). However, the trial court found this factor inapplic able to the appellant’s case. As the trial court state d: The proof I’ve heard in this case and the proof th at I’ve hea rd-- exten sive proof that I’ve heard in a number of days of hearings with respect to Mr. Elder ’s conduct throughout his lifetime indicates to me that he was, if anything, extremely st reet wi se, extremely street experienced, that he was-- that he did not lack any substantial ju dgment in his conduct of creati ng busine ss in which he chose to engage. He knew ex actly what12 he was doing on the stree t. He conducted an extensiv e drug operation. He employed individuals in that operation. He employ ed the use o f firearms. This is not a

situation where he lacked substantial judgment in committing this offense.

The applicat ion of th is mitigat ing facto r is not de termine d simply by th e chronological age of the offender but, rather, upon the offender’s “youth in cont ext” of variouscircumstances tending to demonstrate his or her ability or inabili

ty to appreciate the nature of his or her c ond uct. State v. Ada ms , 864 S.W.2d 31, 33 (T enn. 1993); see, e.g. , State v. Carter , No. 01C01-9312-CC-00447 ( Tenn. Crim. App. at

Nashville, Apr. 27, 1995), perm. to appeal denied , (Tenn. Sept. 5,1995). The record supports the trial court’s finding. The evi dence does not prepon derate against the trial court’s rejection of this factor.
Second, the appellant contends, pursuant to Tenn. Code Ann. § 40-35-113(8) (1990), that he suffered from a menta l condition that reduced his culp a bility for the offense. The court stated with regard to this factor: Again, the Court foun d after several d ays of hearings that Mr. Elder’s I.Q. is probably that--substantially lower than that of a normal person. But I also found and believe sincerely in my heart that, notwithstanding the fact that hi s intellige nce quoti ent may be somewhat low, that h is ability t o adapt and live and survive and conduct a busi ness and conduct his everyday

living experi ences was not deficient. As a matter of fact, he was very efficient at doing what he did. And I don’t th ink that, again, he suffered from a mental condition or a physical convic

tion thatreduced his culpability for committi ng this crime. The record amply supports the trial court’s finding . This issue is witho ut merit.
Accordingly, the j udgment of the trial court is affirmed.13 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_____________________________________ DAVID H. W ELLES, Judge

____________________________________ THOMAS T. W OODALL, Judge