### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 11, 2000 Sess

ion STATE OF TENNESSEE v. MICHAEL E ISOM Direct Appeal from the Circuit Court for Lauderdale County

No. 6607 Joseph H. Walker, III, Judge

No. W1999-00739-CCA-R3-CD - Filed October 11, 2000

The defendant was convicted by a La uderdale County jury of attempted second de gree murder. The trial court sentenced the defendant to eleven years in the De partment of

Correction as a Rang e I, standardoffender. I

n this appeal as of

right, the defendant asserts the following errors: (1) that the evidence was not sufficient to convict him; and (2) that his sentence was excessive . After a tho rough review of the record, we con clude the eviden

ce was sufficie

nt, as a matter of law, for a rational trier of fact to find the defendant guilty of attempted second deg ree murder, and the trial

court properly sentenced the defendant. We, therefore, affirm the defendant’s conviction and sentenc e. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES , J., and C ORNEL IA A. C LARK , S P .J., joined. J. Thomas Caldwell, Rip

ley, Tenne

ssee, for the app

ellant, Michael E

isom.
Pa ul G. Summers, Attorney General and Reporter; J. Ross Dyer , Assistant Attorney Gene ral; an d Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennesse e. OPINION
The defendant, Michael Eisom, appeals as of right from his conv icti on by a L

auderdale County jury of attempted s econd degree mu rder, a Class B felony. The trial court sentenced the defendant to eleven ye

ars as a Range I

, st andard offender , to be served in the Department of Correction. The defendant presents two issues for our review:

I. Whether

the evidence w as sufficient, as a matter of law, to susta in th e conviction for attempted second degree murder; and
II. Whether the sentence was excessive.-2-

Having reviewed the entire record, we conclude that the evidence was sufficient as a matter of law to sustain the conviction for attempted second degree murder and that the trial court did not err in sentencing the defendant to eleven years. We there fore affirm both the conviction and sentence. FACTS
The defendant and the victim met in Halls, Tennessee, and began a relationship

in August 1997. The victim, a twenty-four-yea r-old single mother of two children, ages five and three, was living with her mother and chi ldren in a home owned by her uncle. The defendant was ninetee n, living with his mother, and receiving SSI payments for a disability ba sed on his men tal capa cit y, which has been recorded in ranges from a low IQ of 55 to a high of 81. The de fen dant attended special education classe

s until the tenth

grade and has never held a job. He spent a great deal of time at the home of his a

unt, who lived acr

oss the street fro

m the victim.
On March 3, 1998, the victim sought a protective order enjoining the defendant from coming near or threatening her. The order, issued on March 10, 1998, by the General Sessi

ons Court of Lauderdale

County, was b

ased on th

e v ictim’s assertion that the defendant had assaulted her by punching her in the right e ye with his fi

st. The victim repo

rted at the time

that she “was afraid of him,” and testified at trial that their relationship e nded March 3, 1998. An assault warrant on the defendant was outstanding at the time of the events on which the attempted second degree murder conviction is based.
In the early morning hours of March 23, 1998, the defendant e ntered the home of

the victim through an unlocked back door. At the time, the victim’s mother was out of town. The victim’s two children were asleep in

a bedroom, and the victim was sleeping on a sofa in the living room. The defendant woke the victim, got on his knees, and began rubbing her hand, saying, “My baby don’t love me no more. My baby don’t love me no more.” The victim told the defendant to leave. The victim testified that the

defendant said,

“Well, if I ca

n’t have yo

u, can’t nobody

elsehave you.” The defendant got a chef’s knife from a drawer in the kitchen. The victim testified to what h appened next:
He stabbed me the fir st time , and I screa

med. He covered

my mouth. My kids got up and got on the couch. He covered my mouth, threw me on the fl oor, a nd then he just proceeded to keep stabbing me. He just did it fo r a long tim e. I’m not sure

about how long it was, but it just seemed like it was a long t ime. But he just did

it over and over again.
And I was on the floor, and I would like roll over, an

d he would stab and he would stop fo

r a little while and

he would say something. I couldn’t under s tand all of the things that he was saying. But he-3- stopped and he started back again. He would stop and he would leave out of the room, he’ d come back in the re and he’d just st

art. And once I tried to just act like I was just dead and j ust

lay on the floor and ac t like I wasn’t breathing. And he took my hand he ju

st like picked it up and let it fall do wn. And he was like, “She’s not dead.” And then he left out of the room, and tha t’s whe n I got - - I was able to get up off the floor and get out of the house.
The vi ctim was a sked about her ch ildren and whethe

r the defendant h

ad any cont

act with them durin g the attack. The victim testified to the foll owing:

Well, during, they

- - my litt

le girl, she would scream on and off. And my little boy asked him if he was hitting me, why he was hitting me with the knife. He told him no, he w asn’t hitting me with the knife, he was just wiping the blood off of the knife.
The victim escaped

to the house next door where she made it inside before collapsing. A 911 callbrought an ambulance, and then police arrived o n the scene. The victi

m was later airlif

ted to the Regional Medica

l Center at Memphis

w h ere, over the course of nine days, she accumulate d some $52,000 in medical bills, including costs for repair of a complex scalp

laceration totaling 30 centimeters in length; repai r of complex facia

l lacer ations totaling 33 centimeters in length; and repair of lacerations to the extremities, the chest, the thorax, and thehands. Her body sustaine

d some fifty stab wounds. The defendant was apprehended by police shortly after the attack. He was found hiding under the

bed in his aunt’s hou

se across the str

eet. ISSUES I. Sufficiency of the Evidence
The defendant does not deny that he attacked the victim. He arg ues that the evidence presented to the jury was not sufficient to convict him of attem pted second d egree murder. He contends that he should have been convictedof attempted volun tary mansla

ughter instead,

because t he cr ime was committed in a state of passion

produced by

the victim’s termin

ation of their relationship.
In considering this issue, we apply the familiar rule that where sufficiency of

the convicting evidence is challenged, the relevant questionfor the reviewing court is “whether, after viewing the evidence favorable

to the prosecution, any rational trier of fact could have found the esse ntial elementsof the offense charged beyond a r easonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. E d. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992); Statev. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App.), perm . app . denied(Tenn. 1992); Tenn. R. App. P. 1 3(e) (“Findings of guilt in criminal actions whether by the tria l court or1 “‘Knowing’ refers to a person who acts knowingly with respect to t he conduct or to circumstances surrounding the conduct when the pers on is aware of t

he nature of t

he conduct

or that the

ci rcumstance s exist. A perso n acts knowingly with respect to a result of the person’s conduct when the person is aware that t he conduct is re asonably ce rtain to cause the result.” Tenn. Code Ann. § 39-11-106(a)(20). -4- jury shallbe set aside if the evidence is insufficient to support the finding by the trier of fac

t of guilt beyond a reasonable doubt.”).
All questions involving the cr edibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fac t

. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App.), perm . app . deni ed (Ten n. 1 987 ). “A guil ty ve rdi ct b y the jur y, ap proved by the trial j udge, accred its the testimony

of the witnesses f

or the State and re

solves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule

rests on a sound foundation. The trial judge and the jur y s ee the witnesses face to face, hear their testimony a nd observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weig htan d credibilit y to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence canno

t be reproduced

with a written rec

ord in this Court.
Bolin v. State , 405 S.W. 2d 768, 771 (Tenn. 1966 ) (citing Carroll v. State , 370 S.W.2d 523 (Tenn. 1963)). A jury conviction removes the presumption of innocence with which a defendant is ini

tially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 9 14 (Tenn. 1982).
At the time this crime was committed in 1998, second degree murderwas defined as a “knowing killing of anot her.” Tenn. Code Ann. § 39-13-210(a)(1) (1997). The Sentencing Commission Comments note that this section “should always be read in conjunction with the

first degree murder, voluntary manslaughter and criminally negligent homicide statutes.” Id ., Sentencing Commission Cmts. Both second degree m urder and voluntary mans laughter are “ knowing” killing

s. 1 Voluntary

manslaughter is a lesser-included crime of second degree murder t hat involves the mitigating elements of the defenda n t’s “state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). It was a question for the ju

ry whether

the defendant’s

acts were a “kn

owing” attempt to

commit sec ond d egree murderor whether he was acting under “adequate provocation.” State v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App.), perm
. app . denied(Tenn. 1995).
In the light most favora

ble t o the State, the evidence showed that the defendant had been walking up and down the street opposite the victim’s house on the day before the attack; tha t h e-5-

came into the victim’s home in the early morning hours of March 23, 1998; that he took a knife from a drawer in the kitchen; and that he brutal ly attacke d the victim

while her children watched, stabbing her continuously with the knife until she was able to escape. The evidence showed that he stopped the stabbing periodically and even spoke to the victim’s children. The evidence showed that the defendant left thehouse through theback door and the n hid under a bed in

his aunt’s home ac

ross the street.
The defe ndant argues that he is “so limited that his reasoning

powers must be tak

en into consideration in deciding what his s tate of mind was at the time of the offense.” The defendant draws an analogy to insanity case s but did not argue insanity as a defense at trial. I n fact, the expert proof at trial was that

the defendant was not insane at the time of the offens

e and was compete

nt to stand trial. The defendant also points to the prohibition of the death sentence where the defendant is mentall y retarded. However, the proof was that the defendant, though admittedly of low intelligence, still had a dr iv er’s license; drove a car; handled at least $100 a month of allowance; bought gifts; procured marijuana and beer; and was gener ally free to spend his

day as he chose. The defendant also admitted to being the father of a three-y ear-old child.
We conclude that the evidence was sufficient to prove bey ond a reasonable doubt that the defendant attempted to commit second degree murder and, therefore, we a ffirm the conviction.
II. Sentence
The defendant contends that the trial court imposed anexcessive sentence. The sentencing range for attempted second degree murder for a Range I, standard o

ffender is eig

ht to twelve y

ears. The defendant

received a sentence of eleven yea rs. The defendant asserts that his sentence should have been at the low end of the range. Appellate review of sentencing

is de novo on the record with a presumption that the trial court’s determinations are correct. See Tenn. C ode Ann. §§ 40-35- 401(d). This pres

umption is "conditioned

upon the affirmative showing in the record that the trial court considered

the sentencing principles and al

l relevant facts

and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sent ence, this court must

consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence rep ort, ( c) the principles of sent e ncing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and characteristics of the offen se, (f) any miti gating or enha ncing factor s, (g) any statements made by the accused in his own behalf, and (h) the accused's potential or lack of p otential fo r rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35-103 and -210 ; State v. Scott , 735 S.W.2d 825, 829 (T en n. Crim. App.), perm . app . denied(Tenn. 1987).
The party challenging

the sentences imposed by the trial court has the burden of establishing that the sentences are erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; see al so Ashby , 823 S.W.2d at 169 . In this case , the defendant h

as the burden of il

lustrati ng th e sentence imposed by the

trial court is err

oneous. This means

that if the tr

ial court fo llowed the-6-

statutory sentencing p rocedure, m ade findings of fact that are adequately supported in the record, and gavedue considerationand proper weig ht to the factors and principles that are relevant to sentencing under the 1989 Se ntencing Act, we may not disturb the sentence even if a different result wer e preferred. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In this respect, the weight to be afforded any existing enh anc ement or mitigating factor is left to the trial court’s discretion. See Tenn. Code Ann. § 40-35-210, Sentencing Commission Cmts. (noting the statute’s p urpose of maintaining “judicial discretion necessary to make individualized sentencing determinations”).
The record reflec

ts that the tr

ial c ourt considered the evidence heard at trial, the evidence heard at the sentencing hearing, the investigation report prepared by the Department of Corr ection, the victim impactstatement, the principles of sentencing, the statements of counsel, and the nature and characteristic

s of the criminal c

onduct. The defe

ndant testified on

his o wn be half at the sentencing h earing. In sentencing the defendant, the trial court found no applicable statutory mitigating factors among those listed in Tennessee Code Annotated Section 40-35-113(1) - (12). The defendant argues that the trial court should have applied factor (8), which states: “The defendant was suffering from a mental or physical condition that significantly reduc ed the defendant’s culpability for the offense; however, the voluntary use of intoxicants does not fall within the purview of t his factor[.]” Tenn. Code Ann. § 40-35-113(8). A lthoug h the trial court did not apply factor (8), it did consider the mental con dition of th e defendant. The trial court stated, “The Court finds in mitigation that the defendant has been i n Specia

l Education classes while in school, he was transferred to the Department

of Youth Development which determined tha t he ha d a learning disa

bility, he ha

s a clinical record that shows he’s functionally illiterate with an IQ of 81.” Although the trial court did notspecifically

reference “catchall” factor (13), according to that factor, the trial court may consider “[a]nyother

factor consistent with the purposes of this chapter.” Id . § 40-35-113(13). The trial court did, therefore,

consider the ment

al condition of the

defendant but g

ave it little weig

ht.
As to enhancing fa

ctors, the trial c

ourt appl ied three, each of which is challenged by the defendant. The t

rial court applie

d the following sta

tutory enha

ncement factor

s: (1) The defendant has a previous history of criminal convictions or cri mi nal behavior in addition to those necessary to establish the appropriate ra

nge; (6) The personal injuries inflicted upon or the amount of

damage to property sustained by or

taken from the vic

tim was particular

ly great; (9) The defendant possessed or employed a firearm, explosive device or other d eadly weapon du

ring the c ommission o

f the offe nse[.] Tenn. Code Ann. § 40-35-114(1), -(6), -(9).2 Enhancement factor (20) i s: “The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that wo uld constitute a felony if comm itted by an ad ult.” Tenn. C ode Ann . § 40-35 -114(20 ).

3 The victim testified to the following: “W ell, I can’t - - like my left eye wo n’t blink, and t he left s ide of my head is numb, I can’t feel anything. A nd it’s like I have a taste but I can’t really tel l like different

- - the full

flavor of different foods, it’ s not the same. ” -7- The defendant challenges the application of factor (1) based on the fact that the defendant’s juvenile record showed acts that were of a “general, unexplained nature, and none of whic h were shown to have constituted a felony if committed by an adult.” Although the defendant cites factor (20), 2 in arguing tha

t his previous crimi

nal record should

not be a sentencin

g consideration

, th e presentencereport shows that h e has ha d a number of misdemeanor convictions since becoming eighteen years of age. These convictions were for evading arrest (two separate cases), possession of marijuana (two separate cases), possession of a deadly w eapon, failure to appear, reckless dr iving, theft under $500, under

age possession o

f alcohol, and resisting arrest. Accordingly, the trial court found that the defendant

had a previous history

of criminal beha

vior and convictio

ns in addition to those necessary

to establish the ap

propriate rang

e, and sentence

d the defendant a

s a Range I, standard offender. The trial court pro perly app lied enhancement factor (1) in light of the defendant’s extensive record of misdemeanor convictions. State v. Norris , 874 S.W.2d 590, 601 (T enn. Crim. App.), perm . app . denied(Tenn. 1993).
The defendant challenges factor (6), the seriousness of the inj uri es inflicted on the victim, relying on State v. Makoka , 885 S.W.2d 366, 374 (Tenn. Crim. App. 1994). The defendant argues that, even though Makoka did not deal with fa

ctor (6) at all, th

e reasoning in

that case should apply by analog y to the defendant’s case and disallow the application by the trial court of enhancement factor (6). Basically

, the defendant a

rgues that se

rious bodily injury is inherent in the crime of attempted second degree murder and therefore the court erred in applying factor

(6). However, the defend ant’s argument i

n this regard is contrary to the law. State v. Alexander , 957 S.W.2d 1, 7 (Tenn. Crim. App.), perm
. app . denied(Tenn. 1997) (“[P]ersonal injuri es, great or sma

ll, are not an element of attempted murde r.”); State v. Thomas R . Baldwin , No. 01C01 -9612-CR- 00530, 199 8 WL 426199 (Tenn. Crim. App., Nashville, July 29, 1998), perm . app . denied(Tenn. Feb. 16, 1999) (enhancement factor (6) applied to sentence for conviction of attempted second deg ree murder). Here, the victim suffered serious bodily injuries, as set forth above, some of which caused significant

dis abi lit y. 3 Our supreme court has held that “proof of serious bodily

injury will

alw ays constitute proof of particularly great injury.” State v. Jones , 883 S.W.2d 597, 602 (T

enn. 1994 ). We conclude that the victim suffered particularly great injury , and this enhancement

factor was properly applied.
The defendant fails

to argue speci

fically why

the trial court er

red in applying enhancement factor (9), that the defendant

employed a d

eadly wea pon. Therefore

, this issue is waived. However, we note that a chef’s knife was entered into evidence at trial as the weapon used in the attack without objection. We conclude that the knife was a deadly weapon, and, therefore, fa ctor (9) was appropriately applied to enhance the defendant’s sentenc e.4 We acknowledge the t rial court ’s use of “

deprecating,” a

s used with conn

otat ive acc uracy in th

e Criminal Sentencing Reform Act of 1982, rath er than “depreciating” as found in the curr

ent version of

Tennessee Code Annotated Section 40 -35-103 (1)(B). -8- A portion of the Sentencing Reform Ac t of 1989, codified at Tennessee Code Annotated Section 40-35-210, established specific procedures to be followed in sentencing. At the time of the defendant’s sentencing hearing in 1999, this section provided that the minimum sentence within the range was the presumptive sentence for Class B, C, D, and E felonies. If there are enhancement and mitigating factors, the trial court must start at the presumptive sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the s entence wit hin the range as appropriate for the mitigating factors. The weight

to be given each factor is left to the discretion of the trial court. See State v. Shelton , 854 S.W.2d 116, 123 (T enn. Crim. App. 1992), perm . app . denied(Tenn. 1993). Here, the court found that the enhancement factors, all of which we have determined were properly applied, grea

tly outweighed the mitigating factor of the defendant’s low mental ability. The trial court began with the presumptive sentence of eight years and found that it should be enhanced to eleven ye

ars as a standar

d offender. The

trial court went o

n to state why it

felt confinement was particularly

suitable in this cas

e, according t

o Tennessee Code Annotated Section 40-35-103(1) (A)- (C). The trial court

found confinement necessary to protect society by restraining the defendant and also necessary to “avoid deprecating the ser iousness of this offense.” 4 The trial court also found confinement

necessary to provide an effective deterr ence, “in that

the defendant has been tried in the past on suspended sentences through Sessions Court that have proved not to be successful.”
As to prot ecting society, the defendant’s mental evaluation conducted a t Western Mental Health Institute included

the results of the Millon Clinical Multiaxial Inventory, which evaluated the defendant as fo

llows: According to the report he has disdain for the welfare of others with nonempathic, prejudiced, and self-centered attitudes. H e has a socially intimidating manner

and has voiced

pride in his self reliance, uns ent ame nta lit y, and competitive values. . . . He is characte ristically touchy and jealous and

is often inclined to brood and harbo r grudges. He is easily provoked and can express sudden a nd unanticipated brutality. H

e has the desire t

o provoke fear a

nd to intimidate

others t o overc ome his sense of inn er weakness and

to vindicate past injustices. The record showed a history of criminal activity

. While the trial court did not make a specific finding concerning the seriousness of the crime, the record showed that the defendant’s crime was an escalation of a previous domestic assault. The-9-

defendant committed a violent

attack on an unarmed woman in the presence of children. Such an act requires pun

ishment of equal se

riousness.
As to the fact tha t “measures less r estrictive than c

onfinement have f

requently o

r recently been applied un successful ly to the defend ant,” the re cord showed that, alth ough a protective order had been in place prohibiting the defendant from any contac t with the victim, he not only perpetrated the attempted second degree murder at issue here, but while on bond for the present crime, the defendant continued to harass the victim. The defendant argues, nevertheless, that nothing in the record shows that the defendant ever violated any ord er of probation. The de

fendant’s juveni

le convictions,

including theft under $500 when he was twelve, and three charges of assault and bat ter y, all included some form of probation or home deten tion. By age eighteen, the defendant had added another conviction for thef

t under $500 , possession of alc ohol under age,

and resisting ar

rest, apparently

without ever serv

ing any time

in incarcera tion. By age nineteen, the defendant had added convicti ons for m arijuana possession, reckless driving, evading arrest, failure to appear, and possession of a deadly weapon. His sentences were suspended; he was ordered repeatedly to pay fines; and he was ordered to turn a weapon over to the sheriff’s department. There is substantial evidence in the r

ecord to support the trial court’s determination that measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
The trial cour t recommended the defendant for mental health treatment while in the Department of Correction.
We conclude that the trial cour t appropriately applied three enhancement factors a nd appropriately

weighed the defendant’s mental condition in mitigation. The sentence of eleven years as a standard offender, to be served in confinement, is proper in this case.
CONCLUSION
The evidence is suff

icient as a matter

of law to support the

defendant’s c

onv iction for attempted second degree murder. The sentence imposed for thi s off ense is appropriate. For the reasons set out

in the discussion above, we conclude that the defendant’s

issues on appeal la

ck merit, and therefore, his conviction and sentence are hereby affirmed.

___________________________________ ALAN E. GLENN, JUDGE