# FILED
October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1997

STATE OF TENN ESSEE, ) ) No. 01C01-9607-CC-00315 Appellee ) ) BEDFORD COUNTY vs. ) ) Hon. William Charles Lee, Judge ANTONIO D. MASON, ) ) (Attempted

First Degree Murder; Appellant ) Attem pted Aggra vate d Rob bery; Aggravated Assault)
For the Appellant : For the Appellee : CURTIS H. GANN CHARLES W. BU RSON Assistant Public Defender Attorney General and Repor ter 105 South Main P. O. Box 1119 JANIS L. TUR NER Fayetteville, TN 37

334 Assistant Attorney Gener al Criminal Justice Div

ision (ON APPEAL) 450 James Robertson Parkwa y Nashville, TN 37243-0493 MICHAEL D. RANDLES Assistant Public Defender 117 S. Main, STE. 203 WILLIA M MICHAEL MCCOWN Shelbyville, TN 37160 District Attorney General (AT TRIAL) ROBERT CRIGLER Asst. District Attor

ney General JOHN HARWELL

DICKEY One Public Square, STE 100 District Public Defender Shelbyville, TN 37160

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION
The appellant, Antonio D. Mason, appeals his jury convictions for attempted first degree murder, a ttempted aggravated robber y, and aggravated assault. The Bedford County Ci rcuit Court imposed sentenc es of twenty-three years and six months for the attempted first degree murder conviction, six years for the attempted aggravated robbery conviction , and four years and six months for the aggravated assault conviction. The attempted aggravated robbery conviction was or

dered to run consecutive t o the attempted first degree murder conviction, resulting in a total effective sentence of twenty-nine years and six months. In this appeal, the appell ant contends that the evidence p resented at his jury trial w

as insufficient to support his c onviction for attempted first d egree murder. Second, the appellant ass erts that the sentences imposed by the trial court were excessi

ve.

After a careful review of the record, we affirm the tri al court’s judgment.
Factual Background
On the evening of March 7, 1995, the appellant and his brother entered Smith’s Food Town, a groc ery store located in Sh elbyville. They purchased a bag of potato chips and left the stor e. Mildred Smith, the ow ner of the store, asked a customer to remain in the store until the two l eft. After the customer left, the appellant returned to the store. He brandished a gun and h eld it to Ms. Smith’s head. The appellant stated, “This is a robbery. This is a robbery. I’m going to kill y

ou. I’m going to kill

you. Give me your

money. Give me your money.” The victim, at this point, attempted to wres tle away from the appellant

. Hearing a disturbance at the front of the store, part-time empl oyee, Morris Dean Arnold, emerged from the back w here she had been working . The appellant saw3

Ms. Arnold and immediately announced that he was going to kill her, too. He repeated that, if Ms. Smith did no t give him the money, he would kill Ms. Ar

nold. At this time, Ms. Smith sprayed the appellant with mace. According to Ms. Arnold, the appellant then turned and ran to the door. Within moments, he turned back toward them and s aid, “I’m going to ki ll you.” He then aimed the gun at Ms. Smith, fired, and ran from the store. The bu llet grazed the left side of Ms. Smith’s head and lodged in the l ight fixture over the register. Officer Stac ey of the Shelbyville Police Department arrived at the scene shortly thereafter. He found the two women inside the store. Ms. Smith’s head w as bleeding. She was treated at Bedford County Hospital for a laceration caused by the bullet. After a two day search, the pol ice arrested the appellant and his brother. During questioning at the police station, the appellant admitted th at he held a gun to Ms. Smith’s head and threatened to kil l her. Despite these admiss ions, he stated that he had no intent to kill hi s victim and that the gun went off accidentally w hen he was trying to rub the mace from his eyes. H e further explained that the robbery w

as a “spur o

f the moment” ha ppening and that he needed “ some money to buy dope.”
Based upon this evidence, the jury returned guil ty verdicts on the c

harges of attempt to commit first degree mur der, criminal attempt to commit aggravated robbery, and aggrav

ated assault.
Analysis

I. Sufficiency of

the Evidence When reviewing a trial court’s judgment, the appellate court will not disturb a verdict of guilt unl ess the facts of the record and inferenc es which may be drawn from it are insufficient as a matter of law for a rati onal trier of fact to find the defendant guilty beyond a reasonable doubt. Tenn.R.App.P. 13( e); State v.4

Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In other word s, this court will not reevaluate or rewei gh the evidence brought out at trial. It is pr

esumed that 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 repla ces it with a presumption of guilt, the defendant has the burden of proof on the sufficiency of the evidence at the appellate level. Grace , 493 S.W.2d at 476.
The appellant argues that the ev idence is insufficient as a matter of law to support his conviction for criminal attempt to commit first degree mu rder. He admits that, while he enter ed the store to rob, he had no int ent to kill anyone.

Before a defendant can be convicted of an att empt to commit first degree murder, the proof must establish that the defendant: [Acted] with the intent to complete a course of action or ca use a result that would constitute the offense [first degree murder ] under the circumstances surroundi ng the conduct as the person bel ieves them to be and the conduct constitutes a substa ntial step toward the commission of the offense. Tenn. Code Ann. § 39-12-101(3). W hether the appellant “intended” to kill is a question of fact for the jury. The appellant’s “intent” may be inferred from surrounding circumstanc es, including his conduc t. The proof established that the appellant placed a gun to th e head of his victim and repeate dly told her that he was going to ki ll her. After being spr ayed with mace, he aimed the gun and fired, the bullet grazing the side of the victim’s head. Clearly, from these facts a jury could rationall

y infer that the appellant w as carrying out hi s announced intent to kill the victim. We find the evidence sufficient to establish his guilt of attempt to commit first degree murder beyond a reasonable doubt. This issue is without merit.5

II. Sentencing The app ellant ne xt conten ds that th e trial cou rt impose d excessive sentences for his three conv ictions. Review , by this court, of the leng th, range, or manner of service of a sentence is de novo with a presumption that the determination made by the tri al court is correct. Tenn. Code Ann. § 40-35- 401(d)(1990). This presumption only applies, however, if the record 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 mu st consider the e vidence heard at trial and at sent encing, the presentence report, the arguments of counse l, the nature and characteristics of the offense, any mitigating and enhance ment factors, the appellant’s statements, and the appellant’s pot ential for rehabilitation. Tenn. Code Ann. §§ 40-35-102,-1-3(5),-210(b ) (1990); see also State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. Ap p. 1993) (citing Ashby , 923 S.W.2d at 168). The burden is on the appellant to show that the sentence imposed was imprope r. Sentencing Commission Comments, Tenn. Code Ann. § 4 0-35-401(d).
The trial court applied two enhancement factors to the appellant’s sentence for attempted first degree murde r; five enhancement factors to his sentence for attempted aggrav ated robbery; and three enhance ment factors to his sentence for aggrav ated assault. The trial cour t found no mitigating factors.

A. Mitigating Factors The app ellant co ntends t hat the t rial court erred in f ailing to c onsider t wo relevant mitigating

factors when sentencing him on all three convictions. First, he claims that, because he w as merely eighteen at the time he committed the offenses, he lacked substantial judg ment while committing the offense. Tenn. Code Ann. § 40-35-113(6) (1990) . However, the tr ial court declined to cons ider6

this mitigator due to the appellant’s lengthy record as a juvenile offender, including delinquent adj udications for shoplifting, theft, and aggravated robber y. The application of this mitigating factor is not determined simply by the chronological age of the offender but, rather, up on the offender’s “youth in context” of various per

tinent circumstances tending to demonstrate his or her ability or inabili

ty to appreciate the nature of his or her conduct. State v. Ada ms , 864 S.W.2d 31, 33 (Tenn. 1993); See e.g. , State v. Carter , No. 01C01-9312-CC00447 (Tenn. Crim. App. at Nashv ille, Apr. 27, 1995), perm. to app. denied , (Tenn. Sept. 5, 1995). The appellant’s f irst petition for adjudication as a delinquent occurred at the age of ten. His record reflects repeated juvenile adjudications culminating in his commitment to the Department of Youth Development until his ni neteenth birthday. We agree with th e trial court that the proof in the record does not support consideration of this mitigating factor.
Second, the appellant contends that, as a non-enumerated mitigating factor, he is entitled to consi deration for “telling the truth.” Tenn. Code Ann. § 40-35-113(13). The trial court rejected this factor, finding tha t the appellant did not testify truthfully at trial to the facts relating to the charge of attem pted first degree murder. As noted by the trial court, “[Y]ou shouldn’t look for some reward for telling the truth, . .. .” We agree and find that the proof before us does not preponderate against the trial court’s rejection of this factor.

B. Enhancement Factors 1. Enhancement Factors (1) and ( 4) The trial court found that enhancement factor s (1), previous cr

iminal history, and (4), v

ictim particularly

vulnerable, applied to al l three of the appellant’s conviction s. Tenn. Code Ann. § 40-35-114(1) , - 114(4) (1995 Supp.). The appellant does not challenge application of factor (1), how ever, he does7

contest the court’s finding that the victims wer

e vulnerable due to their age. The State contends that Ms. Smith, who was 65 years old at the time of the crimes, and Ms. Arnold, who w ould not give her age

at trial but was old enough to be retired, were parti cularly vulnerabl e. The appellant argues, on the o ther hand, that age alone is not the dis positive factor. Our su preme court, in the recent case of State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997), reaffirmed the principle that more than mere proof of the victim’s age is necessary to establish the victim’s particula r vulnerability

. But see Poole 943 S.W.2d at 99, (Drowota J., dissenting). A person’s age alone may have little or no beari ng on size, strength or vitality. Thus,unless the State produces ev idence of physical or mental limitations at the time of the offense, along with proof of the victim’s age, it cannot be presumed that the victim was particularly vulnerable based solely on her age. Id . at 98. Because the record i s absent this proof, enhancement factor ( 4) is not applicable.

2. Enhancement Factor (7) The trial court applied enhance ment factor (7), the offense was committed to gratify the defendant’s desire for pleasure or excitement, to the appellant’s convictions for attempted ag gravated robbery an d aggravated assault.Tenn. Code Ann. § 40-35-114(7) (1995 Supp.). The court applied this factor based upon its finding that the appell ant’s attempt to rob the store an d the assault of Ms. Arnold were commit ted for the purpose of purchasing marijuana, a nonphysically addictive drug. Thus, the cour t reasoned that, because the marij uana was sought for recreational use, the crimes were solely for the appellant’s desire for pleasure or excitement. This court, in State v. Poole , No. 02C01-9506-CC00178 (Tenn. Crim. App. at Jacks on, Jan. 31, 1996), aff’d by , 945 S.W.2d at 93, refused to apply this enhancement factor where the record r evealed that “the motivation for the crime w as to steal from the victi m for the purpose of buying drugs. The State did not carr y the burden of proving that the offense was done8

to gratify the Defendant’s des ire for pleasure or excitement." Accordingly , in the instant case, we find that the State has not met its burden , therefore, factor (7) is found inapplicable.

3. Enhancement Factors (2) and ( 3) The trial court applied enhancement facto r (2), defendant was a leader in the offense, and (3), the off ense involved more than one victim, to the appellant’s conviction for criminal

attempt to commit aggrav ated robbery. Tenn. Code Ann. § 40-35-114(2) and 114(3) ( 1995 Supp.). The appellant challenges the application of both enhancement f actors. The proof supports the trial court’s finding that the appellant’s brother remained outsid e, acting as a lookout, while the appellant attempted to rob the store. In ref erence to enhancement factor (3), the trial court found that the attempted robb ery also involved the victim, Ms. Arnold, for which no charges were brought, because “both Ms. Smith and Ms. Arnold were part and par cel” of the attempted robbery. From the proof introduced, we find applica tion of both enhancing factors (2) and (3) appropriate. This issue is without merit.

4. Length of Sentences In this case, the trial c

ourt applied various enhan cing factors but found no mitigating factors. In determining the appropriate sentence for a felony conviction, Tenn. Code Ann. § 40-35-210(d)(1990) instructs the sen tencing court that “[t]he presumptive sentence shall be the minimum sentence in the range . . . if there are enhancement and no mitigating fact ors, the court is free to increase the defendant’s

sentence within the st

andard rang e as the cour t deems appropriate after considering all the aspects of the case. In arriving at its sentencing decision, the t rial court placed gr eat weight on the appellant’s lengthy juvenile criminal hi story which incl uded a prior adjudication for a crime of violence involv

ing use of a weapon. The court’ s decision to weigh a factor9

heavily is proper

given the discreti on allowed a trial cour t when considering enhancing factors. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).
Although we have found enhanci ng factor (4) inapplicabl e to all of the appellant’s sentences and factor (7) inapplicable to his sentences for attempted aggravated robbery

and aggravated assault, we find, upon de novo review, that the rema ining enh ancemen t factor s are suf ficient to justif y the respe ctive sentences imposed by the tri al court.
The judgment of conviction for the off ense of criminal attempt to commit first degree murder and the appellant’s effe ctive sentence of twenty-nine years and six months are affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_______________________________ PAUL G. SUMMERS, Ju dge

_______________________________ JERRY L. SMITH, Jud ge