### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JANUARY 15, 2002 SESSION
STATE OF TENN ESSEE v. FRAN K E. HUEY, R ONNIE FINCH & JEFFREY L. GILL S
Appeal from the Criminal Court for Davidson County No. 98-D-2428 Cheryl Blackburn, Judge

Nos. M2000-02793-CCA-R3-CD M2000-02815-CCA-R3-CD M2000-02833-CCA-R3-CD Filed April 5, 2002

On October

13, 1998, t

he three Defend ants, Frank E. Huey , Ronnie Finch, and Jeffrey L. Gills, were indi ctedby a

Davidson

County grand jury for one c ount of fi

rst deg ree mur der, two counts o f attempted first deg ree murder, two count s of agg ravate d assault , and one

count of f

elony reckle ss endang erment. After a jury trial, Defendants Huey

and Gills were each

convicted of one count

of facilitation of first degree murder, two c ounts of facilita tion of att empted f irst degree murder, two counts of aggravated a ssault, and one count of felony reckless endangerment. Defe ndant Finch was convictedof one co

unt of fa cilitation of first degree murder, two counts of fa cilitation of attempted first degree murder, and two counts of f acilitation of aggravated a ssault. The trial court conducted
a sentencing hearing and

sentenced Defendants Huey and Gills to effective sentences of 51 year s and Defendant

Finch to an effective sentence of 49 y ears. On appeal, all three Defe ndants contend that (1) the evide

nce wasinsuffic ient to support the jury’s ver dict as evidenced by

all three Defend ants being convicted of facilitation and none of them convicted of murder , and (2) the sentences imposed by the trial court were excessive. In addit ion, Defend ants H uey and Fin ch all ege that the trial court erred by admitting evidenc e of prev i ous alter cations b etween

the Defe ndants and the vict

ims. Defendant

Finch further contends that the trial court committed plain error by taking his motion for judgment of acqui ttal unde r advise ment at the

conclusi o n of the S tate’ s proo f. Aft er a tho rough review o f the re cord and

applica ble law, w e affir

m the judgments of th

e trial c ourt.

Tenn. R. App.P. 3 Appeal As of Right ; Judgment

of the Cr

iminal Cour

t Affir med.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined.

Paul J. Bruno, N ashville, Tenness ee, for the appe llant, Frank E. Huey; Dwight E. Scott, Nashville, Tennessee, for the a

ppellant , Ronnie Finch; and G . Kline Pre st on, Nashv ille, Tennessee, for the appella nt, Jeff rey L. Gi lls.-2-

Paul G. Summers , Attorney General and Reporter; Elizabeth T. Ryan, A ssistant Attorney Genera l; Victor S. Johnson, District Attorney General; and Bret T. Gunn, Ass istant Dist rict Attor ney Gene ral, for the appellee, State of Tennessee.

OPINION

On May 5, 1998, Jer

ome Jones wa s standing

on the side

walk outsi de his home at

357 Settle Courtin Nashville, when Defendant Finch rode by on his bicycle and de

manded that Mr. Jones move outof his way. The two a rgued for several minutes. Mr. Jones testified that during that afternoon he saw Def

endant F inch seve ral times outside of

his apartment with a gun in his hand. On May 6, Mr. Jones was watching television in his bedroom when he heard a kno ck on t he apartment door. As he entered the living room, he saw the three Defenda nts. The Defendants wanted to discuss the events of May 5, and Mr . Jones asked them to accompany him to his bedroom bec ause his girlfriend and her children were in the living room. Defendants Huey and Finc h accomp anied Mr . Jones into the bedroom whereDefendant Huey struck Mr. Jones on the

head with

a pistol, put the gu

n to his face, and orde

red him outside. As Defendant Huey led Mr. Jones into the living room at gunpoin t, Michael White, Mr. Jones’ cousin, entered the home. Defendant Huey pointed th

e gun a t Mr. White and then walked out of the house. Once outside the house, Defe ndant Huey fir

ed once into the air. After Defendant Huey ’s departure, Defendants Gills and Finch lef t through the back door.

After the altercation, Mr. Jones left the Settle Court area with Harold Blair, who promised to provide Mr. Jones with afirearm for his protection. Word of the altercation between Mr. Jones and the Defe

ndants qui ckly

spread, and, whe

n Mr. Jones r

eturned to his home t hat ev ening, two of his uncles, Ben

and Leo White, were wa iting. Leo White had a firea rm in the trunk of his car that he intend ed to giv e Mr. Jones

. As Mr. Jones talked with his uncles, Mr. Blair walked toward Mr. Jones’ home where Sharon Sanders, Mr. Jones’ girlfri end, and her children stood. While Leo White was opening his trunk, gunfireerupted. Leo White was shot once in the leg . Ben White was shot once in the groin and once in the leg. Medical Examiner Dr. Bruce Levy testified at trial that Ben White bled to de ath as a result of the two g unshot wou

nds.

Mr. Jones testified at trial that he, Ben White, and Leo White were all unarmed at the time of the attack, and that the gun in L eo White’s trunk was never removed. Mr. Jones also testified that he did not see the attackers. According to Mr. Jones, the shooting las ted for a pproximate ly th irty seconds and there were numerous shots fired. Sherry Stevens, M

r. Jones’ a unt, testified that she was
aware of the altercation at Mr. Jones’ home. Ms. Stevens observed Defendant Gills walking up the street toward Mr . Jones’ ap artment j ust prior t o the shoot

in g. She a

ls o stated that she saw Defend ants Huey and F

inch coming around the corner of the apartment building a t the same time. Ms. Stevens saw Defendant Gills raise a pistol and o pen fire in th e direc tion of Mr. Jones. Ms. Stevens was unsure whether Defendants Hue y and Finc

h were also armed.-3-

Christopher

Works also witnessed the shooting and testified that he saw Defe ndant Gills standing in the middle of the street a nd Defe ndant Hue

y a t the side o f the apa

rtment bui lding wit

h
a rifle jus t prior to t

he time the shooting began . Mr. Works further stated that he did not see any weapons among the group of people standing on and around Mr. Jones’ porch, nor did he see Mr. Jones, Ben White , or L

eo White with a we apon. Mr. Works’ moth er, Janic e Goff, also testified that from her front porch she saw Defendant Huey fire a rifle in the direction of Mr. Jones’ apartme

nt. She testified that she heard many guns being fired, but did not see an yone around Mr

. Jones’ apartment returning fire.

Sharon Sanders, Mr . Jones’ girlfriend, was sitting on her porch when the shooting started. She testified that she saw Defendant Gills in the street pointing a gun at her apar tment. She then saw Gills open fire. Ms. Sanders stated that she, Michael White’s wife, and several children wer e all on or around the porch when the shooting started.

Detective Matt Pilcus of the Metro Police Department testified that he was the first officer to arrive on the scene, and he imm ediately render ed aid to Ben White. Upon arrival Detective Pilcus stopped a blue truck

from leaving the scene, but his attention was diverted to Mr. White before he could question the driver. When he re turned la ter, the truck wa s empty

and locked. Detective Pilcus testified that he di d not see a ny w eapons in

the vicin ity o f the vic tims, L

eo and B en White. Cr

ime Scene Investigator Mar sha Brown testified that eight 9 millimeter shell ca sings, on

e .45 ca liber she ll casing and one p

rojectil e were

found in f

ront of Mr . Jones’ ap artm ent. At the corner of the apartment building where Defendant Huey had been seen, fourteen 9 millimeter shell casings, two projectiles and three rifle casings wer e found. One rifle bullet was recovered from Ben White’s body at Vanderbilt Hospital shortly bef ore he died.

Tennessee Bureau of I

nvestigation ballistics expert Steve Scott examined the shell casin gs found at the scene and determined that severa l different 9 millimeterpistols and

at least o ne Chines e SKS or Russian AK47 assault rifle were used during the shooting. Mr. Scott testified that as many as elev en and as few a s eight guns we re used durin g the sh ooti ng.
Defendant

Finch contended

at trial that he was either not present or was present but did not fire a gun. D efenda

nts Gills and Huey conte nded at trial that they a cted in self-defense or, alterna tiv el y, that the shooting was mutual combat. Specifically , Defendants Gills and Huey contended that the

y di d not initia

te the gunfight

. Harold Blair te stified f

or Defe ndant Hue

y a t trial. Mr . Blair stated that he and Mr. Jones
were drug dealers, and that he was a rmed on th e night of the shoot ing. Mr. Blai r testified that just prior to the shooting one of Mr. Jones’ uncles took a shotgun out of the t r unk of a car and cocked it. Mr. Blair observed Defendants Hue y and F inch com e around

the corner of a building w ith Defendant

Huey ca rrying a rifle. Mr. Blair also saw Defenda nt Gills in the street with a pist ol. According to Mr. Blair, Defendants Huey and Gills opened fire, howev er, he was unsure whether Defendant

Finch had a weapon. Mr. Blair re turned fire. Mr. Blair testified that the day aft er th e-4-

shooting his apartment was searched by police officers. Drugs and two g uns were recovered. Mr. Blair stated that one of the guns was a Chinese SKS or Russian AK47 rifle. Phillip Bradford, Mr. Jones’ upstairs neighbor, also testified for the Defendants and stated that immediate

ly a fter the shooting he obser ved four bla ck males runni ng around the back of the building firing guns into the air. Mr. Bradford also stated that he saw seve ral men loading weapons into a blue car in t he fron t of th e buil ding. Mr. Bradford’s sister-in-law, Michelle Taylor, a lso lived above Mr. Jones and testified that she saw four armed men fleeing the area after the shooting. She identified Defendants Gills and Finch as two of those four men. Ms. Taylor further stated that after the shooting

she saw a

woman wit

h long br aids come out of the apartment below her, throwa gun into a blue

car, and then run

back into the apar tment.
SUFFICIENCY

The Defendants first contend that the evidence presented at trial is insufficient to support the jury’s verd

icts. We will addresseach De fendant in turn in th

e intere st of clar

ity. Tenness ee Rule of Appellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whether by the trial court or

jury shall be s et aside

if the evide nce is ins ufficie

nt to support the findings by the trier of fact of guilt bey ond a reasonable doubt.” Evidenc e is sufficient if, after reviewing the e vidence in the ligh t most favo

rable to the prosecution, any r

ational trier of fact could have found the essential elementsof the crime bey ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicte d criminal defendant bears the burden of

showing that the evidence was insufficient. See McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1 963); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); St ate v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reasonabl e and legitimate inferences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-e

valuate the evide nce” in the record below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Likewise, shoul d t he reviewing court find particular c onflicts in the trial te st im on y, the court must resolve them in favor of th e jury ver

dict or trial court judgment. See Tuggl e , 639 S.W.2d at 914. All question s involving the credibility of witnesse s, the weight and value to be giv en the ev

idence, and all

factual issues are re solved by the trier of fact , not the a

ppellate courts. See State v. Morris , 24 S.W.3d 78 8, 795 (Te nn. 2000) ; State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Frank E. Huey Defendant

Huey wa s convictedof faci li tation of first degree murder, two counts of facilitation of attempted first degree murder, two c ounts of aggravated assault, and felony

reckle ss endang erment. First de gree m urder is a premed itat ed and inten tion al kil ling. See Tenn. Code Ann.-5-

§ 39-13-202 (a)(1). Premeditation requires the exercise of reflection and judg ment. See Tenn. Code An n. § 39-1 3-202 (d). A jury may infer pr

emeditation from the manner and circumstances of the kill ing. See State v. Bland , 958 S.W.2d 6 51, 660 (T enn. 1997 ). One a cts intent ionally when “it i s the pers on’s cons cious objective or desire to . . . caus e the result.” Tenn. Code Ann. § 39-11-302. On e is gu il ty of faci litation of first deg ree mur der whe n, knowing

another intends to

commit fir st degree murder, the person knowingly furnishes substantial assistance in the com missio n of first degree murder. See id. § 39-11-403.

The evidence against Defenda nt Huey showed that on the da y o f the shooting he, accompa nied by his codef endants, entere d Jerome Jone s’ house. Defendant Huey then struck Mr. Jones with a pistol, left the house, and fired the pistol into the air. L ater that evening , several witnesses observed Defendant Huey and his codefendants approach Mr. Jones’ apartment, position themselves strategically

around the apartment, and open fire on the group stan ding in front of the apartment which included Mr. Jones, Ben White, and Leo White. Defendant Huey

was arme d with a rifle. The crowd around the porch ran for cover. However, Ben and L eo White were both shot, and Ben White died from his injuries. The State’s medical examiner testified that Ben White died
as a result of blood loss due to two gunshot wounds. Detective Kent McAllister tes tified that medical personnel trying

to save t he lif e of Ben Whit e gave hi m a bul let re triev ed from Ben Wh ite's bo dy. Tennessee Bureau of I nvestigation ballistics expert Steve Scott identified that bullet as being fired from a rifle.

Given Defendant Huey ’s previous al terca tion with Mr. Jones, and given that Defendant Huey arrived on the scene armed with a rifle and opene d fire into a large group of pe ople, we find sufficient evidence for the jury

to infer that the Defendant acted intentionally and with premeditation when he fi red his ri fle. Specifically , the Defendant acted with the intent to kill members of the crowdthat s u rrounded Mr. Jones’ apartment. While it may be inferred from the evidence that Defendant

Huey, who wa s identified as being armed with a rifle, fired the shot that killed Ben White, at the very lea st, he engaged in a deliber ate and concerted effort with his code fendant s to kill Mr. Jones and his companions. By his presence at the scene and par ticipation in the assault, Defendant Huey provided substantial assistance to his codefendants. According ly, we find sufficient evidence to support the Defendant’s conviction for facilitation of the first deg ree murder of Ben White.

For similar reasons, there is sufficient evidence to support the De fendant’s conviction for facilitation of the attempted first degree murder of Mr. Jones and facilitation of the attempte d first degree murder o f Le o White. Fa cilitation of attemp ted first

d eg ree murder requires that the Defendant provide substantial assistance to one who attempts t

o commit fi

rst degree murder. See Tenn. Code Ann. § 39-11-403. One attempts to commit first degree murder when he or she acts with the intent to com mit first degree murder and those a ctions constitute a substantial step toward the commission of a first degree murder. See Tenn. Code Ann. § 39-12-101. The Defendant and his codefendants opened fire on a group of individuals which included
a person with whom they

had a previous violent encounter. While Defendant Huey may have been fortuna te enough not to be convicted of attempted first deg ree murder, it is clear from his presence-6-

at and part icipation in the shoo ting tha

t he rend ered sub stantial a ssistance to those seeking to kill Leo White and Mr. Jones. Accordingly, D efendant Huey ’s two convictions of facilitation of attempted first degree murder are

supported by sufficie

nt evidence.

Alth ough he does not challenge the sufficiency of the convicting evidence, Defe ndant Huey
was also convicted of

felony re ckless endangerment. One commits felony reckless endangerment when he or she recklessly

engages in conduct with a deadly we apon that places or may place another person in imminent

dange r of dea th or ser ious bodily

i njury. See Tenn. Code Ann. § 39-13-103. The proof showed that the Defe nda nt opened fire upon a large g roup of individuals, including children. The evidence is clearly sufficient to support this conviction.

The Defendant’s contention that he acted in self-de fense or in the heat

of mutual co mbat with the victims is a factual issue involving the credibility of witnessesand the weight and value given the evidence wh i ch was resolved by the trier of fact. See Morris , 24 S.W.3d a t 795; Pappas , 754 S.W.2d at 623. We are bound by tha t resolution. Accordingly , we f ind sufficient evid

ence to support D efenda

nt Huey ’s convictions. Thisissue is without meri t. Jeffrey L. G

ills Jeffrey Gills was convicted of the same offenses as his codefe ndant Huey a

nd the evidence agains tJeffrey

Gills is subs tantially

the same . Accor

dingly , for the

samereasons we found sufficient evidenc e to support Defendant Huey ’s convictions, we also find the evidence sufficient to support Defendant

Gills’ co nvictions

. Specifically, De fendant Gills was involved in the altercation in Mr. Jones’ apartme

nt, and he was iden tif ied b y severa

l witnesses who saw him walking up the street towardMr. Jones’ apartme nt just prio

r to the sh ooting. S herry Stevens sa

w Defendant Gills approach the apartment, aim a pistol at the victims, and begin firi ng int o the crowd. Clearly , the evidence supports Defendant Gills’ convictions.

Ronnie Finch Ronnie Finch was also convicted of one count of facilitation of first degree murder and two counts of facilitation of attempted first degree murde r, and the evidence against Defenda ntFinch is substantia lly the same as that presented against his codef endants. Therefore, as with Def endants Gills an d H ue y, we find sufficient evidence to support Defenda nt Finch’s convictions. Defendant Finch was engaged in the initial argument with Mr. Jones one day before the shooti ng, and

he also
a ccomp aniedhis codefendants to Mr. Jones’ apartment the day of the shooting when Defendant Huey struck Mr. Jones with a pistol. Additionally, Sherry Stevens saw Defendant Finch at the scene withDefendant Huey

seconds before the shooting began, a nd Michelle Taylor sa

w Defendant Finch running from the scene with a gun after the shooting . Accordingly , for the reasons set forth for Defen dants Hu ey and Gills, we find the evidence sufficient to support Defenda nt Finch’s convicti ons.-7- INCONSISTEN T VERDICTS
Next, the Defendants contend that their convictions for fac ilitation of first degree murder

and facilitation of attempted first d egree murder should be set aside a s inconsistent. Specifically, the Defend ants contend t

hat their convicti ons for fac ilitation without a conviction of the principal offende r evidences a co mpromised , inconsis tent ver dict.

This Court addressed this precise issue in State v. Genn oe , 851 S.W.2 d 833, 836 (Tenn. Crim. App. 1992 ), a cas e in which the defe ndant wa s c onvicted o f facilitation of sexual battery without his codefendant being convicted as the principal in the crime. This Court cited Tennessee Code Anno tated se ction 39- 11-407 wh ich rea ds in pert inent par t as follow s: In a prosecution in which a person’s criminal responsibility is based upon the conduct of another, the person may

be convicted on proof of commission of the offense and that the person was a party

to or facilitated

its commission, and it is no defense that

. . . the perso n for whose conduct the defendant is criminally responsible has been
ac quitt ed, has not been prosecuted or convicted, has bee n convicted of a different offense or different ty

pe or class of offense, or is immune to prosecution.

Tenn. Code Ann. § 39-11-407. This Court further rejected the Gennoe defenda nt’s arg ument tha t, in order to avoid “grossly inconsistent verdicts,” an exception to this rule should be created for defenda nts who are tried together. Gennoe , 851 S.W.2d at 836. In response to this proposition, this Courtcited our

supreme court’s decision in State v. Wiggins , 498 S.W.2d 92, 93 (Tenn . 1973), in which our supreme court adopted the rationale of the United States Supreme Court set forth in Dunn
v. United States , 284 U.S. 390, 393 (1932), and held that each count of an indictment is to be treated
as a separate indictment and must be individually supported by the evide nce, a n d, therefore, consistency

between verdicts on

separate counts of an indictment is not necessary

. See Wiggins , 498 S.W.2d at 93.

As we stated in Gennoe , we see “no basisto carve out an exce

ption to the

facilita tion statut e basedupon constitutional principals. Inconsistent verdicts are not fa tal to a conviction.” Gennoe , 851 S.W.2d at 836 (citations omitted). Because, as we have stated above, we find ample evidence to support e ach individual con viction, w e find no i l legality in t he alleged inconsistencies of the verdict s. This issu e is withou t merit.
EVIDENCE OF PREVIOUS ALTERCATIONS

Defend ants Huey and F inch contend that the trial court erred in admit ting t estimony concerning the altercation onMa y 5 betwee n Defen dant Finc

h and Mr. Jon

es and the alterca tion in Mr. Jones’ home early on the da y of the shooting. The trial cou rt admitted the testimony after a hearing on its admis sibility . The tria l court fo und that pu

rsuant to State v. Gilliland , 22 S.W.3d 266, 272 (Tenn. 2000), the need for com pleteness ne cessitated the admission of the evidence. The Defend ants maintain that the prejudicial nature of the evidence far

outweighed its probative value. We disagree.-8-

Tennessee Rule of Ev

idence 4 04 (b) pr

ovides tha

t evidenc e of othe

r crimes , wrong s, or

acts is not admissible to prove the character of a person in order to show action in conformity with that character. Howe ver, such e vidence may be admissible for other purposes. Id. In Gilliland , our supreme court held that evidence of prior crimes, w

rongs, or acts ma

y be admitted into evide

nce if necessary to provide a contextual background. See Gilliland , 22 S.W.3d at 272. Prior to admitting the evide nce, the trial cou rt must mak

e the fol lowing f

indings: (1) the abse

nce of th e eviden ce would create a chrono logica

l or conc eptual vo id in the state’s presentation of its case; (2) the void created by the absence of the evidence would likely result in significa

ntjury confusion as to the mate rial issues or evidence in the case; and (3) the pro bative value of the evidence is not outweighed by the danger of unfair prejudice

. Id. If th e trial c ourt make s the req

uisite fin dings, it s decision should not be dist

urbed ab sent an a

buse of discretion. Id. at 273.

In the pres ent case , the tria l court ma

de the fi ndings r

eq ui re d b y Gi lliland . The trial court ruled that the evidence was necessary to give the jury

a complete view of theongoing disagreement betweenMr. Jones and the Defendant. Without the evidence, the trial court feared that the jury would draw the mistaken conclusion that the sh ooting was simply a ra ndom act of violence. The trial court specifically f

ound that the proba

ti ve value in giving the jury a complete picture of the events surrounding the shooting outweighed the da nger of unfair prejudice. To ins ure th at the Defend ants would not be unfairly pre judiced by the

testimony, the trial court instructed the jury that they could not consider the evidence

as proof of the Defendants’ disposition to commit a crime for which the y w ere on tr

ial.

We find no error in the trial court’s admission of the evidence. This issue

is without me

rit.
SENTENCING

The Defendants further contend that the trial court misapplied e nhancement factors and erred in not apply

ing seve ral mitig ati ng factors, thus, inappropriately sentencing each Defe

ndant to the maximum sentence for each count. When an ac cused challenges the length, ran ge, or mann er of service of a sent

ence, th is Court h as a duty to cond uct a de novo review of the sentence with a presumption that the determinations made by the trial court a re correct. Tenn. Code Ann. § 40-35- 401(d). This presumption is “conditioned upon the affirmative showing in the record that

the trial court consider ed the se ntencing principle s and all

relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evide nce, if any, rec eived at the trial and se ntenc ing hea ring; (b) the presentence report; (c) the princ iples of sente ncing and arguments as to sentencing a lternatives; (d) the nature and characteristics of the criminal conduct invo lved; (e) any statutory mitigating or enhancement factors; (f) any sta tement made by the defe

ndant regarding sentenc i ng; and ( g) the potential or lack of potential for-9-

rehabilitation or treatment. See Tenn. Code A nn. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838 , 844 (Te nn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a

lawful s entence after having given due c onsideration and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sentence

ev en if we would have preferred a different result. See State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Frank E. Huey Defendant

Huey contendsthat the tr

ial c ourt erred in finding that he was a leader in the commission of the offense and that he willfully inflicted bodily injury. See Tenn. Code Ann. § 40- 35-114 (2), (12). The presentence report shows that

at the time

of sente ncing th e Defe ndant wa s a thirty-one ye ar old, ma

rried ma le with six children and arelatively stea dy employ

ment history. The report also rev eals an extensive misdemeanor criminal history inc luding several convictions for drug possession and one misdemeanor theft conviction.

The Defendant was convicted of fac ilitation of first degree murde r, a Class A felony, two counts of facilita tion of att empted f irst degre e murder , Class B f

elonies, and rec

kless end anger

ment, a Cl as s E fe lo ny. See

Tenn. Code Ann. §§ 39-11-403(b); 39-12-101; 39-13-103(b); 39-13-202. The Defendant was determined to be a Range I

standard offender on each count. The Defendant faced sentence range s of 15 to 25 ye ars for the Class A felony, e ight to twelve ye ars for the each of the Cla ss B felonies, and one to two years for the Class E felony

. See Tenn. Code Ann. § 40-35

- 112(a)(1)-(5). The tr ial co urt fo und no appli cable m itiga tin g fact ors, but f

ive appli cable enhancement

factors and sentenced the D efendant to the maximum sentence on each count for an effectivesentence of 51 y ears. The Defendant now challenge s the trial court’s refusal to consider his mitigating factors, as well as, the trial court’sapplication of enhancement factors (2) and (12). See Tenn. Code Ann. § 40-35-114 (2), (12). The Defendant set forth the following five mitig ating factors for the court’s consideration: (1) the Defendant acted under strong provocation; (2) substantial grounds exist tending to e xcuse or j ustify the Defe ndant’s criminal conduct, though failing to establish a defense; (3) the Defendant, although guilty of the crime, committed the offense under s uc h unusual circumstances that it is unlikely that a sustaine d intent to violate the law motivated the crimi nal condu ct; (4) the Defendant turned himself in to police; and (5) the D efenda

nt has a w ife and s ix children that req uire his su

pport. See id . § 40-35-113(2), (3), (11) and (13). I n rejecting the Defendant’s mitiga ting factors the trial court found as follows:-10-

I know the defense has decided that he acted under strong provoca tion. I don’t think arming yourself with a r

ifle, going and standing at the side of a building and shooting at individuals that include children, that there’s any provoca tion there , and the f

acts of this case don’t support that. There is[sic] no grounds to justify that conduct and looking at factor number eleven, that there is no sustained intent to violate the law, well Mr. Hughey ’s[sic] pas t history , in additio n to th e testimon y in court this morning from

Officer Wells, would indicate there is a sustained intent to violate the law.
Now, [f]actor [n]umber [t]hirteen, turning you rself in, the fact that you ha

ve six children. You know, the fact that you turn y

ourself in, I’ll consider but I ’m not going to give that

any weig ht. So, basically, except for that, I ’mnot finding that any mitigating factor, and I ’m considering all of them, applies in this case.

The record supports the trial court’s findings and we f ind no error in the court’s re jection of the Defend ant’s pr

oposed mit

igating factor s.
D efendant

Huey cha

llenges only two of

the five enhancement factors applied by the tria l court. First, the Defendant challenges the trial c ourt’s finding that he was a leader in the c ommission of an offense involving two or more actors. See Tenn. Code Ann. § 40-35-114 (2). The Defendant contends that this enhancement factor cannot apply to a defendant

who has been convicted of mere facilita ti on. De spite the Defendant’s contentions, this Court has previously held that a defendant convictedof the facilitation of a crime may be considered a leader in the commission of the offe nse because the application of the factor does not require that the de fendant be the sole lea

der, only that he be a leader. See State v. Robinson , 971 S.W.2d 30, 36 (Tenn. Crim. App. 19 97 ) (defendant convictedof facilitation of second degree mur der found to be a leader in the commission of the offense ); State v. Oneal Sanford , No. E1999-02089-CCA-R3-CD, 2001 Tenn . Crim. App . LEX IS 440, at *2 2-23 (Kno xv ille, June 18, 2001) (defendant convicted of facilitation of attempted especia lly aggravated robbe

ry and fa cilitation of aggravated assa ult found to be leade r in the commission of the offense).

In applying this enha

ncement factor, the trial

court re ferre d to the De

fendant ’s leade

rship in the altercation prior to the shooting at Mr. Jones’ home as well as the circumstantial evidence that suggested that the bullet tha

t kil led Ben

White was f

ired by the Defe ndant. We f

ind that thi s enhancement

factor is supported by the record; therefore, no error wa s committed in its application.
Next, the Defendant challenges the tria l court’s finding that he willfully inflict ed bodi ly injury on another

perso n during the commission of the offense, and, alternatively , that his actions resultedin the death of

or serious bodily

injury to a victim or

a person other tha n the inte nded vict im. See Tenn. Code Ann. § 40-35-114 (12). The trial cou rt applied this enhancement factor to the Defendant’s convictions for facilitation of the first degree murder of Ben White and facilitation of the attempted first degree murder of Leo White.-11-

In applying this enha

ncement factor, the trial

court relied on State v. Freeman , 943 S.W.2d 25, 32 (Tenn. Crim. App. 1996), which held that the willful infliction of bodily injury required for the application of the enhancement factor wa s not an inherent element of the offense of facilitation of attempted first degree

murder. While the trial court properly construed Freeman

as it appli es to the facilitation of attempted first degree murder conviction, we believe that the trial court erred applying this enhancement factor to the f acil it at io n o f f

ir st de gr ee mu rd er co nv ic ti on . C le ar ly, “bodily injury” is encompassed in the elements of facilitation of first degr ee murder which requires that a “killing” take place. See id .; Tenn. Code Ann. § 39-13-202 (a)(1). Therefore, the first prong of the enhancement

factor requiring “bodi ly in

jury ” is inapp licable

to the Defendant’s conviction for facilitation of first degree murder because it is contained within the offense.

The trial court also determined that enhancement factor (12) could be applied to the conviction for facilitation of first degree murder under the se co nd pr on g o f t he fa ct or ; s pe ci fi ca ll y, that the actions of the De

fendant resulted in the dea th or ser ious bodily

injury of a per son other than the intended victim. The trial court stated that the factor was applicable due to the gunshot wound suffered by L eo White. However, the trial court failed to make a finding that the injury suffered by Leo White constituted a “serious bodily injury .” In fact, the trial c ourt stated earlier in the sentencing hearing that the injuries suffered by Leo White “weren’t

extraordinary.” Accordingly , we find that the trial court

erred in apply

ing the enhancement factor to the Defendant’s conviction for facilitation of first degree murder.

We also find that the trial court erred in applying e

nhancement factor (12) to the Defe ndant’s conviction for facilitation of the attempted first degree murder of Leo White. There is no evidence in the rec ord that th

e Defe ndant will fully

inflicte d bodily

injury. The proof a

ttrial fa iled to est ablish who fired the

bullets that struck Ben and Le o White. Furthermore, the second prong of enhancement factor (12) is ina

pplicabl e to the De

fendant ’s convictions for t wo reas ons. Firs t, as discussed above, the proof doe s not suppor t a finding

that L eo Whit e s uffered “serious bodily injury.” Second, the trial court’s finding that

the actions of the Defendant resulted in the death of or serious bodily injury to a person other than the intended victim is no t supported by the applica ble law. We have consiste ntly held that a trial court may not enhance a defendant’s sentence based upon the fact that the offense involved morethan one victim, pursuant to Tennessee Code Annotated section 40-35- 114(3), when the defendant has been convicted of the offenses committed against each victim. See Statev. W illiamson , 9 19 S.W.2d 69, 82 (Tenn . Crim. App . 1995); State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987). We s ee no re ason why this ratio nale

would not also preclude the enhancement

of a defendant’s sentence under enhancement fa ctor (12) when a conviction has been obtained agains t the def

endant f or the se rious bodi ly in

jury or death suffered by

the person other than the intended victim. Th erefor e, beca use the D efenda

nt was co nvicted o f facilitation of t he first degree murder of

Ben White, the death of Ben White may not be used to enhance the Defendant’s sentence for facilitation of the attempted first degree murder of Leo White. Accordingly , the trial court er red in ap plying enh anceme

nt facto r (12) to the Defe ndant’s c onviction s.
While the trial court erred in apply ing enhancement factor (12) to two of the De fen dant’s convicti ons, this error does not require a reduction in the sentence s imposed by t he trial c ourt. See-12-

Statev. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). The trial court properly applied four other enhancement factors in enhancing the Defendant’s sentences. The trial cour t found (1) that the Defendant

had a pri or history

of crimin al convictions or be havior in addition to

those necessa ry to establish the range; (2) that he was a leader in the commission of an offense involving two or more criminal actors; (3) that he had a previous history of unwillingne ss to comply with the conditions of
a se n tence involving release into the community ; and (4) that he employ ed a firearm during the commission of the offense. See Tenn. Code Ann. § 40-35-114 (1), (2), (8), (9). Given the lack of mitigating factors and the four strong enhancement factors, we find no err or in the sentence imposed by t he trial c ourt for

each of the Defe ndant’s c onviction s.
Defendant J effrey L. G

ills Defendant

Gills also challenges the sentences imposed by the trial court . Defen dant Gills contends that

the trial court er red by refusin g to app ly h

is proposed

mitigati ng fac tors and i mproper ly applying several enhancing factors. Defendant Gills was convicted of the same crimesas Defendant Huey and faced t

he same range of punishment for each c onviction. He was sentenced to the maximum sent

ence on each of the four convicti ons resul

ting in a n effective sente

nce of 51 ye ars.
The presentence report

shows tha

t, at the time

of sente ncing, the Defe

ndant wa s a 29 y

ear old malewith four children. Defendant Gills had recently earned his G.E.D. while incarcera ted. Also, the Defendant possessed an extensive criminal history of seventee

n previous convictions, including one felony c onviction.

Defendant

Gills proposed the same mitigating factors proposed by Huey. I n rejecting the mitigating factors proposed, the trial court stated [a]ll right, looking at the mitigating factors. Same ones that are cited that were cited by Mr. Hughey

[sic] in that strong provocation. There’ s no strong provoca tion in this
case and there is no substantial grounds existing to justify the conduct. . . . Ther

e is
a sustained intent to violate the law and I will consider for whatever reason he

turned himself in and give it abs ol utely no weig ht. Considering all the other factors, I ’m fi nd in g t ha t n on e o th er ap pl y. We find no e

rror in th e trial c ourt’s findings.

The trial cou

rt also ap plied toDefendant Gills’ sentences the same five enha ncement factors basedupon the samereasoning that s he applie d to Mr. Hu ey . As we ha ve previ ously

discusse d with regard to Defendant Huey , the trial court similarly err ed in its application of enhancement factor (12) to Defendant Gills’ convictions for facilitation of first degree murde r and facilitation of attempted first degree murder. Howeve r, as with Mr. Huey , we see no need to modify Defend ant Gills’ sentences because the remaining enhanc ing factors in the absence of mitigati ng fac tors are

adequa te to support

the sente nces impo sed by

the trial court.1 Un like h is cod efen dan ts, Def end ant F inch wa s acq uitted o f the ch arge of felo ny r eck less en dan germ ent. -13- Defendant Ronnie Finch Defendant

Finch was convicted of fac ilitation of first degree murder and two c ounts of facilitation of attempted first degree murder. 1 The Defendant was sentenced a s a Range I of fender to the maximum sentence for each conviction, an effective sentence of forty -nine yea rs. Defendant Finch argues that the trial court erre d in refusing to give any weight to proposed mitigating factors and that the evidence does not support the t rial cour t’s finding of enhancement factor ( 12). Defendant

Finch, however, concedes the applicability of the other enhancement factors applied by the cour t.
The pr es en te nc e r ep or ts sh ow s t ha t, at th e t im e o f s en te nc in g, De fe nd an t F in ch wa s a tw en tyone ye ar old ma

le with one

child. The

Defend ant did not ha ve a e xt en si ve ad ul t c ri mi na l h is to ry, however , he was f

ound to be

delinque nt sever al times in

juvenile court.

In re jecting the Defe ndant’s p roposed m

itigatin g fact

ors the tr ial cour t stated a s follows: Lookingat the mitigation, the def endant cited that he play ed a minor role in the commission of

the offense. I do not find that the f acts justify that at all. As a matter of fact, he was involved in the altercation earlier in the day and c learly, thoug h there
was no one that saw him with a weapon, clearl y was there, present, knowing what
was happening, whether or not he fired a firearm or not. There is no inten t to violate the law. Well, clearly that’ s not correct. The day before he h ad gotten i nto the situation with Mr. Jer

omeJones for which he had a gun on 5/5 [sic]. That was the te st im on y. Then earlier in the day he w a s involved in the situation and then later. So that’s clearly

not a mitigating factor. Any any other f

actor consisten t an d that would be, I believe, the fact that he has gotten his G.E.D. while he was incarce rated. I will consider that but wi ll give it

no weight. Considering all the oth

er miti gating f actors, I do n ot believ e that the re is anything suf

ficient to mitigate any

sentence in this case.

The trial court consider ed all the re levant mit

igating factor s, and we

find no er

ror in its r

efusal to accord the fac tors any

weight

. The trial court

foundfive enhancement factors in sentencing the Defendant. The trial court found that the D efenda

nt had a pr

evious crim inal histor

y in addition to

that nec essary

to establi sh the appropriate range; the Defendant has displayed an unwillingness to comply with the conditions of a sentence involving release in the community; the Defenda nt willfully inflicted

bodily injury

on another or the actions of the De

fendant resulted in the dea

th of or se

rious bodi ly in

jury to a victim
or a person other than theintended victim; the

felony was committed while

the Defendant was on probation from a

prior felony ; and the D efenda

nt was ad judicate d to have c ommitted a n act or a cts as a juvenil e that wou

ld constitute a

felony if committed by

an adult. See

Tenn. Code Ann. § 40-35- 114 (1), (8), (12), (13), (20).-14-

As we have

found with

regar d to Defendants Huey

and Gills, the trial court erred in applying enhancement

factor (12) to Defendant Finch’ s convictions for facilitation of first degree murde r and facilit ation of attempted first degree murder. H owever, the trial court found and the Def endan t concedes the presenceof four other enhancement factor s. Each of these factors are e ntitled to great weight , and we f

ind no err or in the s entence

imposed by

the trial court.
CONSECUTIVE SENTENCING

Each Defendant also challeng es th e trial c ourt’s imp osition of c onsecuti ve sente nces. Tennessee Code Annotated section 40-35-115 provides that the trial court may impose consecutive sentences upon a defendant convicted of multiple

criminal offense s if it

finds that a preponderance of the evidence establishes that the defenda nt falls in to at leas t one of se

ven cate gories . Two of th ose categories are: a) the defendant is an offender w hose record of criminal activity is extensive; and b) the defendant

is a dangerous offender whose behavior indicates little or no regard for human life , and no he sitation a bout commit

ting a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115 (2), (4). Defendant Huey The trial cou

rt order ed Defe ndant Hue

y’ s s entences to run con secutive ly b ased upo n his extensive criminal history and his status as a dang erous offender. The trial court stated that
[h]eis clearly a

n offender wh ose record o f criminal activity is extensive. I understandthat his convictions are - There’s no prior felonies but whe n you look

not only at the nature of the convictions, the frequency , and I counted them, the
c onvictions i n his short life, he’s had 17 prior convictions. He has just been
c onstantly

in this system. I ’m going to find that he is, in fact, an offend er whos e record of criminal activ ity i s extensive and I ’m also g oing to f ind that he

is a dangerous offender whose behavior indicates little or no reg ard for humanlife and
no hesitation about committing a crime in which the risk to human life is high. I can’t think of a

better e xample than

a situatio n where

you open fir e with a r iflein a crowded housing area, b e it

over d rugs or somebody disrespecting you or wha tever, this is, in f

act, the personif ication o f what a d anger

ous offe nder is.

Now will the aggrega

te term reasona bly relate t o the seve rity of the of fenses, and is it nece ssary

to protect the public from further serious criminal conduct by the defenda nt? Those que stions will

be answered

positively because this is a ca se where Mr. Leo White and Mr. Ben White, strangers somewhat to this altercation that had occurred earlier, were

gunned down.

The trial court’s findings are supported by the record. Therefore, we conclude that the trial judge p roperly acted w ithin her d

iscretio nary

authority in imposing

consecu tive sente nces.-15-

Defendant G

ills The trial cou

rt also or dered D efenda

nt Gills’ sentences to be served consecutively due to his extensive criminal

history and his sta

tus as a da

ngerous offen der. The

trial cou rt specif ically found that the Defendant exhibited behavior that showed little or no regard for human life and showed no hesitation in committing a crime in which the risk to human life was high. The trial court statedthat [s]hooting with automatic weapons into a densely populated a rea involving five or six childre

n clear ly isa dangerous offender. He has, and the aggr egate term relates to the seve

rity of the of fenses. This is a murder

case. The jury

chose not to convict these defendants of Murder

in the First Degree, though the e vidence was surely ther

e. And these sentences are necessa ry in order to pr

otect the public from further serious criminal conduct by

this defe ndant, ev idenced by a ll the prior. He’s hardly

gone any time without being back in the criminal justicesystem except for that time which he was incarcerated.

The trial court’s findings are clearly supported by the recor d, an d we find no error in the imposition o f consec

utive sen tences.
Defendant Finch The trial court sentenced Defendant Finc h to consec

utive sen tences o n the basi s that he is a dangerous offender. The

trial court specifically

found that he’s a dangerous offender whose behavior indicates little or no regard for human life and no hesit ation about commi ttin g a crime in which the risk to human life is high. He’s on probation for a weapons offense at the time this occurs, he has a prior ad judication , as a juvenile, of a robbery conviction. All of this indicates an individual who is dangerous. These offen ses are dangerous, and, obviously , the public needs to b e protected. I n addition

to that, he

was on pr

obation, w

hich is another factor. He wa s sentenced for an offense committed while on probation. Therefore, I find

that consecutive sentences are nec essary with re gard to Mr. Finch, also. Again, the trial

court’s finding s are we

ll-found ed. This is sue is with out merit.
DENIAL OF MOTION FOR JUDGMENT OF AC QUITTAL

Fi na ll y, Defendant Finch contends that the trial court er red in taking his motion for judgment of acquitta l unde r advisement. At the end of the State’s proof, all three De fendants moved for a judgmentof acquittal. The trial court denied Defendants Hue y and Gills’ motions, but expre sse d
concernregardi ng the suff iciency of proof regar ding Defendant

Finch. T he State’ s proof a

gainst Defend a ntFinch consisted of one witness who placed Finch at the sc ene during the shooting, but stated that he was unarmed. Inste ad of granting Defe ndant Finch’s motion, the trial court took the motion unde

r advise ment.-16-

Our supreme court ha s clear

ly stated that “[t]here is no authority in our practice or procedure in a criminal case for

the trial judge to take under advisement a motion for a judgment of ac quittal made at the conclusion of

all the State’s proof.” Mathis v. St ate , 590 S.W.2d 449, 453 (Tenn. 1979). At the end of

th e State’s proof , if the evidence is insufficient to support a conviction, upon a defendant’s motion, the trial court has no alternative but to direct a verdict in favor of the defe ndant. Id. It is c lear tha

t the tria l court e rred in ta king the Defend ant’s moti on under adviseme

nt. However, the Mathis court also held that [w]hen the court

overrules or does not act upon a motion for an acquittal made at the conclusion of the State’s proof, if counsel is convinced as to the validity of the motion, he or she must then and there take aff irmative action to confine the controve rsy to the proof already

presented. He or she shou ld announce that the defendant stands on his motion, will present no proof, disclaims any benef it of any evidence introdu ced by

his codef endant, d isavows a ny d etriment , and should state that the evidence presented by the codefendant will not

be binding

upon him, and he should participate no further in the trial until after conclusion of all the proof.

Id. In the present case , the Defendant’s counsel did not object to the court’s action nor did he stand
on his motion. In fact, counsel for Def endant Finch participated in the remainder of the tria l by cross-examining a witnesscalled b y one of his c odefend ants. The Defendant’s actions have waived the trial court’s error.

The strict guidelines as set forth by our supreme court for preserving as error a trial court’s denial of or inaction upon a motion for judgment of acquittal leave no room for a plain error a naly sis. Ac co rd in gl y, Mathis requires us to findthat the Defendant has waived the trial court’s e rror in taking his motion f

or judgm ent of ac quittal und

er advis ement. Th

is issue is without mer

it.
CONCLUSION

For the f orego ing rea sons, we A

FFI RM the judgments of th

e trial c ourt.

___________________________________ DAVID H. WELLES, JUDGE