IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 10, 2010 Session

STATE OF TENNESSEE v. TIMOTHY WASHINGTON LYONS AND

ANTONIO LAMONT SCALES

Appeal from the Criminal Court for Davidson County

No. 2007-C-1951 Monte Watkins, Judge

No. M2009-02524-CCA-R3-CD - Filed January 18, 2011

A Davidson County Criminal Court jury convicted the defendants, Timothy Washington

Lyons and Antonio Lamont Scales, of the attempted second degree murder of Teresa

Crenshaw and the reckless aggravated assault of Quanita Robinson. The trial courtsentenced

each defendant to 22 years’ incarceration. In this appeal, both defendants challenge the

sufficiency of the convicting evidence, the trial court’s failure to provide the “missing

witness” instruction, and the propriety of the sentences imposed. Discerning no reversible

error, we affirm the convictions. Because the trial court mistakenly believed it was imposing

sentences for Class C felony aggravated assault rather than Class D felony aggravated

assault, utilized improper enhancement factors, and imposed consecutive sentences without

making required findings of fact, the sentences imposed are vacated, and the case is

remanded for resentencing. In addition, new judgment forms for the aggravated assault

convictions must be entered to reflect that the defendants were convicted of Class D felony

aggravated assault.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Vacated and

Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and ALAN E. GLENN, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Timothy Washington

Lyons.

Colin B. Calhoun, Nashville, Tennessee, for the appellant, Antonio Lamont Scales.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

The convictions in this case relate to the shootings of Teresa Crenshaw and

Quanita Robinson on March 31, 2007. At the joint trial, Ms. Crenshaw testified that on that

date she was driving along Coffee Street near Eleventh Avenue in Nashville when she saw

the defendants sitting in a gray, two-door car parked in an alley. She recalled that Mr. Scales

was in the driver’s seat, Mr. Lyons was in the passenger’s seat, and two individuals were in

the backseat. Ms. Crenshaw stated that she spoke briefly to the defendants and then drove

a very short distance to offer a ride to Ms. Robinson, who was walking. Just after Ms.

Robinson got into the vehicle, Ms. Crenshaw turned back to see guns being pointed at her

by the occupants of the gray car. Ms. Crenshaw testified that both defendants had guns

pointed at her.

When the men started to fire, Ms. Crenshaw “scrunched down in the vehicle

and accelerated.” She stated that the men pursued her and continued to fire at her as she

attempted to get away. A short distance later, Ms. Crenshaw made a left turn and the gray

car made a right turn. She then continued to drive until she saw her aunt driving by. She

flagged down the aunt and asked for transportation to the hospital. Ms. Crenshaw stated that

a bullet struck her right upper arm and that another bullet grazed Ms. Robinson’s left upper

arm.

On the way to the hospital, Ms. Crenshaw telephoned Mr. Scales and asked him

why he had shot at her. According to Ms. Crenshaw, Mr. Scales told her that “they was

going to kill [her], [her] boyfriend, and everything he loved.”

Once at the hospital, Ms. Crenshaw learned that she had also suffered a

gunshot wound to her back. She stated that doctors were forced to leave a bullet fragment

in her arm and to leave the entire bullet in her back near her lung.

Crime scene investigators with the Metropolitan Nashville Police Department

discovered 13 cartridge casings “scattered along . . . a hundred” yard path from Ms.

Crenshaw’s abandoned vehicle backwards toward Eleventh Avenue. They found no blood

inside the vehicle.

At the conclusion of this proof, the State rested, and neither defendant

presented any evidence. Based upon the evidence presented by the State, the jury convicted

the defendants, who had originally been charged with attempted first degree murder, of the

lesser included offense of attempted second degree murder in count one and reckless assault

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as charged in count two.

1

Following the denial of their timely but unsuccessful motions for new trial,

both defendants appealed to this court, claiming that the evidence adduced at trial was

insufficient to support their convictions, that the trial court erred by refusing to provide the

“missing witness” instruction, and that the sentences imposed are excessive.

I. Sufficiency

Both defendants challenge the sufficiency of the convicting evidence. Mr.

Lyons contends that the State failed to establish that he acted knowingly with regard to the

attempt on Ms. Crenshaw’s life and that Ms. Crenshaw’s testimony regarding both offenses

was unreliable. Mr. Scales asserts that the State failed to establish the elements of either

offense “due to the shockingly inconceivable testimony of Ms. Crenshaw.”

We review the sufficiency challenge mindful that our standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings

of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. Winters, 137 S.W.3d at 654.

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

Examining the proof adduced at trial in the light most favorable to the State,

as we are required to do, we find the evidence sufficient to support the convictions of

attempted second degree murder of Ms. Crenshaw. “Second degree murder is . . . [a]

knowing killing of another.” T.C.A. § 39-13-210(a)(1) (2006). Code section 39-12-101

The defendants were additionally charged with the reckless aggravated assault of Antwan Bowers, 1

the felony reckless endangerment of Michael Massey, and the felony reckless endangerment of Linda

Sylvain. Those charges were dismissed by the State.

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defines criminal attempt:

A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that

would constitute an offense, if the circumstances surrounding

the conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of

the offense, and believes the conduct will cause the result

without further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or

cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes

them to be, and the conduct constitutes a substantial step toward

the commission of the offense.

Id. § 39-12-101(a).

Here, Ms. Crenshaw, the victim of the attempted second degree murder,

testified that both defendants began firing guns at her and Ms. Robinson just after Ms.

Robinson entered Ms. Crenshaw’s vehicle. She stated that the defendants continued to fire

at her as she tried to get away and that Mr. Scales stated an intent to kill her. Despite the

defendants’ characterizing Ms. Crenshaw’s testimony as “vacillating,” “unbelievable,”

“outrageously inconceivable,” and essentially incredible, the jury, as the trier of fact,

accredited her testimony. This court may not go behind that credibility determination.

The evidence was also sufficient to support the defendants’ convictions of the

reckless aggravated assault of Ms. Robinson. As charged in this case, “[a] person commits

aggravated assault who . . . [r]ecklessly commits an assault as defined in § 39-13-101(a)(1),

and . . . [u]ses or displays a deadly weapon.” Id. § 39-13-102(a)(2)(B). Code section 39-13-

101(a)(1) provides: “A person commits assault who . . .[i]ntentionally, knowingly or

recklessly causes bodily injury to another.” Id. § 39-13-101(a)(1). “‘Bodily injury’ includes

a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or

impairment of the function of a bodily member, organ, or mental faculty.” Id. § 39-11-

106(2). Ms. Crenshaw testified that Ms. Robinson was wounded during the encounter,

suffering a grazing bullet wound to hershoulder that resembled a burn, and thatshe screamed

in pain. This testimony sufficiently establishes the offense of reckless aggravated assault.

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In a related issue, both defendants also allege that despite being charged with

reckless aggravated assault, they were actually convicted of the greater offense of intentional

or knowing aggravated assault. The State asserts that the defendants were charged with and

convicted of aggravated assault by recklessness but that the trial court and the parties failed

to recognize that the aggravated assault by recklessness is graded one conviction class lower

than an intentional or knowing assault and that, as a result, the trial court erroneously

imposed a sentence within the wrong conviction class. We agree with the State.

The indictment in this case charged that the defendants “recklessly did cause

bodily injury to Quanita Robinson by the use or display of a deadly weapon, to wit: a

handgun, in violation of Tennessee Code Annotated § 39-13-102.” Similarly, the trial court

instructed the jury that it must find “(1) that the defendants recklessly caused bodily injury

to another; [and] (2) that the defendants used or displayed a deadly weapon, to wit: a

handgun.” This language tracks that of Code section 39-13-102(a)(2)(B), aggravated assault

by recklessness. As a result, the only assault offense of which the defendants could have

been convicted is reckless aggravated assault, which is a Class D felony. The judgment

forms, however, indicate that the defendants were convicted of Class C felony aggravated

assault.

There is no question that Class C felony convictions were entered in error. The

record is clear that neither the trial court nor the parties realized during sentencing that

reckless aggravated assault is a Class D felony rather than a Class C felony. The trial court

imposed sentences of eight years for the convictions of aggravated assault, which are valid

Range II sentences for a Class D felony conviction. Given that the trial court believed it was

imposing a sentence for a Class C felony conviction, however, it is our view that the case

should be remanded to the trial court for reconsideration of the sentences for aggravated

assault.

II. Missing Witness Instruction

Both defendants claim that the trial court erred by refusing to provide a missing

witness instruction to the jury based upon the State’s failure to call Ms. Robinson as a

witness.

Initially, although Mr. Lyons lists as an issue the trial court’s failure to provide

the missing witness instruction, he omitted the issue from the argument portion of his brief.

The issue is not supported by argument, citation to the relevant portions of the record, or

citation to applicable authorities. As such, Mr. Lyons has waived our consideration of this

issue. See Tenn. Ct. Crim. App. R. 10(b).

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The “missing witness” or “absent material witness” instruction provides:

When it is within the power of the [S]tate or the defendant to

produce a witness who possesses peculiar knowledge

concerning facts essential to that party’s contentions and who is

available to one side at the exclusion of the other, and the party

to whom the witness is available fails to call such witness, an

inference arises that the testimony of such witness would have

been unfavorable to the side that should have called or produced

such witness. Whether there was such a witness and whether

such an inference has arisen is for you to decide and if so, you

are to determine what weight it shall be given.

1-42 T.P.I. Criminal 42.16. Before the instruction may be given, the party requesting it must

establish “that ‘the witness had knowledge of material facts, that a relationship exists

between the witness and the party that would naturally incline the witness to favor the party

and that the missing witness was available to the process of the Court for trial.’” State v.

Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317,

334-35 (1992)) (internal citation and quotation marks omitted). To justify a missing witness

instruction, “the witness who was not called must not have been equally available to both

parties.” See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (citing State v.

Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim. App. 1982); Bolin v. State, 472 S.W.2d 232,

235 (Tenn. Crim. App. 1971)); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App.

1988).

At trial, the prosecutor indicated that the State had issued a subpoena for Ms.

Robinson, that a State investigator had tracked her down, and that Ms. Robinson had assured

the investigator that she would attend the trial. Despite the State’s efforts, Ms. Robinson did

not show up for trial. The record establishes that Ms. Robinson, as an eyewitness victim, had

knowledge of material facts in the case and that she was available to the process of the court.

Other than stating that the victim of a crime would necessarily favor the State as a party,

however, Mr. Scales neither asserted that Ms. Robinson had a relationship with the State that

would have predisposed her to favor the State nor established that Ms. Robinson was not

equally available to both parties. Under these circumstances, the trial court did not err by

refusing to provide the missing witness instruction.

III. Sentencing

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Both defendants contend that the sentences are excessive, arguing that the trial

court improperly enhanced the individual sentences and erred by imposing consecutive

sentences. The State correctly points out that the sentences for the defendants’ convictions

of aggravated assault should be vacated and remanded for resentencing in light of the fact

that the trial court erroneously believed that the defendants had been convicted of Class C

felony aggravated assault rather than Class D felony aggravated assault. In addition, the

State concedes that a remand for resentencing is appropriate because the trial court imposed

consecutive sentencing without making the required findings under State v. Wilkerson, 905

S.W.2d 933 (Tenn. 1995). We agree with the State.

When considering challenges to the length and manner of service of a sentence

this court conducts a de novo review with a presumption that the determinations of the trial

court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “is

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

sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The appealing party, in this case the defendant, bears the burden of

establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that

the trial court gave “due consideration and proper weight to the factors and principles which

are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are

adequately supported in the record, then we may not disturb the sentence even if we would

have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). In the event the record fails to demonstrate the required consideration by the trial

court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing decision, the trial court must consider:

(1) The evidence, if any, received at the trial and the sentencing

hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing

alternatives;

(4) The nature and characteristics of the criminal conduct

involved;

(5) Evidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114;

(6) Any statistical information provided by the administrative

office of the courts as to sentencing practices for similar

offenses in Tennessee; and

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(7) Any statement the defendant wishes to make in the

defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5).

The parties presented no live testimony at the sentencing hearing, choosing

instead to rely upon the presentence reports and argument. The presentence reports as well

as certified copies of the judgments established that on August 2, 2001, both defendants

pleaded guilty in case number 2001-A-406 to two counts of aggravated robbery in exchange

for a total effective sentence of nine years’ incarceration. Mr. Lyons’ presentence report

established that the 28-year-old Mr. Lyons, a suspected member of the “Crips” gang,

garnered convictions of possession of drug paraphernalia and simple possession of marijuana

following his release on parole. Mr. Lyons was on parole at the time of the offenses in this

case. In addition to these convictions, Mr. Lyons had numerousjuvenile adjudications dating

back to age 14. Twenty-five-year-old Mr. Scales, a confirmed member of the “Gangster

Disciples” gang, was released on parole from the nine-year sentence only one month before

the offenses in this case.

The defendants’ aggravated robbery convictions qualified them for Range II

sentencing. The trial court concluded that both defendants had histories of criminal

convictions in addition to those necessary to establish the range, that the offenses involved

more than one victim, that the defendants employed firearms, that the defendants had no

hesitation about committing a crime where the risk to human life was high, and that the

defendants had juvenile adjudications that would have been felonies if committed by an

adult. See T.C.A. § 40-35-114(1), (3), (9), (10), (16). Based upon these enhancement

factors, the trial court imposed sentences of 14 years for both defendants’ convictions of

attempted second degree murder and sentences of eight years for both defendants’

convictions of aggravated assault.

The court also concluded, for purposes of imposing consecutive sentences, that

the defendants were “dangerous offenders whose behavior indicates little or no regard for

human life and they had no hesitation of committing a crime.” The trial court ordered both

defendants to serve their sentences consecutively, for total effective sentences of 22 years for

both defendants.

As indicated above, when imposing the eight-year sentences for aggravated

assault, the trial court was under the mistaken impression that the defendants had been

convicted of a Class C felony. The defendants were actually convicted of Class D felony

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aggravated assault and are entitled to be sentenced for that offense. In consequence, the case

must be remanded for reconsideration of the sentences imposed for aggravated assault.

With regard the application of the enhancement factors in this case, the record

establishes that the trial court erroneously applied factor (3), that the offenses involved more

than one victim, to both convictions. See State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002)

(holding that factor (3) may not be applied where a defendant is convicted of separate

offenses committed against each victim); see also State v. Williamson, 919 S.W.2d 69, 82

(Tenn. Crim. App. 1995) (“This Court has held that this factor may not be applied to enhance

a sentence when the appellant is separately convicted of the offenses committed against each

victim.”). In addition, the trial court erroneously applied enhancement factor (9), that the

defendants used or displayed a firearm, to the defendants’ convictions of aggravated assault

because the use of a firearm is an element of aggravated assault as charged in this case. See

T.C.A. § 40-35-114 (“If appropriate for the offense and if not already an essential element

of the offense, the court shall consider, but is not bound by, the following advisory factors in

determining whether to enhance a defendant’s sentence[.]”) (emphasis added). The trial

court also erroneously applied enhancement factor (10), that the defendants had no hesitation

about committing a crime when the risk to human life was high, to the defendants’

convictions of attempted second degree murder because that offense necessarily includes a

high risk to human life and because the State failed to establish the presence of anyone but

the two named victims. See, e.g., State v. Tony E. Cannon, Jr., No. M2007-00557-CCAR3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, June 19, 2008). Finally, the trial court

erred by applying enhancement factors (1) and (16) to Mr. Scales’s convictions. The record

established that Mr. Scales’s only previous convictions were the two convictions of

aggravated robbery used to move him from Range I into Range II. Moreover, although the

trial court stated that both defendants had a record of juvenile adjudications that would have

been felonies if committed by an adult, no record of Mr. Scales’s juvenile adjudications was

placed into the record.

With regard to the imposition of consecutive sentences, the State concedes and

the record establishes that the trial court imposed consecutive sentencing based upon its

finding that both defendants were dangerous offenders without making the requisite findings

under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Code section 40-35-115(b)(4)

provides that the trial court may order sentences to be served consecutively if the court finds

by a preponderance of the evidence that “[t]he defendant is a dangerous offender whose

behavior indicates little or no regard for human life and no hesitation about committing a

crime in which the risk to human life is high.” T.C.A. § 40-35-115(b)(4). Wilkerson limits

the application of this section, however, and holds that the trial court may order consecutive

sentences for the dangerous offender only after also finding by a preponderance of the

evidence “that an extended sentence is necessary to protect the public against further criminal

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conduct by the defendant and that the consecutive sentences must reasonably relate to the

severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

The trial court in this case made no such findings. Moreover, although consecutive

sentencing may be based upon any of the factors enumerated in Code section 40-35-115(b),

the record does not cogently establish that any of the remaining factors are applicable. See

T.C.A. § 40-35-115(b)(1)-(3), (5)-(7). Under these circumstances, the imposition of

consecutive sentences in this case was in error.

Conclusion

The evidence adduced at trial was sufficient to support both defendants’

convictions of second degree murder and aggravated assault. Accordingly, the convictions

are affirmed. Because numerous errors attend the sentences imposed in this case, the case

must be remanded to the trial court for resentencing for all convictions. New conviction

judgments for the convictions of aggravated assault must be entered reflecting the correct

conviction class and a sentence within that conviction class. Before it may impose

consecutive sentences upon remand, the trial court must complete the fact finding required

by Wilkerson.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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