# FILED
October 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9606-CC-00238 Appellee, ) ) ANDERSON COUNTY VS. ) ) HON. JAMES B. SCOTT, JR., FREDERICK R. PORTER, ) JUDGE ) Appellant. ) (Attempted second-degree murder; second-degree murder)
FOR THE APPE LLANT: FOR THE APPELLEE:
CHARLES L. BEACH JOHN KNOX WALKUP 365 Market St. Attorney General & Repor ter Clinton, TN 37716 (At trial and on appeal) MARVIN E. CLEMENTS, JR. Asst. Attorney General DEBORAH MURPHY BEA CH 450 Jame s Roberts on Pkwy. 365 Market St. Nashville, TN 37243-0493 Clinton, TN 37716 (At trial) ROBERT L. JOLLEY, JR. Special Prosecutor DAVID HILL P. O. Box 1468 301 E. Broadway Knoxville, TN 37901- 1468 Newport, TN 37821-3105 (At trial)

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The de fendant was charged with the premeditated murder of Gerald Brown , the felony murder of

Gerald Brown, and

the attempted premeditated murder of Jer

ome Anderso n. After a jury trial, he was convicted of the second-degree murder of Gerald Brown and attempted second-deg ree murder o f JeromeAnderson; following the verdict, the trial court dismissed the charge of felony murder. After a hearing, the trial court sentenced the defendant as a Range I standard off ender to twenty-five years incarceration for the murder offense and twelve years incarceratio n on the attempted murder offense. The sentences were ru n con secutively. In thi s direct appeal, the defendant raises the following issues:

1. The sufficiency of the evidence; 2. Whether the trial court erred in admitting the defendant’ s statement; 3. Whether the trial court should have gra nted a mistrial after hearing two jurors discuss ing a weapon; 4. Imprope r prosecu torial arg ument to the jury; 5. Whether the trial court erred i n refusing to admit proffered defense evidence which w

ould have “impeached the integ rity of the prosecution;” and 6. The propriety of his sentence. Upon our rev

iew of the record , we find no merit to any of the defendant’s issues and affirm the judgm ent belo w.

On the evening of February 26, 1993, numerous persons had gathered in
an area near the Scarboro Communit y Center in Oak Ridge, Tennessee. An argument broke out between Jerome Anderson, Andre Porter and Robert Smith. During the course of the argument, Anderson pulled out a pistol and shot three o r f our times at A ndre Porter, causing a single bul let wound to Porter’s n eck. Following these shots, Anderson and Smith began running from the s cene toward the Community Center.3 The defendant was in the vicinity of the ar gument; Porter

was his cousin. Several eyewitnesses testi fied that, after Anderson shot Porter, the defendant pulled a pistol and began shooting towar d the direction in whi ch Anderson and Smith w er e running. Anderson testified that he had loo ked back and seen the defendant shooting at him. Gerald Brown w as proceeding in the

same direction as Anderson and Smith, but
on a path that put him between them and the defendan t. He w as killed by a single gunshotwound with a nine millimeter bullet. Witnesses testified that the defendant had shot numerous times; the police lat er found ten nine millimeter shell casings in the area in which the defendant was alleged to have been standing while he was shooting. The weapon from which the fatal bul let was fired was not recovered.

The defendant did not testify. However, during the investigation of Brown’s death, he made a voluntary statement to the police which w as admitted into evidence. This statement included the def endant’ s assertio n that, “W hen I hea rd and saw t he two shots fired at my

cousin, I looked and saw that [Anderson] was fixing to try and shoot me. So when I proce ed ed to run he shot once at me and then I heard many other shots as I was running.” N owhere in his statement to the police did the defendant admit that h e had fired any

shots. However, A

ngela Brown, the murder victim’s sister,testified that she had spoken with the

defendant over the phone after her br other was killed, and that he had told her that he hadn’t shot at her brother but had been “shooti ng up i n the air.” Derrick Smith testified that the defendant had offered him money to cha nge his statement in which he reported hav ing seen the defendant pull a gun.

The defendant first contends that the ev idence is not

sufficient to support his convictions for atte mpted second-degree murder and second-degree murder because the weapon was ne

ver re covered (and was, ac cordingly, never

linked to him) and because there was proof that oth er people in the same vici nity were or may have been4

armed. He further contends that the pr oof demon strat es, at most, that he is gui lty of attempted voluntary manslau ghter and voluntary manslaughter. We disagree.
When an accused challenges the sufficiency of the convic ting evidence, we must review the e vidence in the light m ost favo rable to the prosecution in determi ning whether “ any rational trier o f fact could hav e found the esse ntial elements of the cri me beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evi dence and are required to afford the State the strongest leg itimate view of the proof co ntained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the eviden ce, as well as factual issues raisedby the evidence are r esolved bythe trier of fact, not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and appr oved by the trial judge a ccredits the testimony o f the witnesses

for the State, and a presumption of guilt repla ces the p resumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The State adduced testimony from numerous eyewitnesses

that they had
seen the defendant shooting multiple ti mes toward the direction in which Anderson and Smith were running. Anderson himself testified that he had seen the defendant shooting at him as he ran. Additional testimony and physical evidence, including blood splatters and the location of Brown’s body, placed Brown between the defenda nt and his target, in the line of

fire. Brown was kill ed by a gunshot wound. That the police never recov ered the murder weapon is not fatal to the State’s case. That others i n the area may have been armed is not

fatal to the State’s case. The evidence was sufficient to support a jury5

finding that the defendantshot and killed Gerald Brown in his attempts to shoot and kill Anderson.

W ith respect to Brown’s homicide, the jury was instructed on first -degre e murder (both premeditated and felony murd er) and the lesser offenses of second-degree murder, voluntary manslaughter and criminally neg ligent homicide. It returned a verdict of second-degree murder. Similarly, with respect to the attempt crime against Anderson, the jury was in stru cted on attempted premeditated murder an d the lesser offenses of attempt ed s econd-degree murder, attempted v oluntary manslaughter and attempted criminallynegligent homicide. It returned a verdict of attempted second-degree murder.

Second-degreemurder is defined as “A know ing killing of another. ” T.C.A. § 39-13-210(a)(1) (1991). “Knowing” is in turn defined as referring “to a per son who acts knowingly

with respect to the

conduct or to circumstances sur rounding the conduct [and] the person is aware of the nature ofthe conduct or that the circ umstances exist.” T.C.A. § 39-11-302(b). A person commits an attempted s econ d-degree murder when he knowingly

acts with the intent to kill his target and his actions constitute “a s ubstantial step toward the commission” of the murder. T.C.A. § 39-12-101 (a)(3). Pro of that a person has d elibera tely aimed a pistol and shot several times at his intended victim is sufficient to support a conviction for attempted second- degree murder. In this ca se, Anderson testified that, as he had run away from his confront ation with Porter, he l ooked back and saw the

defendant shooting at him. Jamman T. Booker also testified that he had seen the defendant shooting “tow ard the way that [Ander son] and [Smith] was running.”Two other eyewitnesses also testified that they ha d s een the defendant shooting his pistol in the direction toward which Anderson had been runn ing. This was
s ufficient evidence on which to support a conviction for the attempted second -degre e murder of Anderson.6 With respect tothe defendant’s contention that the evidence sup ports only
a convic tion of t he a ttempted voluntary manslaug hter of Anderson, we first not e that voluntarymanslau gh ter is the “intentional or knowing killing

of another in a state of passion produced by adequate provocation sufficient to lead a reason able person to act in an irrational manner.” T.C.A. § 39-13-211(a). Although the def endant d id not tes tify, there was proof that he

was Andre Porter’s c

ousin, and Anderson testified that he thought the defendant was

shooting at

him “Bec ause [he] shot his cousin.” Therefore, the defendant now argues, any shots he took at Anderson were the result of Anderson’s attack on his cousin and he was therefore shooting “in a st ate of pa ssio n produced by adequate provocation sufficient to le ad a reasonable person to act in an irrational manner.”

As this Court has previously stated, however, “Whether the [defe ndant’s] acts constitute a <

kn owing killin g’ (second degree murder ) or a killing due t

o < adequate provocation’ (voluntary manslaughter) is a question for the jury.” State v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). In this case, the jur y obvi ously determined that the defendant had attempted to commit a knowi ng killing which was not the result of
a de quate provocation and/or did not involve such provocation as to lead a reasonable person to act in an irrational manner. This was the jury ’s prerogative. The ev idenc e being sufficient to support its verdict that the defendant attempted to commit a know ing killing, this iss ue is without merit.

With respect to his conviction for s econd-degree murder, we first note that the defe ndant was convicted of Brown’s h omicide on the basis of the doctri ne of transferred intent. That is, th e level of culpability which the defendant demonstrated in his attempt to kill Anderson is transferred to his a ctu al killing of Brow n. See State v. Summerall , 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). Becaus e the jury convicte

d7

the defendant of knowingly attempting to kill Ander son, the doctrine of transferred i ntent permits a finding that the defendant knowingly ki lled Brown and therefore committed second-degreemurder.The evi dence is suff i cient to support this v erdict. As set forth above, the State’s proof demonstrated that the defendant fired his gun numerous times in Anderson’s direction. The proof further demonstrated that Brow n was located in the line of fire between the defendant and Anderson. The logical inference suppor ted by the pro of w as that a bullet intended for Anderson struck and killed Brown. The jury determined that the

defendant

’s acti ons wer

e not com mitted i n a state of pa ssion produced by adequate provocatio n sufficient to lead a reasonable per son to act in an irrational manner. The jury ’s ver dict of second-deg ree murder being supported by the proof, this issue is wi

thout merit.

In his next issue, the defendant asserts that the trial court erred when it allow ed the State to introduce into ev idence the voluntary s

tatement he made to the police prior to his arres t. The de

fe ndant bases his assertion on the grounds that his statement was “ent irely exculp atory.” As authority, the defendant cites us to a single case, State v. Robert Brian Chaffin , No. 01C01-9001-CR-00001, Overton County (Tenn. C rim. App. fi led March 21, 1991, at Nashv ille). We find this case to be inapposite, h owever, because it dealt with the defendant’s attempt to introd uce his o wn prior an d self-servingstatement. Here, the statement was bei ng offered by theState against the defendant.

In his statement, the defendant told the police that he had been present at the argument

between Anderson and Porter,that Anderson had subsequently shot at him and that he had run away. To the ext ent that this statement was o ffered to prove that the defendant had been at the scene of the crimes, it is an admission by a party-opponent and therefore admissib le as an exception to the hearsa y rule. See Tenn. R. Evid.1 Offered for t his purpose, the defendant ’s prio r statement was not hearsay because it was not being off ered to p rove the tru th of the m atter ass erted (or n ot asse rted) there in. See Tenn. R. Evid. 801(c). 8 803(1.2).
Moreover, while his statement cont ains no explicit denial

of having shot

a gun hims elf, th e defendant’s explanation to the pol ice of what happened contains no reference to his having fire d shots and p aints a picture of himself as v ictim rather than aggressor. In minimizing his role in the crimes, the statement i s consistent with Angela Brown’s testimony that the defendant had told her he had shot into the air, and with Der rick Smith’s testimony that the defendant had offered him money to cha nge hi s statement. Thus, in addition to being offered in order to prove the defendant’s presence at the scene ofthe crime, the statement was also offered as p roof that the defendant had tried to cover up the extent of his involvement in the

shootings. In that respec t, the proof
was relevant and therefore admiss ible. 1 Tenn. R. Evid. 402. This issue is without merit.

In his third i ssue, the defend ant cont ends tha t the tria l court sho uld have granted a mistrial after hearing two jurors discu ss ing a weapon prior to the case being submitted to the jur y. The record reveals that, during a recess, the trial judge overheard two jurors conversing with so mething b ein g said about a “nine mill imeter.” Because a nine millimeter weapon had been introduced into evidence earl ier in the t rial, the court
was concerned that the jurors were discussing the case prematurely. Acco rdi ngly, the court questioned the two jur ors about the ir con versation, out of the presence of the remainder

of the jury, asking them if they had been di scussing “anything about the evidence in this cas e?” One of the juror s respond ed, “Just trying to cla rify a point. He misunderstood a point. I apologize for that.” Defense counsel then moved fo r a mistrial.9

The court continued to question the two jurors, asking if “anything [had been] concluded in that respect?” Both jurors said “no” and one of the jurors stated that he “w as trying to explain that, you know, w e couldn’t discuss that par t.” The court then a sked th e other juror if they had been “saying we can’ t discuss about a 9 millimet er gun or something?” The juror answered, “Yes, sir.” The court thenasked, “And no discussion w as taking, had taken place?” and the other jur or said, “No.” The court then stated toboth jurors, “You
can go forward without

violating your

oaths, is that

what you’re telli ng me?” to which both jurors answered in the affirmative. The court over ruled the motion for mistrial

. As this Court recently

stated in State v. Willia ms , The decision to grant

a mistrial is within the sound discretion of the trial court and such de cision will not be ove rturned abse nt an abuse of discretion. A mistrial is usually appropriate in a criminal case only where there is a < manifest necessity.’ The purpose for declaring a mistrial is to correct damage done to the judicial proce s s when some event has occurred whic h p recludes an impartial v erdict. The burden of establishing a <

manifest necessity’ lies w ith the appellant. 929 S.W. 2d 385, 388 (Tenn. Crim. App. 1996) ( citations omitted). The defendant has failed utterly to demonstrate a manifest necessity for a new trial a rising f rom what the record demonstrates to have been a rebuffed inquiry from one juror t o another

about an item of evidence. We see no abuse of discretion by the trial court in this case in its denial of the defendant’s motion for a mistrial.This issue is witho ut merit.

The defendant next contends that he was denied a

fair trial as a result of prosecutorial misconduct durin g clo sing argument. Specifical ly, he claims that the prosecuting attorney statedduring closing ar gument thathe was a liar and that the jury had to find h im guilty in order fo r our justi ce system to wo rk . The defendant further claims that the prosecuting attorney made statements not based on the evidence.1 0 We have carefully examined the pr osecuting attorney’s closing arguments
as well as defense coun sel’s objections thereto and the tri al court’s rulings and instructions

following objections.The trial judge has w ide discretion i n control ling the argumentof counsel. That discretion will not be interfered with on appeal in the absence of an abuse thereof. Smith v. State , 527 S.W.2d 737, 739 (Tenn. 1975). We f ind no abuse of discreti on in this ma tter, nor do

we find any

errors st

emm ing from the State’s argument by which th e defendant was denied a fair tri al. This issue is wi thout merit.

For his fifth issue, the defendant alleges that th e trial c our t erred when it refused to allow him to introdu ce “evidence that Dist rict Attorney General James Ramsey had information that there were problems with the handling of evidence and harassment bythe Oak Ridge Police Department.” The record contai ns a copy of a letter from General Ramsey to the Deputy Director of the Tennessee Bureau of Investigation which refers to certain complaints voiced b y the community of which the defendant was a member against t he lo cal police department, incl uding “harassment, fabricati on of evidence [and] theft of evidence.” This l etter was included in th e record a s an offer of proof. The trial court ruled that it was not admissibl e i nto evidence under Tennessee Rule of Evidence 616. The tria l court was correc t.

Tennessee Rule of Evide nce 616 provides that, “A party may offer evidence bycross-examination, ex trinsic evidence, or

both, that a witness is biased i n favor of or prejudiced against a party or another witness.”

The letter does not establish that any of the Stat e’s witnesses in thi s case were either bi ased in favor of the State (or any of it s other witnesses) or prej udiced against the defendant or any of his witnesses. Nor

did the defendant develop any

proof that the police department har assed him with respect to this case, or that it or any of its officers fabricated or stole any ev idence relevant to this case.1 1

Thus, not only is the letter not admissible under Rule 616 , it appears no t to have any relevance with respect to this particular case. Ev

idence that is not rel evant is not admissible. Tenn. R. Evi d. 402. This issue is without merit.

In his final issue, the defendant complai ns about his sentences. He w as sentenced as a Ran ge I sta ndard offe nder to t wenty -fi ve y ears for the second-degree murder conviction, a

Class A fe lony, and to twelve year s for the attempted second-degree murder conviction, a Class

B felony. The se were the maximum sentences for both offenses. See T.C.A. § 40-35-112(a)(1) & (2). The trial court al so ordered the sentences to be served consecutiv ely. The defendant now contends that the trial court erred in finding no mitigating factors, in applying certain enhancement factors, and in orderin g consecutive sentences.

When a defendant complains of his or her sent ence, we must conduct a de
novo review with a presumption of correctness. T.C .A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This pres umption, however, “is conditioned upon the affirmative showing in the record that the tri al court considered the sentencing principles and all relevant facts and circumstances.” State v . Ashby , 8 23 S.W.2d 166, 169 (T enn. 1991).

A portion of the Sentencing Reform A ct of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be followed in sentencing. This section m andates the co urt’s considerat ion of the fo llowing:

(1) The evidence, if any, received at the trial and t he sentencing hearing ; (2 ) [t]he presentence report; (3) [t]he princ iples of sentencing and arguments as to sentenci n g2 This section was amended in 1995 to requi re tri al judges t o consider t he presumptive sentence for a Clas s A felon y to be the m id-point ran ge. See T.C.A. § 40-35- 210(c) (Supp. 1 995). Because th ese offenses occurred i n 1993, however, the defendant is enti tled to be sentenced under prior la w which provided t hat the presumptive sentence was the minimum sentence in the range f or all classes of felonies. T.C.A. § 40-35-210(c) (1990). 1 2

alternatives; (4) [t]he nature and charact eristics of the criminal conduct involved; (5) [ e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to m ake in his own behalf about senten cing. T.C.A. § 40-35-210.

In additi on, th is section provides that the minimum sentence withi n the range is the presumptive sentenc e. 2 If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and en hance the s entence as appropriate for the enhancement factors and then reduce the sentence with in the range
as appropriate for the mitigati ng factors. If there are no mitigating factors, the

court may set the sentence above the minimum in that range but still w ithin the range. The weight to be given each factor is left to the discretion of the tri al judge. State v. Shel t on , 854 S.W.2d 116, 123 (T enn. Crim. App. 1992).

The Act further provides that “[w]henever the court imposes a sentence, it shall pl ace on the record either orally or i n writing, what enhancement or mitigating factors it found, if any, as w ell as findings of fact as req uired by § 40-35-209.” T.C.A. § 40-35-210(f) ( emphas is added). Because of the importanc e of enhancing and mitigating factors under the sentencing guidelines, even the absence of these f actors must be recorded if none are found. T.C.A. § 40-35-210 comment.These findings by the trial judge must be recorded in order to allow an adequate review on appeal.

The defendant contends tha t the trial court sho uld have found two mitiga ting1 3

factors. He argues that he acted under st rong provocation and that substantial grounds existed which tended t

o excuse or justify hi s criminal conduct. T.C.A. § 40-35-113(2) & (3). The tr ial judge refused t o apply these fa ctors, asking, “What was the provocation to take a li fe? What was the provocation to take a gu n and spray it
across a parking lot? How could that possibly be a justification for what occurred here?”

In his appe llate br

ief, the defendant

fails to offe r any reasons as to why these mitigating factors shoul d have been applied. A cc ordingly, this is

sue has been waived. Tenn. Crim. App. R. 10(b). Furthermore, although the record indicates that the defendant was Andre Porter’s cousin, and therefore supports the inferen ce that he was shooting at Anderson in retaliation for Anderson’s having shot Porter, we do not think this is an appropriate reason to apply either of these two mitigating factors. To do so would simply enc ourage f uture vigil ante act s of this nature. We th ink that t he trial co urt wa s correct in refusing to ap ply these mitigating factors. This issue is w ithout merit.

The defend ant next argues that the trial cour t erred in its applic ation of two enhancem ent factors. The trial court found tha t the following enhancement factor s applied to each co nviction: that the defend ant has a previ ous his tory of criminal convictions

or criminal behavior in addition to those necessar y to establish the appropriate range; that he has a prev ious histor

y of unwillingness to comply with the conditionsof a sen tence involving rel ease in the community; that he pos sessed or employed a firearm during the commiss ion of the crime; that he had no hesitation about committi ng the crime when the risk to human life was high; and that the cr ime wa s committed under circumstances under w hich the potential for bodily injury to a

victim was great. T.C.A. § 40-35-114(1), (8), (9) , (10) and (16). Factor (12), that during the commission of the offense, the defendant willfully inflicted bodily injur

y upon another3 The trialcourt appeared t o recognize that fact

or (12) coul d not apply to the convi ction for second-degree murder. The cour t’s verbal rul ing is not entirel y clear . It is clear, ho wever, that

in the State’s no tice of enh ancem ent facto rs, it reques ted that fac tors (1), (8) , (9), (10) an d (16) ap ply to both convicti ons and that t he additi onal factor (12) be appl ied to t he attempted second-degr ee murder convicti on. 1 4 person, or the actions of the defendant resulted in the death or serious bodily injury to a victim or a perso n other than the intended victim, was also applied to the attempted second-degreemurder convic ti on. 3 Of these factors, the defendant argues only that factors (12) and (16) w ere improperly applied.

In State v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 199 4), this Court ruled that thesentence for an attempted murder convicti on was properly enhanc ed bythe factor for no hesitation about co mmitting the crime when the risk to human life was high, T.C.A. § 40-35-114(10). The Court recognized that this factor should not be appl ied when the only person subjected to the ris k is the intended victim, but distinguished those situationswhere other

people present are subjected t o this risk. In those si

tuations, the factor is not “inherent” and may properly be applied. Makoka , 885 S.W.2d at 373. Similarly, we find the s

ame reasoning is appropriate and supports the application of factor (16) to both ofthe defendant’s convictions in this case; that is, the crimes were committed under circumstances in which the potential for b odily injur y to a victim w

as great. Although all murders and attempted murders involv e this potential for

the intended victim, they do not a ll involve this potential for other persons. I n this case, there was great potential for bodily injury to at le ast Smith in addition to Anderson, the i ntended target.

Nor do we find any error

in the trial court’s application of factor (12) -- that the defendant’s actions resulted i n the death or serious bodily injury to a victim or person other than the intended victim -- to the attempted second-degree murder conviction. N ot every attempte

d second -degree murder result s in the death of a n innocent bystander. Thus, this factor is not an essenti al element of the offense. See State v. Freeman , 9434 He was convicted of this charg e while on bo nd for the cur rent charges.

1 5 S.W.2d 25, 32 (Tenn. Crim. App. 1996) (“because bodily inj ury is not an essential elem ent of the offense of attempted second-degree murder,the trial court p roperl y enh anced the def endant’ s senten ce for th at offe nse with re gard to th e victim wh o wa s actually wounded.”)

This issue is witho ut merit.

These multiple enhancement factors, combi ned wit h the absence of any mitigating factors, are more than sufficient to sentence the defendant at the top o f the range for each conviction. It is well-settled that the weight given to enhancement factors is left to the discretion of the tri al court. State v. She lto n , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). Finding no abuse of discretion, we affirm the length of the defendant’s sentences.

In his final argument, the defendant contends that the trial court erred when it ordered him to serve his sentences consecutively. Our

Code provides for th e imposition of consecutive sentences w here, among other things, the defendant is “an offenderwhose record of criminal activity is ex

tensive” or whe re the d efendant is “a dangerous offender whose behavior indicates little or n o regard for human life, and no hesitation about committing a crime in which the ri sk to human life is high.” T.C.A. § 40-3 5-115(b)(2) & (4). Thi s defendant, who was tw enty-four years old at the time o f sentencing, has a criminal history including

convictions for a federal dr ug offense, 4 two assaults, two resisting ar rest offenses, one assault and battery, and one weapons offens e. He has also been convicted of twe lve traffic offenses and several other misdemeanors. These numerous convictions lead us to conclude that the defendant is
an offender whose record of criminal activity is extensive. The instant crimes also lead
us to conclude that the defendant is a dangerousoffender whose behavior indicates little1 6

or no regard for human life, and no hesitation about committing a cri me in which the risk to human life is high. In other words, the d efendant meets the statutory crit eria for consecutive sentences.

In addition to considering the statute, however, we must consider the two Tennessee Supreme Court opinions w hich the consecutive sentencing statute es sentially codified: Gray v. State , 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor , 739 S.W.2d 227 (Tenn. 1987). In Gray , our Suprem e Court stated that “a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order t

o protect the public fromfurther criminal conduct by the defendant.” Gray , 538 S.W.2d at 393. Thus, the defendant’s potential for rehabilitation is a si gnificant factor under the Gray

rationale. Id. Similarly, in Taylor , our Supreme Court stated that
consecu tive sentences should not be routinely imposed and that the aggregate sentence “must be reasonably related to the severity of the offenses involved.” Taylor , 739 S.W.2d at 230. Taken together, these two cases establish “that consecuti ve sentences cannot be imposed unless the terms reasonably relate to the severity of the offenses committed and are necessary in order to protect the public from further serious criminal conduct by the defendant.” State v. Wilkerson , 905 S.W.2d 933, 93 8 (Tenn. 1995).

In this case thetrial court found the defendant to be “a threat to society ” and determined that h e should serve his sentences consecutively. Given the defendant’s criminal history and his behav ior in committing the instant crimes, we agree with the trial court and find that these sentences should be run consecutively i n order to protect the public from further serious criminal conduct by the defendant. Moreover, we note that the offenses of second-degree murder and attempted second-degree murder are among the most severe offenses that can be committed.We find th erefore that the terms ofporterfr.opn 1 7 

# FILED
October 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk imprisonment

reasonably relate to

the severity of the defendant’ s crimes. The facts and circumstances

of these crimes and the defendant’s past and instant behavior satis fy the criteria for consecutiv e sentencing set forth in both the statute and the case law. This issue is without meri

t.

The trial court having

committed no reversible error, the judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ WILLIAM M. BARKER, Judge

IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) ) No. 03C01-9606-CC-00238 Appellee ) ) ANDERSON COUNTY vs. ) ) Hon. JAMES B. SCOTT, JR., Judgeporterfr.opn 1 8

FREDERICK R. PORTER, ) ) (Attempted second-degree murder; Appellant ) second-degree murder)

SEPARATE CONCURRING
Although I concur

with the majority in

affirming the app

ellant’s convicti

on, I write separ

ately to note my concern with the opinion’s application of the doctrine of “transferred intent.” The majority opines th at the evid

ence is sufficient to support a verdict of second degree murder based upon tr a nsferred

intent. First, I find that application of “transferred intent” to this case is unnecessary. Although not having an actual intent to kill another, one maybe found guilty of second degree murder,
a knowing killing of another, if that person is consciously aware of the nature of his conduct and that the conduct is reason

ably certain to

cause death. Tenn. Code Ann. § 39-11-302(b). Clearly, a rational jury could infer that theappellant’s conduct in repeatedly firinga nine millimeter weapon into a crowd of people isreasonably certain to cause death. The proof establishes the essential elements of second degree murder beyond a reasonable doubt. No further analysis is necessary.

Also of concern

is the question of whether “transferred intent” is a recognizable doctrine under this state’s current law. In Sullivan v. State , 121 S.W.2d 535, 537 (Tenn. 1938), our supreme court held that the doctrine of

“transferred

intent” applies onlyto cases involving first degree felony murder. The court notedthat Tennessee, representing the minority view, has never acknowledged the doctrine of “transferred intent.” Id
. See also Bratton , 29 Tenn. 103 10 Humph. 103 (1849) (holding that the doctrine of “transferred intent” is not compatible with the plain t erms of the statute”). C.f
. State v. Harper , 334 S .W.2d 933, 936 (Tenn. 1960) (affirming a second degree murder conviction upon a finding of malice and, in dictum , announced that the h old ing would have been the same under transferred in

tent.); Burton v. State , 394 S.W.2d 873 (Tenn. 1965).porterfr.opn 1 9 Moreover, it is noted that, sincethe adoption of the 1989 CRIMINAL COD E , no supreme

court decision has addressed th e issue of whethe

r this state

recognizes the doctrine of “ transferred in

tent” under the current

code. Our Criminal Code, in large part an adoption of the MODEL PENAL CODE , did not explicitly adopt

the MODEL CODE ’ S approach which would have, in effect, incorporated “transferr e d intent.” See MODEL PENAL CODE § 2.03. Generally, it is presumed that where the legislature includes language in one section, but omits it in another section of the same a ct, t he legislature acted purposefully

in the subject

excluded. Additionally, the majority cites as authority this court’s decision in State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). I do not find Summeral l dispositive of this issue as the opinion merely summarily adopts transferred intent without discussion of our supreme court’s conflicting decision in Sullivan
. See State v. Millen , (No. 02C01-9602-CR00049 (Tenn. Crim. App. at Jackson, Mar. 7, 1996).

For the foregoing reasons, Ifind application of the doctrine of transferred intent unnecessary.

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DAVID G. HAYES, Judge