### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 11, 2003
STATE OF TENNESSEE v. AB EL CABERRA T ORRES
Appeal from the Circuit Court for Warren County No. F-8032 Charles D. Haston, Judge

No. M2001-01412-CCA-R3-CD - F iled June 10, 2003

The defendant, Abel Caberra Torres, was convicted of a ttempted especially a

ggravated robbery, two counts of attempted second degree murde r, aggravated assault, and at tempted a ggra vated as sault. The trial court

merged the last two offenses into the attempted second degree murder convictions and ordered consecutive sentences of twelve y ears for each offense, f

or an effective sentence

of thirty -six ye ars. In this appeal of right, thedefendant asserts (1) that the evidence w as not sufficient; (2) that the trial cou

rt erre d by

failing to suppre ss his state

ments to police ; (3) that

the trial court er red in its instructions to the jury; and (4) that the sentence was excessive. The judgments of conviction are affirmed. Because of the misapplication of enhancement

factors, each of the sentences a re modified to ten year s . The cause is remanded to the trial court for further finding s on the consecutive sentencing issue. Tenn. R. App.P. 3; Judg ments o f the Trial C ourt Affirm ed in Par t, Reve rsed in P

art, and Remanded in Part

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.

Dan T. Brya

nt, District Public Defender (on appeal and at trial); a nd Robert Boy d and Scot

t Grissom, Assistant District Pu

blic Def enders ( at trial) , for the

appella nt, Abel Ca

berra T orres.
Paul G. Summers, Attorney Gene ral & Reporter; Brent C. Cherry , AssistantAttorney Gene ral; and Dale Potter, District Attorney General, for the appellee, State of Te nnessee.
OPINION On September 14, 1999, Angela McCormick, the victim of the attempted robbery and one of the attem pted sec ond deg

ree mur ders, wa s th e cl erk on duty at the Pit Stop North convenienc e market in McMinnville. At 9:00 p.m., she closed the store, locked the doors, and walked to her car. After starting her

car and turning on the headlights, the victim observed an individual standing on
an embankment behind the store. He was black, wore a white shirt, and held a long gun at his side.1 Be cause the aud iotap e reco rding of his dire ct testimo ny was lo st prior to transc ription , it does n ot ap pea r in

the record. Pur suant

to Tennessee Rule of Appel late Procedure 24(c), the part ies s ubmitt ed a stat

ement of the evi dence he pr ovid ed at tria l.
-2- As she attemptedto drive away , her car “died” and the perpe trator fired a

shot into her car. Bullet fragm ents struck her shoulder and a finge r. Unabl e to re-start her car, the victim left her vehic le and
ran towards a truck where Tim Young wa s using a pay telephone. Young drov e the victim awa y from the market and located a police officer . After she was taken to the hospital, doctors removed the bullet fragment

from the victim’s shoulder. Later, a dditional surgery

was required to remove the frag ment from her fi nger. Pieces of glass f rom the windshield w ere emb edded in h er head . Ms. McCormick

described her assailant as “kind o f a big ger person,” but was unable to make a n identification.

While preparing to use the pay tele phone, Young had seen a “fig ure” on an embankment at the edge of the parking lot trac king the victim’s movements to her car. He had obse rved the victim enter her car before the as saila nt fil ed a lar ge caliber rifle that sounded as though the “whole pa rking lot[had] exploded.” When he saw the victim emerge from her car, fall, and run towards his truck, Young heard her say

that she had been shot in the head and needed his help. As she g ot in the truck, the perpetrator fired a second shot in their direction and, as Young drove away , he hea

rd a third shot. Young then saw a police cruiser in traff ic and obt ained as sistance

for the victim. You

ng, the victim of the second attempted second degree murder charge, wa s unable to identify the shooter.

McMinnvill e Police Department Detective Marty Cantrell, wh o invest

igated the crime s, observe d bullet da

mage to the victim ’s car a

nd to a short brick wall bordering the parking lot. He collected an unfir ed round found be hind the w all, as well as casings from two spent 7.62 x 39mm rounds of ammunition . A summar y of his testimo ny a

t trial is a s follows: 1

Detective Cantrell

. . . testi f

ied that he had received information that . . . Hernaldo Caberra . . . at Westside Apartme nts had thr

eatene d some

individuals. [He]

. . . went to . . . 103A Westside Apartments and inquired about [Caberra]. Jessica, [Caberra ’s] girlfr

iend , stated that [Caberra] was in the bed, but gave Detective . . . Cantrell consent t o se arch the ap artment. While doing so, a 7.62x39mm unfired cart ridge was found. [The detective] then cleared the apartment of the four (4) individua ls who were

there. [H e] testified that upon fin ding the cartridge, [the defenda nt] sta ted “th at’s mine”. . . . [Detective Cantrell] then mirandized [the sixteen-y ear-ol d defenda

nt], but nev er called a pa rent . . . . [The defendant] . . . directed [him] to wher

e the we apon had

been ac quired th

rough c onta ct w ith T .J. Horn.

At trial, Detective Cantrell provided an audiotaped statement and a signed, handwritten statement by the defe

ndant confessing to the crimes. Neither of the state ments are in the record.

Detective Barry

Po wers, who was present when Detective Cant rell inte rviewed the defe ndant,-3-

testified that the defendant “appeared to be indiffer ent, and at times even proud of what he had done.” While initially suspecting that the defenda nt’s brother

had committed the crimes, Detective Powers recalled that the defendant admit ted fi ring sh ots at both the vi ctim and Yo ung, explaining that his ma sk had fa

llen and h e was af raid tha t they would be a

ble to ide ntify him.

Caberra Torres, the defendant’s eighteen-y ear-old brother, testified that he overheard a third brother, Hernaldo Caberra, tell their mother that he was going to testify that he had committed the shooting . It w as his opin

ion that Ca

berra w as a bad influenc e on the de fendant

. The statemen

t of the evidence

included a summary

of the te st imon y of

three de fense witnesse s whose a

udiotape d testimony

was lost:

Ms. Elizabeth Diaz, an employee of D epartment of Children’s Services, .

. . stated she was c alled to

act as an interpreter, and that w hile at War

ren Count y Jail , she overheard the [d]efendant . . . speaking in Spanish with his brother, [c]o- [d]efendantHernaldo Caberra. Ms. Diaz tes tified tha t she recalled hearing . . . [Hernaldo] Caberra telling his y ounger brother to take the blame.

Hernaldo Cabe

rra[ ,] . . . through an interpreter, . . . admitted being the older brother of the [d]efendant; admitted living in various locations, including Puerto Rico; admitted having been charged and convicted of [b]urglary and [t]he ft for st

ealing computers from a school in Puerto Rico[;] and admitted being on the scen e of t he alleged attempted robbery . He denied carry ing the weapon

to the scene . . . . When askedif he had fired

the wea pon, afte r consult ing with h is attorne y, h e [i]nvoked

his [F]ifth [A]mendment privilege against self-incrimina tio n to this que stion and a ll others. * * * Ms. Haomi Torres, defendant’s mother testified that her son, He r nal do Caber ra, had inten ded to take t he bla me for the sh ooti ng.
The defendant, who was bor n in Puerto Rico, had

lived with

his family

in Warren

County for eight or nine y ears. When he was in the sixth grade, he retur ned to Puerto Rico with his mother and sibl ings in order to provide care for a re lative there. Two year s later, in the winter of 1999, the defendant and his brothers returned to W arren County, whe re he obtained employ

ment at U.S.A. Auto Sales. His father also worked there. By the summer of 1999, his half-brother, Hernaldo Caberra, had moved into the residence the defendant sha red with h

is parents. The defendant contended

that the gun used in the shooting belonged to Caberra a nd, with twenty rounds of ammunition, had been purchased on credit from a frie nd named “T.J.”

At trial, the defend ant te stif

ied th at at a pprox imat ely 5:00 o n the a ftern oon of the sh ooti ng, he and Caberra went to an apartment shared by “Jessica and Melissa.” After one of the girls said that she ne ed ed mo ne y, t he de fe nd an t s ug ge st ed th at th ey rob a gas station. He claimed that Caberra retrieved the gun, which was stored in a dumpster near the apa rtme nts. Wh

ile the defendant-4-

acknowledged that he had ca rried the gun to the convenience mar ket, he claimed that he had done
so pursuant to hi s older bro ther’s instructions. He contended that Hernaldo Caberr a, who was dressedin a white

t-shirt a nd blue je ans, load

ed the g un, ran to wards the

victim, and ordered her to “give [him] the money.” The de f endant insisted that Caberra fired at the woman and then f ired a secondshot. He testif

ied that h is older brother arrived at the apartment c omplex only seconds after he did and then handed him the gun. The defendant a cknowledged that he disposed of the weapon in some bushes nearby . He contended that Caberra asked him to “take the blame” for the shooting because he was young er

and “wouldn’t get in trouble.” The defendant maintained that his older halfbrother coached him on the details of the crime s. He insisted that his confession to police was not true.
The defendan t c oncede d that he c laimed to p olice tha t the unspe

nt cartr idges w ere his, explaining that he ha

d done so because Jessica, Melissa, and Caberra gave a n instruc tion in Span

ish for him to do so. He agreed that he l ed police to where the gun was hidden in the bushes and admitted being responsible for the shooting. During cross-examination, the defendant stated that he decided to recant his confessionwhen he realized that he was “going to jail for something that [he] didn’t do.”

I Initially , the defendant argues that the evide nce was insufficient

to support

his convictions for the attem

pted especially

aggr avated r obbery of Ange la McCorm

ic k an d the attempted second degree murder of Tim Young. He arg ues that there is no evidence that Ms. McCormick suffered the requisite “seriou s bodily

injury” or that

any of the sho oting wa s directed to ward Young. T he defendant does not challenge the

sufficiency

of the evidence for

the attempted second degree murde r of Ms. McCormick.

On appeal, of cours e, the sta te is entit led to the stronge st legitimate view of the evidence and all reasona

ble infe renceswhich mig

ht be dra wn there from. State v. Cabba ge , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimon y, and the reconciliation of confl

icts in the proof ar e matter s entrusted to the jury as the tri er of fa

ct. Byrg e v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978) . When the sufficie ncy of the ev idence i s challenged, the relevant question is whether, after reviewing the evidence in the ligh

t most favo

rable to the state, any r

ational trier of fact could have found the essential elements of the crime beyond a
reasona ble doubt. Te

nn. R. App. P. 13(e); State v. Will ia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concer

ning the credibi lity

of the witnesses, the weight and value of the evide nce, as w ell
as all factual issues raised

by the evidenc e are resolved by the trier of

fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 8 5 9 (1956). Because a verdict of guilt against a defendant remove s the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bear s the burden of showing that the evidence was legally insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Robbery is “the intentional or knowing theft of property from the person of another by violenc e or pu tt in g t he pe rs on in fe ar .” Te nn . C od e A nn . § 39 -1 3- 40 1( a) . A ro bb er y b ecome s-5-

especia lly aggr avated w hen it is accompl

ished with

a deadly w eapon and the victim suffers serious bodily in ju ry. Tenn. Code Ann. § 39-13-403(a). “Serious bodily injury” is defined as bodily injury which involves a

substanti al risk o f death, protracted unconsciousness, extreme phy sical pain, protracted

or obviousdisfigu

rement, or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty . Tenn. Code Ann. § 39-11-106(a)(34). “A person c ommits criminal attempt who, acting with the kind of culpability otherwise required for

the offense . . . [a]cts withintent to c omplete a

course o f action

or cause a result that would

constitute the offense, under the circumstance s surrounding the conduct as the person believes them to be, a nd the conduct constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12- 101(a)(3). Angela McCormick testified that she sustained bullet wounds to her shoulder and her right index finger

as a res ult of the s hooting. The bulle t frag ment t

hat e ntered her shoulder had to be surgic ally removed. Ms. McCormick was hos pitalized overnight for her injuries. Although her finger was swollen, doctors d

id not disc over unti l later, when an x-ray was performed, that a bullet frag ment had lodged there. Surgery was required to remove the fragment from the finger. In ou r view, the evidence was sufficient for a re asona ble ju ry to find that the Ms. McCormick suffe red “serious bodily injury .” See State v. Richard T. Smiley , No. 03C01-9707-CR-00305 (Tenn. Cr im. App., at K noxv ille , Oct. 6, 199 8) (ho ldin g that e viden ce was s uffic ient t o supp ort a f indi ng o f “serious bodily injury” where injury to vict im’s fin ger se

vered a n arter y a nd requir ed surg ery

to repair).

Se cond degre e murder is a “knowing killing of another.” Tenn. Code Ann. § 39-13- 210(a)(1). “A person acts knowingly with respect to a resul t of the person’s conduct when the person is aware that the conduct i s reason ably certain to cause the result[.]” Tenn. Code Ann. § 39- 11-106(a)(20). Tim Young testified that two shots were fired in h is direct ion – one a s the victim startedfor his truck and another as he attempted to drive from the c onvenien ce mark et parki ng lot. When the defendant confessed to police, he stated that he had fired upon both the victim and Young and that he had done so out of fear that they would b e able to ident ify him. At trial, he attributed those same motives to his older half-brother, claiming that Hernaldo Caberra wa s the ass ail ant . In our view, the evidence was sufficient to support a finding that the defendant attempted a knowing kill ing of T im Yo ung.
II Next, the defe

ndant ass erts that the trial court erred by failing to suppress his pre-trial statemen ts to police. Prior to trial, the defendant filed a motion seeking suppression on the grounds that the state ments wer

e involunt ary . Beca use the court reporter was unable to locate the a udiotapes of the hearing conducted by the trial court, no transcript has been included in the record. Nor doe s the record contain an y of t he defe ndant’s p re-tria l stateme nts. The st

ate asse rts that th e recor d is inadequate for review and the def endant has, therefore, waived the issue.

Ini ti al ly, it is unfortunate that audiotapes of certain of the pre-trial and trial proceedings w ere lost. Nevertheless, the Tennessee Rules of Appellate Proc edure provide a specific procedur e for-6-

submission o f the re cord und er such c ircumsta

nces:
Statement of the Evidence When No Report, Recital, or Tr anscr ip t Is Available. If no stenogra

phic report, substantially ver ba t im recital or transcript of the evidence or proceedings is available, the appe llan t shall pre pare a statement of the evidence or proceedings from the be st ava ilabl e means , incl udin g the ap pella nt's recollection. The state

ment shoul d convey

a fair, accura

te and co mplete

account of what transpir ed with re spect to those issue s that are the bases of appeal. The statemen t, certified

by the appellant or the

appellant’s counsel as an accurate a ccount of the proceedings, shall be filed with the clerk of the trial court within 90 days af ter filing the notic e of appe al. Upon f il ing the s tatement , the appe llant shall simultane ously

serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues thea ppellant intends to present on appeal. Proof of service shall be filed with the clerk of the trial cou

rt with the

filing o f the stat

ement. If the ap pellee h as objec tions to the statemen

t as filed , the appe

llee sha ll file objections thereto with the clerk of the trial court within fifteen day s after service of the declarationand notice of the filing of the statement. Any differences rega

rding the statement shall be settled as set forth in subdivision (e) of this rule.

Tenn. R. App. P. 24 (c). The state co rrectly argue s that although a transcript of the suppression hearing was not available, an account of the proceeding could have bee n submitted in the form of
a Rule 24(c) st

atement o f the evi dence. It is a lway s the duty

of the ap

pellant, in th is case th e defendant, to submit such a statement. See Tenn. R. App. P. 24(b) – (c).

In addition to the various omissions in the record, the defendant has failed t o cite an y authority for his position or to provide this court with any more than g eneral allegat ion s that his statement wa s i nv ol un ta ry. “Issues which are not supported by arg

ument, citation to authorities, or appropriate reference s to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see also

Tenn. R. A

pp. P. 27(a)(7); State v. Hammons , 737 S.W.2d 5 49, 552 (T enn. Crim. App. 1987). Under these circumstances, this court must conclude that the c laim is waived.

III Next, the defendant

contends that the trial court erroneously instructed the jury on the term “know ing” in the context of the attempted second degree murder c harge s. Specifically, he c ontends that the trial court’s instructions lessened the state’s burden of proof.

The trial court inst ructed the ju ry on the at tempt ed seco nd degr ee mu rder of Angela McCormick as follo ws:

The [s]tate must prove that the defendant intended to co mmit t he speci fic offense of second degr

ee murde r, and the defenda nt did some

act . . . cons titu t[in g]
a substantial step towards the commission of second degree murder. . . . Her

e are the essential elementsof the cr ime of sec ond deg

ree mur der itself. One, t

hat t h e-7-

defendant unla wfully di d kill the alleged victim Angela McCormick, and that the defendant acted knowingly. . . . Knowingly me ans that a person a cts knowingly

with respect to the conduct or the circumstances surrounding the conduct when the person is aware of the

nature o f the conduct or th at the cir cumstanc es exist. A person acts knowing ly

with respect to a result of the person’s conduct when the person is aware that the c onduct is r

easonab ly c ertain to

cause th e result.

The instructions as to the attempted second degree murder of Tim Young were essentially the same.

The trial court has a duty “ to give a complete charge of the law applicable to the facts of a case.” State v. Harbison , 704 S.W.2d 3 14, 319 (T enn. 1986 ); see also Tenn. R. Crim. P. 30. “[The] defendant has a constitutional right to a correct and complete c harge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the ele ments of each offense be describe d and defi ned i n connection with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Juryinstructions must, however, be reviewed in the context of the overall charge rather than in isolation. See Sandstrom v. Montana , 442 U.S. 5 10 (1979) ; see also State v. Phipps , 883 S.W.2d 138, 142 (Ten

n. Crim. Ap

p. 1994). A charg e is prejudic ial erro r “if it f ails to fa irly submit the legal issues or if it misleads the jury as to the applica ble law.” Stat e v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997).

Ini ti al ly, the defe

ndant fa iled to pre sent this issue in his motion for new trial. Generally , the failure to present an issue in a motion for new trial results in waiver. Rule 3(e) of the Tennessee Rules of Appellate Procedure provide s that fo r appeals “in all cases tried by a jury, no issue presented for review s hall be predicated upon error in the admission or exclusion of evidence, jur y instructions granted or refused,

. . . or other ground upon which a new tr

ial is soug ht, unlessthe same
was specifically state d in a motion for a new trial; otherwise such issues will be treated as waived.” See also State v. Ma

rtin , 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant

relinquishes the right to argue on app ea l any issues that should have bee n presented in a motion for new trial). Whether properly a ssigned or not, however, this court may consider plain error upon the record under Rule 52(b) of the Tenness ee Ru les of Criminal Procedure. State v. O gle , 666 S.W.2d 58 (Tenn. 1984).

Before an error may

be so rec ognized, it must be “ plain” a nd must af

fect a “substan tial rig ht” of the accused. The word “plain” is sy nonymous with “clear

” or equivalently “ obvious.” United States v. Olano , 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especia lly egregious err

or that st rikes at the fairness, integrity , or public reputation of judicial procee dings. See Stat e v . Wooden , 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as
a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” I n that case, this court established five factors to be applied i n determ

ining whether a

n error is plain: (a) The record must clea

rly establish what occ urred in the trial court;-8-

(b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the accused must h ave bee n advers ely

affec ted; (d) the accused [must not have waived] the issue for tactical rea sons; and (e) consideration of the error must be “necessary to do substantial justice.”

Id. at 641-42. Our supreme court characteri zed the Adkiss on test as a “clear and meaningf ul standard” and emphasized that each of the five factors must be present before an error qua lifies as plain error. State v. Smith , 24 S.W.3d 274, 282-83 (Tenn. 2000). An error in jury instructions on the con du ct element of an offense will be plain when it cannot be c lassified as harmless bey ond a
reasona ble doubt

. Cf. State v. Ben Mi lls , No. W1999-01175-CCA-R3-CD (Tenn. Crim. App., at Jackson, May 3, 2002) (erroneous failure to provide jury instructions on lesser in

cluded of fenses d id notqualify as plain er

ror where the error could be c lassified as harmless beyond a reasonable doubt); see also Stat e v. Pa ge , 81 S.W.3d 781, 789 (Tenn. Crim. App. 2002).

In State v. Page , this court held that second degree murder is a re sul t-o f-c ond uct off ens e. In chargingthe indicted offense of second degr ee murder, thetrial court in Page instructed the jury that
a person a cts knowingly

if he acts with an awa

reness “ (1) that h

is conduc t is of a particular nature; or (2) that a particular

circumstance exists; or ( 3) that the conduct w as reas onably

certain to cause the result.” 81 S.W.3d at 786. This court held that the instruction was error:
[A] kn ow in g s ec on d d eg re e m ur de r i s s tr ic tl y a “result-of-conduct” offense. . . . The result of the conduct is the only c onduc t element of the offense; the “nature of the conduct” that cau ses deat

h is incons equentia

l. * * * A jury instruction that allows a jury to convict on seconddegre e murder based on ly upon awareness of the nature of the c onduct or circumstances s urrounding the conduct improperly lessens the state ’s burden of proof. For second degree murder,
a defendant must be aware that his or her conduct is reasona bl y c ertain to

cause death. . . .

Id. at 787-88. This court further determined that because the defendant’ s mens rea was the issue at trial, the error was not harmless bey ond a reasonable do ubt a nd required reversal. Our opinion, however, also observed that

in many, if not most, homicide trials, the mens rea jury ins truct ions utilize d in this
case would be harmless error. I f a victim is shot at point blank range with a twelve gauge shot gun while as leep, and the defense is the defendant wa s not the shooter, then the e rroneou s instruct

ion would li

kely be harml ess.
Id. at 789.

In State v. Allen Lee Dotson, Sr. , No. M2001-01970-CCA-R3-CD (Te nn. Cr im. App., at Nashville, Oct. 21, 2002), the defendant was convicted of sec ond degree murder on a jury cha

rge that-9-

omitted entirely the re sult-of-conduct element in the definition of knowingly. O n appeal, this court held that the omissio n was er

ror, but d etermined that it wa s harmles s bey ond a rea sonable d oubt:

We conclude

the instan

t facts a re disting uishable from Page , in that th e defendant did not deny the intentional killing of the victim and the [s]tate

focused, and its proof showed, that the defendant fired a shotgun at close range into the head of an unarm

ed victim w

ho was ly ing on the ground. The defendant’s conduct a nd defenses did not call into question whether the defendant’s conduct was li ke ly to produce death. T he [s]tate is therefore correct, and they have proventhe error was harmlessbey ond a rea sonable d oubt.
Allen Lee Dotson, Sr. , No. M2001-01970-CCA-R3-CD, slip op. at 5.

Fi na ll y, in State v. To ny M artin , No. W2001-02221-CCA-R3-CD (Tenn. Crim. App., at Jackson, Feb. 7, 2003), a panel of this court held that the trial court’s instructions on the knowing element of second degree murder , which were similar to those given in this case, were er ro neous. Reversal was not required, however, because the error was determine d to be harmless beyond a
reasona ble doubt:

The primary dispute in this trial was whethe r the defendant fired his gun at the victim first or was fired upon first, prompting him to wield h i s gun in selfdefense. It

is undisputed that the defendant had a handgun, pulled it out, and that the gun was fired and caused the death of the victim . It be

lies commo n sense

to believe that, if the defendant

did indee d fire hisgun first a close range, he was not aware that his co nd uc t w as re as on ab ly cer tain to result in the death of the victim. There was ample evidenc e produc ed at tria l . . . to allow a rational jury to find that the defendant did fire his weapon first. . . . Holding that a

rational jury could ha

ve determined

that the d efenda nt fired h is weapon first, we conclud e the j ury instruction, containing elements of knowing involving the nature and circumstances as well as the r esult of conduct element, was harmlessbeyond

a reasonable doubt. Despite the nature and circ umstance s given in the definition, it is beyond a reasona ble doubt that

a rational jury

could conclude that the defendant was aware the re sult of his co nduct , the firing o f the gu n at cl ose ran ge resulting in the death of the victim, was reasonably certain. Tony Martin , No. W2001-0 2221-C CA-R3 -CD, s lip o p. at 1 0. In a sep arate c oncur rence, Judge Tipton wrote tha

t “with the

state relying upon an intentional assault and the defense focusing upon self-defense, I conclude the risk of th e ju ry ap pl ying th e wr ong def in it io n wa s m in im al. ” In his view, the error, whi ch had not been previously raised by the de

fendant, did not rise to the level of p lai n error. Here, the trial court’s instruction on the knowing element of attempted second degree murder-10-

was error. The instruction erroneously included a “nature- of-c onduct” component. See Page , 81 S.W.3d at 788 (suggesting that the jury be instru cted tha

t “‘[k]nowingly ’ means th at a per son acts withan awareness that [his] [her] conduct is reasonably cer tain to ca use the death of the alleged victim”). In our view, however , the error was harmless. The pr imarydispute in this trial was the identity of the pe rpetra tor. The d efenda nt’s theo ry of defe nse was th at he wa s not the sh ooter. I t did notcall into question whether the conduct at issue, firing an assault rifle at two unarmed victims, was likely to cause dea

th. It is our view that the issue does not rise to the level of plain er ror.
IV Fi na ll y, the defendant contends that the trial court erred by

sentencing him to the twelve-y ear maximum on each count and by order ing that the three sentences be served consecutively.

Sharon Scott, a probation officer, completed the defendant’ s presenten ce report. At the hearin g, she testified that the defendant, who had no prior recor d, “didn’t refuse [to make a state ment] , but

. . . just didn ’t choose to make one." He

had bee n employ ed part- time at U. S. Auto Sales and Body Shop, but was une mployed at the time of the off enses. Ms. Scott related that the defendant began using alcohol at age twelve and marijuana , which he was smoking seve ral times a day at the time

of his ar rest, at age four teen; he had expe rimen ted wi th coc aine b ut den ied be ing a frequent user. Ms. Scott had no information regarding a ny ty pes of educational or rehabilitative progra ms in which

the defe ndant may

have pa rticipat ed while in confine

ment.
Detective Barry

Powers, who had

interviewed the defendant about the shooting, testified that the defendant appeared to have “ no remorse of what he done. At times he would kind of smile about it. It just seemed like he didn’t care .” The detective recalled that he in itially believed that Hernaldo Caberra had done the shooting, but changed his mind after the defenda nt provide d “gre at detail ” to police. He ackn owledg ed that the defendant had b een coo perativ e with inve stigating offic ers. Detective Marty Can

trell also tes tifie d tha

t the d efen dant showed no r

emor se ov er the sho oting : “[A]t
one point I even asked

him how he

would hav e felt if

one of the se bulletswould have actually killed
so me bo dy. He said, ‘I w ould have felt t he same. I wouldn’t have c ared.’” He recalled that the defendant told him that he had fired at Tim Young because he thought Young c ould ident

ify him. According to Detective Cantrell, the SKS assault rifle used in the shooting had been reported stolen. Angela McCormick testified that she continues to fear “be[ing] out after dark” and that she
now works in a factory , having had to change jobs as a r es ultof the shooting. She agreed that maximum sentences would be appropriate.

The defendant testified that since he has been in prison, he has been segre gated f

rom the ma

in population and has n ot partic ipate d i n any ty pe of rehabilitative program. He stated tha t he had completedthe eighth grade while attending school in the United States, but that he had dropped out after be ing placed back into the sixth grade when he returned to Puerto Rico. The defendant confirmed that he began drinking alcohol when he was twelve and using marijuana when he w as fourteen. He estimated that he had used cocaine ten times, but denied having done so recently . The defendant ex plained that he suggested that they rob the convenience store after someone else had-11-

suggested a bank ro

bbery . He main

tained that he did not know the gun purchased by him and Caberra had been stolen.

Alth ough the trial

court’s oral pro nounceme nt of th e defendant’s se

ntence i s not entir

ely clear, the trial judge appears to have found no applicable mitigating factors. See Tenn. Code Ann. § 40-35-113. The trial court applied six enhancement factors: (1) that the defendant had a previous history of criminal behavior in addition to that necessary

to establish the appropriate range; (2) that the defendant was a leader in the commission of an offe nse involving two o

r more criminal a

ctors; (3) that the offense involved more than one victim; (9) that the defendant possessed or

employed a firearm during the commission o f the offen se; (10) that the defendant had no hesitation about committing a crime when the ri sk to human life was high; and (16) that the crime was c ommitted under circumstances under which the potential for bodily injury to a v ictim was great. See Tenn. Code Ann. § 40-35-114(1) – (3), (9) – (10), (16) (1997). After sentencing the defendant to twelve yearson each of the three c onvic tions, the trial court ordered consecutive sentencing , finding that the defenda

nt was a dange rous off ender w hosebehavior indicates no regard for human life and no hesitation about com

mitting a crime in which the risk to human life is high. See Tenn. Code Ann. § 40-35-114(4).

When there is a challenge to the leng th, range, or manner of servic e of a sent ence, it is the duty of this court

to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing principles a

nd all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial cour t app lies inappropriate factors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of corre ctness falls.” State v. Shelton , 854 S.W.2d 11 6, 123 (Te nn. Crim. App. 1992 ). The Se ntencing Commission Co mments provide that the burden is on the defendan t to show t he impropriety of the se ntence. Tenn. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence rep ort; (3) the principles of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any

mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or tre atmen t. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In ca lculating

the sente nce for a Class B , C, D, or E

felony convicti on, the pr

esumpti v e sentence is the minimum in the range if there are no enha ncement or mitigating factors. Tenn. Code Ann. § 40 -35 -21 0(c ). If

there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating fac tors req uir es an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The sentence must then be reduced within the rang e by any weig ht assigned to the mitigating-12-

factors present. Id.

In this appeal, the defendant does not assert the applicability of

any mitigating

factors. He does argue, however, that the trial cour t erred by its application of enhancement factors (2), (3), ( 9), (10), and (16) . With reg ard to enhancement factor (2), the defendant asserts that the evidence wa s insufficient

to support the trial court’s finding that he was a leader in the commission of an off ense involving two or more cr iminal actors. He contends that the proof at trial showed that his “older brother exerted a bad influence over [him] and also had a prior criminal record.” We di sag ree . In rejecting the defendant’s claim that his sentences should be mitigated bec ause he was acting under the domination of another, see Tenn. Cod

e Ann. § 40 -35-113( 12), the t rial cou rt stated as follow s:
I got the impression after the hearing that he was the dominating one of this littl e two[-]man club that decided to rob this place. His action s were the precipitating ones, and . . . his conduct was the reason why the older man acted and went along with him.

The defendant admitted that it was his idea to rob the Pit Stop North . He arr

anged for the purchase of the aut omatic weapon u sed in the offense s, carr

ied it to the

convenie nce mar ket, and h

id it afterw ards. It is our view that the evidence was sufficient

to support application of the enhancement factor.

The defendant next argues that the trial court erred by

applying e

nhancement factor (3), that the offense involved

more than one victim, because “there was no proof of life[-] threatening injury to anyone.”That argument, in our vie w, indicates that the defendant misapprehends the basis for the trial court’s application of the enha ncement factor. The trial court stated that the fa ctor was applica ble because

“th e de fen dan t’s cri mi nal act iv it y alm ost to ok t he l iv es o f tw o vi cti ms .” In doing so, however, the trial court focused not on the potential danger of the defendant’s conduct, but that two victims were involved in the shooting. Nevertheless, the state concedes that the trial court erred by applying this fa

ctor because the de fendantwas convicted separately for the attempted second degree murder of Ms. McCormick and theattem pted s econd degree m urder o f Youn g. See State v. Freeman , 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996) (holding that statutory enhancement factor for multiple vi ctims could not b e applie d to defendant convicted of two counts of attempted second degree murder). Furth er, bec ause t he defe ndant did n ot att empt t o take any proper ty from Yo ung, he was not a “victim” of the attempted especially aggravat ed ro bb er y. See State v. Raines , 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994) (holding that “victim,” as contemplated by Te nnessee Code Annotatedsection 40-35-114(3), is limited in scope to a person or entity that is injured, killed, had pr op er ty stolen, or had prop erty destroy ed by the perp etrator

of the cr ime); State v. Matthew DeL oss Larsen and Andre w Lee Matthews , No. M2000-01675-CCA-R3-CD (Tenn. Crim. App., at Nashville, Oct. 12, 2001). In summary , enha ncement facto r (3) sho

uld not hav e been a

pplied to enhanc e any

of the defendant ’s sente

nces. Next, the defendant asserts that the trial court erred by applying e

nhancement factor (9), that the defendant possessed or employed a fi rea rm during the commission of the offense, to the-13-

attempted especially a

ggravated robber

y sentence . The state concedes that the factor should not have been applied. Because that factor is an e ssential element of the offense, it cannot be used as an enhancement

factor. Especia

lly a ggra vated ro bbery is robbery a

ccomplished with a deadly weapon and where the victim suffers serious bodily injury . Tenn. Code Ann. § 39-13-403(a). Here, the use of a firearm in the commission of the crime was a basis for the c onviction. See Statev. Wilkerson , 905 S.W.2d 933, 934 (Tenn. 1995).

The state also concedes that enhancement factors (10), that the defendant had no hesitation about committing a crime where the ri sk to human life was high, and (16), that the crime was committed under circumstances under which the potent ial for bodi ly in

jury to a victim

was gr eat, should not have been app li ed. Bec ause thos e facto rs are in cluded in the esse ntial ele ments of a

ll three of the crimes for which the defendant wa s convicted, they should not have been applied to any of the three offenses. See State v. Jones , 883 S. W.2d 597, 602 (Tenn. 1 994); State v. N ix , 922 S.W.2d 894, 903 ( Tenn. Crim. App. 199 5); see also State v. Jerry B. C row , No. 01C01-9310-CR-00348 (Tenn. Crim. App., at Nashville, Nov. 6, 1995).

In summary, the trial cour

t misapplied enhancement fac tors (3), (10), and (16). Enhancement factors (1), that the defendant has a previous history of criminal convictions or behavior in addition to those necessa ry to establi sh the app

ropriate range, and (2), that the defe ndant was a leader in the commission of an offense involving two or more criminal actors, are applicable to all three of the defenda nt’s sente nces. Enhancement factor (9), that the defe ndant employed a f

irearm during the commission of the offense, is applicable to the defendant’s sentenc es for attempted second degree murder. There are no mitigating factors applicable. Attempted second degree murder a nd attemp ted espe cially

aggr avated r obbery are both Class B felonies with Range I

sentence ranges of eig

ht to twelve year s. SeeTenn. Code Ann. §§ 39-12- 107(a), 39-13-210(b), 39-13-403(b), 40-35-112(a)( 2 ). In sentencing the defendant, the trial court didnot assign weights to the various enhancement f actors. In o ur view, enhancement factor (1), basedsolely upon the defe ndant’s prior u se of il legal d rugs, should be af

forded s ome weig

ht. Enhancement

fact or (2) , however, is entitled to greater weig ht, as the defendant initiated the commission of the offenses. Apply ing these two factors to the defendant’s a ttempted especial ly aggravated

robbery se

ntence, the midpoint in the range, ten years, is appropriate. Similarly , amidrange sentence of ten years is appropriate for each of the defendant’s attempted second degre e murder c onviction s.
Fi na ll y, the defendant contends that the trial court er red by imposing consecu tive sente nces. Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition o f c onsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 197 6). In that cas e, our sup reme court ruled that aggrava

ting circumstances must be present before placement in any

one of the classifications. Late r, in State v. Taylor , 739 S.W.2d 227, 230 (Tenn. 1987), the court established an additional category

for those defendants convicted of two or
more statutory offense s involving sexual abuse of minors. There were, however, additional words of caution:2 The firs t four cri teria are f ound in Gray . A fif

th category i n Gray , based on a specific number of prior felony convictions, may en hanc e the sen tence range but is no longe r a listed c riterion

. See Te nn. Co de A nn. § 4 0-3 5-11 5, Sentencing C omm ission Com ments.
-14- [C]onsecutiv e sentences shoul d not routi nely be imposed . . . and . . . the agg regat e maximum of consecutive terms must be reasonably related to the severity

of t he offenses involved.

The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40- 35-115, Sentencing Commi ssi on Comments. The 1989 Act is, in essence, the codification of the hold ings in Gray

and Taylor ; consecutive sen tences may

be impose d in the dis cretio n of the tri al court onl y up on a dete

rmination that one o

r more of the following criteria 2 exist:
(1) The def

endant isa

profess ional cr

iminal who

has knowingly

devoted h

imself to criminal acts as a major source of livelihood; (2) the defendant is an offender whose record of criminal activity is extensive; (3) the defendant is a dangerous mentally abno rmal pe rs on so de cl ar ed by a competent

psy chiatris t who conc ludes as a result o f an inve stigatio n prior to sentencing that

the defendant's criminal conduct has bee n characterized by

a pattern of repe titive or c ompulsive

behavior with heed

less indif ferenc e to consequence s; (4) the defe

ndant is a dange rous off ender w hose beh avior ind

icates little or

no regard for human life , and no he sitation a bout committing a crime in which the risk to human life is high; (5) the defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggr avating circumstanc es arising from the relation ship between t he defendant and victim or victims, the time span of defend ant's undetected sexual activity, the nature and scope of

the sexual acts and the extent of th

e residu al, phy sical an d mental d amage to the vic tim or vict

ims; (6) the defendant is sentenced for an of fense committed while on probation; or (7) the d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consec utive in nature, must be “justly deser ved in relation to the seriousness of the offense ,” Tenn. Code Ann. § 40-35-1 02(1), a nd “no g reater than th a t deserved” under

the circumstance s, Tenn. Co de Ann. § 4 0-35-103 (2); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

In ordering that

the defendant’s sentences be served consecutively , the trial court determined that the defendant was a dange rous offender:

There is no doubt . . . that this defendant Abel Torres is a dangerous offe nder. His behavior clearly

indicates no regard whatsoever for the value of human life. There-15-

was no hesitation on his part to commit crimes in which human lives were at risk. Based upon the guidelines in 40-35-115(4 ) T ennesse e Code An notated, and as a deterrent to those c onte mplat ing c riminal a ctivity , and this c ivil in natu re, that is, robbing businesses with a sem i-automa tic weapon to attempt to kill, this defendant’s
se nt en ce s s ha ll ru n c on se cu ti ve ly.

In Gray , our supreme court ruled that before consecutive sentencing could be imposed upon the dange rous off ender, c onsidere d the most su bjective of the cl assifica

tions and t

he most dif

ficult to apply, other

conditions must be present: (a) that the crimes in volved ag grava

ting cir cumstanc es; (b) that consecutive sentences are a necessary means to protect the public from the defendant; and (c) that the te

rm reaso nably

relatesto the sev erity

of the offenses. In State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaff irmed those principles, holding that con secutive sentences cannot be required of the danger ous offende

r “unles s the term s reason ably relate[] to the severity of the offe nses comm

it ted and are necessary

in order to protect the public (society) from further criminal acts by those per sons who resort to aggravated cr

iminal conduct.” The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive se ntencing adopted in State
v. Woods , 814 S.W.2d 378, 3 80 (Tenn . Crim. App . 1991), d escribe d sentenc ing as a

“human pr

ocess that neither can nor should bereduced to a set of fixed and mechanical rules.” 905 S.W.2d at 938.
Here, th e t ri al co ur t’ s f

in di ng s e ss en ti al ly t ra ck th e s ta tu to ry l anguage releva nt to the dangerous offender

category . The trial court failed to make the requisite findings under Wilkerson to support consecutive sentencing on t he grounds that the defendant is a dang erous offender. Sp ec if ic al ly, the trial

court fa iled to make any

findings concerning the need to pr otect society fr

om the defendant and the relationship of the length of the term to the severity

of the of fenses. Becau se such finding s are cr

itical to our revie

w, this cou

rt must remand to the trial cou

rt for an appropr iate analy sis.

Ac co rd in gl y, the judgments of conviction are affirmed. The defenda nt’s sentences are modified to ten y

ears fo r each c onviction . The ca use is re manded to

the trial court f or further consi derati on on t he iss ue of co nsecu tive s enten cing.

___________________________________ GARY R. WADE, PRESIDING JUDGE