# FILED
March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE AUGUST 19 97 SESS ION

STATE OF TENNESSEE, * C.C.A. # 03C01-9609-CR-00336

Appellee, * SULLIVAN COUNTY VS. * Hon. R. Jerry Beck, Judge MICH AEL K . CHR ISTIA N, JR.,* (Attem pted Firs t Degre e Murd er, Attemp ted Agg ravated K idnapp ing, Appe llant. * Burglary (2 coun ts), Theft o ver $500 , Theft under $500) For Ap pellant: For Appellee: Gale Flana ry Charles W. Burson Assistant Public Defender Attorney General& Reporter P.O. Box 839 Blountvi lle, TN 37617 Timothy F. Behan Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 Jose ph Eu gene Perrin Assistant Distri ct Attor ney General P.O. Box 526 Blountvi lle, TN 37617

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Michael K. Christi an, Jr., was convi cted of attempted first-degree murder, attempte d aggr avated kidnapp ing, tw

o counts of burgl ary, th eft over $500, and theft under $500. The tr ial court imposed an effective s entence of twenty-five yea rs.

In this appeal of right, the defendant raises the f ollowing issues: (I) whether the evi dence is sufficient to support the convictio ns for at tempted first-de gree murd er, the two thefts, and the two burglaries; (II) whether the counts

of the presentment charging attempted first-degree murder and attempted aggravated kidnapping should have been dismissed for failure to allege the essential elements of the off enses; (III) whether dual conv

ictions for attempted first-deg ree murder and attempted aggrav ated kidnapping violate due process; and (IV) wheth er the tria l court im posed an excessive sentence.
We affirm the judgment of the trial court.
On the evening of June 30, 1995, the victim, Elizabeth Paige Adams, drove her Toyota Celi ca to the house of her friend Michel le Richards. She left a tape case in her unlocked v ehicle. At about 10:30 or 11:00 P. M., Ms. Adams and Ms. Richards trav

eled to the Rocking Hor se Bar in a car driv

en by Jason Patterson. When the three returned to Ms. Richards' house at 2:00 or 3:00 A.M. on Jul y 1, 1995, Ms. Adams, who was the designated driver, was unable to maneuver the car into the driveway

due to mechanical difficulties. An individual Ms. Adams later identified as the defendant then approached the vehicle and helped push the car into the driveway . At that point, Ms. Adams and M s. Richards helped Patters on,3 who wa s intox icated, into Ms . Richa rds' ho use. Pat terson' s car w

as also left unlocked.

Later, as the victim sta rted to leave, the defendant confronted her outside and ordered her to "ge t in [her] car." Ms. Adams recognized him as the same person who earlier had helped push Patterson's car in the driveway . The defendant grabbed her from behind and pull ed her towards her v ehicle. When the victim "went dead w

eight," the defendant stabbed her tw ice, once in her chest and once in her hand, and then ran aw ay. The day after the stabbing , a neighbor found Ms. Adams' tape case in Ms.Richards' yard. After her release from the hospital four days later, Ms. Adams noticed the tape case was mis sing from her car.
Ms. Adams was unable to identify the defendant in a pho tographic lineup. She did, howev er, make a positive identi fication when she saw th e defendant at his arraignment.

At trial, Michelle R ichards testified that she acc ompanied the victim to the hospital. When she returned home, she checked Patterson's car and discov ered sev eral co mpact di scs we re miss ing. M s. Rich ards w as able t o identify the defendant at a photographic lin eup as the person who helped pus h the car into the driveway.

Jason Patterson testified that there were around eighty compact discs in his vehicle. He estimated the value of the missi ng discs at well o ver five-hundred dollars.

David Carter, w ho had known the defendant all of his life, testified that4 on the evening before the stabbi ng, the defendant asked to borrow a knife. Carter consented and did not see the defendant ag ain until sometime between 4:3 0 and 5:30 A.M., just after the inci dent at Ms. Richards' hous e, when the defendant admitted that he had just stabbed someone.Carter, who descri bed the defendant as scared and pacing the floor, then heard the defendant explain th at he was breaking into someone's car and when the victim approached the vehicle, he just "snapped." Carter testified that the def endant admitted stealing some compact discs. A few da

ys lat er, the d efendant informed Carter that he h ad soaked the knife in bleach.

Buford Williams, a def ense witness, testified that he witnessed Ms. Adams and another individual trying to push the Patterson car into Ms. Richards' driveway. Williams, w

ho claimed that he knew the defendant "by sight" contended that the individual assi sting Ms. Adams was not the defendant.

I The defendant, who concedes that the ev idence adequately support ed the attempted aggravated kidnapping conviction, argues that the evidence is insufficient to e

stabli sh the at

tempted f irst-d egree mu rder, b urglar y, and t heft convictions. On appeal, of course, the state is entitl ed to the strongest legi timate view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the proof are matters entruste d to the jury as the tri er of fact. Byrge v. State , 575 S.W.2d 292, 295 (T enn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the lig ht most favorable to the state, any rational trier of fact could have found the essential1 Effectiv e July 1, 1995, the dat e the defendant

committed the cri me, the requir ement that the killing be ac com plished d eliberately wa s dropp ed from the Cod e. See Tenn. Code Ann. § 39-13- 202(a)( 1) (Sup p. 1995)

. 5 elements of the crime beyond a rea sonable doubt. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

Initially, the defendant arg ues that there is insufficient ev idence of the element of premeditation to support the attempted first-degree murder conviction. The law in effect when the defendant com mitted the offense provided that first degree murder is a "premedit ated and intentional killi ng of another." Tenn. Code Ann. § 39-13-202(a)(1)(Supp. 1995). 1 Subsection (d) of that statute provides further guidance on premeditation:

As used in subdivision (a)(1) "premeditation" is an act done after the exercise of reflection and judgment. "Premed itation" means th at the int ent to kil l must have been formed prior to the act itself. It is not necessary that the purpose to kill pr e-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to deter mine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. Tenn. Code Ann. § 39-13-202(d)(Supp. 1995 ).

Our law defines criminal attempt as follows: (a) A person commits cri minal 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, an d believes the conduct will cause the result without further conduct on the person's part; or6 (3) Acts with intent

to complete a course of action or cause a result that w ould constitute the offense, under the circumstances surroundi ng the conduct as the person believes them to be, an d the conduct constitutes a substantial step towar d the commission of the offense. Tenn. Code Ann. § 39-12-101(a).

Here, the pr

oof establish ed that the defe ndant acqui red a knife fro m a friend earlier in the day. After helping the victim push the Patterson vehicle into Ms. Richards' driveway, the defendant waited outside until the victim left her friend’s house. At that point, he grabbe d her and inflicted two stab wounds. These facts support an inference that the defendant commit ted the assault with premedi tation. That there were two separ ate wounds supports the jur y's conclusion that th e defendant's conduct rose to the lev el of attempted first-degree murder

. See Tenn. Code Ann. § 39-12-101. Dr. Lew is testified that the vic

tim's lung had been punctured by the knife. Thus, the defendant's actions qualified as a "substantial step" toward killing

the victim. See Tenn. Code Ann. § 39-12-101. The jury could have determined that the defendant committ ed the assault only after bei ng surprised by the arrival of the victim during the vehicle burglary. The equally plausible theory of the st ate was tha t the def endant h ad been l ying in wait f or the vict im. In our view, there was sufficient evi dence to support the jury's determination that there w as premeditation.

We reject the defendant's argument that the state w as also required to prove deliberation becaus e the presentment erroneously referred to the date of the offense as June 30, 1995. The presentment also c harged the offense as occurring on July 1, 1995. Our law requires the defendant to be prosecuted under the law in effect when the crime was co mmitted. See Tenn. Code Ann. § 39-11-112. The proof established that the offense occurr ed on July 1, 1995. In our v iew, the7 evidence is sufficient to est ablish each of the elements of attempted firs t-degree murder as defined on the latter date.

The defendant also argues that there w as insufficient evidence to support the burglary and theft convictions. The tw o burglary convi ctions were based on the de

fendant' s break

ing in t o the Ada ms and Pa

tterson vehicl es. The t heft under $500 w

as based on th e defendant's t aking of the t

apes from the A

dams vehicle, while the

theft over $500 was based on the defendant's taking of the compact disc collection from Patterson's car. The defendant arg ues there is no evidence that he committed these crimes. We cannot agree.

"A person commits burglary who, without the effectiv e consent of the owner ... [e]nters any

.. automobile ... with i ntent to commit a ... theft." Tenn. Code Ann. § 39 -14-402 (a)(4)(Su pp. 1995 ). A thef t occur whe n "with the intent to deprive the owner of property, th e person knowingly obtains or exercises

control over the property without the owner's effective consent. " Tenn. Code Ann. § 39-14-103. Carter testified that the defendant to ld him that he stabbed someone whi le breaking into "their car." This testimony establishes the burg lary of the Adams car. The defendant also told Carter that he removed some compact discs from "the car." Patterso n testif ied that the comp act disc co llection was worth mo re than f ive hundred dollars. These facts estab lish the Patterson burgl ary and theft.

The remaining issue is w hether there is any proof of the A dams theft. In our view, there i s sufficient circumstantial ev idence to support the determinati on that the defendant stole the tapes from the Adams car. A crime may be est ablished by the use of circumstantial evidence only. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958). An8 accused may be convicted of a criminal offense base d upon circumstantial evidence alone so long as the facts and circumstances are "so strong and cogent as to exclude [beyond a reasonabl e doubt] every other r easonable hypothesis sav e the guilt of the defendant." State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). "A web of guilt must be wo ven around the defendant ... from whi ch facts and circumstances the jury

could draw no other reas onable inference save the gui lt of the defendant beyond a reasonable doubt." Id. at 613.

Here, Ms. Adams testified that she left the tape case in her car on the evening of June 30. She identified the defendant as her assailant. The de fendant confessed to Carter that he had br oken into a vehicle just as he was discover

ed by the victim. The day after the attack, a neighbor found the tape case near where the attack occurred. This ci rcumstantial evidence su pports the jury's conc lusion that the defendant had stolen the tapes.

II

The defendant next argues that the trial court erred by overruling his motion to dismiss two counts of the presentment. Specificall y, he contends the counts charging attempted fir st-degree murder and attempted a ggravated kidnapping are fatally defective for failing to allege the essential eleme nts of those crimes.
Generally, an indictment must set forth the elements of the offense. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that "[w]hen the indictment or pr esentment fails to fully state the crime, all subsequent proceedings are void. " Id. (citing State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)).9 Provisions of state and federal constitutions guarantee th e criminally accused knowledge of "the natur e and cause of the accusation." U.S.Const. amend. VI; Tenn. Const. art I, § 9. "Fair and reasonable notice of the charges against an accused is a fundamental constitutional requir

ement." State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). To be sufficient, an indictment must "inform the defendant of the precise charges; .. . must enable the trial court upon conviction to enter an appropriate judgment; ... and must protect [t he] defendant against double jeopardy." Id. As a matter of fairness, the constitutional requirement i s designed to afford the criminally accused with an adequate opportunity to prepare an y defense before the trial. See , e.g. , Pope v. State , 258 S.W. 775 (Tenn. 1924); Daniel v. State , 50 Tenn. 257 (1871).

In Perkinson our court explained the r ationale for requiring

the indictment to charge the ess ential elements of the offense: To allow a prosecutor or court to make a subsequent guess as to what w

as in the minds of the grand jur y at the time they returned the i ndictment would depriv e the defendant of a basic protection that the g rand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even pre

sented to, th e grand jur y that indi cted him. 867 S.W .2d at 5 (quoting United State v. Cecil , 608 F.2d 1294, 1297 (9th Cir. 1979)).

In State v. Marshall , 870 S.W.2d 532, 53 6 (Tenn. Crim. App. 1993), however, this cour

t held that the failure to specifically allege an element of the offense is not fatal "if the elements are neces sarily implied from the al legations made" (citing Hagner v. United Stat e , 285 U.S. 427 (1932)). In our view, the ruling in Marshall controls these circumsta nces. If the offense is alleged in such a way that the defendant cannot fail to be appris ed of the elements of the offense, the10 charge is sufficient, notwithstanding the fact that an elem ent may not be specifically alleged.
(A)

The count charging attempted fir st-degree murder alleg es as follows: [the defendant] on June 30, 1995, through J uly 1, 1995, ... unlawfully, felonious ly, knowingly and with premeditation did attempt to kill another, Paige Adam s, by stabbing [her] with a deadly weapon ... which conduct constituted a substantial st ep toward the commission of the said offense.... The defend ant argues this pr esentment is d efective becau se (1) it does not a llege that he acted deliberately or intentionally, and ( 2) it does not allege that he acted "with intent to complete a c ourse of action or cause a resu lt that would constitute the offense, under the circumstances sur rounding the conduct as the per son believes them to be, and the conduct constitut es a substantial step tow ard the commission of the offense." See Tenn. Code Ann. § 39-12-101(a)(3).

On June 30, 1995, a first-degr ee murder was defined as an "intentional, premeditated and deli berate killing of another." Tenn. Code Ann. § 39- 13-202(a)(1) (1991). H ad that been the controlling date, we would have held the presentment insufficient to charg e attempted first-degree murder as it was defined at that time. The presentment had to nece ssarily imply that the killing was intentional, premeditated, and del iberate. While allegations of an attempted premeditated homicide are sufficient to necessarily imply the act was intentional, direct allegations that

the killing was intentional and deliberate ar e missing. "Attempt" in criminal law means "[a]n intent to commit a crime coupled with an act taken toward committing the offense." Black's Law Dictionary , 127 (6th ed. 1990). The allegation that the defendant attempted to kill the victim necessarily implies that he intended to kill her. Also, a "premeditated act" is an act done "after the exercise11 of reflection and judgment." Tenn. Code A nn. § 39-13-201(2) (1991). "The element of premeditation requires a previously formed design or intent to kill ." State v. West , 844 S.W.2d 144, 147 (Tenn. 1992) (emphasis added). See also Tenn. Code Ann. § 39-13-202(d)(Supp. 1995) (amend ing the statutory definition of premeditation to provide "it means that the intent to kill must have been formed prior to the act itself"). Accordingly, the presentment necessarily implies the attempted homicide was intentional. Nothing in the charging instrument, however, would necessarily imply that the killin g was deliberate. Deliberation occurs w hen one acts "with a cool purpose." Tenn. Code Ann. § 39-13-202 (1991). The allegations i n the presentment do not necessarily imply that the killi ng was accomplished w ith a cool purpose. If the old Act wer e still applicable, thi s presentment would have been defective.

Under the amended Act, howev er, effective July 1, 1995, first-degree murder was redefined by statute as an intentional, premedita ted killing. It is a statutorily defined offense. Becaus e the allegations of an attempted pr emeditated homicide necessarily i mply an intentional act, th e presentment adequately char ges the offense under the amended Act.

In our view, there i s a legitimate question as to whether the presentment , which alleged that the offens e occurred on "Ju ne 30, 1995, t hrough July 1, 1995," sufficiently alleges the time of the offense. In State v. West , 737 S.W.2d 790, 792 (T enn. Crim. App. 1987), our court stated the rule as follows:

The rule to be deduced from our cases is that, where there is no statute of limitations barring the offen se, it is unnecessary to state the day, or even the year, but it is sufficient to aver general ly that the offense was committed before the finding of th e indictment: that it is not necessary to state in any case the day on w hich the offense was committed, unless the day itself is of the essence of the offense, as of offenses committed against12 laws passed for the preser vation of the Sabbath, or unless the time is important to bring the offense within the operation of new or amended statutes or the like.... (emphasis add ed) (quoting State v. Shaw , 82 S.W. 480 (Tenn. 1904)). In this case, the time of the offense should be alleged "to bring the offense within the operation of new or amended statutes ...." Id. The presentment should have prov ided the exact date the crime occur red. Because, however, there is mention of July 1,1995, we must conclude that the defendant w as placed on notice that the time of the offense might be an issue. The state's respon se to the defendant's discovery requests indicated that the crime actually occur

red on July 1, 1995. Thus, the defendant was aware that the amend ed statute applied. Also impor tant to our determination is that the ev idence overwhelming ly establishes that the crime was committed on July 1, 1995. There was no evidence that the attempt to murder occurred June 30, 1995.

In our view, the jur

isdictional concerns r

aised in Perkinson , 867 S.W.2d at 5, have been ad dressed. The indictment alleges or "necessarily implies" all of the elements of the offense as defined on July 1, 1995. Thus, the defendant was not placed on trial

for a crime greater or di fferent than authorized by the g rand jury. Id. The state provided adequate notice of the date of the offense. See State v. Speck , 944 S.W.2d 598, 60 0 (Tenn. 1997) (commenting that a bill of particulars may be used to inform the defendant o f the date of the offense ). Under these circumstances, we find no r eversible error per

taining to the presentment's failure to more specific ally allege the date of the off ense or the fa ilure to specif ically allege intentional or deliberate c onduct.
(B) The defendant also argues the presentm ent is defective because it2 The c ourt also h eld that attem pt requires a "failure to co nsum mate the crim e." Ger vin , 371 S.W .2d at 451. That portion of Ger vin has been abrogated by statute:"it is no defense to pr osecution for criminal

attempt that

the offense at

tempted was actuall

y committed." Tenn. Code Ann. § 39-12- 101(c). 13 fails to sufficiently alleg e the element of attempt. The charging instrument alleges the defendant "did attempt to kill [the victim] by stabbing [her] with a deadly weapon ... which conduct constituted a substantial step toward the commission of the said offense." The defendant contends that the followi ng language should hav e been included: "with intent to complete a course of action or cause a result th at would constitute the offense, under circums tances surrounding the condu ct as the person believes them to be, and the cond uct constitutes a substantial step toward the commission of the offense." See Tenn. Code Ann. § 39-12-101(a)(3 ).

"An indictme nt or information chargi ng an attempt to commit a c rime should specifically al lege intent and the overt act done toward commission of the offense ...." Indictments and Informations , 41 Am. Jur. 2d, § 132, p. 748 (2d Ed. 1995) (footnotes omitted). In Gervin v. State , 371 S.W.2d 449, 45 1 (Tenn. 1963), our supreme court ruled that an indictment charging s olicitation would not sustain a conviction for attempt. The cour t described criminal atte mpt as follows: "An attempt ... requires ... (1)

an intent to commit a specific c rime; [and] (2) an overt act .... 2 In attempts, the intent must be to commit the contemplated crime. ... To cons titute an attempt there must also be an act of per petration, that is an over t act." Id. (citations omitted).
This general concept of crimi nal attempt carried over into the 1989 codification of criminal attempt:

Criminal attempt is an offense dir ected at the individual whose i ntent is to commit an offense, but whose actions, whil e strongly corrobor ative of criminal intent, fail to achieve the criminal objective intended. Accordingly, the offense is basically one of cr iminal intent14 coupled with acts that clearly demonstrate the offende r's proclivity tow

ard criminality

. Sentencing Commission Comments to Tenn. Code Ann. § 39-12-101.

In our view, the all egation of the attempt to commit the homic ide coupled with the allegation that the defendant stabb ed the victim with a deadly weapon, which conduct was a substantial step toward commission of the off ense, is sufficient. It is not necessar y that the indictment quote the attempt statute verbatim. "Obviously, the descr

iption of the proof necessary to sustain a conviction mus t be both more inclusive and co nclusive than the langua ge of an indictment." State v. Hill , 954 S.W.2d 725, 728 (Tenn. 1997).
(C)

The count charging attempted ag gravated kidnapping a lleges as follows: [the defendant] unlawfully, feloniously and knowingly did

attempt to confine another, Paige Adams , so as to interfere substantially with [her] liberty so as to facilitate the commission of any felony or flight thereafter and during the course of the attem pted kidnapp ing, Paige Adams suffered bodily injury as a result of the defendant's possession of a deadly weapon, which conduct by the defendant constituted a substantial step toward the commission of the sa id offense .... The defendant argues this presentment i s insufficient for failing to al lege that the defendant "intentionally engag es in" or "acts with i ntent" required under the cr iminal attempt statute. See Tenn. Code Ann. § 39-12-101. For the same reasons appearing in the previ ous parts of this opinion, it is our view that the mens rea was necessarily implied by the language of the presentment. Thus, we find this challenge to the attempted agg ravated kidnapping char ge to be without merit.15 III The defendant next contends that convictions for both attempted firstdegree murder and attempted aggravated kidnapping violate the due process guarantees of Article I, Section 8 of the Tenne ssee Constitution as announced in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). We cannot agree.

In Anthony , our supreme court addressed the issue of whether dual convictions of armed robbery and aggravated kidnapping violated the due process guarantees of Article I, Section 8 of the Tenne ssee Constitution. The court concluded that when a confinement, moveme nt, or detention is "essentially incidental" to the accompanyi ng felony, it is not suffici ent to support a separate conviction for kidnapping

. Id. at 306. The court warned that the kidnapping statute should be narrowly construed "so as to make its r each fundamentally fair and to protect the due process rig hts of every citiz en ...." Id.
The test applied in Anthony , as taken fro m Faison v. State , 426 So.2d 963, 965 (Fla.1983), was as follows:

[I]f a taking or confinement is al leged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: (a) Must not be slight, inconsequential and merely incidental to the other cri me; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some si gnificance independent of the other cr

ime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection

. 817 S.W.2d at 306 (alte ration in original).16 In Anthony , the supreme court noted that every

robbery i nvolved s

ome confinement and, therefore, ne cessarily included a kidnapping. It ruled, however, that the legislature did not intend for every robbery to also be a kidnappi ng. Id. More recently, the cour t explained the limitati ons of the Anthony rule: Anthony and its progeny, how

ever, are not meant to provide the rapist a free kidnapping merely because he also committed rape. The Anthony decision should only pr event t he injus

tice which w

ould occur if a defendant could be convicted of kidnap ping where the only restraint util ized was that necessar y to complete the act of rape or robbery. Accordingly any restraint in addition to that which i s necessary to consummate r ape or robbery may suppor t a separate conviction for kidnapping. State v. Ricky M ichael Dixon , _____ S.W.2d _____, No. 03S01-9704-CR-00043, slip op. at 6 (Tenn., at Knox ville, Dec. 15, 1997) (footnote omitted).

The reasoning o

f Anthony

has yet to be applied to an at tempted aggravated kidnapping conviction. Even i

f it did apply, this cour

t would not extend the ratio nale of t he opinio n to thes e circums tances. The def endant c ould have committed the attempted homicide without having committed an a ttempted kidnapping. Proof of the attempted homicide did not necessarily establish an attempted kidnapping. In our as sessment, the attempted kidnapping was supported by facts separate and apart from the attemp ted homicide. The defendant twice ordered the victim to g et in the car and then attempted to dr ag her towards the vehicle. These facts establi sh the kidnapping as more than merely incidental to the attempted homicide. There has been no abr idgement of due process.

IV Finally, the defendant arg ues the trial court acted ex cessively by imposing an effective sentence of tw enty-five years. The defendant, a Range I offender, was sentenced as follows:17 Count Offense Sentence 1 att. first degree murder 21 years 2 burglary 1 year 3 theft over $500 1 year 4 burglary 1 year 5 theft under $500 11 months, 29 days 6 att. agg. kidnapping 4 years (to be served consecutiv ely to count (1)).
The defendant argues the trial cour t erred as to Count One by beginning at the midpoint i n the range in imposing the sentence and as to Count Six, by ordering

a consecutive term. We do not agree.
When there is a challenge to the length, range, or manner of servi ce of a sentence, 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 pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).18 At the time of this offense, the presumptiv e sentence was the minimum in the range for all of the offenses, except the attempted first-degree murder. For that offense, the trial court was requir

ed to start at the midpoint in the range. See Tenn. Code Ann. § 40-35-210 (amended ef fective July 1, 1995, to make the presumptive sentence for a C lass A felony the midpoint i n the range, absent enhancement or mitigating facto rs). Should the trial c ourt find mitigating and enhancement factors, it must start at the presumptive sentence and enhance the sentence based upon any applicab le enhancement factors, then reduce the sentence based upon the appropriate mitigating factors. Tenn. C ode Ann. § 40-35- 210(e). The weight g iven to each factor is w ithin the trial court's

discretion provided that the record supports it s findings and it complies with the Sentencing Act

. See Ashby , 823 S.W .2d at 169. Th e trial court shou ld, however, make sp ecific findin gs on the record which indi cate its application of the sent encing principles. Tenn. Code Ann. §§ 40-35-209 and -210.

The presentence report shows that the defendant, age nineteen at the time of sentencing, had sever al adjudications as a juv enile. In 1988, he was found “ungovernable.” Thereafter, he violated a court or der, maliciously set a fire, stole an automobile, and committed an aggr avated assault and three si mple assaults. Several times he has been pl aced with the Department of Human Services and with the Department of Youth Devel opment. The defendant has a lengthy hi story of suicide attempts. While under the care of the Department of Youth Development, he was diagnosed as having the following impairments: conduct disorder, solitary aggressive type, chronic post traumatic stress disorder, depressive type, episodic explosive behavior, and adolescent depressiv e reaction. The defendant indicated he has used alcohol since the age of eleven. He also admits t o the use of marijuana and cocaine on a fairly regular basis.19 In 1988, when the defendant was about twelve years old, his mother was killed in a car

wreck. About one year later, the defendant’s father surr endered his custodial rights

and the defendant was placed in custody of the Department of Human Services. Due to h is youth, the defendant has vi rtually no work history.

Effective July 1, 1995, the l egislature amended Tenn. Code Ann. § 40- 35-210 to require that the pr esumptive sentence for a Clas s A felony is the midpoint in the range. See Sentencing Commission Comments to Section 40-35-210. The defendant argues that because the indictm ent charging the offense alleges it occurred on "June 30, 1995 throug h July 1, 1995," he should be s entenced under the law in effect prior to the 1995 amendment.

While the original presentment was unclear as to when the offense was actually commit ted, there was an allegation that the offens e occurred "thro ugh July 1, 199

5." The state i nformed the defen dant in adva nce of trial that the cri me was committed on July 1,1995. The proof established that the c rime was committed on July 1, 1995. Our law requires that

the defendant be "prosecuted under the act or statute in effect at the time of the commission of the offense." Tenn. Code Ann. § 39-11-112. Thus, the mi dpoint of the range was an appr opriate beginning.
We now turn to the appropriateness of orderi ng the attempted kidnapping sentence to be ser ved consecutively

to the attempted murder convic tion. Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposi tion of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case our s upreme court ruled that aggravating ci rcumstances must be present before pl acement in any one of the3 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 20 classifications. Later, i n State v. Taylor , 739 S.W.2d 227 (Te nn. 1987), the court established an additional category for those defend ants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution : "[C]onsecutive sentences should not routinely be imposed . . . and . . . the agg regate maximum of consecutiv e terms must be reasonably related to the severity of the offenses inv olved." State v. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40- 35-115. The 1989 Act is, in esse nce, the codification of the holdings i n Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 3 exist:

(1) The defendant is a professional c riminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental21 damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

More recently, in State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995), o ur high cou rt reaff irmed tho se princip les, hold ing that co nsecutive sentences ca nnot be requ ired of the dan gerous offende r "unless th e terms reasonably relate[] to the severity of the offenses committ ed and are necessary in order to protect the public (society) from further criminal acts by those pe rsons who resort to aggrava

ted criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutiv e sentencing adopted in State v. Woods , 814 S.W.2d 378, 38 0 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." State v. Wilkerson , 905 S.W.2d at 938. The record must show that the sentencing principles and all relevant facts and circumstances were considered before the presumption of cor rectness applies.
The statute defines the dangerous offender as one "whose behavior indicates little or no regard for hu man life, and no hesitation a bout committ ing a22 crime in which the ri sk to human life is high .... " Tenn. Code Ann. § 40-35-115(4). Wilkerson , however, requi res more for the imposition of cons ecutive sentences. In order to merit the presumptiv e correctness of the consecuti ve sentences, the trial court must have also found that th e circumstances of the crimes were aggravated; the aggregate sentence mus t reasonable relate to the sev erity of the offenses; and the total sentence must be necessar y for the protection of the publi c from further crimes by the defendant.

The trial court ruled that the defendant was a dangerous offender and ordered the attempted kidnapping sentence to be served consecutively. The court concluded that the defendant's conduct "ex hibited no regard for human life"; that he "inflicted very ser

ious near death wounds upon" the victim; and that "confinement for an extended period of time is nec essary to protect soci ety." The trial court found "little indication of succes sful rehabilitation in this case based upon the ... presentence report."

The record in this case confir ms that the trial court made appr opriate findings of fact on the record. Our scope of review is de novo with a presumption of correctness. Clearly, the proof supports the trial court's determination that the defendant qualified as a dangerous offender. He charged the vic tim, grabbed her and stabbed he r twice. While the defendant w as only ni neteen year

s old at the time of the offense, he had a lengthy juv enile record and had not respon ded to numerous attempts at rehabilitation. See Tenn. Code Ann. § 40-35-103. Mor eover, the defendant had exhibited an escalati ng pattern of violence. The defendant has graduated from assault to his c urrent crimes of attempted kidnappi ng and murder. This pattern suggests a need to protect the public.23 Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

________________________________ Paul G. Summe rs, Judge

________________________________ William M. Barker, Judge