                                                 FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                   March 17, 1998
                           MAY 1997 SESSION
                                                 Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    NO. 01C01-9607-CC-00282
      Appellee,                   )
                                  )    WILLIAMSON COUNTY
VS.                               )
                                  )    HON. DONALD P. HARRIS,
JERRY M. MULLICAN,                )    JUDGE
                                  )
      Appellant.                  )    (Attempted Second Degree Murder
                                  )     and Aggravated Assault)



FOR THE APPELLANT:                     FOR THE APPELLEE:

JOHN H. HENDERSON                      JOHN KNOX WALKUP
District Public Defender               Attorney General and Reporter
407-C Main Street
P.O. Box 68                            GEORGIA BLYTHE FELNER
Franklin, TN 37065-0068                Assistant Attorney General
                                       Cordell Hull Building, 2nd Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       JOSEPH D. BAUGH, JR.
                                       District Attorney General
                                       Williamson County Courthouse
                                       Suite G-6
                                       P.O. Box 937
                                       Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                     OPINION



       The defendant, Jerry M. Mullican, appeals as of right from a jury verdict of

guilty to two (2) counts of attempted second degree murder and one (1) count of

aggravated assault. The defendant was sentenced to eight (8) and twelve (12)

years consecutively for the attempted murder charges and three (3) years

concurrently for the aggravated assault charge. Defendant presents the

following issues for review: (1) whether the evidence presented at trial was

sufficient to support the convictions, and (2) whether the trial court improperly

sentenced the defendant. The judgment of the trial court is affirmed.



                                      FACTS



       The defendant resided in Fairview, Tennessee, with his girlfriend, Cindy

Walker. Also residing on the premises were W alker’s mother, Barbara

McCullough, and Walker’s two children. On June 15, 1997, Walker and her

mother awoke and left for work at approximately 8:00 a.m. leaving the defendant

and McCullough’s boyfriend, Roy Brownson, at the residence. The defendant

thereafter drove to a liquor store and purchased a pint of Jack Daniels whiskey,

which he consumed with Brownson upon his return. The men drank equal

portions of the whiskey. The defendant left the house between 10:30 and 11:00

a.m. to pick Walker up from work and drive her to Franklin, Tennessee, to

conduct some business.

       After Walker’s business was concluded in Franklin, she and the defendant

picked her children up from day care and returned home between 4:00 and 5:00

p.m. McCullough returned to the house a short time later. That evening, while

the women cleaned the house, the defendant and Brownson shared a pint of

vodka and twelve beers. McCullough and Brownson went to sleep around 10:00

p.m. The defendant and W alker did the same around an hour later.

       Once in bed, the defendant attempted to wake Walker to watch a



                                         2
pornographic movie with him. Angry at being roused from sleep, Walker

knocked the video tape from the defendant’s hand. The defendant went to a

chifferobe in the bedroom, retrieved a semi-automatic pistol, and shot Walker in

the leg. Prior to the shot, McCullough and Brownson were awakened by a loud

noise and got out of bed to investigate. While walking down the hall, they heard

the shot, and McCullough opened the door to her daughter’s bedroom. The

defendant turned and shot McCullough in the face. Either immediately before or

after McCullough was shot, the defendant fired another shot at Walker and

missed. The defendant fired a fourth shot at Brownson, who ran to the living

room and called 9-1-1. When the defendant left the bedroom to follow

Brownson, Walker picked up the phone and gave her address to the 9-1-1

operator.

      Brownson retrieved McCullough from the hallway and moved her to the

front porch. Brownson then returned to the bedroom to try to calm the

defendant. Walker was in the bedroom along with the defendant, and the two

struggled as the defendant attempted to reload his pistol. Brownson distracted

the defendant, and Walker was able to grab the pistol clip from him. With one

round remaining in the chamber, the defendant ordered Walker to leave the

bedroom. He then pointed the gun at Brownson’s head. While the two men

were in the bedroom, the police arrived and the defendant was arrested.

      Walker and McCullough were transported to the hospital. McCullough

remained hospitalized for three weeks and has since been admitted twice for

additional surgeries. Walker was treated and released for the wound to her leg.

      Based upon this evidence, the jury convicted the defendant of two (2)

counts of attempted second degree murder and one (1) count of aggravated

assault.




                      SUFFICIENCY OF THE EVIDENCE



                                        3
       The defendant alleges the state did not sufficiently prove that he

intentionally and knowingly committed any of the crimes for which he was

convicted.



                                          A.



       When an accused challenges the sufficiency of the evidence, this Court

must review the record to determine if the evidence adduced during the trial was

sufficient "to support the findings by the trier of fact of guilt beyond a reasonable

doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt

predicated upon direct evidence, circumstantial evidence or a combination of

direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn.

Crim. App.1996).

       In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978). Nor may this Court substitute its inferences for those drawn by the

trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305,

286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the

State of Tennessee the strongest legitimate view of the evidence contained in

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

drawn from the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim.

App.1995).

       Questions concerning the credibility of the witnesses, the weight and

value to be given the evidence as well as all factual issues raised by the

evidence are resolved by the trier of fact, not this Court. Id. In State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court stated, "A

guilty verdict by the jury, approved by the trial judge, accredits the testimony of

the witnesses for the State and resolves all conflicts in favor of the theory of the

State."

          Because a verdict of guilt removes the presumption of innocence and



                                          4
replaces it with a presumption of guilt, the accused has the burden in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v.

Grace, 493 S.W.2d at 476.



                                         B.



        The defendant was found guilty of two (2) counts of attempted second

degree murder and one (1) count of aggravated assault. The elements of

attempted second degree murder are:

              (1) the defendant acted with the intent to unlawfully kill
                  the alleged victim; and

              (2) the defendant’s conduct constituted a substantial
                  step toward killing the alleged victim.

Tenn. Code Ann. §§ 39-13-210(a), 39-12-101.

       The elements of aggravated assault are:

              (1) the defendant intentionally or knowingly caused
              another to reasonably fear imminent bodily injury; and

              (2) the defendant used or displayed a deadly weapon.

Tenn. Code Ann. § 39-13-102(a)(1)(B).



                                         C.



       The defendant alleges he was intoxicated at the time of the incident and

was, therefore, unable to form the requisite mens rea to commit the crimes. The

defendant testified that he split a pint of vodka and twelve beers with Brownson

in the hours preceding the shootings. The defendant further testified Brownson

gave him five (5) pills, which the defendant identified as Xanex. The

combination of pills and alcohol, the defendant alleges, prevented him from

acting intentionally and knowingly. Brownson testified to sharing the vodka, but

denied that a 12-pack of beer was consumed and further denied giving the

defendant any pills.

                                          5
       Generally, the defense of intoxication negating specific intent is a question

for the jury to determine. State v. Givens, 631 S.W.2d 720, 721 (Tenn. Crim.

App. 1982). There must be evidence that the intoxication deprived the accused

of the mental capacity to form the requisite specific intent. State v. Bowers, 744

S.W.2d 588 (Tenn. Crim. App. 1987). The jury was given a voluntary intoxication

charge. They weighed the conflicting testimony on this subject, and obviously

found the testimony of Brownson more credible than that of the defendant.

Viewing the evidence in a light most favorable to the state, the jury was justified

in rejecting this defense.

       The evidence was sufficient to support the defendant’s convictions. This

issue is without merit.



                                  SENTENCING



       The defendant alleges the trial court erred in sentencing him to the

maximum of twelve (12) years for the attempted second degree murder of

McCullough. The defendant further contends the trial court erred in ordering the

sentences for the attempted murder convictions to be served consecutively.



                              A. Standard of Review



       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is


                                         6
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of
       sentencing and arguments as to sentencing alternatives; (4) [t]he
       nature and characteristics 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 statements the defendant wishes to make in his
       own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence will be the

minimum sentence within the applicable range. See State v. Fletcher, 805

S.W.2d 785 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial

court should start at the minimum sentence, enhance the minimum sentence

within the range for enhancement factors and then reduce the sentence within

the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No

particular weight for each factor is prescribed by the statute, as the weight given

to each factor is left to the discretion of the trial court as long as its findings are

supported by the record. State v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v.

Santiago, 914 S.W.2d 116 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-

35-210 Sentencing Commission Comments. Nevertheless, should there be no

mitigating factors, but enhancement factors are present, a trial court may set the

sentence above the minimum within the range. Tenn. Code Ann. § 40-35-

210(d); see Manning v. State, 883 S.W.2d 635 (Tenn. Crim. App. 1994).




                               B. Length of Sentence



       The trial court in this case found three (3) enhancement factors. The

defendant does not raise this issue, but under our de novo review we will

consider them.

       First, the trial court found that Ms. McCullough’s personal injuries were

                                            7
particularly great. Tenn. Code Ann. § 40-35-114 (6). The court noted the

permanent physical damage as well as psychological problems the victim

suffered stemming from the shooting. We find this enhancement factor properly

applied.

       Second, the court found the defendant had no hesitation about

committing the offense when the risk to human life was high. Tenn. Code Ann. §

40-35-114 (10). This factor was improperly applied as high risk to human life is

inherent in an attempted second degree murder. See State v. Belser, 945

S.W.2d 776 (Tenn. Crim. App. 1996).

       Third, the court found the defendant willfully inflicted bodily injury on

another person. Tenn. Code Ann. § 40-35-114 (12). Bodily injury is not an

element of attempted second degree murder, therefore, the trial court properly

considered this enhancement factor. See State v. Freeman, 943 S.W.2d 25, 31

(Tenn. Crim. App. 1996).

       Although not found by the trial court, we note the defendant employed a

firearm in the commission of the attempted murder. Tenn. Code Ann. § 40-35-

114 (9). Since the use of a firearm is not an essential element of attempted

second degree murder, it may be considered as an enhancement factor. See

State v. Baxter, 938 S.W.2d 697, 705 (Tenn. Crim. App. 1996). This Court may

consider this factor even though not relied upon by the trial court. State v.

Pearson, 858 S.W.2d 879, 885 (Tenn. 1993).

       The defendant asserts the trial court failed to find the following mitigating

factors:

              (1) substantial grounds exist tending to excuse or
              justify the defendant’s criminal conduct, though failing
              to establish a defense (Tenn. Code Ann. § 40-35-113
              (3));

              (2) the defendant was suffering from a mental or
              physical condition that significantly reduced his
              culpability for the offense (Tenn. Code Ann. § 40-35-
              113 (8));

              (3) the defendant, although guilty of the crime,
              committed the offense under such unusual
              circumstances that it is unlikely that a sustained intent
              to violate the law motivated his conduct (Tenn. Code


                                          8
               Ann. § 40-35-113 (11));

               (4) the defendant has potential for rehabilitation
               (Tenn. Code Ann. § 40-35-113 (13));

               (5) the defendant has a good employment record
               (Tenn Code Ann. § 40-35-113 (13)); and

               (6) the defendant’s involvement in the crime may
               have been due, to some extent, to his use of alcoholic
               beverages in conjunction with controlled substances.
               (Tenn. Code Ann. § 40-35-113 (13)).


       The trial court considered these factors, but determined they did not

apply. Under the facts of this case, we find no error in the rejection of these

mitigating factors.

       Even though the trial court improperly applied one (1) enhancement

factor, that does not necessarily mean the defendant is entitled to a reduced

sentence. State v. Baker, 956 S.W.2d 8, 18 (Tenn. Crim. App. 1997). Under our

de novo standard of review, we have found three enhancement factors and give

great weight to them. We find the sentence of twelve (12) years to be

appropriate.



                            C. Consecutive Sentencing



       The defendant argues the trial court erred in ordering a consecutive

sentence. Specifically, he contends that the evidence did not establish that he is

a dangerous offender.

       Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115.

The trial court may order consecutive sentencing if it finds that one or more of

the required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn.

Crim. App. 1995). Further, the court is required to determine whether the

consecutive sentences (1) are reasonably related to the severity of the offenses

committed; (2) serve to protect the public from further criminal conduct by the

offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



                                          9
      The trial court found the defendant to be a dangerous offender with little

regard for human life. Tenn. Code Ann. § 40-35-115 (b)(4). Shooting at three

separate people, he injured two. One of the victims suffered severe injuries. All

three victims could have just as easily been killed by the defendant. We agree

with the trial court’s determination that the defendant is a dangerous offender.

      However, regarding findings under Wilkerson, the court found only that

the consecutive sentences are reasonably related to the severity of the offenses

committed. Nevertheless, under our power of de novo review, we find the

consecutive sentences necessary to protect the public from further criminal

conduct by the defendant and that cumulative sentences are congruent to

general principles of sentencing. We find the defendant was properly sentenced

to consecutive terms.




      For the reasons discussed above, the judgment of the trial court is

AFFIRMED.

                                                __________________________
                                                JERRY L. SMITH, JUDGE




CONCUR:




___________________________
PAUL G. SUMMERS, JUDGE



___________________________
DAVID G. HAYES, JUDGE




                                        10
