        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 15, 2009 Session

 STATE OF TENNESSEE v. MICHAEL AARON JENKINS AND PERLEY
                       WINKLER, JR.

               Direct Appeal from the Circuit Court for Monroe County
                       Nos. 07216 & 07217    Amy Reedy, Judge




               No. E2008-02321-CCA-R3-CD - Filed February 17, 2011


A Monroe County Circuit Court jury convicted the appellants, Michael Aaron Jenkins and
Perley Winkler, Jr., of two counts of attempted first degree premeditated murder and one
count of attempted aggravated arson. After sentencing hearings, Jenkins received an
effective seventeen-year sentence and Winkler received an effective forty-year sentence. On
appeal, the appellants contend that the evidence is insufficient to support the convictions and
that the trial court erred by prohibiting them from questioning one of the victims, David
Senn, about a prior felony conviction. In addition, Jenkins contends that the trial court
should have allowed him to cross-examine Senn in front of the jury about Senn’s
untruthfulness during an offer of proof, that the trial court should have granted his motion
to sever his trial from that of his codefendant, and that the State committed prosecutorial
misconduct during its closing argument. Winkler contends that the trial court erred by
allowing the State to question a second victim about a threatening message Winkler allegedly
left on a cellular telephone and that his sentence is excessive. After a review of the record
and the parties’ briefs, we conclude that the evidence is sufficient to support the convictions
and that the trial court properly sentenced Winkler. The appellants’ remaining issues are
waived because the appellants failed to provide an adequate record on appeal.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Kevin E. Miller, Madisonville, Tennessee, for the appellant, Michael Aaron Jenkins, and
Charles W. Pope, Jr., Athens, Tennessee, for the appellant, Perley Winkler, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; R. Steven Bebb, District Attorney General; and Andrew Freiberg,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        John David Senn testified that about 4:00 a.m. on April 17, 2007, he was awakened
by one of his pit bull dogs. Senn got up to let his dog outside, looked out the small window
in his back door, and saw two men in the yard. One man was standing behind Senn’s station
wagon and was pouring gasoline from a red gasoline jug onto the car. Senn said that the man
was standing “right there at my back door” and that he recognized the man as “Spanky,”
Michael Aaron Jenkins. Senn stated that the second man was standing behind Senn’s
Oldsmobile 442, that the man was wearing thick glasses, and that he recognized the man as
Perley Winkler, Jr. Senn said that the yard was well-lit by his back porch light and an
outdoor utility light, that he got a clear view of the appellants for about five seconds, and that
he saw Jenkins’ side profile and Winkler’s full face. Senn had seen the men one or two times
previously. He said Jenkins was wearing a baseball cap with a rebel flag on it and a black
jacket; he thought Winkler was wearing a black baseball cap. He said he had not given either
of them permission to pour gasoline on his cars.

        Senn testified that Jenkins dropped the gasoline jug and that the appellants ran into
the woods. Senn woke his girlfriend, Sherri Turpin, and told her to call the police.1 He said
he was “terrified” and grabbed his gun off the shelf above the stove. Senn walked onto the
back porch and began shooting into the woods. Senn said that he fired eight shots, emptying
the clip in his pistol, and that the gas fumes were burning his eyes. He said he heard a car
start on Niles Ferry Road and “take off.” Senn saw that the appellants had “gassed” his
jacuzzi, the back porch, the side of the house, and both cars. One of the Oldsmobile’s doors
was open, and gasoline had been poured inside the car. Senn had never had any personal
problems with either of the appellants. However, he said that Turpin’s family was involved
in an ongoing feud with Winkler and that Turpin’s brother, Steve Abercrombie, “had quite
a few problems” with Winkler. When the police arrived at the scene, Senn told them what
had happened and that Jenkins and Winkler were responsible. While Senn was talking with
the police, he drank a beer to calm his nerves. Later, he picked out the appellants’
photographs from a photograph array.


        1
         The victims were married after the events giving rise to this case but before trial. Since the
victims now share a last name, we will refer to Sherri Turpin Senn by her previous married name,
“Turpin,” for clarity.

                                                    -2-
       On cross-examination, Senn acknowledged that while Turpin was on the telephone
with the 911 operator, he was giving information to Turpin. He also acknowledged that
Turpin told the operator about only one man, described by Turpin to the operator as a person
“with coke bottle glasses.” Senn acknowledged that on the 911 tape, he could be heard
saying the man was wearing “black britches and a green shirt.” Senn told the police that one
of the men was wearing an Atlanta Braves baseball cap but testified at the preliminary
hearing that he saw a cap with a rebel flag on it. Regarding the man wearing the Atlanta
Braves cap, Senn told the police he saw the man’s “side view” for only two or three seconds.
Upon being questioned by defense counsel about these discrepancies, Senn explained, “It all
happened real fast.”

       Clara Hitson, the Department Head of Monroe County 911, testified that Sherri
Turpin’s 911 call was recorded. The State played the recording for the jury. During the call,
Turpin told the operator, “I seen a guy running with a gas jug and I think it was Junior
Winkler.” She also told the operator, “I think he was trying to burn me out”; “I’m the sister
of the guy he’s wanting”; and “To get to my brother he would hurt me.”

        Sherri Turpin Senn testified that in the early morning hours of April 17, 2007, she and
John Senn were asleep in her home at 608 Mason Road in Monroe County. About 4:00 a.m.,
Senn woke Turpin and told her to call 911. Turpin said Senn told her that “they are gassing
us” and that “I think it’s Perley.” Turpin looked out the kitchen window and saw a man
pouring gasoline from a red gasoline can onto their station wagon. However, his back was
toward her, and she could not identify him. Turpin said that while she was on the telephone
with the 911 operator, Senn went outside and “unloaded a full clip” from his nine millimeter
pistol. The yard was well-lit by a back porch light and a utility light. Turpin stated that at
some point, she went outside, and the smell of gasoline burned her eyes. She heard someone
running and heard a car start on Niles Ferry Road. Turpin said she did not give the appellants
permission to pour gasoline on her station wagon. She stated that she had owned the home
since 1994, that she was terrified to live in it after this incident, and that she and Senn moved
out the next day.

       Turpin testified that her family, particularly her brother, Steve Abercrombie, had been
in a feud with Perley Winkler since 1991. Turpin’s brother lived in a house about one
hundred yards away from Turpin’s house. One week before this incident, Turpin’s sister-in-
law, Lisa Abercrombie, played for Turpin a message Winkler had left on Abercrombie’s
cellular telephone. Turpin said that she grew up with Winkler, that she recognized his voice,
and that his message said, “You are going to die, you are going to burn.”

       On cross-examination, Turpin acknowledged that she never told the police about the
threatening message and that she incorrectly told the 911 operator she saw Winkler holding

                                               -3-
the gas can. She also acknowledged that the gas can was small, that it looked similar to gas
cans owned by Senn, and that it could have been one of Senn’s cans. Finally, she
acknowledged that she could not identify the appellants as the culprits of the crimes.

       Sergeant Darian Goodman of the Monroe County Sheriff’s Department testified that
he responded to Sherri Turpin’s 911 call and went to 608 Mason Road. When he arrived,
John Senn told him what had happened and identified one of the men as Perley Winkler.
Sergeant Goodman walked around the yard and saw a red gas jug on the ground. He also
saw an oil-based liquid on both cars and one corner of the home and noticed the strong smell
of gasoline. Senn was very excited and worried but did not appear to be intoxicated.
Sergeant Goodman stated that a back porch light was turned on and that he could see two
cars in the backyard. He explained, “I believe a reasonable person could at least identify
somebody from where those people were in the light that was coming off the porch light.”

       On cross-examination, Sergeant Goodman testified that the smell of an alcoholic
beverage was on Senn’s person. He thought Turpin gave him the name of the second
suspect, Michael Jenkins. Turpin did not tell Sergeant Goodman she had seen Winkler in the
yard. Officers brought police dogs to the scene, and the dogs tracked a scent from behind
one of the cars to Niles Ferry Road. However, the dogs lost the scent there.

       Detective Michael Morgan of the Monroe County Sheriff’s Department testified that
he was called to 608 Mason Road on April 17. The backyard was well-lit, and Detective
Morgan smelled gasoline. A red gas can was collected from the scene and sent to the
Tennessee Bureau of Investigation (TBI) Crime Laboratory for fingerprints and contents
analysis. Detective Morgan saw moist areas that smelled like gasoline on a car, the side of
the home, the back porch, and the ground. He stated that he talked with John Senn and that
Senn was “adamant” he had seen Perley Winkler. Detective Morgan said Senn saw Winkler
“head on” and “described the glasses and everything.” Senn also described a man known as
“Spanky,” who police later identified as Michael Jenkins. Detective Morgan also spoke with
Sherri Turpin. Detective Morgan stated that although Turpin “didn’t see much,” she claimed
to have seen a man from behind who she described as Winkler.

        On cross-examination, Detective Morgan testified that officers did not try to obtain
fingerprints off the cars and that they did not collect pieces of the home’s vinyl siding or deck
for testing. When asked why the police did not collect vinyl siding or soil samples for
testing, he said that “gas is gas. I smell gas, I know gas. Okay. So does the jury.” Before
dawn on April 17, Senn gave a statement, claiming that one of the suspects was wearing an
Atlanta baseball cap. Detective Morgan did not remember Senn saying anything about a hat
with a rebel flag on it. About 11:00 a.m., officers found Jenkins and Winkler at Josh
Murphy’s home. Detective Morgan acknowledged that he searched Murphy’s home and did

                                               -4-
not find an Atlanta baseball cap or a rebel flag cap. Detective Morgan also did not smell
gasoline on either of the appellants. He stated that he did not have their clothes tested for the
presence of gasoline but that they would have had time to discard their clothes after they
committed the crimes. When the police found Winkler, he was not wearing a green shirt or
black pants, and nothing indicated he had showered recently.

        Special Agent Forensic Scientist Laura Jane Hodge from the TBI Crime Laboratory
testified that she tested the substance in the red gasoline jug. The jug contained gasoline, a
flammable liquid. The parties stipulated that no fingerprints were recovered from the
gasoline jug. The State rested its case.

       Lieutenant Travis Jones of the Monroe County Sheriff’s Department testified for
Michael Aaron Jenkins that he was one of the first officers to arrive at 608 Mason Road on
April 17. He also was present at Josh Murphy’s house when officers found the appellants
there. A large Toyota pickup truck was parked at Murphy’s home. Lieutenant Jones did not
smell gasoline inside the truck. He searched Murphy’s house but did not find anything to
link the appellants to the crimes.

       On cross-examination, Lieutenant Jones testified that the truck appeared to have been
washed recently and that a water hose was lying on the ground next to it. When the police
found the appellants at Murphy’s home, one of them may have been wearing a navy blue,
almost black, baseball cap.

       Josh Murphy testified for Jenkins that Jenkins had been to Murphy’s home on the
night of April 16, 2007. About 1:30 a.m. on April 17, Jenkins and “[s]ome girl” left
Murphy’s house. About 6:00 a.m., Murphy drove to Jenkins’ house, picked up Jenkins, and
drove him back to Murphy’s house. About 10:30 a.m., Winkler arrived. The police came
to Murphy’s house about 11:30 a.m. and arrested the appellants. Murphy said that the police
asked him if the appellants had “bragged about doing anything the night before” and that he
told the police no. He acknowledged that Jenkins was his friend. On cross-examination,
Murphy testified that on the morning of April 17, Winkler was wearing a t-shirt and pants.
Winkler looked like he had just woken up, and Murphy did not smell gasoline on him.

      Patricia Ann Jenkins, Michael Aaron Jenkins’ mother, testified for him that on April
16, 2007, Tommy Giles and Michael were working on Patricia’s truck “[d]own the road”
from her home.2 About 11:00 or 11:30 p.m., Michael and Giles drove the truck to Patricia’s
house. Patricia then drove Michael to Josh Murphy’s home. She dropped him off and went


        2
        Because the witness and one of the appellants share the same last name, we will utilize their first
names for clarity.

                                                   -5-
to Walmart. When she returned home from Walmart about 1:30 or 2:00 a.m., Michael was
there. She said he asked to borrow her truck and “was high on something.” She would not
loan the truck to him but offered to drive him. She drove Michael to a house on Ballplay
Road, and she thought it was the home of Lola Lawson. Michael went inside the home, and
Patricia waited in her truck for him. About 3:30 a.m., she told Michael they needed to leave.
She drove him home, and he went directly to his bedroom. Patricia said she was afraid he
would take her truck, so she lay on the couch and “dozed in and out.” About 6:00 a.m.,
Murphy arrived, and Michael left with him. She said Michael did not have any contact with
Perley Winkler between 3:30 and 6:00 a.m. About 9:00 a.m., the police came to her home,
looking for Winkler. She said she loved her son but would not lie under oath for him.

        On cross-examination, Patricia acknowledged that after she took Michael to the house
on Ballplay Road, she waited in her truck about two hours. She said she did not want to
leave him there “because of the condition he was in.” She said she did not know what he was
doing in the house and did not check on him. About 4:00 a.m., Giles called her cellular
telephone to make sure she and Michael had arrived home. She said she did not pick up
Michael from Murphy’s house about 1:30 a.m. on April 17 and that he was already home
when she returned from Walmart about 1:30 or 2:00 a.m. When asked who could have
picked up Michael from Murphy’s home at 1:30 a.m., she said, “Well, he had a lot of
girlfriends.”

       Tommy Giles testified that on the night of April 16, he working on vehicles, including
Patricia Jenkins’ truck, outside of John Moses’ house on Ballplay Road. He said that he did
not know anyone with the last name “Lawson” and that Michael Jenkins was inside the
home, talking with “Don and Lola.” About 1:00 a.m., Giles telephoned Patricia Ann Jenkins
and told her Michael was too intoxicated to drive. Giles then drove Michael to Patricia’s
home, picked her up, and drove her back to the Moses home on Ballplay Road. Patricia
picked up her truck and drove Michael home. Giles said that about 4:00 a.m., he telephoned
Patricia to make sure she and Michael had arrived home, and Patricia told him Michael “had
done passed out.”

       On cross-examination, Giles testified that Patricia and Michael left the Moses home
about 2:30 or 3:00 a.m. When asked by the State if Patricia was already at the Moses home
and waiting in her truck for Michael, Giles said, “It could have been the next day.” Giles
said Michael “was pretty well intoxicated” but was able to walk and talk.

       Kathy J. Hawkins testified for Perley Winkler, Jr., that she was Winkler’s friend and
ate dinner with him on the evening of April 16. She dropped off Winkler at his house before
dark. Hawkins testified that during their time together, Winkler did not make any threats
toward anyone or give any indication he was planning something.

                                             -6-
        Chuck Burris, a licensed private investigator, testified for Perley Winkler, Jr., that he
went to 608 Mason Road on the afternoon of November 19, 2007, to serve process. The
driveway to the home was eighty to one hundred yards long and two signs were on the
property. One sign warned about security dogs, and the other sign said, “Danger, many
illegal activities in process, enter at own risk.” He said he could not get out of his car
because two pit bull dogs were tied near the house and a German Shepard mixed breed dog
was running unleashed in the yard. A car was parked in the yard, so Burris honked his car
horn several times. When no one responded, he left. Burris returned the next day about 3:30
a.m. He still was unable to get out of his car but pulled up to the Oldsmobile that was still
parked in the driveway. Using a laser, Burris measured from where Perley Winkler was
allegedly standing to the home’s back door. The distance was fifty-three yards. The only
light he saw was a porch light on the corner of the house, but the light was not turned on. He
said that if the bulb had cast any light toward the cars in the yard, “it wouldn’t be much.” On
cross-examination, Burris testified that the house was vacant and that he did not see a utility
light.

      The jury convicted the appellants of two counts of attempted first degree premeditated
murder and one count of attempted aggravated arson. After separate sentencing hearings,
Winkler received an effective forty-year sentence, and Jenkins received an effective
seventeen-year sentence.

        On appeal, the appellants contend that the evidence is insufficient to support their
convictions and that the trial court erred by prohibiting them from impeaching John Senn
with a prior conviction for felony reckless endangerment. In addition, Jenkins contends that
the trial court should have allowed him to cross-examine Senn in front of the jury about
Senn’s untruthfulness during an offer of proof, that the trial court should have granted his
motion to sever his trial from that of his codefendant, and that the State committed
prosecutorial misconduct during its closing argument. Winkler contends that the trial court
erred by allowing the State to question Sherri Turpin about the threatening message Winkler
left on Lisa Abercrombie’s cellular telephone and that his sentence is excessive.

       Jenkins’ issues regarding Senn’s untruthfulness during the offer of proof and
prosecutorial misconduct were not raised in his motion for new trial. Therefore, they are
waived. Tenn. R. App. P. 3(e). Moreover, the appellants failed to include the transcript from
the hearing on the motion for new trial in the appellate record. An appellant bears the burden
of preparing an adequate record for appellate review. State v. Ballard, 855 S.W.2d 557, 560
(Tenn. 1993). “Where the record is incomplete and does not contain a transcript of the
proceedings relevant to an issue presented for review, or portions of the record upon which
the party relies, an appellate court is precluded from considering the issue.” Id. at 560-61;
Tenn. R. App. P. 24(b). The absence of an adequate record prevents appellate review of

                                               -7-
issues except for sufficiency of the evidence and sentencing. See Tenn. R. App. P. 3(e).
Therefore, we must affirm the trial court’s rulings as to the remaining issues, and we discern
no plain error. See Tenn. R. App. P. 36(b).

                                         II. Analysis

                               A. Sufficiency of the Evidence

        The appellants argue that the evidence is insufficient to support their convictions and
that the trial court erred by refusing to grant their motions for judgment of acquittal.
Specifically, Jenkins refers to various inconsistencies in John Senn’s and Sherri Turpin’s
testimony and argues that their testimony was insufficient evidence for a jury to find him
guilty of the crimes. Similarly, Winkler contends that the victims’ “confusing” and
“contradictory” testimony is insufficient to support his convictions. In addition, he contends
that this court should reverse his convictions due to the lack of any physical evidence that
links him to the crimes. The State contends that the evidence is sufficient. We agree with
the State.

        When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate
view of the evidence and all reasonable or legitimate inferences which may be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the
credibility of witnesses and the weight and value to be afforded the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor
will this court substitute its inferences drawn from the circumstantial evidence for those
inferences drawn by the jury. Id. Because a jury conviction removes the presumption of
innocence with which a defendant is initially cloaked at trial and replaces it on appeal with
one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Generally, a motion for a judgment of acquittal made at the conclusion of the State’s
proof is waived by an appellant who chooses to present evidence on his or her behalf. State
v. Thomas, 158 S.W.3d 361, 387 (Tenn. 2005) (appendix). In any event, “[t]he standard by
which the trial court determines a motion for judgment of acquittal at the end of all the proof
is, in essence, the same standard which applies on appeal in determining the sufficiency of



                                              -8-
the evidence after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim.
App. 2000).

       As relevant to this case, “[a] person commits criminal attempt who, acting with the
kind of culpability otherwise required for the offense . . . [a]cts with intent to complete a
course of action or cause a result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-101(a)(3).
Under this definition of attempt, “[c]onduct does not constitute a substantial step . . . , unless
the person’s entire course of action is corroborative of the intent to commit the offense.”
Tenn. Code Ann. § 39-12-101(b).

        First degree murder is the premeditated and intentional killing of another person.
Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). The element of
premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Our
supreme court has delineated several circumstances from which a jury may infer
premeditation, including, but not limited to, declarations of the intent to kill, evidence of the
procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the particular
cruelty of the killing, preparations before the killing for the purpose of concealing the crime,
and calmness immediately after the killing. Id.

       A person commits arson when he or she “knowingly damages any structure by means
of a fire or explosion . . . [w]ithout the consent of all persons who have a possessory,
proprietary or security interest therein.” Tenn. Code Ann. § 39-14-301(a)(1). Arson is
aggravated when “one or more persons are present” in the structure. Id. at 302(a)(1).

        Taken in the light most favorable to the State, the evidence, while not overwhelming,
is sufficient to support the convictions for attempted premeditated murder. Senn testified that
he saw Jenkins pouring gasoline onto one of his cars and that Winkler was standing nearby.
Upon being discovered by Senn, the appellants ran off together into the woods. When the
police arrived, they found that gasoline had been poured onto the corner and rear deck of the
victims’ home. Later that morning, the police found the appellants together at Josh Murphy’s
house. Turpin testified that her family had been feuding with Winkler for a long time and
that just one week before the crimes, he left a message on her sister-in-law’s cellular
telephone threatening, “You are going to die, you are going to burn.” The Abercrombies
lived next door, one hundred yards from Turpin’s home. From this evidence, a jury could
rationally conclude that the appellants intended and premeditated killing the victims by

                                               -9-
burning their home. The act of pouring the gasoline onto the home served as a substantial
step toward the commission of the murders and is corroborative of the appellants’ intent.

       The evidence also is sufficient to support the appellants’ convictions for attempt to
commit aggravated arson. The evidence described above provides the basis to support their
attempted aggravated arson convictions. In addition, Senn and Turpin testified that they did
not give the appellants permission to pour gasoline on the property. Winkler contends that
the State failed to prove the consent element of the crime. Specifically, he argues that
although Senn testified he did not give consent, “the other relevant parties, including those
with a possessory or security interest, did not testify as to this necessary element.” We
construe Winkler to be arguing that the State was required to prove that everyone who had
a possessory interest in the property failed to give consent to burning the property. This issue
has no merit.

        First, the evidence at trial did not suggest that anyone other than Turpin and Senn had
a possessory interest in the home. Senn testified that when he saw the appellants dousing his
vehicles with gasoline, he was “terrified.” Turpin testified that the appellants’ actions made
her afraid to live in the home and that she and Senn moved out the next day. Both of them
said they did not give the appellants permission to pour gasoline on their cars, and the jury
could reasonably infer from their testimony that both of them also did not give the appellants
permission to pour gasoline on their home, jacuzzi, and deck. In any event, the appellant has
misconstrued the statute. As stated previously, a person commits arson when he knowingly
uses fire to damage a structure “[w]ithout the consent of all persons who have a possessory,
proprietary or security interest therein.” Tenn. Code Ann. § 39-14-301(a)(1). In order to
satisfy the consent element, the State was required to prove that only one person with a
possessory interest in the property did not consent to burning it. If one person did not give
consent, then, obviously, “all persons” who had an possessory interest did not give consent.
Therefore, even if Senn had been the only person to testify that he did not give consent, his
testimony alone would have satisfied that element of the crime. The appellants are not
entitled to relief on this issue.

       Finally, Winkler contends that no direct or physical evidence links him to the crimes.
We note that although Senn was the only witness who identified the appellants as the
culprits, his eyewitness testimony is direct evidence of their guilt. See State v. Jovan Xavier
Moore, No. M2007-02515-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 732, at **10-11
(Nashville, Sept. 16, 2008). In our view, the appellants’ primary challenge to the sufficiency
of the evidence is that inconsistencies in Senn’s testimony seriously call into question his
credibility and, therefore, the adequacy of his identification of the appellants. However,
defense counsel cross-examined Senn extensively regarding the inconsistencies between his
and Turpin’s trial testimony, between his trial and preliminary hearing testimony, and

                                              -10-
between his trial testimony and statements he made to police. As we have stated, the jury,
not this court, determines the credibility of the witnesses and the weight and value to be
given their testimony. The jurors, as they were free to do, chose to accredit the evidence
presented by the State.

                                  B. Winkler’s Sentencing

       Winkler contends that his effective forty-year sentence is excessive because the trial
court failed to apply mitigating factors, gave too much weight to enhancing factors, and
improperly ordered him to serve his sentences for attempted murder consecutively. The State
argues that the trial court properly sentenced Winkler. We agree with the State.

         At Winkler’s sentencing hearing, Danny Isbill of the Tennessee Board of Probation
and Parole testified that he prepared the appellant’s presentence report. He said that in the
appellant’s statement for the report, the appellant denied committing the crimes. Isbill
compiled the appellant’s prior criminal history for the report. He said the appellant had prior
misdemeanor convictions for unlawful possession of a weapon, possession of a handgun
while under the influence of a drug, possession of drug paraphernalia, possession of a
prohibited weapon, vandalism, evading arrest, second offense driving under the influence,
and fourth offense driving on a revoked license. Isbill explained that the appellant had
several other misdemeanor convictions and “some were prior to the computer program and
. . . could not be found.” He stated that the appellant also had felony convictions for simple
burglary, possession of a weapon by a convicted felon, and two counts of aggravated assault.
The appellant’s criminal history dated back to 1990, and he served time in the Tennessee
Department of Correction (TDOC) for some of the offenses. On cross-examination, Isbill
stated that he had known the appellant since the appellant was twelve years old and that “I’ve
never had any problems with him.”

       Lieutenant Travis Jones of the Monroe County Sheriff’s Department testified that the
appellant was on bond for child abuse, marijuana possession, and gun charges when he
committed the crimes in this case. When asked about the appellant’s reputation, Lieutenant
Jones said that “from what I understand he’s a dangerous man.” He stated that the trial court
should give the appellant the maximum sentences because “I’m afraid when he gets out he
may try to kill someone, or kill someone.” On cross-examination, Lieutenant Jones
acknowledged that he had not had much personal contact with the appellant and said that he
was basing his opinion of the appellant on “the reputation from other officers.”

       Sergeant Larry Lynn of the Monroe County Sheriff’s Department testified that he was
the shift supervisor at the county jail and that the appellant had been a resident in the jail
since April 2007. He said the appellant “would get some of the other inmates agitated, . . .

                                             -11-
kick on the door, curse officers, threaten officers, [and] yell obscenities at females that work
in the facility.” He said the appellant also had threatened his life and the life of another
officer. He said that the appellant would get very agitated and that it usually took quite some
time to calm him. He stated that the appellant’s behavior was atypical of most other inmates
and that “[h]e will be calm one minute and the next minute kicking the door, screaming,
yelling and cussing, and none of the other males, females included, they just don’t do it.” On
cross-examination, Sergeant Lynn acknowledged that the appellant took medication but said
that he did not know the name of medication. He acknowledged that the appellant’s behavior
had improved lately.

       The then thirty-five-year-old appellant testified that he was only sixteen years old
when he was charged with his first traffic offense and that he was “high” when he committed
the aggravated assaults. The appellant had a drug problem previously but no longer used
alcohol or drugs. He explained that “I’ve done a lot of things in my life but this I didn’t do.”
He said that he had not been in a feud with Steve Abercrombie and that he had seen Sherri
Turpin only one time since he was in the seventh grade. He said Turpin lied about him
leaving a threatening telephone message on Lisa Abercrombie’s telephone. He then
addressed the trial court as follows:

              You heard the whole thing and when the jury wasn’t around.
              You are up there and so I assume you are not illiterate to people
              lying or whatever. I believe you’ve got enough sense to know
              when somebody is lying. You heard all of it. I mean that’s all
              I can say.

       The State introduced the appellant’s presentence report into evidence. In addition to
the prior convictions described by Danny Isbill, the report shows that the appellant received
his GED in 1994 while in the TDOC and successfully completed a treatment program in the
Alternatives to Violence Project in 2002. In the report, the appellant described his mental
health as “good” but said he was taking medication for anxiety. He also described his
physical health as “good” but said he was taking Zantac and naproxen for various medical
conditions. The appellant stated in the report that he used marijuana as a teenager. The
appellant claimed in the report that he had worked as a block mason or laborer since 2004
but did not provide any contact information to verify his employment.

        The trial court applied enhancement factor (1), that the appellant has “a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range,” to the appellant’s sentences. Tenn. Code Ann. § 40-35-
114(1). The trial court also applied factor (8), that he “failed to comply with the conditions
of a sentence involving release into the community.” Tenn. Code Ann. § 40-35-114(8). The

                                              -12-
court applied no mitigating factors. For each attempted murder conviction, a Class A felony,
the trial court sentenced the appellant as a Range I, standard offender to twenty years, to be
served consecutively. See Tenn. Code Ann. § 40-35-112(a)(1). For the attempted arson
conviction, a Class B felony, the trial court sentenced him as a Range II, multiple offender
to fifteen years, to be served concurrently, for an effective sentence of forty years. See Tenn.
Code Ann. § 40-35-112(b)(2).

       Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;
(5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that
the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

       The appellant argued at his sentencing hearing and on appeal that the trial court should
have applied mitigating factors (1), that his criminal conduct neither caused nor threatened
serious bodily injury, and (4), that he played a minor role in the commission of the offenses.
See Tenn. Code Ann. § 40-35-113(1),(4). We disagree. The evidence at trial showed that
Winkler, with Jenkins’ help, attempted to burn down John Senn’s and Sherri Turpin’s home
while they were inside and that the appellants took a substantial step to commit the crimes
by pouring gasoline on the home. The crime indeed threatened serious bodily injury. The
evidence also showed that Winkler, not Jenkins, harbored ill-will for the victims or their
family and that he threatened to kill and burn members of the family just one week before
the crimes. The mere fact that Jenkins was the only person seen pouring gasoline on the cars
does not convince us that the appellant played a minor role in committing the offenses.
Therefore, the trial court properly refused to apply mitigating factors (1) and (4).

       The appellant does not contest the applicability of the two enhancing factors. Instead,
he contends that the trial court gave too much weight to the factors. However, the weighing
of mitigating and enhancing factors is left to the trial court’s sound discretion. State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

                                              -13-
        Finally, the appellant claims that the trial court improperly ordered him to serve the
sentences for attempted murder consecutively. A trial court may order that multiple
sentences be served consecutively if it finds by a preponderance of the evidence that the
defendant is “an offender whose record of criminal activity is extensive” or “a dangerous
offender whose behavior indicates little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-
115(b)(2), (4). In order to support consecutive sentencing based upon a defendant’s being
a dangerous offender, a court must find that “(1) the sentences are necessary in order to
protect the public from further misconduct by the defendant and (2) ‘the terms are reasonably
related to the severity of the offenses.’” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim.
App. 1996) (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). Moreover, trial
courts must make specific findings regarding these Wilkerson factors before imposing
consecutive sentences. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). “Whether sentences
are to be served concurrently or consecutively is a matter addressed to the sound discretion
of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

       In ordering consecutive sentencing, the trial court stated as follows:

              The defendant is an offender whose record of criminal activity
              is extensive. I do find that. . . . The defendant is a dangerous
              offender whose behavior indicates little or no regard for human
              life, no hesitation about committing a crime in which the risk to
              human life is high, and if the Court finds that I must find all
              three of the following: the circumstances surrounding the
              commission of the offense are aggravated; confinement for an
              extended period of time is necessary to protect society from the
              defendant’s unwillingness to lead a productive life, and the
              defendant resorts to criminal activity in furtherance of an anti-
              social lifestyle; and the length of the sentence reasonably relates
              to the offense of which the defendant stands convicted. These
              are extremely serious offenses for which he stands convicted.
              The victims . . . fled their home. I can’t think of anything that
              someone does that infers any stronger their absolute fear. So
              with that said I do find that Mr. Winkler is a dangerous offender
              whose behavior indicates little or no regard for human life and
              no hesitation about committing a crime in which the risk to life
              is high, and I find all three of those factors. Also when I look at
              the prior convictions he has for aggravated assault it’s clear to
              me that nothing that has happened in the past, even going to
              prison, has sent a message to Mr. Winkler, and so I will concern

                                             -14-
              myself with the community that we live in. I will [run]
              convictions one and two consecutively for forty years.

       The appellant’s extensive criminal history alone was enough to warrant consecutive
sentencing in this case. Moreover, in finding the appellant to be a dangerous offender, the
court specifically addressed the Wilkerson factors. The court’s findings are supported by the
record and are more than adequate to support consecutive sentencing. The trial court
properly sentenced Winkler to forty years in confinement.

                                     III. Conclusion

        Based upon our review of the record and the parties’ briefs, we affirm the judgments
of the trial court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




                                            -15-
