         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 14, 2004 Session

                STATE OF TENNESSEE v. BRANDON WALLACE

                    Appeal from the Circuit Court for Lauderdale County
                        No. 7346-D    Joseph H. Walker, III, Judge



                   No. W2003-01967-CCA-R3-CD - Filed January 28, 2005


The defendant, Brandon Wallace, was convicted by a jury of two counts of attempted first degree
murder (Counts 1 and 2); attempted second degree murder (Count 3); attempted especially
aggravated robbery (Count 4); especially aggravated burglary (Count 5); and felony reckless
endangerment (Count 6). He was sentenced as a Range I, standard offender to twenty-three years
in the Department of Correction for Counts 1 and 2, to be served consecutively; ten years for Count
3, to be served concurrently with Counts 1 and 6; ten years for Count 4 which the trial court merged
with Count 5, for which he also was sentenced to ten years, to be served consecutively to Count 1
and concurrently with Count 2; and two years for Count 6, to be served concurrently with Counts
1 and 3, for a total effective sentence of forty-six years. Additionally, the jury set fines totaling
$138,000, which were reduced by the trial court to $1,000. The defendant raises two issues on
appeal: (1) whether the evidence was sufficient to support his convictions, excluding his felony
reckless endangerment conviction; and (2) whether the trial court erred in sentencing. Following our
review, we affirm the judgments of the trial court but remand for resentencing and for entry of
corrected judgments reflecting the offense date as July 1, 2002.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and
             Remanded for Resentencing and Entry of Corrected Judgments

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

William Dan Douglas, Jr., Ripley, Tennessee, for the appellant, Brandon Wallace.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                                         BACKGROUND

        On July 1, 2002, the defendant and two codefendants, Maurice Garrett and William Bumpus,
forced their way into a mobile home in Lauderdale County, intending to rob the owner, Jerome
Eisom, of drugs and money. A third codefendant, Tyrese Smith, waited in the driver’s seat of the
getaway car. A struggle ensued inside the home, and Eisom was shot four times while a visitor in
the home, Bobby Harrell, was shot twice. Eisom’s live-in girlfriend, Deborah Macklin, was chased
by the defendant out of the house, as well as chased and shot at by the driver of the car, but she was
not hit. Candi Bynum, a seventeen-year-old cousin of Eisom, and four-year-old Jeremecia Eisom
and nine-month-old Jerome Eisom, Jr., the children of Eisom and Macklin, were in the home at the
time but were not injured. The defendant and his codefendants fled the scene in the getaway car and
three of them, including the defendant, were arrested near Brownsville a short time later.

       At trial, Kenan Parker identified his blue 1984 Chevrolet Caprice with brown doors from a
photograph shown to him by the State. Parker said he loaned his car to Tyrese Smith’s sister on July
1, 2002, and saw the defendant, Smith, Garrett, and Smith’s sister leave Dyersburg in his car that
day.

         Bobby Harrell testified that he and his cousin, Jerome Eisom, were in the back bedroom of
Eisom’s home on July 1, 2002, playing video games. Someone knocked at the door and Eisom went
to answer it. When Eisom opened the door, Harrell heard a gunshot but thought it “sounded like a
cup or something fell in the kitchen.” He testified, “[W]hat got my attention was when somebody
hollered, like, ‘Uh-uh,’ and I looked down the hallway, and that’s when I seen [sic] some guys run
in, some guys runs [sic] in with masks and stuff.” Harrell attempted to climb out a bedroom
window, but Eisom and Garrett came into the bedroom, “scuffling” and “fighting.” Garrett was
firing his gun as Eisom was holding Garrett, “trying to get them to shoot everywhere but him.”
During the melee, Garrett’s mask came off and he began yelling, “Kill this nigger, kill this nigger.”
At that time, Bumpus entered the room, pointing his gun at Eisom. Harrell struck Bumpus with a
lawn chair, knocking the gun from Bumpus’ hand. Bumpus and Harrell struggled for possession of
the gun, at which time Bumpus yelled to the defendant, “Kill this nigger. He got my gun. Kill this
motherfucker.” A bullet fired by Bumpus entered Harrell’s back left shoulder and lodged behind his
heart. The defendant then shot Harrell in the left buttock, “which put seven holes in [his] small
intestine” and left him with a colostomy bag. Harrell testified that, while in the hospital in Memphis,
he identified the defendant from a photographic line-up. He explained how he was able to recognize
the defendant, who was masked during the attacks: “We had eye contact, and, you know, he was the
tallest one, and his braids was [sic] hanging down over the stocking cap. . . . The mask that he had
on, it was like right here, like where his nose was, I guess, and then he had the stocking cap like on
his forehead. So you know what I’m saying, we had eye contact right before he pulled the trigger
at me.” Harrell stated he knew Garrett from “a long time ago, a while back,” but had never met the
defendant before that day.



                                                 -2-
        Haywood County Sheriff’s Investigator Mark Williams testified that at about 5:00 p.m. on
July 1, 2002, he heard a BOLO (“be on the lookout”) over the police radio for a “box-type Chevy
with different-colored doors.” About twenty minutes later, he spotted the vehicle, occupied by three
African-American males, on Highway 87 in Durhamville, began following it, and was eventually
joined by other deputies. They followed the vehicle to the Brownsville city limits, where a roadblock
had been set up, made a felony stop, and arrested the occupants of the vehicle, which included the
defendant. At the time of his arrest, the defendant was wearing an orange cloth glove on his right
hand. The deputies also found other gloves, nylon stockings, head scarfs, and an orange bandana
in the vehicle, along with four pistols. A “Heritage Rough Rider .22 long rifle revolver” was found
in the backseat where the defendant had been sitting, and a “Jennings .22 auto, with one clip in it”
was found on the back floorboard.

       Lauderdale County Chief Deputy Ted Sutton testified that he and the sheriff were en route
to Eisom’s residence when they learned the getaway vehicle had been stopped near Brownsville.
The defendant, Smith, and Bumpus were arrested and transported separately to the Lauderdale
County Jail. Sutton said that the defendant was wearing an orange glove at the time of his arrest,
which was recovered from the defendant’s jail cell later in the day by another officer.

        Ripley Police Officer James Smith testified that he was serving a warrant on an inmate in the
Lauderdale County Jail when he overheard Chief Deputy Sutton and the sheriff discussing an orange
glove, which apparently had not been recovered, worn by the defendant. Smith entered the
defendant’s jail cell and found an orange cotton glove rolled up and pressed into the toilet paper
holder, hidden by a wad of toilet paper.

       Jerome Eisom testified that when he had opened his front door, he saw a blue car sitting in
the middle of the road and “two guys were like standing at the corner of the door.” One pointed a
gun at Eisom, who tried to grab it, but the gun fired and struck Eisom. Then, according to his
testimony, “this tall guy comes over the top and shoots me in the shoulder, and so I let the gun go.”
He and the first man began wrestling down the hallway and ended up in the bedroom. Eisom
described the second man who shot him as wearing an “orange bandana, and, you know, he was just
gun-crazy, gun-happy and all that. He was just shooting and bouncing around and his little bandana
flopping. And he had braids, long braids, and real tall.” Eisom identified the defendant in the
courtroom as the second man who shot him. He also explained how the three assailants “worked
together:”

               A. They were – well, for instance, [Garrett], one of the guys that I
               knew, the first guy that his bandana came off, when he dropped his
               gun, he was telling the other guys, “Come get him. Come get my
               gun,” you know, “They got me.” And then the other guy would rush
               in, you know, and help him out, shoot, whatever he had to do to, you
               know, assist him.




                                                -3-
                    And then they would tell, “Well, there’s one gone that way.
               You chase her,” and all that. But it was just real –

               Q.     Was there any foul language being shouted out?

               A. Yeah, they were hollering, “Kill this motherfucker. Kill these
               niggers,” and all this crazy –

               Q.     Were they saying it really fast or really slow?

               A. Loud and fast, because it was happening so fast, you know.
               They didn’t want us to get their guns, you know, so we could protect
               ourselves.

               ....

               Q.     Okay. All right. How many times were you shot?

               A.     Four.

Eisom explained that he and Harrell “just laid out like we were dead so they wouldn’t shoot us
anymore.” He testified he was able to identify Bumpus in a photographic line-up because of his “bad
eye” and Garrett because Garrett’s brother at one time had dated Eisom’s cousin. He also recalled
an orange bandana, “a lot of pantyhose,” some orange gloves, and pistols. Eisom said there were no
guns, drugs, or money in his home. On cross-examination, he admitted that he initially failed to tell
the deputies that he knew Garrett.

         Timothy Green testified he lived with his grandmother across the street from Eisom, his
cousin. On July 1, 2002, he saw a “two-tone four-door” Chevrolet car pull up at Eisom’s house and
an African-American male, who was wearing a stocking cap, force his way into Eisom’s home.
Green went inside to call the police and, when he came back outside, saw Deborah Macklin running
around the house. The driver of the getaway car “took off like he was going to run into her. And
then a person in the car stuck his hand out the window and shot four times.” Green then helped
Macklin inside his house. He said he thought there were four African-American men in the car when
it left.

        Deborah Macklin testified that when she saw two masked African-American males force
their way into her home, she ran out the back door. She did not recall if anyone was behind her but
remembered that the car tried to run over her and that she ducked down as someone shot at her. She
recalled hearing someone say, “Shoot her, shoot her,” as she was running outside.

       Ira Lee Welch testified concerning conversations he overhead while he was an inmate in the
county jail in July 2002. He heard some men say that “they should have killed Hushpuppy” or


                                                 -4-
“Puffy.” Welch acknowledged telling Investigator Terry Davis that the defendant told another
inmate and a jailer that “[he] should have killed Puffy Jerome Eisom that day while [he] was out
there.” He also acknowledged that Eisom is his cousin.

         Special Agent Shelly Betts of the Tennessee Bureau of Investigation Crime Laboratory
testified regarding the various ballistics tests she performed on bullets and shell casings recovered
from the crime scene, as well as the guns found in the getaway car. She identified the guns as a
Bryco Arms Jennings semiautomatic .22 long rifle caliber pistol, a four-shot .22 caliber Derringer,
a Heritage Rough Rider .22 long rifle caliber revolver, and a Smith and Wesson .38 special caliber
revolver. She compared the slug recovered from the living room wall in Eisom’s house to bullets
fired through the pistols and determined that the slug, as well as a cartridge case found on Eisom’s
front porch, had been fired by the Bryco Jennings semiautomatic pistol. Another cartridge case
recovered from Eisom’s front porch matched the four-shot Derringer. Agent Betts said that other
testing on the weapons “failed to reveal the presence of identifiable latent fingerprints.”

       Codefendant William Bumpus, testifying for the State, said that the first time he met the
defendant was on July 1, 2002. He was arrested with the defendant and pled guilty to the attempted
second degree murder of Eisom, Macklin, and Harrell, as well as especially aggravated burglary,
felony reckless endangerment, and attempted especially aggravated robbery. On the day of the
crimes, the defendant, Smith, and Garrett picked up Bumpus at his house and proceeded to Eisom’s
home in order to commit a robbery of “money and drugs.” In the car, Garrett talked about the drugs
and money they could steal at Eisom’s house:

                     Basically, [Garrett] was talking about he knew where he could
               go get $10,000 – where we could go get $10,000 and some marijuana,
               so many pounds of weed. And it was like it’s at Jerome Eisom’s
               house. And I knew him as Puffy. I didn’t know him, but I’ve heard
               of him before. And we was on our way there. And then, when we
               got to Halls, I had second doubts about it. But they wouldn’t stop the
               car and let me out, so we proceeded.

Bumpus stated there were “four or five” loaded guns in the car at the time. At Eisom’s residence,
Garrett and the defendant got out of the car, ran up to the house, knocked on the door, and ducked
down. When Eisom opened the door, they forced their way in and Bumpus heard gunshots. Smith
then told Bumpus to go inside:

               So I grabbed my gun, and I go in, and I go straight to the back. And
               as I’m going in the house, I see a shadow running out the back door.
               I couldn’t see who it was. But I immediately ran to the back where
               [Garrett] and [the defendant] was [sic]. [The defendant] had passed
               me on the way to going to the back room where [Garrett] was already
               at. And then, as I went in, I could see two dead – I mean, I thought
               they were dead. I could see two bodies laying on their stomachs,


                                                -5-
               laying on the ground, just laying there. I didn’t know if they were
               dead or what. And I dropped my gun and fell to my knees. And then
               [Eisom], he turns around on his stomach and grabs my hand, and we
               get to wrestling. I was scared then. And [Harrell], he does the same.
               We get to wrestling for my gun. I yelled for help. [The defendant]
               and [Garrett] come back in and shoot him, and then I just grabbed my
               gun and we all left.

Bumpus said that Garrett had “the .380,” that the defendant had “a .22,” and that “over three or four”
shots were fired in the back bedroom. Bumpus described the bandana and pantyhose masks they
wore as a “last-minute thing” and recalled the defendant’s wearing an orange glove as well. He also
related the defendant’s statements to him in the getaway car after the incident regarding the
attempted murder of Macklin:

               Q   How did you find out that [the defendant] ran after Deborah
               Macklin outside the house?

               A     Oh, he told me in the car.

               Q     All right. So the defendant, Brandon Wallace, told you in the
               car that he ran after Deborah, ran her outside the house; is that
               correct?

               A     Yes, ma’am.

               Q    Did he also tell you what happened once he ran her outside the
               house and the car was outside?

               A     Uh –

               Q     Who was left in the car outside?

               A     Tyrese Smith.

               Q    All right. Once [the defendant] ran after [Macklin] outside,
               what did [the defendant] tell you happened at that time?

               A     He told [Smith] to shoot at her.

               Q     Okay. So, “Shoot her, shoot her,” was something that he said;
               is that correct?

               A     Yes, ma’am.


                                                  -6-
       When they left the scene, Garrett was driving but later stopped the car and got out, taking the
.380 weapon with him. Smith began driving and, shortly thereafter, Bumpus, Smith, and the
defendant were stopped and arrested near Brownsville. On cross-examination, Bumpus testified that
the gun he used on July 1, 2002, was “a .22 with four barrels” that would not fire. He denied firing
any shots in the back bedroom or on the front porch.

        Candi Bynum testified that she was in the living room when three masked African-American
men ran in the house and began shooting. Eisom struggled with the first man who came in, and the
second man tried to help the first and then chased Macklin out the back door. She identified the
defendant in court as the second man. She said she hid behind the couch with Jerome Eisom, Jr.,
but Jeremecia Eisom got away from her during the incident. She saw the defendant when he came
back in the home after chasing Macklin and remembered him having braids.

       Lauderdale County Sheriff’s Investigator Terry Davis testified he responded to the scene of
the shooting where he took photographs and collected evidence, including .22 casings from the front
porch and .380 casings from the hallway and bedroom floor. He also took a statement from the
defendant after his arrest. After Davis read the defendant his Miranda rights and asked him about
the shooting, the defendant began yelling, “F-that, F-this, F-that,” so Davis left and returned later.
Davis again read the defendant his Miranda rights, and the defendant wrote and signed a statement
admitting to being present at Eisom’s home but denying that he did any shooting:

               I was asked to ride to Ripley and since I had nothing to do I rode
               along. In Ripley we went to some trailer on a back road. Who lived
               there I do not know. At the trailer I went inside after some guy had
               opened the door. One of the woman [sic] ran out the back and I
               followed her but I didn’t touch her. Outside of the trailer I heard
               gunshots and ran back in to see who was shot. I didn’t see anyone
               shot at the time because 2 guys were on top of each other. I then left
               the trailer. I didn’t know anyone was going to be shot and I do not
               know who shot who.

       The defendant did not testify or present any proof.

                                       Sentencing Hearing

       Darrell Smothers, who prepared the defendant’s investigation report, testified that the
defendant was released from the custody of the Department of Children’s Services on his nineteenth
birthday on June 14, 2002, and arrested for the present offenses on July 1, 2002. As a juvenile, the
defendant had been adjudicated guilty of aggravated assault in Shelby County in 1997 and two
counts of aggravated robbery in Dyer County in 2000. The defendant had been in the Department
of Children’s Services foster care since the age of seven or eight as a result of his parents’
incarceration, and had been hospitalized in 1990 or 1991 for depression and behavioral problems.


                                                 -7-
        Gloria Harrell, Bobby Harrell’s mother, testified concerning the injuries her son sustained
as a result of the shooting. He was airlifted to the Regional Medical Center in Memphis where he
underwent surgery to remove much of his small intestine because the bullet that struck him in the
buttock “put seven holes in his small intestines.” He had a colostomy bag after the surgery which
was later removed following reconstructive bowel surgery. Ms. Harrell said her son still has a bullet
lodged in the muscle behind his heart which cannot be removed and which could cause his death if
it moved forward. As a result of his injuries, Harrell suffers constant pain and cannot “do any factory
work” or play with his young son. Ms. Harrell said that her son’s hospital bill amounted to almost
$30,000 and that his medical treatment was ongoing.

        At the conclusion of the hearing, the trial court applied enhancement factor (3), the defendant
was a leader in the commission of an offense involving two or more criminal actors, to Counts 1, 2,
4, and 5 and enhancement factor (21), the defendant was adjudicated to have committed delinquent
acts as a juvenile that would constitute felonies if committed by an adult. See Tenn. Code Ann. §
40-35-114(3), (21) (2003). The court did not apply any mitigating factors and sentenced the
defendant to twenty-three years in Count 1, twenty-three years in Count 2, ten years in Count 3, ten
years in Count 4, ten years in Count 5, and two years in Count 6. The court merged Counts 4 and
5 into one conviction. Counts 1, 3, and 6 were ordered to be served concurrently, and Counts 2, 4,
and 5 were ordered to be served consecutively to the other counts.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

       The defendant contends that the evidence was insufficient to support any of his convictions
except that for felony reckless endangerment.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing 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, 61 L. Ed. 2d 560, 573 (1979); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State
v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.
Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:




                                                  -8-
                      This well-settled rule rests on a sound foundation. The trial
                judge and the jury see the witnesses face to face, hear their testimony
                and observe their demeanor on the stand. Thus the trial judge and
                jury are the primary instrumentality of justice to determine the weight
                and credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        First degree murder is defined as the “premeditated and intentional killing of another.” See
Tenn. Code Ann. § 39-13-202(a)(1) (1997). Premeditation "is an act done after the exercise of
reflection and judgment. 'Premeditation' means that the intent to kill must have been formed prior
to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for
any definite period of time." Id. § 39-13-202(d). Intentional "refers to a person who acts
intentionally with respect to the nature of the conduct or to a result of the conduct when it is the
person's conscious objective or desire to engage in the conduct or cause the result." Id. §
39-11-302(a).

       The existence of premeditation is a question for the jury and may be inferred from the
circumstances surrounding the killing. See State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App.
1993). Because the trier of fact cannot speculate as to what was in the defendant's mind, the
existence of facts of premeditation must be determined from the defendant's conduct in light of the
surrounding circumstances. See State v. Hall, 958 S.W.2d 679, 704 (Tenn. 1997). Several relevant
circumstances have been held to provide the requisite indicia of premeditation:

                (1) the use of a deadly weapon upon an unarmed victim;
                (2) the particular cruelty of the killing;
                (3) declarations by the defendant of an intent to kill;
                (4) evidence of procurement of a weapon;
                (5) preparations before the killing for concealment of the crime; and
                (6) calmness immediately after the killing.

State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997); State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. West, 844 S.W.2d 144, 148
(Tenn. 1992)). Additionally, a jury may infer premeditation from the defendant’s planning activities
prior to the killing and prior relationship with the victim, as well as the nature of the killing. Gentry,
881 S.W.2d at 4-5.



                                                   -9-
        The essential elements of the crime of attempted first degree murder include the statutory
elements of criminal attempt as set out in Tennessee Code Annotated section 39-12-101. The crime
is defined as "an offense directed at the individual whose intent is to commit an offense, but whose
actions, while strongly corroborative of criminal intent, fail to achieve the criminal objective
intended." Tenn. Code Ann. § 39-12-101, Sentencing Commission Cmts. The three subdivisions
of section 39-12-101(a) set out "alternative statutory tests for determining if a course of conduct that
does not produce a proscribed harm can be classified as an attempt to commit an offense." Id. Those
alternative tests are:

               (a) A person commits criminal 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, and believes the conduct will cause the result without further
               conduct on the person's part; or

                     (3) Acts 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).

        The Sentencing Commission Comments to section 39-12-101(a)(2) note that "[i]f an offense
is defined in terms of causing a certain result, an individual commits an attempt at the point when
the individual had done everything believed necessary to accomplish the intended criminal result."

        Taken in the light most favorable to the State, the evidence shows that the defendant forced
his way into the victim’s home intending to rob the victim of drugs and money. Unprovoked, the
defendant shot two unarmed victims. Proof at trial showed the defendant planned the criminal
venture with his codefendants as they traveled with loaded weapons in the car from Dyersburg to
Ripley. The defendant procured and used head coverings, bandanas, and gloves to conceal his
crimes. The evidence further shows that the defendant and his codefendants worked together as a
team inside the home, Jerome Eisom testifying that he heard the assailants say differing versions of
“Kill them,” “Kill this motherfucker,” or “Kill these niggers.” Only the fact that the victims received
medical treatment and lived prevented the intended result of the defendant’s actions, namely the
deaths of Eisom and Harrell. Therefore, we conclude that the evidence was sufficient for a
reasonable jury to have convicted the defendant of the two counts of attempted first degree murder.


                                                 -10-
        To obtain a conviction for attempted second degree murder, the State must prove the
attempted “knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1). A person criminally
responsible for the conduct of another may be charged with the commission of the offense. See
Tenn. Code Ann. § 39-11-401(b). This theory of guilt is based on the common law provision of
criminal liability for principals, accessories before the fact, and aiders and abettors. See id. §
39-11-401, Sentencing Commission Cmts.; see also Presley v. State, 161 Tenn. 310, 30 S.W.2d 231,
233 (1930) (concluding that the aiding and abetting of one brother in holding back bystanders while
the other brother attacked his wife rendered the acts of assistance indisputably unlawful). A person
is criminally responsible for the conduct of another if, "[a]cting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense[.]" Tenn. Code Ann. §
39-11-402(2).

        Criminal responsibility is not a separate crime. See State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999). "It is solely a theory by which the State may prove the defendant's guilt of the alleged
offense, . . ., based upon the conduct of another person." Id. To be criminally responsible for the
acts of another, the defendant must: "'in some way associate himself with the venture, act with
knowledge that an offense is to be committed, and share in the criminal intent of the principal in the
first degree.'" State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree v.
State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)). The defendant must "knowingly, voluntarily
and with common intent unite with the principal offenders in the commission of the crime." State
v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).

         The proof at trial showed, as well, that Tyrese Smith chased Macklin with the getaway car
and shot at her at least four times while she was running from the home. This act was committed
on the order of the defendant who admitted to Bumpus that he instructed Smith to “[s]hoot her, shoot
her” as she tried to flee. Candice Bynum testified that she saw the defendant chase Macklin out the
back door, and the defendant admitted in a written statement to police that he followed Macklin
when she ran out the door of the home. Macklin testified that she heard someone yelling, “Shoot
her, shoot her,” as she was running outside. Based upon the testimony of these witnesses, we
conclude the proof was sufficient to establish the defendant’s criminal responsibility for attempted
second degree murder beyond a reasonable doubt.

        Tennessee Code Annotated section 39-13-401(a) defines robbery as “the intentional or
knowing theft of property from the person of another by violence or putting the person in fear.”
Especially aggravated robbery is a robbery “[a]ccomplished with a deadly weapon” and “[w]here the
victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). The defendant was
convicted of attempted especially aggravated robbery, and, thus, the State did not have to prove that
anything actually was taken from the victims, only that the defendant acted “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).


                                                 -11-
        A person commits aggravated burglary when he or she enters a habitation without the
effective consent of the owner and “commits or attempts to commit a felony, theft or assault” or
enters with the “intent to commit a felony, theft or assault.” Tenn. Code Ann. §§ 39-14-402(a),
-403(a). Especially aggravated burglary is the above accompanied by serious bodily injury to a
victim. Id. § 39-14-404.

        The defendant’s conduct obviously constituted a “substantial step toward the commission
of the offense” of robbery even though nothing of value was taken from the victim. We conclude
the evidence was sufficient to support the attempted especially aggravated robbery of Eisom and the
especially aggravated burglary of Eisom’s home. As we have stated, the trial court merged the
attempted especially aggravated robbery conviction with the especially aggravated burglary
conviction. On appeal, the State notes that the record does not reveal why these convictions were
merged and argues that if this action was taken pursuant to Tennessee Code Annotated section 39-
14-404(d), the court erred and should have modified the conviction for especially aggravated
burglary to aggravated burglary. In view of the fact that the State did not appeal the merger, and the
record does not reveal why the trial court merged the convictions or the State’s position regarding
this action, we decline to review it on appeal.

                                            II. Sentencing

       The defendant asserts that the trial court erred by not considering mitigating factors, by
applying certain statutory enhancement factors, and by imposing consecutive rather than concurrent
sentences for the two attempted first degree murder convictions.

        The two statutory enhancement factors utilized by the trial court in the present case, that the
defendant “was a leader in the commission of the offense involving two or more criminal actors” and
“the defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult,” see Tenn. Code Ann. § 40-35-114(3), (21) (2003), have
both been called into question by Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), which
was decided after the trial court sentenced this defendant. In Blakely, the Supreme Court applied
the rule it had pronounced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362-63
(2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory minimum must be submitted to a jury.” 542 U.S. at __, 124 S. Ct.
at 2536. While the defendant in this case does have an extensive criminal record as a juvenile, he
does not have any prior adult criminal convictions. We have previously held that juvenile
adjudications do not qualify as prior convictions under Blakely. See State v. Christopher Kirkendall,
No.W2004-00784-CCA-R3-CD, 2004 WL 2083760, at *4 (Tenn. Crim. App. Sept. 16, 2004),
applic. for perm. to appeal filed (Tenn. Nov. 24, 2004). We must remand for resentencing in
accordance with Blakely. The mitigating factors argued by the defendant to have been applicable
are that substantial grounds existed to excuse his conduct; that he played a minor role in the crimes;
that because of his youth, he lacked substantial judgment; that he committed the offense under
unusual circumstances; and that he acted under the duress or domination of another. See Tenn. Code
Ann. § 40-35-113(3), (4), (6), (11), (12) (2003). Recounting that the defendant’s crimes were


                                                  -12-
committed during a “home invasion where one homeowner is shot four times, [and] someone in the
back room watching video games is shot twice,” the trial court determined that none of the proffered
mitigating factors were applicable, given the facts of the crimes and the defendant’s horrendous
criminal record as a juvenile. We concur with this assessment.

         However, we have previously held that the holding in Apprendi does not in any way affect
the trial court’s decision to impose consecutive rather than concurrent sentences. See State v. Ira
Ishmael Muhammed, No. E2003-01629-CCA-R3-CD, 2004 WL 1073889 (Tenn. Crim. App. May
10, 2004). Although we are remanding this matter for resentencing, we will review the trial court’s
decision that certain of the defendant’s sentences should be served consecutively and the possibility
that, in view of the fact that the lengths of the defendant’s sentences may be altered, the court may
reconsider its determinations in this regard.

        As a general rule, consecutive sentences are imposed at the discretion of the trial court upon
its consideration of one or more of the following statutory criteria:

               (1)   The defendant is a professional criminal who has knowingly
                     devoted such defendant’s life to criminal acts as a major source
                     of livelihood;

               (2)   The defendant is an offender whose record of criminal activity
                     is extensive;

               (3)   The defendant is a dangerous mentally abnormal person as
                     declared by a competent psychiatrist who concludes as a result
                     of an investigation prior to sentencing that the defendant’s
                     criminal conduct has been characterized by a pattern of
                     repetitive or compulsive behavior with heedless indifference to
                     consequences;

               (4)   The defendant 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 human life is high;

               (5)   The defendant is convicted of two (2) or more statutory offenses
                     involving sexual abuse of a minor with consideration of the
                     aggravating circumstances arising from the relationship
                     between the defendant and victim or victims, the time span of
                     defendant’s undetected sexual activity, the nature and scope of
                     the sexual acts and the extent of the residual, physical and
                     mental damage to the victim or victims;




                                                -13-
               (6)   The defendant is sentenced for an offense committed while on
                     probation; or

               (7)   The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (2003). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing.

       The trial court determined that subsections (2) and (4) were applicable, explaining:

               [T]his defendant is an offender whose record of criminal activity is
               extensive, dating back for a number of years with the Juvenile Court
               system; and . . . this defendant is a dangerous offender whose
               behavior indicates little or no regard for human life and has no
               hesitation about committing a crime in which the risk to human life
               is high.

       Further, the court explained:

               [T]here is proof in the record that a consecutive sentence is needed,
               and that such a sentence would reasonably be related to the severity
               of the offenses committed; further, that consecutive sentences would
               serve to protect the public or society from further criminal acts by this
               defendant, who resorts to aggravated criminal conduct, and that a
               consecutive sentence would be congruent with the general principles
               of sentencing, that this defendant is a dangerous offender.

                    The Court further finds that consecutive sentenc[ing] is
               appropriate in that it’s necessary to protect the public from criminal
               conduct by the defendant.

        The record abundantly supports the trial court’s determination that subsections (2) and (4)
are applicable to the sentencing of this defendant. We note that the trial court made the additional
finding, required for application of subsection (4), that consecutive sentences are reasonably related
to the severity of the offenses committed by the defendant. See State v. Lane, 3 S.W.3d 456 (Tenn.
1999); State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

                                          CONCLUSION

      Following our review of the record, we affirm the convictions for attempted first degree
murder (two counts), attempted second degree murder, and especially aggravated burglary but
remand for resentencing as to each. Additionally, the judgments in all counts should be corrected



                                                 -14-
to reflect the offense date as July 1, 2002.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                               -15-
