             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                           APRIL SESSION, 1999


                                                             FILED
STATE OF TENNESSEE,             )                         May 12, 1999
                                )   No. 02C01-9806-CR-00169
      Appellee                  )                       Cecil Crowson, Jr.
                                )   SHELBY COUNTY Appellate Court Clerk
vs.                             )
                                )   Hon. Joseph B. Brown, Jr., Judge
RICKEY CRAWFORD,                )
                                )   (Theft of Property over $1000;
      Appellant                 )   criminal attempt to commit first
                                )   degree murder)


For the Appellant:                  For the Appellee:

AC Wharton                          Paul G. Summers
Shelby County Public Defender       Attorney General and Reporter

Tony N. Brayton                     J. Ross Dyer
Asst. Public Defender               Assistant Attorney General
201 Poplar, Suite 2-01              Criminal Justice Division
Memphis, TN 38103                   425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
(ON APPEAL)                         Nashville, TN 37243-0493

Tarik Sugarman
Criminal Justice Center
Second Floor                        William L. Gibbons
201 Poplar Avenue                   District Attorney General
Memphis, TN 38103
                                    Thomas Hoover
(AT TRIAL)                          Asst. District Attorney General
                                    Criminal Justice Complex
                                    Suite 301, 201 Poplar Avenue
                                    Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Rickey Crawford, was found guilty by a Shelby County jury of

theft of property over $1,000 and of criminal attempt to commit first degree murder.

The trial court subsequently imposed consecutive TDOC sentences of four years for

the theft conviction and twenty-five years for the attempted murder conviction,

resulting in an effective sentence of twenty-nine years. In this appeal as of right, the

appellant raises two issues for our review:

       I. The sufficiency of the evidence necessary to affirm his conviction for
       criminal attempt to commit first degree murder; and

       II. The propriety of the trial court’s imposition of consecutive
       sentences.



       Finding no error of law requiring reversal, we affirm the judgments of

conviction and sentences imposed by the trial court.



                                     Background



       In early 1996, the appellant and Angela Boxley, the victim, were involved in a

romantic relationship. The relationship was such that, in February, the appellant

moved into Boxley’s North Memphis apartment which she shared with her minor

children. During this time, the appellant and Boxley purchased a 1980 Chevrolet

Caprice. Although the appellant gave Boxley $800 for the down payment, the

vehicle was in Boxley’s name and she was responsible for making all of the

installment payments. By the end of March, Boxley ended the relationship, due

primarily to the appellant’s ongoing physical abuse of her. After the parties

separated, Boxley traded the 1980 Chevy Caprice for a white 1989 Toyota Tercel.



       The appellant moved out of the North Memphis residence, and, soon

thereafter, began to stalk Boxley. His actions included harassing Boxley at her


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place of employment and making verbal threats that he was going to kill her. On

June 9, 1996, the appellant went to Boxley’s apartment and knocked on the door.

When Boxley refused to let him enter, he went around to her bedroom window,

knocked out the glass panes, and threatened to kill Boxley. The appellant was

prevented from gaining access to the interior of the apartment at this time because

Boxley had installed iron bars on her windows. He continued beating on the front

door and Boxley was ultimately forced to contact the police. The appellant’s pursuit

of his victim was only temporarily thwarted.



       The next morning, as Boxley was walking with her children to her car, the

appellant came running out of the bushes. The appellant threatened, “Bitch, I told

you I was going to kill you.” Boxley attempted to talk with the appellant, but without

success. At this point, the appellant brandished a pistol. A struggle then ensued

between the two over control of the weapon. Boxley released her hold on the

weapon and attempted to back away. The appellant looked at Boxley and shook his

head. He then shot Boxley hitting her in the shoulder. The appellant shot Boxley

again, this time, hitting her in the arm and causing her to fall to the ground. He then

walked over to where Boxley lay injured, stood over her, and continued to fire the

weapon. He then demanded that Boxley relinquish the keys to the Toyota, which

she did.



       The appellant then left the scene in Boxley’s Toyota Tercel. Late that

evening, the appellant was apprehended by law enforcement authorities in Marks,

Mississippi, a town approximately sixty miles south of Memphis. The arresting

officer, Rickey Bridges, searched the vehicle and discovered a .38 caliber Smith and

Wesson revolver with five spent rounds in the trunk of the car. The appellant

advised Officer Bridges that he had shot his girlfriend in Memphis earlier that

morning.




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         At his subsequent trial, the appellant provided testimony to the effect that he

believed that he was the rightful owner of the Toyota Tercel because he had paid for

the Chevrolet Caprice. Additionally, although he did not deny his involvement in the

shooting, he explained that he did not intend to kill Boxley, that he had only carried

the weapon for his own protection, and that he had only shot her because he “lost

control.”




                                    I. Sufficiency of the Evidence



         In his first assignment of error, the appellant avers that the evidence was

insufficient for a rational trier of fact to find him guilty of criminal attempt to commit

first degree murder.1 Specifically, the appellant maintains that the State failed to

show that the attempted murder was premeditated and not the result of passion.



         When reviewing a trial court's judgment, the appellate court will not disturb a

verdict of guilt unless the facts of the record and inferences which may be drawn

from it are insufficient as a matter of law for a rational trier of fact to find the

defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). In other words, this court will not

reevaluate or reweigh the evidence brought out at trial. It is presumed that the judge

or jury has resolved all conflicts in the testimony and drawn all reasonable

inferences from the evidence in favor of the State. See State v. Sheffield, 676

S.W.2d 542, 547 (Tenn.1984); State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). Since a verdict of

guilt removes the presumption of a defendant's innocence and replaces it with a




         1
         The appe llant d oes not c hallen ge th e suf ficien cy of th e evid enc e sup portin g his
conviction for theft of property over $1000.

                                                       4
presumption of guilt, the defendant has the burden of proof on the sufficiency of the

evidence at the appellate level. Grace, 493 S.W.2d at 476.



       Once a homicide is established it is presumed to be second degree murder.

State v. Brown, 836 S.W.2d 530, 543 (Tenn.1992). The State, then, has the burden

of proving the element of premeditation to elevate the offense to first degree

murder. Id. Premeditation necessitates "the exercise of reflection and judgment,"

requiring a "previously formed design or intent to kill." State v. West, 844 S.W.2d

144, 147 (Tenn.1992).



       The element of premeditation is a question for the jury and may be inferred

from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3

(Tenn.Crim.App.1993), perm. to appeal denied, (Tenn.1994). Because the trier of

fact cannot speculate as to what was in the killer's mind, the existence of facts of

premeditation must be determined from the appellant's conduct in light of the

surrounding circumstances. State v. Wright, No. 01C01-9503-CC-00093

(Tenn.Crim.App. at Nashville, Jan. 5, 1996). Although there is no strict standard

governing what constitutes proof of premeditation, several relevant circumstances

are helpful, including: the use of a deadly weapon upon an unarmed victim; the fact

that the killing was particularly cruel; declarations by the defendant of his intent to

kill; and the making of preparations before the killing for the purpose of concealing

the crime. State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997), cert. denied, -- U.S. --

118 S.Ct. 1536 (1998) (citing Brown, 836 S.W.2d at 541-542). Additional factors

from which a jury may infer premeditation include planning activities by the appellant

prior to the killing, the appellant's prior relationship with the victim, and the nature of

the killing. Gentry, 881 S.W.2d at 4-5 (citation omitted).



       Reviewing the evidence in the light most favorable to the State, the appellant,

on the morning of the murder, hid outside the victim’s apartment concealing himself


                                           5
behind the existing shrubbery, lying in wait for his victim. When she finally emerged

from her apartment, the appellant ambushed the unarmed victim in the presence of

her young children and announced his intent to kill her. Boxley attempted to

escape; however, the appellant followed, firing five shots, two of which struck the

victim and three which were fired after the victim had fallen to the ground. The

appellant’s conduct on this date followed previous threats to the victim that he was

going to kill her. Based upon this proof, we conclude that there is overwhelming

evidence concerning the appellant's planning activity, his motive, his previous

threats to the victim, and the circumstances of the shooting to support the jury's

finding of premeditation. This issue is without merit.




                             II. Consecutive Sentences



       At the sentencing hearing, the trial court imposed a sentence of four years for

the appellant’s conviction of theft of property and imposed a sentence of twenty-five

years for the appellant’s conviction of attempted first degree murder. The appellant

does not contest the length of these sentences on appeal. Rather, in his final

assignment of error, the appellant contends that the trial court erred in ordering that

these sentences be served consecutively, resulting in an effective sentence of

twenty-nine years.



       Consecutive sentences may be imposed when a defendant is convicted of

more than one criminal offense. Tenn. Code Ann. § 40-35-115 (1997). However,

prior to the imposition of consecutive sentences, the trial court must determine that

one or more of a statutorily enumerated list of criteria exists. At the sentencing

hearing, the trial court based its imposition of consecutive sentences upon finding

(1) that the appellant is “an offender whose record of criminal activity is extensive”

and (2) that the appellant is “a dangerous offender whose behavior indicates little or


                                         6
no regard to 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) and (4).



                               i. Dangerous Offender

       The appellant contends that the trial court’s finding that he is a “dangerous

offender” is erroneous because theft of property is not an inherently dangerous

crime. In Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976), our supreme court

held that "[a] defendant may be classified as a dangerous offender if the crimes for

which he is convicted indicate that he has little or no regard for human life, and no

hesitation about committing a crime in which the risk to human life is high."

(emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4); State v.

Wilkerson, 905 S.W.2d 933, 937 (Tenn.1995). No prerequisite exists in Tenn. Code

Ann. § 40-35-115(b)(4), Gray v. State, or State v. Wilkerson that the offense, by

statutory definition alone, be a dangerous offense. In determining the inherently

dangerous nature of the instant offenses, the focus is not whether the crimes were

dangerous crimes, but whether there exists aggravating circumstances in the

commission of the instant offenses. See Gray, 538 S.W.2d at 393.



       In the present case, the appellant armed himself with a weapon and

strategically planned the ambush on his ex-girlfriend and the theft of her vehicle.

The fact that the appellant fired multiple shots at Ms. Boxley as she lay injured upon

the ground and then demanded the keys to her automobile showed little regard for

human life. Moreover, despite the fact that Ms. Boxley’s minor children were with

her at the time of the incident, the appellant continued firing the weapon with callous

disregard for the safety of the children. This proof clearly establishes that the

appellant had no hesitation about committing a crime when the risk to human life

was high and that the appellant has little or no regard for human life. Accordingly,

the trial court's classification of the appellant as a dangerous offender is warranted.




                                         7
            This Court's review of the sentences imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). The

evidence clearly supports the trial judge's rationale for consecutive sentencing. See

supra. Furthermore, the terms imposed by the trial judge are reasonably related to

the severity of the offenses and are necessary to protect the public from further

criminal acts by the offender. Wilkerson, 905 S.W.2d at 938. Although the trial

court did not make the findings required by Wilkerson, we find that these factors are

present under our power of de novo review. State v. Adams, 859 S.W.2d 359

(Tenn.Crim.App.1993). Consecutive sentencing is appropriate.



                            ii. Extensive Record of Prior Criminal Activity

            The record reflects that the appellant has a prior criminal record consisting of

two convictions for aggravated assault, nine convictions for armed robbery, and one

conviction for second degree burglary. 2 The appellant challenges his classification

“as an offender whose record of criminal activity is extensive,” Tenn. Code Ann. §

40-35-115(b)(2), arguing that the criteria for this classification is predicated not upon

an offender’s prior record, but the convictions for which consecutive sentencing is

sought. The consecutive sentencing classification provisions of Tenn. Code Ann. §

40-35-115 are, in essence, a codification of the holdings in Gray v. State, 538

S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). See

Sentencing Commission Comments, Tenn. Code Ann. § 40-35-115. The first four

criteria, which include section 115(b)(2), record of extensive criminal history, were

taken directly from Gray. Sentencing Commission Comments, Tenn. Code Ann. §

40-35-115.3




            2
                The record indicates that at least nine of these prior convictions arose from the same
incident.

            3
          These criteria include: (1) the professional criminal; (2) the multiple offender; (3) the
dange rous m entally abno rma l offende r and (4) th e dang erous o ffende r. Gray containe d a fifth
criterion, the persistent offender, which was not codified in section 115(b).

                                                       8
      Gray did not contain a category captioned, “The defendant is an offender

whose record of criminal activity is extensive.” However, Gray did establish, for

consecutive sentencing purposes, a “multiple offender category.” The multiple

offender definition in Gray tracks almost verbatim the statutory language of section

115(b)(2), “one whose record of criminal activity is extensive.” (Emphasis added).

Moreover, Gray provides that “[T]he prior record of the multiple offender may have

been good, but the crimes for which he has been convicted indicate criminal activity

so extensive and continuing for such a period of time as to warrant consecutive

sentencing.” Gray, 538 S.W.2d at 393 [citing MODEL PENAL CODE Section 7.03].

Section 7.03, MODEL PENAL CODE, recognizes three situations in which consecutive

sentencing may apply to those classified as multiple offenders: (1) when the court is

actually imposing sentences for more than one felony, (2) when it is imposing a

sentence that will run concurrently with a felony sentence already imposed, and (3)

when it is imposing a sentence for one felony but the defendant has asked that the

sentence cover other felonies admitted in open court.



      Thus, it is apparent from a reading of Gray and its origin, Section 7.03 of the

MODEL PENAL CODE ,   that the “multiple offender” classification in Gray, which was

codified in section 115(b)(2), was not intended by our legislature to encompass

those offenders who were before the court for consecutive sentencing based upon

their record of prior felony convictions. Indeed, our supreme court in Gray classified

this offender within the “persistent offender” category. As noted in the Sentencing

Commission Comments to § 40-35-115, the “persistent offender” classification was

not codified because “[t]his additional category has been built into the sentencing

structure which enhances the sentence ranges depending upon the types and

severity of the prior felony convictions.” Sentencing Commission Comments, Tenn.

Code Ann. § 40-35-115. Thus, the appellant’s classification as an offender whose




                                         9
record of criminal activity is extensive, Tenn. Code Ann. 40-35-115(b)(2) was error. 4

Notwithstanding this error, only one statutorily enumerated criteria in Tenn. Code

Ann. § 40-35-115 is required to warrant the imposition of consecutive sentences.

Because the appellant was properly classified as a “dangerous offender,”

consecutive sentences were proper.




         4
          Two mem bers of this panel would affirm consecutive sentencing pursuant to Tenn. Code
Ann. § 40-35-115(b)(2) based upon the appellant’s prior reco rd of crim inal ac tivity, wh ile
acknowledging that other interpretations are tenable. Their affirmance relies, in large part, upon
(1) this court’s holdings in numerous cases over the past eight years that Tenn. Code Ann. § 40-
35-115(b)(2) applies to “offenders who have an extensive history of criminal convictions, not
limited to the offenses before the sentencing court” and (2) this interpretation logically fills the
“gap” between the professional criminal and the multiple offender as defined in Gray.

Judges Tipton and Lafferty rely upon prior judicial decisions which support their position, however,
other pa nels of this court ha ve, on oc casion, re ached different re sults. See, e.g., State v. Blazer,
No. 03C01-9405-CR-00185 (Tenn. Crim. App. at Knoxville, Feb. 3, 1995) (recognizing that past
record was not contemplated in Gray to constitute an extensive record of criminal activity for
conse cutive se ntencing pursua nt to section 115(b)( 2)); State v. Gr uzella , No. 01C01-9401-CC-
00002 (Tenn. Crim. App. at Nashville, Aug. 23, 1994)(prior record of the multiple offender good,
but his crim es indica te extens ive crim inal activity warra nting con secutive senten cing purs uant to
section 1 15(b)(2 )); State v. Miles, No. 01C01-9210-CC-00333 (Tenn. Crim. App. at Nashville,
Sept. 16 , 1993), perm. to appeal denied, (Tenn. Feb. 22, 1994) (holding that offender was both a
multiple a nd pers istent offen der); State v. Bryant, No. 327 (Tenn. Crim. App. at Knoxville, Apr. 3,
199 1) (c ons ecu tive se nten ces appr opria te pu rsua nt to s ectio n 115 (b)(2 ) bas ed up on of fend er’s
extensive record of criminal activity before the court with no prior criminal history). No prior opinion
of this court indicates the benefit of full briefing and argument on this matter with the exception of
the case sub judice and Blazer, No. 03C01-9405-CR-00185, which held that the past record of the
defend ant was not conte mpla ted by the leg islature in the ir enactm ent of Se ction -115 (b)(2). See
Hohn v. United States, -- U.S. --, 11 8 S.Ct. at 1 968, 198 1 (1998 ) (Scalia, J., d issenting ).
Moreover, notwithstanding the notable inconsistencies in the decisions of this court on this ma tter,
abandonment of an established legal precedent is mandated where the decision in question has
been p roven m anifestly erro neous . See Payne v. Tennessee, 501 U.S . 808, 828 -830, 11 1 S.Ct.
2597, 2609-2611 (1991). Thus, where judicial decisions are unworkable, badly reasoned, or
contrad ictory to the legis lature’s inten t, we can not feel co nstrained to follow su ch prec edent. See
Smith v. Allwright, 321 U.S . 649, 665 , 64 S.Ct. 7 57, 765 ( 1944). Star e dec isis is not an ine xora ble
command; rather, it “is a principle of policy and not a mechanical formula of adherence to the
latest decision.” See Payne, 501 U.S . at 828, 11 1 S.Ct. at 2 609.

Moreover, while it is true that the separate concurring’s interpretations of extensive criminal
activity may “fill the g ap,” it would a ppear th at this “gap ” was inten ded by ou r legislature in its
express rejection of the “persistent offender” classification. While it is the province and duty of the
judiciary to interp ret the law, the legislative bra nch ha s the ex clusive po wer to for mula te the law.
See Ten nes see Valle y Auth ority v. H ill, 437 U.S . 153, 194 , 98 S.Ct. 2 279, 230 1-02 (19 78).

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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




___________________________________
JOSEPH M. TIPTON, Judge




___________________________________
L. T. LAFFERTY, Senior Judge




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