           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                             AT KNOXVILLE
                                                                  October 8, 1999

                           APRIL 1999 SESSION                 Cecil Crowson, Jr.
                                                             Appellate Court Clerk




STATE OF TENNESSEE,          *    C.C.A. NO. 03C01-9803-CR-00093

      Appellee,              *    SULLIVAN COUNTY

v.                           *    Hon. Phyllis H. Miller, Judge

JIMMY A. SALYER,             *    (Attempted Second Degree Murder)

      Appellant.             *




For Appellant:                    For Appellee:

Gerald L. Gulley, Jr.             John Knox Walkup
P.O. Box 1708                     Attorney General and Reporter
Knoxville, TN 37901-1708          450 James Robertson Parkway
                                  Nashville, TN 37243-0493
Terry L. Jordan
P.O. Box 839                      R. Stephen Jobe
Blountville, TN 37617             Assistant Attorney General
                                  Criminal Justice Division
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Barry Staubus and Lisa Crockett
                                  Assistant District Attorneys General
                                  Blountville, TN 37617



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                           OPINION

                     On Novem 19, 1997, the appellant, Jim A. Salyer, was convicted by a jury in the
                             ber                          my

Sullivan County Criminal Court of attempted second degree murder, a class B Felony. On January 9,

1998, the trial court sentenced the appellant as a Range I standard offender to an effective sentence

of ten years incarceration in the Tennessee Department of Correction.



                     In this appeal as of right, the appellant presents the following issues for our review:

                     (I) Whether the evidence is sufficient to sustain the appellant’s
                     conviction of attempted second degree murder;

                     (II) Whether the trial court erred by sentencing the appellant to a term
                     of ten (10) years im prisonment;

                     (III) Whether the trial court erred by refusing to give
                     the defendant credit for jail time already served;1 and

                     (IV) Whether the trial court erred by failing to grant
                     the appellant a sentencing alternative to incarceration.


Following a review of the record and the parties’ briefs, we affirm the judgm of the trial court.
                                                                             ent



                                                I. Factual Background

                     The offense in this case occurred as a result of a shooting on September 12, 1996,

near the residence of the victim, Gary Alvis. O the m
                                               n     orning of the shooting, the appellant telephoned

Alvis and advised himto leave the appellant’s girlfriend alone. Alvis replied that he was not “fooling”

with the appellant’s girlfriend, Judy Walkey. Although Walkey and Alvis had dated in 1992 and 1993,

they no longer had a relationship. Alvis testified that approximately two weeks before this call, the

appellant had left a message on Alvis’ answering machine stating, “Well, I’m going to kill you because

you will not help m anymore.”
                   e




          1
           The appellant contends that the trial court erred by failing to give him credit for jail time served prior to his
conviction. The original judgment entered by the trial court does not reflect any pretrial jail credit for time served prior to
sentencing. Pursuant to the amended judgment filed December 22, 1998, which correctly reflects pretrial jail credit from
9/12/96 to 01/09/98, this issue is moot.

                                                                  2
                 On the afternoon of the shooting, at approximately 4:00 p.m Alvis was working in his
                                                                            .,

lawn when he noticed the appellant’s yellow Honda CRX automobile parked across the street at the

home of Rita Lockhart Evans. Alvis also noticed that the appellant’s car w facing in the direction of
                                                                          as

the dead-end of the street and that the appellant was sitting in the car staring at him. Alvis walked

toward the car and asked the appellant, “Jim, do you have something to say to m The appellant
                                                                               e?”

replied, “yeah,” and showed hima small pistol and a chain. Alvis then turned and proceeded up his

driveway.



                 When Alvis had gone approximately two-thirds of the way up his driveway, he heard a

gunshot. Alvis testified that when he heard the shot he “automatically froze,” fearing m gunshots
                                                                                        ore

would be fired at him. When questioned as to why he did not flee inside his residence, Alvis explained

that the appellant knew the layout of his home, and knew he did not own a gun. Moreover, Alvis’

girlfriend was inside the residence and he did not want to place her in danger.



                 After hearing the gunshot, Alvis turned and saw that the appellant had turned around

at the dead-end of the street and was driving back dow the street toward Alvis. Alvis’s neighbor was
                                                      n

having his roof repaired and construction trucks were parked along the street. As Alvis ran toward the

trucks in an effort to have the drivers block the street, the appellant drove down the street, stood, and

fired a pistol five tim from the sunroof of the car. W the appellant reached Alvis, he swerved his
                       es                             hen

car tow Alvis and struck his right leg. Alvis, who was holding a weed eater, “swung” the weed eater
       ard

at the sunroof in an effort to knock the pistol from the appellant’s hand. The weed eater struck the

car’s windshield, which shattered.



                 The appellant stopped his car and reloaded the pistol. Alvis sought refuge behind his

girlfriend’s car, a Chevette, which was parked on the street in front of his residence. As the appellant

left his car and approached the Chevette, Alvis threw the weed eater at the appellant, striking him on

the head. As the appellant began shooting at Alvis, Alvis moved around the car in an attem to avoid
                                                                                          pt

                                                    3
the shots. While the two m were moving around the car, the appellant fired five additional shots. As
                          en

Alvis attempted to avoid a shot, his leg collapsed and a shot struck himin the side. The appellant then

entered his car and fled the scene.



                 Alvis testified that the bullet wound collapsed his lung and that he continues to suffer

physical pain from the bullet, which is lodged in his body cavity. Alvis also suffered nerve damage and

injury to his arm and leg fromthe collision with the appellant’s car. Furthermore, Alvis testified that this

episode has affected himmentally and has left him afraid to be out in groups of people.



                 On cross-examination, Alvis testified that he did not consider the telephone message

two weeks prior to the shooting to be a threat. Moreover, the appellant sounded normal on that

occasion. However, Alvis testified that he had considered the telephone conversation with the

appellant on the morning of the shooting to be threatening.



                 Rita Lockhart Evans testified that she lived across the street from Alvis. Evans knew

the appellant and recalled that on the afternoon of Septem 12, 1996, the appellant visited her
                                                          ber

house. The appellant was driving a yellow Honda CRX automobile which he parked in her yard.

According to Evans, on that afternoon the appellant seemed “very upset” and “mad at Gary.” The

appellant showed Evans a pistol and a length of chain and told Evans that he was going to kill Alvis.

Evans becam upset and threw the chain underneath some nearby bushes. The appellant retrieved
           e

the length of chain and returned to his car.



                 On cross-examination, Evans testified that at this point she went into shock and, as a

result, does not completely recall all the events that transpired. Evans did rem ber seeing the
                                                                                em

appellant driving down the street while shooting at Alvis, who was working in his yard. While

witnessing these events, she screamed, “Gary, get down, he’s going to kill you.” Evans also admitted

that she regularly consumes a “beer or two” in the mornings.

                                                     4
                 Scott Culbertson testified that he was Alvis’ neighbor. H lived two houses up the
                                                                          e

street fromAlvis on the opposite side of the street. O Septem 12, 1996, workers were repairing
                                                      n      ber

the roof of his house. At approximately 4:00 p.m Culbertson heard gunshots and looked outside. He
                                                .,

testified that the gunshot sounds were distinct fromthe hammering on the roof. Culbertson walked to

a nearby window, looked outside, and observed Alvis squatting down at the left front corner of a car.

At the right rear corner of the car, he observed the appellant pointing a gun at Alvis. The appellant

was standing on his tiptoes in an effort to get a clear shot over the car at Alvis. Alvis stood up and

threw a weed eater which struck the appellant in the head or shoulder. Culbertson then observed the

appellant fire three or four shots over the car at Alvis. W the shooting ended, the appellant
                                                           hen

entered his car and drove away while Alvis proceeded to his residence.



                 Next, the State presented the testimony of Jack Bowen w w also a neighbor of
                                                                        ho as

Alvis. On September 12, 1996, at approximately 4:00 p.m., Bowen heard a gunshot. Bowen observed

Alvis standing in his driveway and also saw a yellow car matching the description of the appellant’s car

driving quickly tow the dead-end of the street. Alvis proceeded up the street toward the other end
                   ard

of his lot with a weed eater. Once at the dead-end, the car hesitated and then cam rapidly down the
                                                                                  e

street toward Alvis, who was standing behind a bush. As the appellant drove by, Alvis swung the

weed eater and hit the yellow car. The car proceeded another ten to thirty feet and stopped.

According to Bowen, the appellant exited the car and began shooting at Alvis who ducked behind a

nearby parked car. The appellant fired five shots at Alvis, who then threw the weed eater at the

appellant. Bowen further testified that after the appellant fired the last shot, he entered his car and left

the scene while Alvis returned to his residence. Bowen recalled that he did not know that Alvis had

been shot until later.



                 Dennis Higgins, an officer w the W
                                             ith   ashington County Sheriff’s Department, testified

that on September 12, 1996, at approximately 6:15 p.m he responded to a call involving the appellant
                                                     .,

at the Meadowbrook trailer park. W Higgins arrived, the appellant and Bobby Benfield were
                                  hen

                                                     5
leaning against a black truck. Higgins noticed that the appellant had a cut on his head. The

appellant’s car, with duct tape on its shattered windshield, was parked next to the truck. The appellant

was placed under arrest and advised of his Miranda rights. The appellant was “calm” and

“cooperative” and appeared to understand his Miranda rights. Higgins also testified that he discovered

the weapon used in the shooting along with additional ammunition under a jacket in the passenger

seat of the truck.



                 Additionally, Johnny Murray of the Sullivan County Sheriff’s Departm testified that
                                                                                     ent

at approximately 6:00 p.m on September 12, 1996, he responded to a call at the M
                         .                                                      eadowbrook trailer

park. Murray observed a blood-stained shirt in the appellant’s car. Moreover, Murray identified the

gun recovered from the truck as a .22 caliber six shot revolver and also identified the .22 caliber

ammunition case recovered fromthe truck. Murray recalled that the gun contained five spent shells

and one live round of ammunition, indicating that the weapon had been fired five times. According to

Murray, eighteen rounds of ammunition were missing from the ammunition case. The appellant was

“nervous” but “m mannered,” appeared to understand what was happening, and was “cooperative.”
                ild

In fact, Murray and the appellant had an intelligible conversation regarding some common

acquaintances.



                 Finally, the State offered the testimony of Chad Able, a resident of the Meadowbrook

trailer park. In the afternoon of Septem 12, 1996, the appellant visited Able’s home. The appellant
                                        ber

told Able that he was “in trouble” and needed to speak with Able’s father-in law, Bobby Benfield. When

Able asked the appellant what had happened, the appellant replied that he had been in a dispute with

someone and that the individual had shattered his windshield and struck him in the head with a weed

eater. The appellant further explained that he had shot the individual and he showed Able some spent

shell casings, but he did not show Able the pistol used in the shooting. According to Able, the

appellant proceeded to Benfield’s residence, and the police arrived approximately twenty to thirty

minutes later.

                                                    6
                 The appellant offered the testimony of Bobby Benfield. Benfield testified that he had

known the appellant for sixteen years. O Septem 12, 1996, Benfield was in his trailer at the
                                        n      ber

Meadowbrook trailer park when his son-in-law notified himthat the appellant needed to talk with him.

Benfield went outside and was standing beside his truck talking with the appellant when the police

arrived at the trailer park. He stated that, prior to the arrival of the police, he had not seen the appellant

with a weapon or gun. Benfield gave the police permission to search his truck. The search revealed a

pistol in the truck, which Benfield stated did not belong to himand had not been in the truck on the

previous day.



                 Next, Jerry Salyer, the appellant’s brother, testified that he visited the appellant in

early Septem 1996 at the W
            ber           oodbridge Mental Hospital where the appellant was undergoing

treatment. During Salyer’s visit on September 2, 1996, he had a conversation with the appellant and

the appellant was “irrational”. The hospital released the appellant that same day.



                 The appellant testified on his own behalf. H stated that on the day of the shooting,
                                                             e

he was “real depressed” and “nervous.” He conceded that he had called Alvis on the morning of

September 12, 1996, to tell him to stop aggravating his girlfriend. The appellant claimed that he

placed the call at his girlfriend’s request. The appellant admitted that on the day of the shooting he

traveled to the home of Rita Lockhart Evans at approximately 4:00 p.m. However, in contrast to Alvis’

version of events, the appellant testified that, as he was leaving Evans’ residence, Alvis proceeded

toward himholding a weed eater “like a baseball bat,” and asked, “H you got something to say to
                                                                   ave

me?” The appellant replied, “The only thing I’ve got to say to you, G is leave Judy [Walkey] alone.”
                                                                     ary,



                 Further, the appellant testified that he pulled out a pistol and fired a warning shot into

the ground only to let Alvis know that he could defend himself. Alvis stepped back and the appellant

drove his car to the dead-end of the street to turn around. Once he had driven to the dead-end, he

                                                      7
observed Alvis behind som bushes, standing on a short block wall adjacent to the street. According
                         e

to the appellant, Alvis was waving the weed eater. The appellant hesitated a moment to decide how he

could leave without any more trouble. Because of the construction trucks parked on the side of the

street, it was not possible for the appellant to leave without driving near Alvis. The appellant decided

that the best approach would be to drive by Alvis as quickly as possible. When the appellant reached

the bushes where Alvis was standing, Alvis swung the weed eater at his car and shattered the

windshield. The appellant stopped his car because he had glass in his eyes and could no longer see

to drive.



                         Additionally, the appellant testified that as he was exiting the car, Alvis threw the weed

eater at him, striking him on the head. The appellant explained that he was bleeding heavily and could

not see. In order to keep Alvis away until he could clear his eyes of glass and blood, the appellant

began shooting his pistol upward, not at Alvis. The appellant stated that he fired a total of five shots,

including the earlier warning shot.2 The appellant left the scene, washed the glass and blood off his

head, packed a suitcase, taped his shattered windshield, and proceeded to the Meadowbrook trailer

park where he had planned to stay with friends.



                         In further testimony, the appellant stated that he bought the pistol shortly before the

shooting for self-protection. He also accounted for the eighteen missing shells in the ammunition case

by explaining that he had fired twelve shells as practice on the Wednesday before the shooting. The

appellant admitted that he had placed the pistol and ammunition in Benfield’s truck when he first

arrived at the trailer park.



                         On cross examination, the appellant denied that he fired any shots at

Alvis when Alvis was behind his girlfriend’s car, but offered no explanation for the



            2
                The appellant’s testimony indicates that he did not fire any shots from the sunroof of his car.

                                                                    8
scratches located on the car following the shooting. Moreover, the appellant

claimed he did not aim the pistol at Alvis at any time. The appellant explained Alvis’

injury by stating, “Apparently he got in the way of one of the bullets.”



                                             II. Analysis

Sufficiency of the Evidence

                The appellant contends that the evidence is not sufficient to sustain his

conviction of attempted second degree murder. In Tennessee, appellate courts accord

considerable weight to the verdict of a jury in a crim trial. In essence, a jury conviction removes the
                                                      inal

presumption of the defendant’s innocence and replaces it with one of guilt, so that the appellant carries

the burden of demonstrating to this court why the evidence will not support the jury’s findings. State v.

Tuggle, 639 S.W 913, 914 (Tenn. 1982). The appellant must establish that “no reasonable trier of
               .2d

fact” could have found the essential elements of the offenses beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn R App. P. 13(e).
                                                                .



                Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which m be drawn therefrom State v. Williams, 657 S.W.2d
                                              ay                 .

405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the

weight and value to be given the evidence, as well as factual issues raised by the evidence, are

resolved by the trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.

1990).



                The grand jury indicted the appellant for the attempted first degree murder of Gary

Alvis. The jury found the appellant guilty of the lesser included offense of attempted second degree

murder pursuant to an indictment charging that the appellant:

                did unlawfully, feloniously, knowingly, intentionally, and with
                premeditation attem to kill another, to wit: Gary Alvis, by firing
                                     pt
                several shots from a R.G. m   odel .22 caliber six (6) shot revolver at

                                                    9
                 him with one shot striking him in the side. . . .


                 With respect to the appellant’s conviction of attempted second degree murder, the

applicable statute provides:

                 (a) Second degree murder is: (1) A knowing killing of another. . . .

Tenn. Code Ann. § 39-13-210(a)(1) (1997). W regard to the culpable m
                                           ith                      ental state, the applicable

statute instructs:

                 “Knowing” refers to a person who acts knowingly with respect to the
                 conduct or to the circumstances surrounding the conduct when the
                 person is aware of the nature of the conduct or that the
                 circum stances exist. A person acts knowingly with respect to a result
                 of the person’s conduct when the person is aware that the conduct is
                 reasonably certain to cause death.

Tenn. Code Ann. § 39-11-302(b) (1997). Moreover, criminal attempt occurs when a person 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 com plete 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) (1997).



                     We conclude that the State adduced ample evidence from which a

rational juror could have concluded that the appellant knowingly attempted to kill the

victim. Construing the evidence in the light most favorable to the State, the record

in this case reveals that the appellant made threatening statements to Alvis,

including one on the morning of the shooting. Also, moments before the shooting

began, the appellant told Evans that he intended to kill Alvis. Additionally, witnesses

                                                    10
for the State testified that the appellant, armed with a pistol, pursued Alvis around a

parked car and repeatedly stood on his tip-toes as he fired to afford a better firing

line to Alvis. Therefore, the evidence shows that the appellant attempted to follow

through with his threats to kill Alvis. The evidence also shows that the appellant

“deliberately aimed a pistol and shot several times at his intended victim,” which is

sufficient proof to support a conviction for second degree murder. State v. Porter,

No. 03C01-9606-CC00238, 1997 WL 661419, at *3 (Tenn. Crim. App. at Knoxville,

October 23, 1997).



                Regarding the appellant’s debilitating mental condition, we note that

the issue of whether the appellant “knowingly” attempted to kill his victim is a

question of fact for the jury. State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App.

1998). Intent, which can seldom be proven by direct evidence, may be deduced or

inferred by the trier of fact from the character of the assault, the nature of the act,

and from all circumstances of the case in evidence. Id. (citing State v. Holland, 860

S.W.2d 53, 59 (Tenn. Crim. App. 1993)).



                Under Tennessee law, evidence of a mental disease or defect that does not rise to the

level of an insanity defense is nevertheless admissible to negate elements of specific intent, including

premeditation and deliberation in a first degree murder case. State v. Phipps, 883 S.W.2d 138, 149

(Tenn. Crim. App. 1994). See also State v. Hall, 958 S.W.2d 679, 688-690 (Tenn. 1997), cert. denied,

 U.S.    , 118 S.Ct. 2348 (1998); State v. Abrams, 935 S.W.2d 399, 402 (Tenn. 1996). Again,

however, this court may not reweigh or reevaluate the evidence. Pruett, 788 S.W.2d at 561.

Accordingly, we m defer to the jury’s determination that the appellant was capable of forming the
                 ust

requisite intent if supported by evidence adduced at trial. State v. Perry, No. 01C01-9710-CC-00467,

1999 W 233522, at *8 (Tenn. Crim. App. at Nashville, April 22, 1999).
      L



                                                   11
              First, the appellant did not offer any expert psychiatric evidence aimed

at negating the requisite mental state. Second, the appellant provided no evidence

that he was suffering from mental problems on the day of the offense. Evans

testified that the appellant did not appear to be suffering from a mental disability; he

was merely “angry.” Moreover, the appellant had the presence of mind to flee the

scene of the shooting, pack clothes, and travel to a friend’s home where he

attempted to hide his pistol. Finally, we note that testimony at trial indicated that,

shortly after the shooting, the appellant was calm and cooperative with the police,

able to engage in an intelligible conversation, and seemed to fully appreciate what

he had done when he admitted to Chad Able that he had shot Alvis. The jury

obviously rejected the appellant’s claims of a debilitating mental condition,

determining that the appellant was fully capable of forming the mens rea necessary

to commit a knowing killing. Because there is evidence to support their

determination, we must defer to the results reached by the trier of fact.



              Furthermore, the appellant’s contention that he was acting under the

heat of passion is not supported by this record. The witnesses for the State testified

that the appellant, apparently unprovoked, repeatedly aimed his pistol and shot at

Alvis while they both moved around the parked car. Moreover, the State’s

witnesses testified that, at the time the appellant shot Alvis, Alvis was not armed

with the weed eater. “When the evidence is conflicting, the jury must resolve these

conflicts, under proper instructions, and decide whether the homicide is murder or

manslaughter.” State v.Zandi, No. 02C01-9703-CC-00122, 1998 WL 12672, at *3

(Tenn. Crim. App. at Jackson, January 15, 1998). Here, the trial court provided

instructions on attempted voluntary manslaughter. The jury rejected that alternative

and concluded that the appellant attempted a knowing killing and thus was guilty of

attempted second degree murder. Again, this court may not reweigh the evidence

                                           12
nor substitute its own view for that properly reached by the trier of fact. The

evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that

the appellant knowingly attempted to kill Gary Alvis. This issue is without merit.



Sentencing

                 The appellant contends that the trial court erred by sentencing the

appellant to a term of ten (10) years imprisonment. Specifically, the appellant

asserts that the trial court erred by: (1) imposing an excessive sentence; and (2)

failing to grant the appellant’s request for probation; or (3) failing to sentence the

appellant to the community corrections program. We disagree.



1. Excessive Sentence

                 When there is a challenge to the length, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review with a presumption that the determinations made

by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption of

correctness is “conditioned upon the affirmative show in the record that the trial court considered
                                                     ing

the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). The burden is upon the appellant to demonstrate the impropriety of the sentence.

State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995).

                 Our review of the appellant’s sentences requires an analysis of (1) the evidence, if

any, received at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and

characteristics of the offenses; (5) any mitigating or enhancement factors; (6) any statements made by

the appellant on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn.

Code Ann. § 40-35-102, -103, and -210 (1997).



                 The presumptive sentence for Class B, C, D, and E felonies is the minimumsentence

                                                    13
in the range if there are no enhancem or m
                                     ent  itigating factors. Tenn. Code Ann. § 40-35-210 (1997).

If the trial court finds that there are enhancem or m
                                                ent  itigating factors, the court m start at the
                                                                                   ust

minimum sentence in the range, enhance the sentence within the range as appropriate for the

enhancem factors, and then reduce the sentence within the range as appropriate for the m
        ent                                                                             itigating

factors. Id. The weight given to any existing factor is left to the trial court’s discretion so long as the

trial court complies w the purposes and principles of sentencing and the court’s findings are
                      ith

adequately supported by the record. State v. Shropshire, 874 S.W.2d 634, 642 (Tenn. Crim. App.

1993). See also State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).



                 In light of the sentencing proceedings and the trial court’s consideration of sentencing

principles and all relevant facts and circumstances, we apply a presumption of correctness in

conducting our de novo review of the appellant’s sentence. Tenn. Code Ann. § 40-35-401(d).



                 Attempted second degree murder is a class B felony. Tenn. Code Ann. § 39-12-

107(a) (1997); 39-13-210(b). The sentencing range applicable to the appellant for this offense is eight

to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). The trial court sentenced the appellant

as a Range I standard offender to a mid-range sentence of ten (10) years for the attempted second

degree murder.



                 The trial court found four enhancement factors: the appellant has a previous history of

crim convictions or criminal behavior in addition to those necessary to establish the appropriate
    inal

range; the appellant possessed or employed a firearm during the commission of the offense; the

appellant had no hesitation about committing a crime when the risk to hum life w high; and during
                                                                         an     as

the commission of the felony, the appellant willfully inflicted bodily injury upon another person, or the

actions of the appellant resulted in the death of or serious bodily injury to a victim or a person other

than the intended victim. Tenn. Code Ann. § 40-35-114(1), (9), (10), and (12) (1997). The trial court

placed great weight upon factor (9), that the appellant employed a firearmduring the commission of

                                                     14
the offense. Fromthese applicable enhancement factors, the trial court enhanced the appellant’s

sentence from the presumptive minimumsentence of eight years to eleven years.



                    The trial court then addressed the mitigating factors. After careful consideration, the

trial court found one mitigating factor, that the appellant was suffering from a mental condition that

reduced his culpability. Tenn. Code Ann. § 40-35-118(8) (1997). However, the trial court stated that it

would give this factor very little weight considering the facts of the case and the appellant’s

background. The trial court found that the appellant was not suffering from any mental disability on the

day of the offense despite evidence of a history of mental and emotional problem In support of this
                                                                                s.

finding, the trial court noted Evans’ testimony that, on the day of the offense, the appellant seemed

angry instead of mentally unstable. Furthermore, the trial court noted that the appellant had the

presence of mind to flee the scene of the shooting, pack his clothes, travel to a friend’s residence in

another county, and hide the pistol used in the shooting. Based on this one mitigating factor, the trial

court reduced the appellant’s sentence fromeleven to ten years.



                    The appellant contends that the trial court incorrectly applied several enhancement

factors. First, the appellant argues that the trial court incorrectly applied enhancem factor (10), that
                                                                                      ent

the appellant had no hesitation about committing a crime when the risk to human life was high. The

appellant contends that there was insufficient proof from which to conclude that other individuals were

at risk. Again, we cannot agree.



                    Our court has consistently held that enhancement factor (10) may be applied in

situations where individuals other than the victim are in the area and are subject to injury. State v.

Sims, 909 S.W 46, 50 (Tenn. Crim. App. 1995). We agree w the trial court that there was
             .2d                                        ith

sufficient proof to establish that other individuals were at risk.3 The appellant drove down a residential

          3
            The appellant’s reliance on State v. Baldwin, No. 01C01-9612-CR-00530, 1998 WL 426199, at *7-8 (Tenn. Crim.
App. at Nashville, July 29, 1998), is misplaced. Contrary to this case, the record in that case reflects that there were no other
people at risk.

                                                               15
street firing a pistol from the sunroof of his car. The appellant then exited his vehicle and continued

firing at Alvis as both m moved around a parked car. D
                         en                           uring the entire episode, the record reflects

that the appellant fired a total of eleven shots. Additionally, testimony reflects that at the time of the

shooting there were neighbors both inside and outside their homes and construction workers on a

nearby roof. Moreover, Alvis’ girlfriend was inside his residence, which was only a short distance from

the parked car that Alvis hid behind while the appellant shot at him. The appellant’s total disregard of

the risk of danger to Alvis’ neighbors and the construction workers supports the application of

enhancem factor (10). This issue is without m
        ent                                  erit.



                 Next, the appellant contends that the trial court incorrectly applied enhancement factor

(12), that during the commission of the felony, the appellant willfully inflicted bodily injury upon another

person, or the actions of the appellant resulted in the death of or serious bodily injury to a victim or a

person other than the intended victim. We cannot agree.



                 The appellant, citing State v. Makoka, 885 S.W.2d 366, 373-74 (Tenn. Crim. App.

1994), argues that this enhancement factor is inapplicable because it is inherent in the offense of

attempted murder. In Makoka, this court held that enhancement factor (12) could not be considered

based on injuries sustained by the victim of an attempted first or second degree murder on the basis

that it would constitute double enhancement. 885 S.W.2d at 374. However, in State v. Freeman, 943

S.W 25, 31-32 (Tenn. Crim. App. 1996), this court disagreed with Makoka on the basis of our
   .2d

supreme court’s finding in State v. Trusty, 919 S.W.2d 305, 313 n.7 (Tenn. 1996), that “an attempted

murder does not necessarily require either contact with the victimor bodily injury.” In Freeman, this

court held that “because bodily injury is not an essential element of the offense of attempted second

degree murder, the trial court properly enhanced the defendant’s sentence for that offense with regard

to the victimwho was actually wounded.” 943 S.W.2d at 32. It is our view that the same reasoning

applies in this case. The victim of an attempted second degree murder does not necessarily suffer

bodily injury. Accordingly, there is no double enhancement from the application of this factor where

                                                    16
the victim does suffer such injuries. See State v. Harris, 978 S.W.2d 109, 117 (Tenn. Crim. App.

1997); State v. Fields, No. 01C01-9512-CR-00414, 1998 W 79917, at *10 (Tenn. Crim. App. at
                                                       L

Nashville, February 26, 1998), perm to appeal denied, (Tenn. 1998).



                 The appellant also argues that the trial court erred by rejecting certain mitigating

evidence under the general provision of Tenn. Code Ann. § 40-35-113(13) (1997). Specifically, the

appellant points to his “long and stable work history, the minor and relatively recent criminal history,

and the appellant’s history of mental problems” as proper mitigating factors. We disagree.



                 First, the appellant argues that trial court erred by failing to use the appellant’s “long

and stable work history” as a mitigating factor. The presentence report states that the appellant was

employed at AFG Industries for approximately twenty-five years. However, the record reflects that at

time of the offense the appellant was no longer employed. This court has previously noted that

“[e]very citizen in this state is expected to have a stable work history if the economy perm the citizen
                                                                                            its

to work, the citizen is not disabled, or the citizen is not independently wealthy.” State v. Keel, 882

S.W 410, 423 (Tenn. Crim. App. 1994). We find no abuse of discretion by the trial court in its
   .2d

refusal to apply this mitigating factor.



                 Next, the appellant argues that trial court erred by failing to use the appellant’s “minor

and relatively recent crim behavior” as a mitigating factor. As the State correctly points out, the
                          inal

appellant is not entitled to mitigation for a minor crim record as opposed to the lack of a crim
                                                        inal                                    inal

record altogether. Keel, 882 S.W.2d at 422-23. The record reflects that the appellant has a history of

crim behavior; therefore, the trial court’s refusal to accept this mitigating factor w not error.
    inal                                                                              as



                 Finally, regarding the appellant’s history of mental problem the record reflects that
                                                                             s,

the trial court did consider his mental health in finding mitigating factor (8) applicable and reducing the

sentence from eleven to ten years. We find no abuse of discretion by the trial court in its refusal to

                                                    17
afford additional mitigation. This issue is without merit.



2. Probation

                 The appellant argues that the trial court erred by failing to grant the appellant’s

request for probation. Specifically, the appellant contends that because the trial court misapplied two

enhancement factors and failed to consider certain mitigating factors, the ten (10) year sentence was

excessive and a sentence of eight (8) years is appropriate. A defendant who receives a sentence of

eight (8) years or less, except for certain offenses, is eligible for probation. Tenn. Code Ann. § 40-35-

303(a) (1997). However, in spite of the appellant’s arguments, we conclude that the findings of the

trial court as to the application of the relevant enhancem and m
                                                          ent   itigating factors is correct.

Therefore, the appellant is not eligible for probation because the trial court justifiably imposed a

sentence in excess of eight (8) years. This issue is without merit.



3. Community Corrections

                 The appellant contends that the trial court erred by failing to sentence

him to an alternative sentence in a community corrections program. First, we note

that the appellant did not specifically request sentencing to a community corrections

program at the sentencing hearing. Consequently, the trial court did not specifically

address the appellant’s eligibility for a community corrections sentence. The trial

court did, however, address the appellant’s eligibility for probation by stating that the

length of the appellant’s sentence rendered him ineligible for probation or other

alternative sentencing. While the trial court’s remark was misleading, we find from

our de novo review that the record is adequate to support the denial of an

alternative sentence under the Community Corrections Act.



                 Eligibility for the Community Corrections Program is governed by

Tenn. Code Ann. § 40-36-106 which states, in relevant part:

                                                    18
               (a) An offender who meets all the following minimum
               criteria shall be considered eligible for punishment in the
               community under the provisions of this chapter: . . .

               (3) Persons who are convicted of nonviolent felony
               offenses;

               (4) Persons who are convicted of felony offenses in
               which the use or possession of a weapon was not
               involved; . . . .


Tenn. Code Ann. § 40-36-106(a) (1998 Supp.).



               We first must determine if the appellant is eligible for a community

corrections sentence pursuant to subpart (a). This court has stated that a defendant

is eligible for a community corrections under subpart (a) regardless of the length of

the sentence. State v. Boston, 938 S.W.2d 435, 438-39 (Tenn. Crim. App. 1996);

State v. Crowe, No. 01C01-9503-CC-00064, 1995 WL 392967, at *1-2 (Tenn. Crim.

App. at Nashville, July 6, 1995). However, the appellant is not eligible for

community corrections under subpart (a) because section (a) (3) excludes

individuals convicted of crimes against the person. Attempted second degree

murder is a crime against the person. Furthermore, the appellant is not eligible

because section (a) (4) excludes individuals convicted of felony offenses in which

the use of a weapon was involved. In this case, the appellant used a pistol in the

commission of the offense.



               An appellant ineligible for community corrections under subpart (a)

may, however, be eligible under subpart (c), which creates a “special needs”

category of eligibility:

               Felony offenders not otherwise eligible under subsection
               (a), and who would be usually considered unfit for
               probation due to histories of chronic alcohol, drug abuse,
               or mental health problems, but whose special needs are
               treatable and could be served best in the community

                                           19
              rather than in a correctional institution, may be
              considered eligible for punishment in the community
              under this chapter.

Tenn. Code Ann. § 40-36-106(c) (1998 Supp.). This court has previously held that

in order to be eligible for the Community Corrections Program under 40-36-106(c), a

defendant must first be statutorily eligible for probation. State v. Grigsby, 957

S.W.2d 541, 546 (Tenn. Crim. App. 1997); Boston, 938 S.W.2d at 438; State

v.Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). Thus, while Tenn. Code

Ann. § 40-36-106(a) (1998 Supp.) does not require eligibility for probation, section

40-36-106(c) (1998 Supp.) does.



              As stated earlier, Tenn. Code Ann. § 40-35-303(a) (1997) expressly

states that a defendant shall be eligible for probation if the sentence imposed is

eight (8) years or less. The trial court imposed a ten-year sentence. Therefore, the

appellant is not eligible for probation and, likewise, is not eligible for sentencing

under Tenn. Code Ann. § 40-36-106(c) (1998 Supp.). This issue is without merit.



              Accordingly, the judgment of the trial court is affirmed.




                                           __________________________________

                                           Norma McGee Ogle, Judge




CONCUR:



_____________________________

Jerry L. Smith, Judge

                                            20
_______________________________

Joe G. Riley, Judge




                                  21
