         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               JANUARY 15, 2002 SESSION

      STATE OF TENNESSEE v. FRANK E. HUEY, RONNIE FINCH &
                       JEFFREY L. GILLS

                     Appeal from the Criminal Court for Davidson County
                         No. 98-D-2428    Cheryl Blackburn, Judge



                                Nos. M2000-02793-CCA-R3-CD
                                     M2000-02815-CCA-R3-CD
                                     M2000-02833-CCA-R3-CD
                                      Filed April 5, 2002

On October 13, 1998, the three Defendants, Frank E. Huey, Ronnie Finch, and Jeffrey L. Gills, were
indicted by a Davidson County grand jury for one count of first degree murder, two counts of
attempted first degree murder, two counts of aggravated assault, and one count of felony reckless
endangerment. After a jury trial, Defendants Huey and Gills were each convicted of one count of
facilitation of first degree murder, two counts of facilitation of attempted first degree murder, two
counts of aggravated assault, and one count of felony reckless endangerment. Defendant Finch was
convicted of one count of facilitation of first degree murder, two counts of facilitation of attempted
first degree murder, and two counts of facilitation of aggravated assault. The trial court conducted
a sentencing hearing and sentenced Defendants Huey and Gills to effective sentences of 51 years and
Defendant Finch to an effective sentence of 49 years. On appeal, all three Defendants contend that
(1) the evidence was insufficient to support the jury’s verdict as evidenced by all three Defendants
being convicted of facilitation and none of them convicted of murder, and (2) the sentences imposed
by the trial court were excessive. In addition, Defendants Huey and Finch allege that the trial court
erred by admitting evidence of previous altercations between the Defendants and the victims.
Defendant Finch further contends that the trial court committed plain error by taking his motion for
judgment of acquittal under advisement at the conclusion of the State’s proof. After a thorough
review of the record and applicable law, we affirm the judgments of the trial court.


     Tenn. R. App. P. 3 Appeal As of Right; Judgment of the Criminal Court Affirmed.

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER , JJ., joined.

Paul J. Bruno, Nashville, Tennessee, for the appellant, Frank E. Huey; Dwight E. Scott, Nashville,
Tennessee, for the appellant, Ronnie Finch; and G. Kline Preston, Nashville, Tennessee, for the
appellant, Jeffrey L. Gills.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret T. Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

        On May 5, 1998, Jerome Jones was standing on the sidewalk outside his home at 357 Settle
Court in Nashville, when Defendant Finch rode by on his bicycle and demanded that Mr. Jones move
out of his way. The two argued for several minutes. Mr. Jones testified that during that afternoon
he saw Defendant Finch several times outside of his apartment with a gun in his hand. On May 6,
Mr. Jones was watching television in his bedroom when he heard a knock on the apartment door.
As he entered the living room, he saw the three Defendants. The Defendants wanted to discuss the
events of May 5, and Mr. Jones asked them to accompany him to his bedroom because his girlfriend
and her children were in the living room. Defendants Huey and Finch accompanied Mr. Jones into
the bedroom where Defendant Huey struck Mr. Jones on the head with a pistol, put the gun to his
face, and ordered him outside. As Defendant Huey led Mr. Jones into the living room at gunpoint,
Michael White, Mr. Jones’ cousin, entered the home. Defendant Huey pointed the gun at Mr. White
and then walked out of the house. Once outside the house, Defendant Huey fired once into the air.
After Defendant Huey’s departure, Defendants Gills and Finch left through the back door.

        After the altercation, Mr. Jones left the Settle Court area with Harold Blair, who promised
to provide Mr. Jones with a firearm for his protection. Word of the altercation between Mr. Jones
and the Defendants quickly spread, and, when Mr. Jones returned to his home that evening, two of
his uncles, Ben and Leo White, were waiting. Leo White had a firearm in the trunk of his car that
he intended to give Mr. Jones.

        As Mr. Jones talked with his uncles, Mr. Blair walked toward Mr. Jones’ home where Sharon
Sanders, Mr. Jones’ girlfriend, and her children stood. While Leo White was opening his trunk,
gunfire erupted. Leo White was shot once in the leg. Ben White was shot once in the groin and once
in the leg. Medical Examiner Dr. Bruce Levy testified at trial that Ben White bled to death as a
result of the two gunshot wounds.

        Mr. Jones testified at trial that he, Ben White, and Leo White were all unarmed at the time
of the attack, and that the gun in Leo White’s trunk was never removed. Mr. Jones also testified that
he did not see the attackers. According to Mr. Jones, the shooting lasted for approximately thirty
seconds and there were numerous shots fired. Sherry Stevens, Mr. Jones’ aunt, testified that she was
aware of the altercation at Mr. Jones’ home. Ms. Stevens observed Defendant Gills walking up the
street toward Mr. Jones’ apartment just prior to the shooting. She also stated that she saw
Defendants Huey and Finch coming around the corner of the apartment building at the same time.
Ms. Stevens saw Defendant Gills raise a pistol and open fire in the direction of Mr. Jones. Ms.
Stevens was unsure whether Defendants Huey and Finch were also armed.




                                                -2-
         Christopher Works also witnessed the shooting and testified that he saw Defendant Gills
standing in the middle of the street and Defendant Huey at the side of the apartment building with
a rifle just prior to the time the shooting began. Mr. Works further stated that he did not see any
weapons among the group of people standing on and around Mr. Jones’ porch, nor did he see Mr.
Jones, Ben White, or Leo White with a weapon. Mr. Works’ mother, Janice Goff, also testified that
from her front porch she saw Defendant Huey fire a rifle in the direction of Mr. Jones’ apartment.
She testified that she heard many guns being fired, but did not see anyone around Mr. Jones’
apartment returning fire.

        Sharon Sanders, Mr. Jones’ girlfriend, was sitting on her porch when the shooting started.
She testified that she saw Defendant Gills in the street pointing a gun at her apartment. She then saw
Gills open fire. Ms. Sanders stated that she, Michael White’s wife, and several children were all on
or around the porch when the shooting started.

         Detective Matt Pilcus of the Metro Police Department testified that he was the first officer
to arrive on the scene, and he immediately rendered aid to Ben White. Upon arrival Detective Pilcus
stopped a blue truck from leaving the scene, but his attention was diverted to Mr. White before he
could question the driver. When he returned later, the truck was empty and locked. Detective Pilcus
testified that he did not see any weapons in the vicinity of the victims, Leo and Ben White. Crime
Scene Investigator Marsha Brown testified that eight 9 millimeter shell casings, one .45 caliber shell
casing and one projectile were found in front of Mr. Jones’ apartment. At the corner of the
apartment building where Defendant Huey had been seen, fourteen 9 millimeter shell casings, two
projectiles and three rifle casings were found. One rifle bullet was recovered from Ben White’s body
at Vanderbilt Hospital shortly before he died.

        Tennessee Bureau of Investigation ballistics expert Steve Scott examined the shell casings
found at the scene and determined that several different 9 millimeter pistols and at least one Chinese
SKS or Russian AK47 assault rifle were used during the shooting. Mr. Scott testified that as many
as eleven and as few as eight guns were used during the shooting.

        Defendant Finch contended at trial that he was either not present or was present but did not
fire a gun. Defendants Gills and Huey contended at trial that they acted in self-defense or,
alternatively, that the shooting was mutual combat. Specifically, Defendants Gills and Huey
contended that they did not initiate the gunfight.

        Harold Blair testified for Defendant Huey at trial. Mr. Blair stated that he and Mr. Jones
were drug dealers, and that he was armed on the night of the shooting. Mr. Blair testified that just
prior to the shooting one of Mr. Jones’ uncles took a shotgun out of the trunk of a car and cocked
it. Mr. Blair observed Defendants Huey and Finch come around the corner of a building with
Defendant Huey carrying a rifle. Mr. Blair also saw Defendant Gills in the street with a pistol.
According to Mr. Blair, Defendants Huey and Gills opened fire, however, he was unsure whether
Defendant Finch had a weapon. Mr. Blair returned fire. Mr. Blair testified that the day after the



                                                 -3-
shooting his apartment was searched by police officers. Drugs and two guns were recovered. Mr.
Blair stated that one of the guns was a Chinese SKS or Russian AK47 rifle.

        Phillip Bradford, Mr. Jones’ upstairs neighbor, also testified for the Defendants and stated
that immediately after the shooting he observed four black males running around the back of the
building firing guns into the air. Mr. Bradford also stated that he saw several men loading weapons
into a blue car in the front of the building. Mr. Bradford’s sister-in-law, Michelle Taylor, also lived
above Mr. Jones and testified that she saw four armed men fleeing the area after the shooting. She
identified Defendants Gills and Finch as two of those four men. Ms. Taylor further stated that after
the shooting she saw a woman with long braids come out of the apartment below her, throw a gun
into a blue car, and then run back into the apartment.

                                            SUFFICIENCY

         The Defendants first contend that the evidence presented at trial is insufficient to support the
jury’s verdicts. We will address each Defendant in turn in the interest of clarity. Tennessee Rule
of Appellate Procedure 13(e) prescribes that “[f]indings 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.” Evidence is sufficient if, after reviewing 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. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier
of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted
criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v.
State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn.
1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. 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, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

Frank E. Huey
         Defendant Huey was convicted of facilitation of first degree murder, two counts of
facilitation of attempted first degree murder, two counts of aggravated assault, and felony reckless
endangerment. First degree murder is a premeditated and intentional killing. See Tenn. Code Ann.


                                                   -4-
§ 39-13-202 (a)(1). Premeditation requires the exercise of reflection and judgment. See Tenn. Code
Ann. § 39-13-202 (d). A jury may infer premeditation from the manner and circumstances of the
killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). One acts intentionally when “it is
the person’s conscious objective or desire to . . . cause the result.” Tenn. Code Ann. § 39-11-302.
One is guilty of facilitation of first degree murder when, knowing another intends to commit first
degree murder, the person knowingly furnishes substantial assistance in the commission of first
degree murder. See id. § 39-11-403.

         The evidence against Defendant Huey showed that on the day of the shooting he,
accompanied by his codefendants, entered Jerome Jones’ house. Defendant Huey then struck Mr.
Jones with a pistol, left the house, and fired the pistol into the air. Later that evening, several
witnesses observed Defendant Huey and his codefendants approach Mr. Jones’ apartment, position
themselves strategically around the apartment, and open fire on the group standing in front of the
apartment which included Mr. Jones, Ben White, and Leo White. Defendant Huey was armed with
a rifle. The crowd around the porch ran for cover. However, Ben and Leo White were both shot,
and Ben White died from his injuries. The State’s medical examiner testified that Ben White died
as a result of blood loss due to two gunshot wounds. Detective Kent McAllister testified that
medical personnel trying to save the life of Ben White gave him a bullet retrieved from Ben White's
body. Tennessee Bureau of Investigation ballistics expert Steve Scott identified that bullet as being
fired from a rifle.

        Given Defendant Huey’s previous altercation with Mr. Jones, and given that Defendant Huey
arrived on the scene armed with a rifle and opened fire into a large group of people, we find
sufficient evidence for the jury to infer that the Defendant acted intentionally and with premeditation
when he fired his rifle. Specifically, the Defendant acted with the intent to kill members of the
crowd that surrounded Mr. Jones’ apartment. While it may be inferred from the evidence that
Defendant Huey, who was identified as being armed with a rifle, fired the shot that killed Ben White,
at the very least, he engaged in a deliberate and concerted effort with his codefendants to kill Mr.
Jones and his companions. By his presence at the scene and participation in the assault, Defendant
Huey provided substantial assistance to his codefendants. Accordingly, we find sufficient evidence
to support the Defendant’s conviction for facilitation of the first degree murder of Ben White.

         For similar reasons, there is sufficient evidence to support the Defendant’s conviction for
facilitation of the attempted first degree murder of Mr. Jones and facilitation of the attempted first
degree murder of Leo White. Facilitation of attempted first degree murder requires that the
Defendant provide substantial assistance to one who attempts to commit first degree murder. See
Tenn. Code Ann. § 39-11-403. One attempts to commit first degree murder when he or she acts with
the intent to commit first degree murder and those actions constitute a substantial step toward the
commission of a first degree murder. See Tenn. Code Ann. § 39-12-101.

       The Defendant and his codefendants opened fire on a group of individuals which included
a person with whom they had a previous violent encounter. While Defendant Huey may have been
fortunate enough not to be convicted of attempted first degree murder, it is clear from his presence


                                                 -5-
at and participation in the shooting that he rendered substantial assistance to those seeking to kill Leo
White and Mr. Jones. Accordingly, Defendant Huey’s two convictions of facilitation of attempted
first degree murder are supported by sufficient evidence.

       Although he does not challenge the sufficiency of the convicting evidence, Defendant Huey
was also convicted of felony reckless endangerment. One commits felony reckless endangerment
when he or she recklessly engages in conduct with a deadly weapon that places or may place another
person in imminent danger of death or serious bodily injury. See Tenn. Code Ann. § 39-13-103.
The proof showed that the Defendant opened fire upon a large group of individuals, including
children. The evidence is clearly sufficient to support this conviction.

        The Defendant’s contention that he acted in self-defense or in the heat of mutual combat with
the victims is a factual issue involving the credibility of witnesses and the weight and value given
the evidence which was resolved by the trier of fact. See Morris, 24 S.W.3d at 795; Pappas, 754
S.W.2d at 623. We are bound by that resolution. Accordingly, we find sufficient evidence to
support Defendant Huey’s convictions. This issue is without merit.

Jeffrey L. Gills
        Jeffrey Gills was convicted of the same offenses as his codefendant Huey and the evidence
against Jeffrey Gills is substantially the same. Accordingly, for the same reasons we found sufficient
evidence to support Defendant Huey’s convictions, we also find the evidence sufficient to support
Defendant Gills’ convictions. Specifically, Defendant Gills was involved in the altercation in Mr.
Jones’ apartment, and he was identified by several witnesses who saw him walking up the street
toward Mr. Jones’ apartment just prior to the shooting. Sherry Stevens saw Defendant Gills
approach the apartment, aim a pistol at the victims, and begin firing into the crowd. Clearly, the
evidence supports Defendant Gills’ convictions.

Ronnie Finch
        Ronnie Finch was also convicted of one count of facilitation of first degree murder and two
counts of facilitation of attempted first degree murder, and the evidence against Defendant Finch is
substantially the same as that presented against his codefendants. Therefore, as with Defendants
Gills and Huey, we find sufficient evidence to support Defendant Finch’s convictions. Defendant
Finch was engaged in the initial argument with Mr. Jones one day before the shooting, and he also
accompanied his codefendants to Mr. Jones’ apartment the day of the shooting when Defendant
Huey struck Mr. Jones with a pistol. Additionally, Sherry Stevens saw Defendant Finch at the scene
with Defendant Huey seconds before the shooting began, and Michelle Taylor saw Defendant Finch
running from the scene with a gun after the shooting. Accordingly, for the reasons set forth for
Defendants Huey and Gills, we find the evidence sufficient to support Defendant Finch’s
convictions.




                                                  -6-
                                  INCONSISTENT VERDICTS

         Next, the Defendants contend that their convictions for facilitation of first degree murder and
facilitation of attempted first degree murder should be set aside as inconsistent. Specifically, the
Defendants contend that their convictions for facilitation without a conviction of the principal
offender evidences a compromised, inconsistent verdict.

       This Court addressed this precise issue in State v. Gennoe, 851 S.W.2d 833, 836 (Tenn.
Crim. App. 1992), a case in which the defendant was convicted of facilitation of sexual battery
without his codefendant being convicted as the principal in the crime. This Court cited Tennessee
Code Annotated section 39-11-407 which reads in pertinent part as follows:
       In a prosecution in which a person’s criminal responsibility is based upon the conduct
       of another, the person may be convicted on proof of commission of the offense and
       that the person was a party to or facilitated its commission, and it is no defense that
       . . . the person for whose conduct the defendant is criminally responsible has been
       acquitted, has not been prosecuted or convicted, has been convicted of a different
       offense or different type or class of offense, or is immune to prosecution.

Tenn. Code Ann. § 39-11-407. This Court further rejected the Gennoe defendant’s argument that,
in order to avoid “grossly inconsistent verdicts,” an exception to this rule should be created for
defendants who are tried together. Gennoe, 851 S.W.2d at 836. In response to this proposition, this
Court cited our supreme court’s decision in State v. Wiggins, 498 S.W.2d 92, 93 (Tenn. 1973), in
which our supreme court adopted the rationale of the United States Supreme Court set forth in Dunn
v. United States, 284 U.S. 390, 393 (1932), and held that each count of an indictment is to be treated
as a separate indictment and must be individually supported by the evidence, and, therefore,
consistency between verdicts on separate counts of an indictment is not necessary. See Wiggins, 498
S.W.2d at 93.

        As we stated in Gennoe, we see “no basis to carve out an exception to the facilitation statute
based upon constitutional principals. Inconsistent verdicts are not fatal to a conviction.” Gennoe,
851 S.W.2d at 836 (citations omitted). Because, as we have stated above, we find ample evidence
to support each individual conviction, we find no illegality in the alleged inconsistencies of the
verdicts. This issue is without merit.

                        EVIDENCE OF PREVIOUS ALTERCATIONS

       Defendants Huey and Finch contend that the trial court erred in admitting testimony
concerning the altercation on May 5 between Defendant Finch and Mr. Jones and the altercation in
Mr. Jones’ home early on the day of the shooting. The trial court admitted the testimony after a
hearing on its admissibility. The trial court found that pursuant to State v. Gilliland, 22 S.W.3d 266,
272 (Tenn. 2000), the need for completeness necessitated the admission of the evidence. The
Defendants maintain that the prejudicial nature of the evidence far outweighed its probative value.
We disagree.


                                                  -7-
         Tennessee Rule of Evidence 404 (b) provides that evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in conformity with that
character. However, such evidence may be admissible for other purposes. Id. In Gilliland, our
supreme court held that evidence of prior crimes, wrongs, or acts may be admitted into evidence if
necessary to provide a contextual background. See Gilliland, 22 S.W.3d at 272. Prior to admitting
the evidence, the trial court must make the following findings:
         (1) the absence of the evidence would create a chronological or conceptual void in
         the state’s presentation of its case; (2) the void created by the absence of the evidence
         would likely result in significant jury confusion as to the material issues or evidence
         in the case; and (3) the probative value of the evidence is not outweighed by the
         danger of unfair prejudice.
Id. If the trial court makes the requisite findings, its decision should not be disturbed absent an abuse
of discretion. Id. at 273.

        In the present case, the trial court made the findings required by Gilliland. The trial court
ruled that the evidence was necessary to give the jury a complete view of the ongoing disagreement
between Mr. Jones and the Defendant. Without the evidence, the trial court feared that the jury
would draw the mistaken conclusion that the shooting was simply a random act of violence. The
trial court specifically found that the probative value in giving the jury a complete picture of the
events surrounding the shooting outweighed the danger of unfair prejudice. To insure that the
Defendants would not be unfairly prejudiced by the testimony, the trial court instructed the jury that
they could not consider the evidence as proof of the Defendants’ disposition to commit a crime for
which they were on trial.

        We find no error in the trial court’s admission of the evidence. This issue is without merit.

                                           SENTENCING

        The Defendants further contend that the trial court misapplied enhancement factors and erred
in not applying several mitigating factors, thus, inappropriately sentencing each Defendant to the
maximum sentence for each count. When an accused challenges the length, range, or manner of
service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for


                                                  -8-
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Frank E. Huey
        Defendant Huey contends that the trial court erred in finding that he was a leader in the
commission of the offense and that he willfully inflicted bodily injury. See Tenn. Code Ann. § 40-
35-114 (2), (12). The presentence report shows that at the time of sentencing the Defendant was a
thirty-one year old, married male with six children and a relatively steady employment history. The
report also reveals an extensive misdemeanor criminal history including several convictions for drug
possession and one misdemeanor theft conviction.

        The Defendant was convicted of facilitation of first degree murder, a Class A felony, two
counts of facilitation of attempted first degree murder, Class B felonies, and reckless endangerment,
a Class E felony. See Tenn. Code Ann. §§ 39-11-403(b); 39-12-101; 39-13-103(b); 39-13-202. The
Defendant was determined to be a Range I standard offender on each count. The Defendant faced
sentence ranges of 15 to 25 years for the Class A felony, eight to twelve years for the each of the
Class B felonies, and one to two years for the Class E felony. See Tenn. Code Ann. § 40-35-
112(a)(1)-(5). The trial court found no applicable mitigating factors, but five applicable
enhancement factors and sentenced the Defendant to the maximum sentence on each count for an
effective sentence of 51 years. The Defendant now challenges the trial court’s refusal to consider
his mitigating factors, as well as, the trial court’s application of enhancement factors (2) and (12).
See Tenn. Code Ann. § 40-35-114 (2), (12).

        The Defendant set forth the following five mitigating factors for the court’s consideration:
        (1) the Defendant acted under strong provocation;
        (2) substantial grounds exist tending to excuse or justify the Defendant’s criminal
        conduct, though failing to establish a defense;
        (3) the Defendant, although guilty of the crime, committed the offense under such
        unusual circumstances that it is unlikely that a sustained intent to violate the law
        motivated the criminal conduct;
        (4) the Defendant turned himself in to police; and
        (5) the Defendant has a wife and six children that require his support.
See id. § 40-35-113(2), (3), (11) and (13). In rejecting the Defendant’s mitigating factors the trial
court found as follows:



                                                  -9-
        I know the defense has decided that he acted under strong provocation. I don’t think
        arming yourself with a rifle, going and standing at the side of a building and shooting
        at individuals that include children, that there’s any provocation there, and the facts
        of this case don’t support that. There is[sic] no grounds to justify that conduct and
        looking at factor number eleven, that there is no sustained intent to violate the law,
        well Mr. Hughey’s[sic] past history, in addition to the testimony in court this
        morning from Officer Wells, would indicate there is a sustained intent to violate the
        law.

                Now, [f]actor [n]umber [t]hirteen, turning yourself in, the fact that you have
        six children. You know, the fact that you turn yourself in, I’ll consider but I’m not
        going to give that any weight. So, basically, except for that, I’m not finding that any
        mitigating factor, and I’m considering all of them, applies in this case.

The record supports the trial court’s findings and we find no error in the court’s rejection of the
Defendant’s proposed mitigating factors.

         Defendant Huey challenges only two of the five enhancement factors applied by the trial
court. First, the Defendant challenges the trial court’s finding that he was a leader in the commission
of an offense involving two or more actors. See Tenn. Code Ann. § 40-35-114 (2). The Defendant
contends that this enhancement factor cannot apply to a defendant who has been convicted of mere
facilitation. Despite the Defendant’s contentions, this Court has previously held that a defendant
convicted of the facilitation of a crime may be considered a leader in the commission of the offense
because the application of the factor does not require that the defendant be the sole leader, only that
he be a leader. See State v. Robinson, 971 S.W.2d 30, 36 (Tenn. Crim. App. 1997) (defendant
convicted of facilitation of second degree murder found to be a leader in the commission of the
offense); State v. Oneal Sanford, No. E1999-02089-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS
440, at *22-23 (Knoxville, June 18, 2001) (defendant convicted of facilitation of attempted
especially aggravated robbery and facilitation of aggravated assault found to be leader in the
commission of the offense).

        In applying this enhancement factor, the trial court referred to the Defendant’s leadership in
the altercation prior to the shooting at Mr. Jones’ home as well as the circumstantial evidence that
suggested that the bullet that killed Ben White was fired by the Defendant. We find that this
enhancement factor is supported by the record; therefore, no error was committed in its application.

        Next, the Defendant challenges the trial court’s finding that he willfully inflicted bodily
injury on another person during the commission of the offense, and, alternatively, that his actions
resulted in the death of or serious bodily injury to a victim or a person other than the intended victim.
See Tenn. Code Ann. § 40-35-114 (12). The trial court applied this enhancement factor to the
Defendant’s convictions for facilitation of the first degree murder of Ben White and facilitation of
the attempted first degree murder of Leo White.



                                                  -10-
         In applying this enhancement factor, the trial court relied on State v. Freeman, 943 S.W.2d
25, 32 (Tenn. Crim. App. 1996), which held that the willful infliction of bodily injury required for
the application of the enhancement factor was not an inherent element of the offense of facilitation
of attempted first degree murder. While the trial court properly construed Freeman as it applies to
the facilitation of attempted first degree murder conviction, we believe that the trial court erred
applying this enhancement factor to the facilitation of first degree murder conviction. Clearly,
“bodily injury” is encompassed in the elements of facilitation of first degree murder which requires
that a “killing” take place. See id.; Tenn. Code Ann. § 39-13-202 (a)(1). Therefore, the first prong
of the enhancement factor requiring “bodily injury” is inapplicable to the Defendant’s conviction for
facilitation of first degree murder because it is contained within the offense.

         The trial court also determined that enhancement factor (12) could be applied to the
conviction for facilitation of first degree murder under the second prong of the factor; specifically,
that the actions of the Defendant resulted in the death or serious bodily injury of a person other than
the intended victim. The trial court stated that the factor was applicable due to the gunshot wound
suffered by Leo White. However, the trial court failed to make a finding that the injury suffered by
Leo White constituted a “serious bodily injury.” In fact, the trial court stated earlier in the sentencing
hearing that the injuries suffered by Leo White “weren’t extraordinary.” Accordingly, we find that
the trial court erred in applying the enhancement factor to the Defendant’s conviction for facilitation
of first degree murder.

         We also find that the trial court erred in applying enhancement factor (12) to the Defendant’s
conviction for facilitation of the attempted first degree murder of Leo White. There is no evidence
in the record that the Defendant willfully inflicted bodily injury. The proof at trial failed to establish
who fired the bullets that struck Ben and Leo White. Furthermore, the second prong of enhancement
factor (12) is inapplicable to the Defendant’s convictions for two reasons. First, as discussed above,
the proof does not support a finding that Leo White suffered “serious bodily injury.” Second, the
trial court’s finding that the actions of the Defendant resulted in the death of or serious bodily injury
to a person other than the intended victim is not supported by the applicable law. We have
consistently held that a trial court may not enhance a defendant’s sentence based upon the fact that
the offense involved more than one victim, pursuant to Tennessee Code Annotated section 40-35-
114(3), when the defendant has been convicted of the offenses committed against each victim. See
State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Lambert, 741 S.W.2d
127, 134 (Tenn. Crim. App. 1987). We see no reason why this rationale would not also preclude the
enhancement of a defendant’s sentence under enhancement factor (12) when a conviction has been
obtained against the defendant for the serious bodily injury or death suffered by the person other than
the intended victim. Therefore, because the Defendant was convicted of facilitation of the first
degree murder of Ben White, the death of Ben White may not be used to enhance the Defendant’s
sentence for facilitation of the attempted first degree murder of Leo White. Accordingly, the trial
court erred in applying enhancement factor (12) to the Defendant’s convictions.

       While the trial court erred in applying enhancement factor (12) to two of the Defendant’s
convictions, this error does not require a reduction in the sentences imposed by the trial court. See


                                                  -11-
State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). The trial court properly applied four
other enhancement factors in enhancing the Defendant’s sentences. The trial court found (1) that the
Defendant had a prior history of criminal convictions or behavior in addition to those necessary to
establish the range; (2) that he was a leader in the commission of an offense involving two or more
criminal actors; (3) that he had a previous history of unwillingness to comply with the conditions of
a sentence involving release into the community; and (4) that he employed a firearm during the
commission of the offense. See Tenn. Code Ann. § 40-35-114 (1), (2), (8), (9). Given the lack of
mitigating factors and the four strong enhancement factors, we find no error in the sentence imposed
by the trial court for each of the Defendant’s convictions.

Defendant Jeffrey L. Gills
       Defendant Gills also challenges the sentences imposed by the trial court. Defendant Gills
contends that the trial court erred by refusing to apply his proposed mitigating factors and improperly
applying several enhancing factors. Defendant Gills was convicted of the same crimes as Defendant
Huey and faced the same range of punishment for each conviction. He was sentenced to the
maximum sentence on each of the four convictions resulting in an effective sentence of 51 years.

       The presentence report shows that, at the time of sentencing, the Defendant was a 29 year old
male with four children. Defendant Gills had recently earned his G.E.D. while incarcerated. Also,
the Defendant possessed an extensive criminal history of seventeen previous convictions, including
one felony conviction.

        Defendant Gills proposed the same mitigating factors proposed by Huey. In rejecting the
mitigating factors proposed, the trial court stated
        [a]ll right, looking at the mitigating factors. Same ones that are cited that were cited
        by Mr. Hughey [sic] in that strong provocation. There’s no strong provocation in this
        case and there is no substantial grounds existing to justify the conduct. . . . There is
        a sustained intent to violate the law and I will consider for whatever reason he turned
        himself in and give it absolutely no weight. Considering all the other factors, I’m
        finding that none other apply.
We find no error in the trial court’s findings.

        The trial court also applied to Defendant Gills’ sentences the same five enhancement factors
based upon the same reasoning that she applied to Mr. Huey. As we have previously discussed with
regard to Defendant Huey, the trial court similarly erred in its application of enhancement factor (12)
to Defendant Gills’ convictions for facilitation of first degree murder and facilitation of attempted
first degree murder. However, as with Mr. Huey, we see no need to modify Defendant Gills’
sentences because the remaining enhancing factors in the absence of mitigating factors are adequate
to support the sentences imposed by the trial court.




                                                 -12-
Defendant Ronnie Finch
         Defendant Finch was convicted of facilitation of first degree murder and two counts of
facilitation of attempted first degree murder.1 The Defendant was sentenced as a Range I offender
to the maximum sentence for each conviction, an effective sentence of forty-nine years. Defendant
Finch argues that the trial court erred in refusing to give any weight to proposed mitigating factors
and that the evidence does not support the trial court’s finding of enhancement factor (12).
Defendant Finch, however, concedes the applicability of the other enhancement factors applied by
the court.

       The presentence reports shows that, at the time of sentencing, Defendant Finch was a twenty-
one year old male with one child. The Defendant did not have a extensive adult criminal history,
however, he was found to be delinquent several times in juvenile court.

       In rejecting the Defendant’s proposed mitigating factors the trial court stated as follows:
       Looking at the mitigation, the defendant cited that he played a minor role in the
       commission of the offense. I do not find that the facts justify that at all. As a matter
       of fact, he was involved in the altercation earlier in the day and clearly, though there
       was no one that saw him with a weapon, clearly was there, present, knowing what
       was happening, whether or not he fired a firearm or not. There is no intent to violate
       the law. Well, clearly that’s not correct. The day before he had gotten into the
       situation with Mr. Jerome Jones for which he had a gun on 5/5 [sic]. That was the
       testimony. Then earlier in the day he was involved in the situation and then later.
       So that’s clearly not a mitigating factor. Any any other factor consistent and that
       would be, I believe, the fact that he has gotten his G.E.D. while he was incarcerated.
       I will consider that but will give it no weight.

              Considering all the other mitigating factors, I do not believe that there is
       anything sufficient to mitigate any sentence in this case.

The trial court considered all the relevant mitigating factors, and we find no error in its refusal to
accord the factors any weight.

        The trial court found five enhancement factors in sentencing the Defendant. The trial court
found that the Defendant had a previous criminal history in addition to that necessary to establish
the appropriate range; the Defendant has displayed an unwillingness to comply with the conditions
of a sentence involving release in the community; the Defendant willfully inflicted bodily injury on
another or the actions of the Defendant resulted in the death of or serious bodily injury to a victim
or a person other than the intended victim; the felony was committed while the Defendant was on
probation from a prior felony; and the Defendant was adjudicated to have committed an act or acts
as a juvenile that would constitute a felony if committed by an adult. See Tenn. Code Ann. § 40-35-
114 (1), (8), (12), (13), (20).

       1
           Un like his codefendan ts, Defend ant Finch was acquitted o f the ch arge of felo ny reckless endan germ ent.

                                                           -13-
         As we have found with regard to Defendants Huey and Gills, the trial court erred in applying
enhancement factor (12) to Defendant Finch’s convictions for facilitation of first degree murder and
facilitation of attempted first degree murder. However, the trial court found and the Defendant
concedes the presence of four other enhancement factors. Each of these factors are entitled to great
weight, and we find no error in the sentence imposed by the trial court.

                                 CONSECUTIVE SENTENCING

        Each Defendant also challenges the trial court’s imposition of consecutive sentences.
Tennessee Code Annotated section 40-35-115 provides that the trial court may impose consecutive
sentences upon a defendant convicted of multiple criminal offenses if it finds that a preponderance
of the evidence establishes that the defendant falls into at least one of seven categories. Two of those
categories are:
        a) the defendant is an offender whose record of criminal activity is extensive; and
        b) 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.
Tenn. Code Ann. § 40-35-115 (2), (4).

Defendant Huey
       The trial court ordered Defendant Huey’s sentences to run consecutively based upon his
extensive criminal history and his status as a dangerous offender. The trial court stated that

        [h]e is clearly an offender whose record of criminal activity is extensive. I
        understand that his convictions are - There’s no prior felonies but when you look not
        only at the nature of the convictions, the frequency, and I counted them, the
        convictions in his short life, he’s had 17 prior convictions. He has just been
        constantly in this system. I’m going to find that he is, in fact, an offender whose
        record of criminal activity is extensive and I’m also going to find that he 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. I
        can’t think of a better example than a situation where you open fire with a rifle in a
        crowded housing area, be it over drugs or somebody disrespecting you or whatever,
        this is, in fact, the personification of what a dangerous offender is.

                 Now will the aggregate term reasonably relate to the severity of the offenses,
        and is it necessary to protect the public from further serious criminal conduct by the
        defendant? Those questions will be answered positively because this is a case where
        Mr. Leo White and Mr. Ben White, strangers somewhat to this altercation that had
        occurred earlier, were gunned down.

       The trial court’s findings are supported by the record. Therefore, we conclude that the trial
judge properly acted within her discretionary authority in imposing consecutive sentences.


                                                 -14-
Defendant Gills
        The trial court also ordered Defendant Gills’ sentences to be served consecutively due to his
extensive criminal history and his status as a dangerous offender. The trial court specifically found
that the Defendant exhibited behavior that showed little or no regard for human life and showed no
hesitation in committing a crime in which the risk to human life was high. The trial court stated that
        [s]hooting with automatic weapons into a densely populated area involving five or
        six children clearly is a dangerous offender. He has, and the aggregate term relates
        to the severity of the offenses. This is a murder case. The jury chose not to convict
        these defendants of Murder in the First Degree, though the evidence was surely there.
        And these sentences are necessary in order to protect the public from further serious
        criminal conduct by this defendant, evidenced by all the prior. He’s hardly gone any
        time without being back in the criminal justice system except for that time which he
        was incarcerated.


       The trial court’s findings are clearly supported by the record, and we find no error in the
imposition of consecutive sentences.

Defendant Finch
       The trial court sentenced Defendant Finch to consecutive sentences on the basis that he is a
dangerous offender. The trial court specifically found that
       he’s 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.
       He’s on probation for a weapons offense at the time this occurs, he has a prior
       adjudication, as a juvenile, of a robbery conviction. All of this indicates an
       individual who is dangerous. These offenses are dangerous, and, obviously, the
       public needs to be protected. In addition to that, he was on probation, which is
       another factor. He was sentenced for an offense committed while on probation.
       Therefore, I find that consecutive sentences are necessary with regard to Mr. Finch,
       also.

Again, the trial court’s findings are well-founded. This issue is without merit.

                DENIAL OF MOTION FOR JUDGMENT OF ACQUITTAL

        Finally, Defendant Finch contends that the trial court erred in taking his motion for judgment
of acquittal under advisement. At the end of the State’s proof, all three Defendants moved for a
judgment of acquittal. The trial court denied Defendants Huey and Gills’ motions, but expressed
concern regarding the sufficiency of proof regarding Defendant Finch. The State’s proof against
Defendant Finch consisted of one witness who placed Finch at the scene during the shooting, but
stated that he was unarmed. Instead of granting Defendant Finch’s motion, the trial court took the
motion under advisement.



                                                -15-
         Our supreme court has clearly stated that “[t]here is no authority in our practice or procedure
in a criminal case for the trial judge to take under advisement a motion for a judgment of acquittal
made at the conclusion of all the State’s proof.” Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979).
At the end of the State’s proof, if the evidence is insufficient to support a conviction, upon a
defendant’s motion, the trial court has no alternative but to direct a verdict in favor of the defendant.
Id. It is clear that the trial court erred in taking the Defendant’s motion under advisement.

        However, the Mathis court also held that
        [w]hen the court overrules or does not act upon a motion for an acquittal made at the
        conclusion of the State’s proof, if counsel is convinced as to the validity of the
        motion, he or she must then and there take affirmative action to confine the
        controversy to the proof already presented. He or she should announce that the
        defendant stands on his motion, will present no proof, disclaims any benefit of any
        evidence introduced by his codefendant, disavows any detriment, and should state
        that the evidence presented by the codefendant will not be binding upon him, and he
        should participate no further in the trial until after conclusion of all the proof.

Id. In the present case, the Defendant’s counsel did not object to the court’s action nor did he stand
on his motion. In fact, counsel for Defendant Finch participated in the remainder of the trial by
cross-examining a witness called by one of his codefendants. The Defendant’s actions have waived
the trial court’s error.

        The strict guidelines as set forth by our supreme court for preserving as error a trial court’s
denial of or inaction upon a motion for judgment of acquittal leave no room for a plain error analysis.
Accordingly, Mathis requires us to find that the Defendant has waived the trial court’s error in taking
his motion for judgment of acquittal under advisement. This issue is without merit.

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM the judgments of the trial court.




                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




                                                  -16-
