         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 16, 2002

             STATE OF TENNESSEE v. ALFIO ORLANDO LEWIS

                     Appeal from the Criminal Court for Davidson County
                        No. 2000-A-121     Cheryl Blackburn, Judge



                   No. M2000-03160-CCA-MR3-CD - Filed March 6, 2002


The Defendant, Alfio Orlando Lewis, was convicted by a Davidson County jury of two counts of
attempted second degree murder and two counts of aggravated assault. After a sentencing hearing,
the trial court merged the two aggravated assault convictions into the two attempted second degree
murder convictions. The Defendant was sentenced to 12 years to be served consecutively in the
Department of Correction on each of the attempted second degree murder convictions for an
effective sentence of 24 years. On appeal, the Defendant contends that (1) the evidence is
insufficient to support the convictions, (2) the trial court erroneously prevented him from testifying
that a fellow inmate confessed to the crime, and (3) the trial court improperly sentenced the
Defendant. We affirm the judgment 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 THOMAS T.
WOODALL , JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Alfio Orlando Lewis.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

         On the evening of December 10, 1998, the Defendant entered the South Side Market and Deli
on Murfreesboro Road in Nashville and purchased a frozen pizza. The South Side Market and Deli
is owned and operated by two brothers, Mohammed and Sultan Hussaini. The Defendant was
informed by Mohammed Hussaini that he could not use the store’s microwave oven to heat the pizza
because it would take between fifteen and twenty minutes and might overload the electrical circuits
in the store. The Defendant became angry and a spirited argument ensued. Sultan Hussaini left the
store office to try to get his brother and the Defendant to calm down. During the argument, both
Mohammed Hussaini and the Defendant cursed at each other. The Defendant also threatened to
return, “blow this place up,” and shoot the brothers.

        Later that evening, the Hussaini brothers locked the store and got into their car to go home.
As Sultan was starting the car, he noticed two black males coming around the corner of the store.
One man was carrying a shotgun while the other was armed with a pistol. The two men began firing
at the Hussaini brothers who were seated in their car. The Hussaini brothers were also armed with
pistols and returned fire. The assailants fled the seen, but both brothers recognized the Defendant
as the man with the pistol. The Hussaini brothers called the police, described the Defendant, and
provided the police with the store surveillance video showing the Defendant in the store earlier in
the evening. Both brothers identified the Defendant two weeks later in a photo lineup.

         While admitting that he argued with the Hussaini brothers on the day of the incident, the
Defendant contended at trial that he was with his girlfriend and his cousin at the time of the shooting
and was not one of the assailants. The Defendant testified that on the evening in question, he took
his mother to his aunt’s house and then drove around with his girlfriend and his cousin. The
Defendant’s mother and the Defendant both testified that he returned to his aunt’s house every hour
to see if his mother was ready to go home. The Defendant’s girlfriend testified that she was with him
all evening and that he did not return to the store to shoot the Hussaini brothers. The Defendant’s
girlfriend also stated that she saw no firearms on the Defendant’s person or in his car all evening.

                                           SUFFICIENCY

         The Defendant first contends that the evidence presented at trial is insufficient for a
reasonable jury to find him guilty beyond a reasonable doubt. Specifically, the Defendant argues that
inconsistencies in the testimony of the two Hussaini brothers preclude a finding of guilt beyond a
reasonable doubt. 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,


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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).

        Second degree murder is a knowing killing of another. See Tenn. Code Ann. § 39-13-210
(a)(1). One attempts to commit second degree murder when, with the intent to commit second
degree murder, one takes a “substantial step toward the commission of the offense.” Tenn. Code
Ann. § 39-12-101 (a)(3).

        The Defendant argued with the two store owners, and threatened to return and shoot them.
Later that evening, the proof established that the Defendant returned with an accomplice and opened
fire on the brothers as they sat in their car. Bullet holes were found in the victims’ car and bullet
casings were found in the parking lot where the Defendant and his accomplice stood. Clearly, the
proof established that the Defendant’s actions were a knowing attempt to take the life of the
Huissaini brothers.

        The Defendant maintains that the evidence of identification is insufficient to establish guilt
due to inconsistencies in the testimony of the two victims. Both brothers testified that they
recognized the Defendant while he was shooting the pistol at them as the individual with whom they
argued earlier in the evening. Furthermore, both brothers separately identified the Defendant from
a photographic lineup two weeks after the incident. Any questions involving the credibility of the
witnesses or the weight and value to be given the evidence, were resolved by the trier of fact in favor
of the State. See Morris, 24 S.W.3d at 795; Pappas, 754 S.W.2d at 623.

        Accordingly, we conclude that there is sufficient evidence from which a rational jury could
find the Defendant guilty beyond a reasonable doubt of attempted second degree murder. This issue
is without merit.

                              ALLEGED HEARSAY CONFESSION

        The Defendant also contends that the trial court erred in preventing him from testifying
concerning a statement made to the Defendant by another inmate in which the inmate stated that it
was he and not the Defendant who was involved in the shooting. The Defendant argues that the trial
court should have allowed him to testify concerning this hearsay because the declaring inmate was
unavailable. Rule 804 of the Tennessee Rules of Evidence, regarding the hearsay exceptions
applicable when the declarant is unavailable, provides as follows:
                (b) Hearsay Exceptions.--The following are not excluded by the hearsay rule
        if the declarant is unavailable as a witness:

                ....


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               (3) Statement Against Interest.--A statement which was at the time of its
       making so far contrary to the declarant's pecuniary or proprietary interest, or so far
       tended to subject the declarant to civil or criminal liability or to render invalid a
       claim by the declarant against another, that a reasonable person in the declarant's
       position would not have made the statement unless believing it to be true.

        In Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn.1975), the court set out the
basic rule, later codified as Rule 804, regarding the declaration against penal interest exception to
the hearsay rule:
        From this day forward, extra-judicial declarations against pecuniary or penal
        interests, where material, are admissible where the declarant is dead; beyond the
        jurisdiction of the court and the reach of its processes; is suffering from such
        infirmities of body or mind as to preclude his appearance as a witness, either by
        personal presence or by deposition; or where he is present in court and refuses to
        testify on the ground of self-incrimination.

Id. at 775; see also, State v. Cureton 38 S.W.3d 64, 79 (Tenn. Crim. App. 2000).

        The Defendant's argument that the testimony concerning the alleged confession was
admissible as a declaration against penal interest is without merit. The defendant made no showing
that Johnson was “unavailable” to testify, as is required by Rule 804 before such a statement can be
admitted as an exception to the hearsay rule. The Defendant made no effort to subpeona the inmate
who made the confession. There was no showing that any attempt had been made to locate the
inmate. Further, the inmate did not appear in court and assert his Fifth Amendment privilege against
self-incrimination. Thus, the testimony regarding the alleged confession was hearsay which was not
admissible pursuant to an exception to the hearsay rule. This issue is without merit.

                                          SENTENCING

       Finally, the Defendant argues that the trial court erred in sentencing him to the maximum
sentence of 12 years on each count and by imposing consecutive sentences. 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
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875


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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. 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).

        The presentence report reflects that at the time of sentencing the Defendant was twenty-one
years old and unmarried. The Defendant had previous convictions for aggravated assault, assault,
criminal trespass, and disorderly conduct, in addition to an extensive juvenile record. The
Defendant’s statement contained within the presentence report simply asserts that he is not guilty of
the charges levied against him.

         In sentencing the Defendant to the maximum sentence on each count, the trial court applied
the following five enhancement factors: (1) the defendant had a previous history of criminal
behavior in addition to that necessary to establish the appropriate range; (2) the defendant was a
leader in the commission of an offense involving two or more criminal actors; (3) the defendant had
a previous history of unwillingness to comply with the conditions of a sentence involving release in
the community; (4) the defendant possessed or employed a firearm during the commission of the
offense; and (5) the defendant was adjudicated to have committed a delinquent act or acts as a
juvenile that would constitute a felony if committed by an adult. See Tenn. Code Ann. § 40-35-114
(1), (2), (8), (9), and (20).

       The Defendant takes issue only with the trial court’s finding that he was a leader in the
commission of a criminal offense involving two or more criminal actors. The trial court specifically
found that:
       . . . Mr. Lewis is the one that was extremely agitated about the lack of being able to
       use a microwave oven. He threatens to either blow up the place, come back, and then
       as the victims are leaving their place of business, he, in fact, appears at the corner
       along with someone who is acting in concert. He has a shorter gun, handgun, and the
       accomplice has a shotgun, and they just open fire on these two people while they are
       sitting in a car. That clearly indicates being a leader in the commission of the
       offense, and I’m going to find that that does apply in this case.

        We conclude that the record supports the trial court’s finding that the Defendant was a leader
in the commission of the offense given the Defendant’s threats and his subsequent return with an
accomplice to carry out those threats. Furthermore, the trial court properly sentenced the Defendant
to the maximum for each count given the five applicable enhancement factors and the absence of any
mitigating factors.



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         The Defendant also challenges the trial court’s imposition of consecutive sentences.
Tennessee Code Annotated section 40-35-115 states 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 one of seven categories. In addition, the
length of the sentence must be justly deserved relative to the seriousness of the offense but no greater
than the Defendant deserves for the offense committed. See State v. Lane, 3 S.W.3d 456, 460 (Tenn.
1999). In ordering the Defendant’s sentences to run consecutively, the trial court found that the
Defendant fell into two of the categories set forth in section 40-35-115. First, the trial court found
that 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 (4). In support of her conclusion, the trial judge noted the Defendant’s decision
to attempt to kill the two store owners simply because he was not allowed to use the microwave
oven. The trial judge also stated that the fact that the Defendant “ambushed” the victims and that
the Defendant was previously convicted as a juvenile of aggravated assault for attempting to shoot
someone during an argument concerning the victim’s mother was part of the basis of her finding.

        The trial court also found that the Defendant was eligible for consecutive sentences because
the presented offense was “committed while on probation.” Tenn. Code Ann. § 40-35-115 (6). The
record reflects that, at the time of the offense, the Defendant was on probation after previously being
convicted of assault.

        The trial court specifically found that the sentences imposed related to the severity of the
crimes and that extended incarceration is necessary to protect the public. See State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995). The trial court based this finding on the Defendant’s extremely
violent reactions to seemingly unimportant confrontations evidenced by the facts of the present case
as well as the aggravated assault conviction as a juvenile.

       We conclude that the trial court’s findings are adequately supported by the record. The
Defendant was properly sentenced to 12 years on each count of attempted second degree murder and
was properly ordered to serve his sentences consecutively. This issue is without merit.


                                          CONCLUSION

       For the foregoing reasons, we conclude that the evidence is sufficient to support the
convictions, the trial court properly excluded the alleged hearsay testimony, and the Defendant was
properly sentenced. Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE


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