          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                FILED
                           DECEMB ER SESSION, 1997                March 3, 1998

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STATE OF TENNESSEE,                 )     C.C.A. NO. 03C01-9611-CR-00442
                                    )
            Appellee,               )     KNOX COUNTY
                                    )
V.                                  )     HON. RICHARD BAUMGARTNER,
                                    )     JUDGE
SHIRLEY ADAMS ROGERS,               )
                                    )     (ATTEMPTED SECOND
            Appe llant.             )     DEGR EE M URD ER)



FOR THE APPELLANT:                  FOR THE APPELLEE:

MARK E. STEPHENS                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

PAULA R. VOSS                       TIMOTHY F. BEHAN
Assistant Public Defender           Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
JOHN HALST EAD                      425 Fifth Avenue North
Assistant Public Defender           Nashville, TN 37243
1209 Euclid Avenue
Knoxville, TN 37921                 RANDALL E. NICHOLS
                                    District Attorn ey Ge neral

                                    CHARM JOHNSON
                                    Assistant District Attorney General

                                    GREGG HARRISON
                                    Assistant District Attorney General
                                    City-County Building, Suite 168
                                    400 Main Street
                                    Knoxville, TN 37902-2405



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Defe ndan t, Shirle y Ada ms R ogers , appe als as of right her conviction of

attempted second d egree m urder following a jury trial in the Criminal Court of Knox

County. The Knox County Grand Jury indicted Defendant on two (2) counts of

attempted first degree murder. However, Defendant was found g uilty of only one (1)

count of attempted s econd de gree mu rder, and not gu ilty of the other indicted

charge. The trial court initially sentenced Defendant to eleven (11) years as a

Range I Standa rd Offen der at 30 percen t to be serve d in custody. Th e trial court

subs eque ntly entered an amended judgment following the hearing on the Motion for

New Trial, reducing Defendant’s sentence to ten (10) years. Defendant raises two

(2) issues in this appeal: (1) wheth er the e videnc e is suff icient b eyond a reas onab le

doubt to support the co nviction for attempte d second degree m urder; and (2)

whether the trial court committed sentencing errors. We affirm the judgment of the

trial court.



       Testimony at trial revealed that on June 6, 1995, Don Rogers, ex-husband of

Defen dant, was dropped off at his house by his girlfriend around 11:00 p.m. He saw

his neighbor, Caro lyn Ow en, ou tside a nd invite d her to join him at his ho use w hile

he ate bacon and eggs . Shortly after she we nt over to Rog ers’ house, O wen hea rd

someone trying to get in through Rogers’ front door. Rogers ran to the door and

pushed it closed and told Owen to come and hold the doorknob and put her foot

against the door w hile he retrieve d his g un. W hile Owen was holding the door, two

shots were fired through the door. Owen and Rogers then ran toward the back of

the house and into th e kitchen . Don Rogers saw his ex-wife, the Defendant, enter

the house. He fired two shots at Defendant, then withdrew. At this point, Owen and

                                            -2-
Rogers went to the bathroom/laundry room to hide. While Owen waited in the

laundry room, D efenda nt fired a sh ot into the h all. When Rogers looked around the

corner from th e hall, s hots w ere fired in his direction. Rogers returned fire and then

he and Owen fled out the back door when Defendant stopped shooting. Defendant

never said a word d uring th is conf rontatio n. Ow en an d Rog ers ran to a ne ighbo r’s

house and waited there for the police to arrive. Neither of them was injured.



      The respon ding po lice officer, R obert Cole of the Knoxville Police Depa rtment,

found Defendant sitting on Rogers’ couch with a gun beside her and two chest

wounds. Defendant’s gun was capable of firing six bullets. The po lice fou nd six

“spent casings” from D efenda nt’s gun. It appears from Officer Cole’s testimony that

two bullets from Defendant’s gun were fired into the house from the outside and

three were discharged inside the house. As discussed below, Defendant’s proof

indicated that the gun was fired earlier that evening in Defendant’s motel room, thus

explaining the sixth bullet. Don R ogers’ gun w as also confisca ted and it appe ars

that four bullets had been fired from his gun inside the house, two striking the victim,

one passing through the front wall to the outside and one lodging in the floor. Police

found an emp ty holster in Defend ant’s purse in her car and papers with what

appeared to be “fresh” blood on them . Medic al reco rds rev ealed that D efend ant’s

blood alcohol content when she arrived at the hospital after the shooting was .19

percen t.



      Don Roge rs testified at trial that during divorce proceedings, Defendant

wanted to buy a new house but could not qualify for the loan b y herself. A s a result,

Rogers co-signed the loan with Defendant for the house where the shooting

subs eque ntly occurred. In their divorce decree there was a provision allowing Don

                                           -3-
Rogers to take possession of the house if Defendant fell three (3) payments behind.

In 1992 Defendant defaulted and Don Rogers took possession of the house but

allowed Defenda nt to continue living there with him as a “boarder.” However, after

three years of this arrange ment, he evicted her and she went to live in a homeless

shelter for two months prior to the shooting and had moved into a motel room on the

day of the shooting .



       Defe ndan t’s half-sister, Vernell Durham, testified that she received a phone

call from Defendant about 9:00 p.m. on the night of the shooting and she described

Defendant as be ing “rea lly, really upset.” She said that Defendant told her she

wanted to blow her own brains out. Ms. Durham testified that she heard the clicking

of a gun several times over the phone.



       Gordon White, a friend of Defendant’s, testified that he received a pho ne ca ll

from Defendant just an hour before the shooting. White described Defendant as

“upset” and “in a depressed mood.” He also said that she was in “a very confused

state of mind” and “un der dure ss.” W hite testified that Defendant had been drinking

and that she was threate ning to shoot herself. He said that she was crying and

becoming hysterical and then he heard a noise in th e back ground . At this poin t,

Defendant told White that she had shot herself in the head. White told her to hang

up the pho ne, go loo k in the ba throom mirror to see how much harm was done, and

then to call him back in five minutes. Defendant followed his instructions and called

White back a few minutes later. In this second phone call, she told White that her

head was b leedin g but that the bleeding was slowing down. White testified that

Defendant was mo re frantic and that he r speech was more slurred in this second

phon e call. Wh ite also testified that he w ent to visit De fendan t in the hos pital after

                                            -4-
the shooting at Don Rogers’ home, and that Defendant had abrasions on the right

side of her face that went up her cheek and into her hairline.



       John Jacobs testified that he did not personally know Defendant, but that he

and his fiancee were staying in the room above Defendant’s room in the motel on

the night of the shooting. He said that late that evening the window in his room

broke, and that he first assumed it was caused by lightning because it was storming

outside. Jacobs testified that he then noticed a hole in the floor with what appeared

to be sawdust surrounding it. At this point he thought lightning had struck the floor

and gone through to the first floor of the motel. He decided he should check on the

person staying below him, who was the Defendant. As he was about to go check

on her, he saw Defendant leave her room and go to her car. He noticed that she

was carrying a purse w ith a som e type of b ottle in it. As she backed out of her

parking space, Defendant bumped two cars and then ran over a couple of curbs

while exiting the parking lot. The following morning, Mr. Jacobs found a bullet laying

on his air c onditionin g duct.



       The jury found the Defendant guilty of the attempted second degree murder

of Don Rogers, and not guilty of any crime against Carolyn Owen.




                             I. Sufficiency of the Evidence



       When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

                                          -5-
prosection, any rational trier of fact could have found the essential elements of the

crime b eyond a reason able do ubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitled to th e strong est legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the

evidence is insufficient to support the verdic t returned by the trier of fa ct. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn . 1982)); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).



       Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweigh or reevaluate the evidence . Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       Defendant argues that the evidence was insufficient to convict her of

attempted second degree murder. Second degree murder is defined as “A knowing

killing of another.” Tenn. Code Ann. § 39-13-210(a)(1). Tennessee Code Annotated

section 3 9-11-30 2 provide s the follow ing with res pect to the knowin g require ment:




                                            -6-
       ‘Knowing’ refers to a person who acts knowingly with respect to the
       conduct or to circumstances surrounding the conduct when the person
       is aware of the nature of the co nduct o r that the circ umsta nces e xist.
       A person acts knowingly with respect to a result of the person’s conduct
       when the pers on is awa re that the con duct is rea sonab ly certain to
       cause the resu lt.


Tenn. C ode Ann . § 39-11-302 (b).



       Under our crim inal attempt statute, Tennessee Code Annotated section 39-12-

101, Defendant must have acted intentionally in pursuing a course of conduct that

would constitute the offense. Attempted second-degree murder is committed when

the accused knowingly acts with the intent t o cause the killing and believes her

conduct will cause the death without further action, or knowingly acts with the intent

to cause the death, under the circumstances surrou nding the conduct as she

believes them to be, and the conduct constitutes a substantial step toward the

comm ission of the offense. T enn. C ode An n. § 39-1 2-101(a )(2) and (3 ).



       This Cour t has h eld that attempted second degree murder may be proven by

a show ing the defen dant “in tention ally acte d with th e requ isite culp ability to c omm it

the offense of murder in the second degree” and the defendant “could have been

convicted of murder [in the] second degree . . . if he had a ctually killed the victims.”

State v. John L. Smith , C.C.A. N o. 01C 01-930 9-CR -00308 , Davisdo n Cou nty (Tenn.

Crim. App., Nashville, Oct. 20, 1994) (no Ru le 11 app lication filed); see also State

v. Edward Thompson, C.C.A . No. 03C01-9503-CR-00060, Cocke County (Tenn.

Crim. App., K noxville , Dec. 1 2, 199 6) (Ru le 11 application de nied June 3 0, 1997);

State v. Timothy Jenkins, C.C.A. No. 01C01-95-8-CC-00269, Wayne County (Tenn.

Crim. App ., Nashville, Nov. 15, 19 96) (Rule 11 application den ied June 9, 19 97).




                                              -7-
       Defendant argues that, at the ve ry worst, her actions ag ainst Don R ogers

constituted attempted voluntary manslaughter because at the time of the shooting,

she was “in a state of passion produced by adequate provocation sufficient to lead

a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-

211(a). The record reveals that Defendant got her gun, drove to Mr. Rogers’ home,

started shooting thro ugh the door, and once inside the home, began following

Defendant through the house while shooting at him five times. While there was

evidence that Defendant was in an emotional state at the time of the shooting, the

jury apparently concluded that Defendant was aware that her conduct was

reaso nably certain to cause the death of Don Rogers and that she did in fact fire the

gun with the intent of hitting Mr. Roge rs. In ligh t of all the eviden ce ad duce d at trial,

it was within the provin ce of the ju ry to reject Defendant’s theory that she was

adeq uately provoked a nd acting in the “he at of passion” a nd to find instead that

Defendant was guilty of attempted second degree murde r. Thus, w e conc lude that,

when viewed in the light most favorable to the State, the evidence presented at trial

is legally sufficient to sustain Defendant’s conviction for attempted second degree

murde r.




                                      II. Sentencing



       When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the senten ce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-3 5-401(d). Th is presump tion is “conditioned u pon the affirma tive

                                             -8-
showing in the reco rd that the tria l court considered the sentencing principles and

all relevant fac ts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). There are, how ever, exce ptions to the presumption of correctness. First, the

record must demonstrate that the trial court considered the sentencing principles and

all relevant facts and circums tances . Id. Second, the presumption does not apply

to the legal co nclusions reached by the trial court in sentencing.           Third, the

presumption does not apply when the d eterminations made b y the trial court are

predicated upon uncontroverted facts. State v. S mith, 898 S.W.2d 742, 745 (Tenn.

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).



      Our review requires a n analysis of: (1) Th e evidence, if any, received at the

trial and se ntencing hearing ; (2) the presentence report; (3) the principles of

sentencing and the argu ments of co unsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statemen ts made b y the defenda nt in his own beh alf; and (7) the defenda nt’s

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -

210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the facts 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 th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court followed proper statutory sentencing procedure, and

therefore, review by this Court is de novo with a presumption of correctness.

                                           -9-
       The trial court found the following three enhancement factors to be applicable:

(1) Defenda nt had a previou s history of criminal convictions or criminal behavior; (2)

Defendant employed or possessed a firearm during the commission of the offense;

and (3) Defendant had no hesitation about co mm itting a crime when th e risk to

human life was high. Tenn . Code An n. § 40-35-11 4(1), (9) and (10). T he court

initially found no m itigating factors to apply, but amended the judgment to include

one mitigating factor, that Defendant was suffering from a mental condition that

signific antly reduced her culpability for the offense. Tenn. Code Ann. § 40-35-

113(8). This reduced her original sentence of eleven (11) years to (10) years.



       Defendant argues that no more than two enhancem ent fac tors ap ply in this

case, neither of which should receive great weight. Defendant also argues that

several mitigating factors which were rejected b y the trial cou rt should b e used to

mitigate the sentence and reduce it to a minimum Range I term of eight (8) years,

thus, m aking D efenda nt eligible for p robation .



       Defendant was previously convicted of three misdemeanors, including two

public intoxication charge s and a reckless driving cha rge. The judge noted that this

factor was to receive little weight in setting the sentence. Defendant agrees with this

determination.     The judge also found that Defendant used a firearm in the

commission of this o ffense and s tated th at he fo und th is facto r “of par ticular

importance” and w as the refore “giving particular weight to [this] enhancement

factor.” Defe ndan t conc edes that this factor is applic able, b ut argu es tha t it shou ld

be afforded little weight. First, Defendant asserts that she had the gun for the

purpose of com mitting su icide. Reg ardless o f what De fendant’s intentions were

                                            -10-
earlier in the evening, she ultima tely use d that fire arm to fire at an other in dividua l.

The fact that it was unusual for Defendant to carry a firearm and that she claims she

is unskilled w ith guns,     “as evidenced by her total inability to hit her presumed

targets,” has no bearing whatsoever on the application of this factor, althou gh Mr.

Rogers is certainly fortunate that Defendant was not a “good shot.” Defendant also

argues that the use o f the firea rm did not significantly increase the danger of the

crime because if she had chosen another weapon, such as a kn ife, the d ange r would

have been as equal. This argument is without merit because had Defendant chosen

to use a knife instead of a gun, this factor would still be applicable since either one

qualifies as a dea dly weap on. See Tenn. Code Ann. § 39-1 1-106(a)(5)(A ) and (B).

Clearly, the trial court was justified in placing great weight upon this enhancement

factor.



          Defendant argues next that the application of enhancement factor ten (10)

was inappropriate in this case.        The application of enhancement factor (1 0) is

approp riate where the attempted killing occurred in the presenc e of others wh o were

exposed to the potential of injury or death by the criminal actions of the person being

sentenced. In the instant case, Ms. Owen was present in the house, and therefore,

was in harm ’s way. It is certainly conceivable that she cou ld have b een hit by shots

from Defendant’s gun. See State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App.

1995); State v. Makoka, 885 S.W .2d 366 , 373 (T enn. C rim. App .), perm. app. denied

(Tenn. 1994); State v. Jo hn L. Sm ith, C.C.A. No. 01C01-9309-CR-00308, slip op. at

6.


          Enhancement factor (10) is appropriate in this case regardless of the fact that

Defendant was found not guilty of the attempted murder of Ms. Ow en. The jury


                                            -11-
verdict would not preclude the trial court from concluding that the risk to the life of

Ms. Owen was nevertheless great. With respect to enhancement factor (10), our

supreme court in State v. Jones explained: “As a practical matter, hesitation or lack

of hesita tion do es no t subm it readily to proof because of its subjective nature. The

more logical interpretation of this enhancement factor places the emphasis on ‘risk

to human life was high.’” 883 S.W.2d 597, 602 (Ten n. 199 4). Th erefor e, “[l]ittle, if

any, empha sis is to be placed o n whether the defendan t ‘hesitated’ before

committing the crime.” State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App.

1995). Although it is certainly conceivable that Defendant knew of ano ther pe rson’s

presence in the house besides Mr. Rogers at the time she started shooting, we find

that this finding is unnecessary to conclude that Defendant’s conduct nevertheless

posed a grave risk to the life of Ms. Owen.      We find no error in the application of

enhance ment factor (10 ).



      Defendant argues that the trial court erred in not applying the following

mitigating factors fou nd in Te nness ee Co de Ann otated se ction 40-3 5-113:

      (2) Defe ndant a cted un der stron g provoc ation;

      (3) Substantial grounds exist tending to excuse or justify D efend ant’s
      criminal c onduc t, though fa iling to estab lish a defe nse;

      (11) Defen dant co mm itted the crime under such unusual circumstances
      that it is unlikely that a sustaine d intent to violate the law motivated her
      condu ct;

      (12) Defendant acted under the duress or the domination of another
      person; and

      (13) Oth er factors c onsisten t with the pu rposes of the cha pter.


Tenn . Code Ann. § 4 0-35-11 3(2), (3), (11 ), (12) and (13).




                                          -12-
       The trial court did place considerable weight on factor (8), that Defendant

suffered from a mental defect, by reducing her sentence from ele ven (11) y ears to

ten (10) ye ars followin g the he aring on Defen dant’s M otion for N ew Tria l.



       First, Defendant claims she acted under strong provocation based upon her

past history with her ex-husband. The nature and circumstances of this offense do

not demonstrate the kind of strong provoca tion requ ired to m itigate sen tences . See

State v. Galbre ath, C.C.A. No. 01C01-9 406-CC -00204, D ickson Co unty (Tenn. Crim .

App., Nashville, Sept. 1, 19 95) (no Ru le 11 application filed). Furth ermore, there is

no evidence in the record that Defendant was provoked by Defendant. As the trial

judge stated at the m otion fo r new tr ial hearing, “This was an unprovoked act on

[Defendant’s] behalf. She may have been angry, based on her circumstances, and

felt that life h ad de alt her a n unfa ir hand. And that may b e true. B ut that c ertainly

is not, in my mind, what I would consider provocation or substantial grounds tending

to excuse conduct or duress of any type.” We agree, thus making this factor

inapplicable.



       Again, Defendant argues that her stormy past with her ex-husband should act

to justify or excuse her conduct in accordance with mitigating factors (3) a nd (11).

Although Mr. Rogers may not have been a model husband, his actions in the past

do not justify Defendant’s attempt to kill him. We therefore do not believe that

mitigating factor (3) is applicable. Like wise, we do not find that there w as not a

sustained intent by Defendant to violate the law. Defendant drove her car to her ex-

husb and’s house, walked to the door, began firing through the door, and then once

inside, followed him through the house while firing at him. These facts do not




                                            -13-
support the application of factor (11), as it is clear that Defendant had a sustained

intent to violate the law.



       Defendant also urges this Court to find that she acted under duress or

domination of another person. Although Defendan t may h ave be en em otiona lly

distressed, it cannot be said that someone other than herse lf cause d her ac tions.

Clearly, Don R ogers did not urg e or as sist De fenda nt in firing her gun at him. Thus,

factor (12 ) does n ot apply.



       Finally, Defendant insists that the trial court should have considered her

advanced age, her rec ord of e mplo ymen t, the se rious in juries s he su staine d in this

case, and her ability to be rehabilitated without further incarceration. Although these

are not specifically included in        the list of mitigating factors contained in the

Sentencing Act, the trial court can consider “any other factor consistent with the

purposes of this cha pter.” Tenn . Code Ann. § 4 0-35-11 3(13). Therefore, it was for

the trial cou rt’s discretion whether to consider the factors and the weight to be given

to any such evidence. We believe that even if each of these non-statutory mitigating

factors were g iven so me c onsid eration , the gre at weig ht attributa ble to the a pplica ble

enhancement factors more than justifies the sentence imposed. We agree with the

trial court’s application of the enhancement and mitigating factors.



       Tennessee Code Annotated section 40-35-210 provides that the minimum

sentence within the range is the presum ptive sente nce for a Class B felony. Tenn.

Code Ann. § 40-35-210(c). If there are enhancing and mitigating factors, the court

must start at the minimum sentence in the range and enhance the sentence as

approp riate for the enhancement factors and then reduce the sentence within the

                                             -14-
range as appro priate for the mitigating facto rs. Tenn. Co de Ann. § 4 0-35-210(e ).

If the trial judge complies with the purposes and principles of sentencing and his

findings are adequately supported by the record, then the weight assigned to the

existing enha ncing and m itigating factors is gen erally left to his discre tion. See State

v. Mars hall, 870 S.W .2d 532, 541 (Tenn. Crim . App.), perm. to appeal denied (Tenn.

1993). Attempted second degree murder, a Class B felony, has a sentence range

of eight (8) to twelve (12) years for a Range I offender. Tenn. Code Ann. §§ 39-12-

107(a) and 39-13-210(b). The trial court correctly found three enhancement factors

to apply and one mitigating factor to apply. Even if the trial court had applied any of

the non-enumerated mitigating factors they would not have weighed heavily against

the three enhancement factors. The trial court was justified in imposing the ten (10)

year sen tence.



       Defe ndan t’s argument that she is e ntitled to cons ideratio n for pro bation is

based upon the premise that her sentence must be reduced to the minimum

sentence of eight (8) years. Since we find that the ten (10) year sentence imposed

by the trial c ourt is a pprop riate, D efend ant is not elig ible for probation. Tenn. Code

Ann. § 40-3 5-303(a).



       After a thorough review of the record, we find no m erit to the Defe ndan t’s

arguments. Her conviction and her sentence are accordingly affirmed.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:



                                            -15-
___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




                               -16-
