        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  July 13, 2010 Session

                STATE OF TENNESSEE V. KOREY BRADLEY

              Direct Appeal from the Criminal Court for Shelby County
                      No. 08-00512     W. Mark Ward, Judge




                No. W2009-02024-CCA-R3-CD - Filed August 22, 2011


Defendant, Korey Bradley was charged with attempted second degree murder of Brandon
Williams, aggravated assault of Brandon Williams, and felony reckless endangerment of
Jarvis McDaniel. Following a jury trial, Defendant was convicted of misdemeanor reckless
endangerment as a lesser-included offense of attempted second degree murder, and guilty as
charged on the aggravated assault and felony reckless endangerment. He was sentenced to
eleven months, twenty-nine days for misdemeanor reckless endangerment, eight years for
aggravated assault, and three years for felony reckless endangerment. The trial court ordered
the eight-year and three-year sentences to be served consecutively with each other and
concurrently to the sentence for misdemeanor reckless endangerment for an effective eleven-
year sentence to be served in confinement. On appeal, Defendant argues that (1) his
conviction for aggravated assault should be merged into his conviction for misdemeanor
reckless endangerment resulting in one conviction for misdemeanor reckless endangerment;
(2) the trial court erred by failing to instruct the jury on aggravated assault as a lesser-
included offense of attempted second degree murder; (3) the evidence was insufficient to
support his convictions for felony reckless endangerment; and (4) his effective sentence was
excessive. After a thorough review of the record, we remand for the trial court to merge the
conviction for misdemeanor reckless endangerment of Brandon Williams with the conviction
for aggravated assault of Brandon Williams. All other aspects of the judgments are affirmed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Joseph McClusky, Memphis, Tennessee (on appeal); and Paul Springer, Memphis, Tennessee
(at trial) for the appellant, Korey Bradley.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General, William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

        On the evening of November 8, 2007, Brandon Williams, the victim of the aggravated
assault, was in his home at 2385 Hunter Avenue playing a video game with his nephew,
Jarvis McDaniel, the victim of the felony reckless endangerment, when he noticed Defendant
in front of his house selling drugs. Mr. Williams said that he was concerned about the
activity because his neighbor told him that police had been “busting people in front of - - by
her house or in front of her house, and she said that the next time that he catch anybody
around our house or in front of our house that he going to come to one of our house.” Mr.
Williams then walked outside and told the people parking in front of his house to “move on
down.” He also told Defendant to “go on back down the street with that hot boy stuff
because I - - and I’m trying to get them to move at the same time.” Mr. Williams explained
that “hot boy stuff” is “[r]unning to the cars selling drugs to the people.” He said that
Defendant then “shoot [sic] off talking crazy” but he “overtalked” Defendant because he did
not want an altercation, and Defendant walked away. Mr. Williams then walked back inside
his house.

        Mr. Williams was in his house for thirty to forty-five minutes and walked back outside
to talk to his neighbor, Rico Waller. Jarvis McDaniel also walked outside. At some point,
Mr. Williams looked over and saw Defendant walking toward him from the opposite side of
the street. Defendant walked up beside Mr. Williams and said “what’s that shit you say you
going to do to me?” Mr. Williams testified, “And he come up under his coat with a gun. I
was like, dang, you going to pistol play me like that? He’s like, man, pistol play you, I’ll
shoot you. I said, shoot me for what?” Mr. Williams attempted to talk to Defendant and
calm him down. As Mr. Williams began “easing away,” Defendant shot around Mr.
Williams’s feet three or four times with a forty or forty-five caliber hand gun. Mr. Williams
continued walking and as he got to the curb, a bullet struck the back of his leg, breaking it.
Mr. Williams fell to the ground, and as he attempted to get up, bullets struck him in the side
and one scraped his hip. Defendant then looked at Mr. Williams and said, “f - - k you,” and
he walked off.

       Mr. Williams handed Rico Waller his keys, and he went to get Mr. Williams’s car.
Mr. Williams was not bleeding heavily and called 911 but did not get a chance to talk to the
operator about what happened because the operator was busy telling him to calm down, and

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he hung up when Mr. Waller pulled the car around. Mr. Waller and Mr. McDaniel then
loaded Mr. Williams in the back seat of his car and drove him to the Med (a hospital in
Memphis). When he arrived at the hospital, Mr. Williams was immediately taken into
surgery. The wound to his leg was repaired with a plate and nine screws, and his intestines
also had to be repaired. Mr. Williams spent one and one-half weeks in the hospital. He did
not talk with police during that time because Mr. Waller and Mr. McDaniel had already told
them what happened.

      On cross-examination, Mr. Williams admitted that he was arrested in 2008,
subsequent to the shooting in this case, for having 6.4 grams of cocaine. He said that he was
unable to work at the time. He also acknowledged that had sold drugs and possessed a
weapon when he was “younger.”

        Jarvis McDaniel testified that on November 8, 2007, Defendant was in front of Mr.
Williams’s house “making some kind of transaction or something or whatnot, and my uncle
[Mr. Williams] had hollered down the street and told [Defendant], you know, stop doing
that, and I quote, hot stuff in front of my house.” He said that Defendant “said his piece” and
then walked away. Mr. McDaniel testified that Defendant returned around ten minutes later
while Mr. Williams was outside talking to Mr. Waller and asked Mr. Williams what he had
said. Mr. McDaniel was standing in the yard at the time. He testified:

       And then [Defendant], he pulled the pistol out. And my uncle [Mr. Williams]
       had said, what, you trying to pistol play me? That mean like you trying to
       bluff somebody with a pistol.

       And Korey said, no, I ain’t pistol playing you, I’ll shoot you for real. So my
       uncle was like, okay, okay. That’s the problem with you young men today,
       they all want to shoot and they don’t want to fight.

        Mr. McDaniel testified that Mr. Williams began walking away toward the house, and
Defendant shot. He said that Mr. Williams continued walking toward the house, and
Defendant shot again hitting Mr. Williams in the back of the leg. Mr. Williams fell to the
side of the curb, “and [Defendant] shot maybe, I don’t know, maybe three more times, and
[Defendant] just walked away.” Mr. McDaniel testified that Defendant said, “f–k him” as
he left. Mr. McDaniel said that after that, Mr. Williams was “just laying on the curb, so we
just picked him up and threw him in the car, me and Rico, and we drove him to the Med.”
Mr. McDaniel thought that Mr. Waller called 911, but they did not “wait around.”

     Mr. McDaniel testified that he heard a total of five to seven shots, and he was standing
“maybe eight yards” from Mr. Waller, who was standing beside Mr. Williams, when the

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shooting began. Although the gun was not pointed directly at him, Mr. McDaniel was in fear
for his safety because “he was shooting that close to me.” Mr. McDaniel testified that he
gave a statement to police on November 8, 2007, but he did not know Defendant’s name at
the time. He knew him from the neighborhood, and identified him from a photographic
display.

        Rico Waller testified that he “wasn’t nowhere around” when Mr. Williams was shot.
He said that he arrived home from the store and saw Mr. Williams laying on the ground. He
said, “I just picked up his keys and helped him to the hospital.” Mr. Waller testified that he
did not call 911. He later talked with police and told them that he did not know what
happened.

        Officer Jeffrey Gary of the Memphis Police Department, Crime Scene Unit, testified
that he responded to the scene of the shooting and located three spent nine-millimeter shell
casings in the street around 2379 Hunter Avenue. Officer Mark Henderson of the Memphis
Police Department responded to a “wounding call” at the Med. He was unable to speak with
Mr. Williams because he was already in surgery. He then took information from Mr. Waller
and Mr. McDaniel.

        Sergeant Joseph Benya of the Memphis Police Department, Felony Response Unit,
testified that he spoke with Marilyn Waller, who had called 911, and she pointed out the
location where Mr. Williams was lying after the shooting. He also interviewed Cassandra
Waller and eight young people who were across the street from the shooting. However, they
claimed not to know Mr. Williams or the shooter. Sergeant Benya testified that he eventually
received information on Defendant and went to Defendant’s grandmother’s house. He
obtained Defendant’s full name, date of birth, and a possible location. Sergeant Benya then
pulled up all information on Defendant from his computer and forwarded it to the Felony
Assault Unit. Defendant was arrested on November 14, 2007, at 2400 Hunter Avenue by
Officer John Owens.

        Stephanie Berryman, a 911 supervisor for the Memphis Police Department, testified
that a 911 call concerning the shooting was received on November 8, 2007, at 5:08 p.m. from
Marilyn Waller. The phone number was registered to 2379 Hunter Avenue. Ms. Berryman
testified that a second 911 call was received a few seconds later from Mr. Williams’
residence at 2385 Hunter Avenue, and then a minute later a third 911 call was received
concerning the shooting.




                                             -4-
                                           Analysis

I. Merger of Convictions

        Defendant argues that his conviction for aggravated assault should be merged with
his conviction for misdemeanor reckless endangerment because convictions for both crimes
violate double jeopardy since they stem from a single event. Therefore, he asserts that the
trial court erred in denying his request for a merger of the two offenses. The State agrees that
the convictions must be merged, but not in the manner urged by Defendant.

       The double jeopardy clause of the United States Constitution provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. Similarly, under our Tennessee Constitution, “no person shall, for the same
offense, be twice put in jeopardy of life or limb.” Tenn. Const. art. 1, § 10. Three
fundamental principles underlie double jeopardy: “(1) protection against a second
prosecution after an acquittal; (2) protection against a second prosecution after conviction;
and (3) protection against multiple punishments for the same offense.” State v. Denton, 938
S.W.2d 373, 378 (Tenn. 1996) (citations omitted). The case sub judice involves the third
scenario, that is, multiple punishments for the same offense.

        In determining whether two offenses are the “same” for double jeopardy purposes, the
Blockburger test requires a comparison of the statutory elements of attempted first degree
premeditated murder and aggravated assault. Blockburger v. United States, 284 U.S. 299,
307, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); State v. Black, 524 S.W.2d 913, 919 (Tenn.
1975). “If each statutory provision setting forth the offense requires proof of an additional
fact which the other does not, then the two offenses are not the same for federal double
jeopardy protection purposes. State v. Hall, 947 S.W.2d 181, 183 (Tenn. Crim. App. 1997)
(citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).

       Nonetheless, in Denton, “our supreme court extended double jeopardy protection
under the Tennessee constitution beyond that provided by the federal constitution.” Hall,
947 S.W.2d at 183. In addition to the Blockburger test, the trial court must consider the
“same evidence” test as articulated in Duchac, that is whether the same evidence is required
to prove the offenses. Denton, 938 S.W.2d at 381 (citing Duchac v. State, 505 S.W.2d 237,
239 (Tenn. 1973)). This test states in pertinent part:

       A defendant has been in jeopardy if on the first charge he could have been
       convicted of the offense charged in the second proceeding. One test of identity
       of offenses is whether the same evidence is required to prove them. If the
       same evidence is not required, then the fact that both charges relate to, and

                                              -5-
       grow out of, one transaction, does not make a single offense where two are
       defined by the statutes.

Duchac, 505 S.W.2d at 239.

       Finally, the trial court must analyze whether there were multiple victims or discrete
acts and compare the purposes of the respective statutes. Denton, 938 S.W.2d at 381.

        As relevant here, misdemeanor reckless endangerment occurs when a person
“recklessly engages in conduct that places or may place another person in imminent danger
of death or serious bodily injury.” T.CA. § 39-13-103(b). Aggravated assault, as charged
in the indictment, occurs when a person “[i]ntentionally or knowingly commits an assault
as defined in § 39-13-101 and “[C]auses serious bodily injury to another.” T.C.A. § 39-13-
102(a)(1)(A). It is apparent from a review of the record that the State relied on the same
evidence to support Defendant’s dual convictions of aggravated assault and misdemeanor
reckless endangerment. That is, Defendant’s conduct of firing several shots at Mr. Williams
resulting in serious bodily injury supported both the misdemeanor reckless endangerment
conviction in count one of the indictment and the aggravated assault conviction in count two.
See Hall, 947 S.W.2d at 183-84 (determining that convictions for attempted second degree
murder and aggravated assault violated double jeopardy when the dual convictions were
based on the same evidence, and the statutes preventing the crimes had the same purpose,
that is “to prevent physical attacks upon persons”); State v. Adams, 973 S.W.2d 224, 229
(Tenn. Crim. App. 1997) (determining that a single attack by the defendant on the victim
which provided the evidence to support the defendant’s conviction of both attempted first
degree murder and aggravated assault violated double jeopardy principles under the “same
evidence” test in Denton); State v. Marques Lanier Bonds, No. W2005-02267-CCA-R3-CD,
2006 WL 2663753, at *9 (Tenn. Crim. App., at Jackson, Sept. 15, 2006), no perm. to appeal
filed (determining that the defendant’s convictions for attempted second degree murder and
aggravated assault were the same for double jeopardy purposes because they were part of one
continuous assault, with each gunshot being used to support dual convictions). Because
these convictions fail the Duchac prong of the test, we find that principles of double jeopardy
bar Defendant’s multiple convictions.

        Defendant also argues that his aggravated assault conviction should be merged into
the misdemeanor reckless endangerment conviction resulting in a single conviction for the
misdemeanor offense because it was a double jeopardy violation to charge Defendant with
the original offense of attempted second degree murder and aggravated assault based upon
the same conduct. Defendant states: “because the double jeopardy violation occurs not in the
conviction, but in the charging of a defendant, it stands to reason that the lesser charged
offense of aggravated assault should merge into the greater charged conduct.”

                                              -6-
        However, as pointed out by the State, Defendant’s argument is erroneous. It has long
been held that in a jury trial, jeopardy does not attach until the jury is empaneled and sworn.
State v. Pennington, 952 S.W.2d 420, 422 (Tenn. 1997). Black’s Law Dictionary (8 th ed.
2004) defines merger as “[t]he absorption of a lesser included offense into a more serious
offense when a person is charged with both crimes, so that the person is not subject to double
jeopardy.” Therefore, the misdemeanor offense must be merged into the felony offense.
State v. Adams, 973 S.W.2d 224, 229 (Tenn. Crim. App. 1997); State v. Denton, 938 S.W.2d
373, 378 (Tenn. 1996); State v. David Lee Heakin, No. M2008-01834-CCA-R3-CD, 2010
WL 532863, at * 8 (Tenn. Crim. App. Feb. 16, 2010) perm. app. denied (Tenn. Sept. 8,
2010); State v. Raymond Deshun Ross, No. W2006-01167-CCA-R3-CD, 2007 WL 3254436,
at *10 (Tenn. Crim. App. Nov. 2, 2007) perm. app. denied (Tenn. June 30, 2008).

        We accordingly remand to the trial court for entry of an amended judgment merging
the misdemeanor reckless endangerment conviction with the aggravated assault conviction
so that there is one judgment for a conviction for aggravated assault as the matter pertains
to Defendant’s conduct against Mr. Williams.

II. Jury Instruction on Aggravated Assault as a Lesser-Included Offense of Attempted
Second Degree Murder

        Defendant next contends that the trial court erred in failing to instruct the jury on
aggravated assault as a lesser-included offense of attempted second degree murder. T.C.A.
§ 40-18-110 (c) provides in relevant part that “[a]bsent a written request, the failure of a trial
judge to instruct the jury on any lesser included offense may not be presented as a ground for
relief either in a motion for new trial or on appeal.” The record in this case does not contain
any request by Defendant for a jury instruction on aggravated assault as a lesser-included
offense of attempted second degree murder, and defendant acknowledges that he failed to
raise this issue in the trial court but asserts that it may be reviewed for plain error pursuant
to Tenn. R. App. P. 36(b). However, we find no plain error in this issue. This court has held
that aggravated assault is not a lesser-included offense of attempted second degree murder.
State v. Antonio Braden, No. M2007-02544-CCA-R3-CD, 2008 WL 4735443, at *4 (Tenn.
Crim. App., Oct. 27, 2008) no perm. app. filed; State v. Albert James Saavedra, No. M2004-
02889-CCA-R3-CD, 2006 WL 618299, at *28 (Tenn. Crim. App., Mar. 13, 2006) perm. app.
denied (Tenn. Aug. 21, 2006). Defendant is not entitled to relief on this issue.

III. Sufficiency of the Evidence for Felony Reckless Endangerment

      Defendant argues that the evidence presented at trial was insufficient to support his
conviction for felony reckless endangerment against victim Jarvis McDaniel because the
evidence failed to demonstrate that Mr. Williams was in the “zone of danger.”

                                               -7-
        When a defendant challenges the sufficiency of the convicting evidence, we must
review the evidence in a light most favorable to the prosecution in determining whether a
rational trier of fact could have found all the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is
removed and replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d
166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and
the State is entitled to the strongest legitimate view of the evidence along with all reasonable
inferences which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). The jury is presumed to have resolved all conflicts and drawn any
reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and
not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

       “A person commits an offense who recklessly engages in conduct that places or may
place another person in imminent danger of death or serious bodily injury.” T.C.A. § 39-13-
103(a). Reckless endangerment committed with a deadly weapon, as charged in this case,
is a Class E felony. T.C.A. § 39-13-103(b).

        In State v. Payne, 7 S.W.3d 25 (Tenn. 1999), the Tennessee Supreme Court adopted
the following definition of “imminent” from Black’s Law Dictionary:

       Near at hand; mediate rather than immediate; close rather than touching;
       impending; on the point of happening; threatening; menacing; perilous.
       Something which is threatening to happen at once, something close at hand,
       something to happen upon the instant, close although not yet touching, and on
       the point of happening.

7 S.W.3d at 28 (quoting Black’s Law Dictionary 750 (6th ed.1990)). The court explained
that in order “for the threat of death or serious bodily injury to be ‘imminent,’ the person
must be placed in a reasonable probability of danger as opposed to a mere possibility of
danger.” Payne, 7 S.W.3d at 28. The court further explained that the “zone of danger” is
“that area in which a reasonable probability exists that the defendant’s conduct would place
others in imminent danger of death or serious bodily injury if others were present in that zone
or area.” Id. The Payne court reasoned that the state had the duty to “show that a person or
class of persons were in an area in which a reasonable probability of danger existed.” Id.

                                               -8-
        In a light most favorable to the State, Mr. McDaniel testified that he was standing
around eight yards from Mr. Williams when Defendant fired a total of five to seven shots at
Mr. Williams. Mr. McDaniel said that although the gun was not pointed directly at him, he
was in fear for his life “[b]ecause [Defendant] was shooting that close to me.” Mr. Williams
testified that Mr. McDaniel was standing in the yard behind him when the shooting began,
and he walked toward the curb near the yard as Defendant continued firing at him.

      In this case, we find that Mr. McDaniel was in the line of Defendant’s fire, within the
“zone of danger,” and clearly in imminent danger of death or serious bodily injury. There
was more that a mere possibility that Mr. McDaniel might have been struck by a bullet.
Defendant is not entitled to relief on this issue.

IV. Sentence Length

       Finally, Defendant asserts that his sentence is excessive because the “trial court relied
on few factors, some of which it determined should be given little weight.” A trial court is
mandated by the Sentencing Act to “impose a sentence within the range of punishment.”
T.C.A. § 40-35-210(c). A trial court, however, “is no longer required to begin with a
presumptive sentence subject to increase and decrease on the basis of enhancement and
mitigating factors.” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). Therefore, an
appellate court is “bound by a trial court’s decision as to the length of the sentence imposed
so long as it is imposed in a manner consistent with the purposes and principles set out in
sections-102 and-103 of the Sentencing Act.” Id.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the 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) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the Defendant wishes to make in the Defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

       In Carter, the Tennessee Supreme Court clarified the 2005 changes in Tennessee
sentencing law and stated:

       [A] trial court’s weighing of various mitigating and enhancement factors has
       been left to the trial court’s sound discretion. Since the Sentencing Act has

                                              -9-
       been revised to render these factors merely advisory, that discretion has been
       broadened. Thus, even if a trial court recognizes and enunciates several
       applicable enhancement factors, it does not abuse its discretion if it does not
       increase the sentence beyond the minimum on the basis of those factors.
       Similarly, if the trial court recognizes and enunciates several applicable
       mitigating factors, it does not abuse its discretion if it does not reduce the
       sentence from the maximum on the basis of those factors. The appellate courts
       are therefore left with a narrower set of circumstances in which they might find
       that a trial court has abused its discretion in setting the length of a defendant’s
       sentence.

Carter, 254 S.W.3d at 345-46.

       Thus, a trial court’s “fail[ure] to appropriately adjust” a sentence in light of applicable,
but merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for
appellate review. Id., 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App., at Jackson, July 6, 2007) (noting that
“[t]he 2005 amendment [to the Sentencing Act] deleted appellate review of the weighing of
the enhancement and mitigating factors, as it rendered the enhancement and mitigating
factors merely advisory, not binding, on the trial courts”).

       The record reflects that the trial court considered the evidence presented at the trial
and the sentencing hearing. The court further considered the presentence report, the
principles of sentencing and the arguments as to sentencing alternatives, the nature and
characteristics of the offenses, the evidence offered by the parties on enhancement and
mitigating factors, and the potential for rehabilitation or treatment.

       It is not disputed that Defendant is a Range II multiple offender based on his two prior
felony convictions for aggravated burglary in 2001 and robbery in 2003. The range of
punishment as a Range II offender is six to ten years for the Class C felony conviction for
aggravated assault, and two to four years for the Class E felony conviction for reckless
endangerment with a weapon. T.C.A. § 40-35-112(b)(3), (5). The applicable range of
punishment for misdemeanor reckless endangerment was a sentence up to eleven months,
twenty-nine days.

       The trial court applied enhancement factor (1) that Defendant had a previous history
of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range; and (16) that Defendant was adjudicated to have committed a delinquent
act or acts as a juvenile that would constitute a felony if committed by an adult to
Defendant’s convictions for aggravated assault and felony reckless endangerment. T.C.A.

                                               -10-
§ 40-35-114(1), (16). However, the court did not “put a great deal of weight” on factor (1)
because the only prior conviction in addition to those necessary to establish Defendant’s
range was a misdemeanor drug offense. As for factor (16), Defendant admitted that he was
adjudicated in juvenile court for the offense of aggravated robbery at the age of sixteen. The
trial court applied enhancement factor (9), that Defendant possessed or employed a firearm,
explosive, device or deadly weapon during the commission of the offense, to Defendant’s
conviction for aggravated assault, but not to the felony reckless endangerment conviction.
T.C.A. § 40-35-114(9). The application of factor (9) to Defendant’s sentence for felony
reckless endangerment is not proper because the indictment indicates that the charge is based
on the use of a deadly weapon, which is an essential element of the offense. T.C.A. §§ 40-
35-114, 39-13-03(b). The trial court declined to consider any of the other enhancement
factors argued by the State because they were inapplicable, and the trial court did not find any
applicable mitigating factors.

        The record clearly shows that the trial court followed the statutory sentencing
procedure, made findings of facts that are adequately supported in the record, and gave due
consideration to the principles that are relevant to sentencing. Based on our review, we
conclude that the enhancement factors considered by the trial court adequately support the
trial court’s discretionary decision to impose a sentence of eight years for aggravated assault
and three years for felony reckless endangerment. If the misdemeanor reckless endangerment
conviction was not required to be merged with the aggravated assault conviction, the
sentence of eleven months, twenty-nine days would be appropriate. See, e.g., State v.
Troutman, 979 S.W.2d 271 (Tenn. 1998)(in misdemeanor sentencing “the trial court need
only consider the principles of sentencing and enhancement and mitigating factors in order
to comply with the legislative mandates of the misdemeanor sentencing statute”); State v.
Johnson, 15 SW.3d 515 (Tenn. Crim. App. 1999)(the trial court is afforded considerable
latitude in misdemeanor sentencing). Defendant is not entitled to relief on this issue.

                                       CONCLUSION

       Accordingly, we remand for the trial court to merge the conviction for misdemeanor
reckless endangerment of Brandon Williams with the conviction for aggravated assault of
Brandon Williams. We affirm all other aspects of the judgments of the trial court.

                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE




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