         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                               JUNE SESSION, 1998                    FILED
                                                               September 1, 1998
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9709-CC-00352
                                     )                         Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
       Appellee,                     )
                                     )
                                     )   MADISON COUNTY
VS.                                  )
                                     )   HON. FRANKLIN MURCHISON
MONTEZ ANTUAN ADAMS,                 )   JUDGE
RICAR DO M AXWE LL, &                )
MARCUS LAMONT                        )
WILLOUGHBY,                          )
                                     )
       Appellants.                   )   (Felony-Mu rder; Aggrava ted Burglary)


                 ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF MADISON COUNTY


FOR THE APPELLANT :                      FOR THE APPELLEE:

SCOTT KIRK
Attorney for Appellant Adams             JOHN KNOX WALKUP
213 E. L afayette                        Attorney General and Reporter
Jackson, TN 38301
                                         MARVIN E. CLEMENTS, JR.
CHRISTY RAUCH LE LITTLE                  Assistant Attorney General
Attorn ey for A ppella nt Ma xwell       425 Fifth Avenu e North
200 East Main, Suite 111                 Nashville, TN 37243
Jackson, TN 38301
                                         JERRY W OODALL
J. COL IN MO RRIS                        District Attorney General
Attorney for Appellant Willoughby
204 W est Baltimore                      DONALD H. ALLEN
Jackson, TN 38301                        Assistant District Attorney General
                                         P.O. Box 2825
                                         Jackson, TN 38302



OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
                                   OPINION

        The Defendants, Montez Adams, Ricardo Maxwell, and Marcus Lamont

Willough by, pursuant to Tenn essee Rule of A ppellate Procedure 3(b), appeal as

of right their convictions for first degree felony murder, especially aggravated

burglary, conspiracy to commit especially aggravated burglary, and theft over

$500.     In addition , Defendant Maxwell appeals his sentence on the four

conviction s.



        All Defendants contest the sufficiency of the evidence presented to convict

them of felony murde r. Defenda nts Adam s and W illoughby assert tha t they were

not tried by an impa rtial jury, in violation of their right to a fair tr ial, and that the

convictions for felon y mur der an d esp ecially aggravated burglary sh ould have

been merged. Finally, Defendant Maxwell alone asserts that the trial court erred

in denyin g a se veran ce, tha t the jury enga ged in misco nduc t in violatio n of his

right to a fair trial, and that the trial court erred in assessing him the maximum

sentence available. We conclude, as the State concedes, that Defendants’

convictions for especially aggravated burglary must be vacated, convictions for

aggravated burglary entered, and sentences modified accordingly. We find no

merit in D efenda nts’ other a ssignm ents of error and affirm the remainder of the

judgm ent of the tria l court.



        In September 1996, Defendants were indic ted by the Madiso n Cou nty

Grand Jury on charges of first degree felony murder in violation of Tennessee

Code Annotated § 39-13-202, especially aggravated burglary in violation of § 39-



                                           -2-
14-404, conspiracy to commit especially aggravated burglary in violation of § 39-

12-103, and th eft of pro perty va lued o ver $5 00 in violation of § 39-14-103.

Following a jury trial, all Defendants we re convic ted of a ll charg es in A pril 1997.

Each Defendant received a life sentence for felony murder, and sentences for the

remaining three offenses were ordered to run con currently w ith the life sentence.

Maxw ell and W illoughby were sentenced as Range I offenders and Adams was

sentenced as a Range II offender. The trial court denied Defendants’ motions for

a new trial, and all Defendants timely appealed.



                       I. SUFFICIENCY OF THE EVIDENCE
                          A. Adams, Maxwell, & Willoughby

       Adams, Maxwell, and Willoughby contest the sufficiency of the evidence

presented to convict them of felony murder. Specifically, the only issue for

examination with respect to all three D efenda nts is whe ther the S tate introduced

proof sufficient to demonstrate that the murder of Antonio Givens was committed

in furtherance of the burglary.         Defendants contend that the murder was

committed after the burglary had been completed, and thus, was a separate,

distinct, and independent act collateral to the burglary. We disagree.



       Tennessee Rule of App ellate Procedu re 13(e) prescribes that “[findings]

of guilt in criminal action s whe ther by the trial c ourt or jury sha ll be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). 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 insu fficient. McBe e v. State, 372 S.W.2d 173, 176 (Ten n. 1963);



                                            -3-
see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn. 1977)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as we ll as all reas onable and legitim ate

inferences that may be d rawn therefro m.” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidence ” in the reco rd below , Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836)); likewise, should the reviewing court

find particular c onflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W .2d at 914 .



      Here, Defenda nts were convicted of first degree felony murder: “A killing

of another committed in the perpetration of or attempt to perpetrate any . . .

burglary.” Tenn. Code Ann. § 39-13-202(a)(1). A murder is committed in the

perpetration of a crime when it is performed pursuant to, rather than collateral to,

comm ission of the felony. Farm er v. State , 296 S.W.2d 879, 883 (Tenn. 1956)

(emp hasis added ); State v. Brown, 756 S.W.2d 700, 702 (Tenn. Crim. App.

1988). To am plify, the supreme court has stated, “‘The killing must have had an

intimate relation and close connection with the felony . . . , and not be separate,

distinct, and indepe ndent from it . . . .’” Farmer, 296 S.W.2d at 883 (quoting

Wharton on Homicide § 126).




                                          -4-
       The State presented evidence at trial revealing an agreement by Adams,

Maxw ell, Willoughby, and Marquel Horton1 during the day of June 2, 1996, to “run

up in,” or rob, the home of victim Antonio Givens.                According to Horton,

Defen dants met each other at Maxwell’s residence, and Horton then drove them

to the victim’s house in his mother’s car. Willoughby broke down the back door

of the home, and Defendants entered, each drawing a weapon. 2 Defendants

search ed the h ouse a nd foun d a nine m illimeter Interte ch han dgun u nderne ath

Givens’ mattres s. Shortly a fter Defe ndants entered, Horton saw a black car

approaching the house. He called a warning to the others and ran out the back

door tow ard a wo oded, b rushy are a behin d the ho me.



       Horton then heard two gunshots as he escaped into the back of the

property; a neighbor also testified to hearing two gunshots. Defendants Adams

and Willoughby caught up to Horton soon thereafter, but Maxwell had abandoned

the scene and his whereabouts were unknown.                     Horton asked the two

Defen dants who fired the shots , and W illoughby re plied that h e had fired them

both. To elude police, Defendants walked for approximately three hours before

arriving at a convenience store; telephoning Adams’ girlfriend, Patricia Maxw ell

(Defendant Maxw ell’s siste r), to pick them up; an d goin g bac k to Ma xwell’s

house .




       1
          Marquel Horton testified for the State as part of a plea agreement resolving his
indictment for identical offenses. Much of the State’s evidence regarding the events of June
2-3, 1996, is derived from Horton’s testimony at trial.
       2
          Adams carried a .45 automatic, Maxwell carried a nine millimeter, and Willoughby
carried a .38 revolver.

                                            -5-
       State witness Bernard Robinson, a friend of victim Givens, testified that he

and Givens return ed to the residence at nearly midnight on June 2. Robinson

and the victim noticed that heat-sen sitive lights on the back o f the house w ere

“blinking,” that Givens’ dogs were barking, and tha t a vehicle (later identified as

registered to Marquel Horton’s mother) was parked outside the house. According

to Robinson, Givens drew a gun and approa ched th e back of the hou se. As the

victim rounded the corner from the front of the house, Robinson heard two

gunsh ots and at least one person running through the woods. Givens ran from

the back of the house toward Robinson, and Robinson carried the victim across

the street to seek help fro m a n urse w ho lived nearb y. Given s died in the e arly

morning of June 3 from one gunshot wound to the chest fired from his own nine

millimeter Intertech gun, a weapon which was later found by police in Defendant

Maxwe ll’s bedroo m close t.



       Defendants’ argument that Givens’ murder was committed upon the

completion of the burglary must fail. T he facts o f this case a re quite sim ilar to

those of State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App. 1985), in which the

defen dant’s accomplice in a robbery shot and killed a Memphis police officer

during a high-spe ed cha se. Id. at 533-34. Hopper claimed that the officer had

not been killed in the perpetration of the robbery, and th at his felony murder

conviction should th erefore b e reverse d. Id. at 535 . This C ourt re jected Hopp er’s

argument, stating that the officer had been killed while the defendant and his

accomplice were fleeing the s cene of the rob bery: “Their flight was part and

parcel of the robbery event, and was not collateral to it. Clearly, the killing of

Officer Sykes had ‘an intimate relation and close connection’ to the robbery of

Ms. Mayham, and was not ‘separate, distinct, and inde penden t from it.’” Id. at

                                          -6-
535-36 (quoting Farm er v. State , 296 S.W.2d 879, 883 (Tenn . 1956)); see also

State v. Brown, 756 S.W .2d 700 , 702-03 (Tenn . Crim. A pp. 198 8).



      Similarly, in Brown, a victim of robbery was killed when the p erpetrators

discovered that he had only six dollars. We affirmed the defendant’s felony

murde r conviction , holding:

      The proof shows that the defendants killed the victim because they
      were angry that he had only a small amount of money and because
      they believed that his death would prevent them from being
      identified as the rob bers. The fact that the murder occurred after the
      robbery was completed does not make the murder collateral to the
      robbery. The jury reasonably could conclude, as the verdict shows
      it did, that the murder was accomplished in order to prevent
      identification of the defendants by the victim.

Brown, 756 S.W .2d at 703 (emph asis add ed); see also State v. Donald C. Lee,

C.C.A. No. 03C01-9607-CR-00277, Knox County (Tenn. Crim. App., Knoxville,

May 28, 199 7), perm. to appeal denied (Tenn. 1998) (fin ding that murder

occurred during perpetration of robbery when police engaged in a chase twe nty-

five minutes later that resulted in a death, and defendant had not yet reached a

“place of te mpora ry safety” from the robb ery).



      Here, Defendants were fleeing from the scen e of the bu rglary and theft

when the killing occurred. The facts demonstrate that Defendants were in the

process of executing the burglary and its underlying theft at the time the victim

arrived home. In addition, the evidence indicates that the crime would have

continued but for the interruption causing them to flee; and the victim was shot

for his attempts to thwart the crime and in facilitation of Defendants’ escape from

the scene. We conclude tha t sufficient evidence existed by which a jury could




                                         -7-
find that this murd er was com mitted in “clos e con nectio n to,” and thus, in

perpetra tion of a felon y.



       Defen dants urge a d ifferent resu lt based u pon this C ourt’s opinions in State

v. Severs, 759 S.W.2d 935 (Tenn. Crim. App. 1988), and State v. Derenzy

Turner, C.C.A. No. 02C01-9512-CR-00390, Shelby County (Tenn. Crim. App .,

Jackson, June 1 1, 1997 ), perm . to app eal denied (Tenn. 1998). In Severs, we

held that when the death results from an attempt to thwart the felony rather than

perpetra te it, and when the death is proximately caused by one other than the

accused or an accomplice, the murder is not committed in furtherance of the

felony, but instead collateral to it. Severs, 759 S.W.2d at 938. Such a situation

is clearly no t before this Court.



       The facts of Turner differ slightly from those of Severs because the

intended victim killed a third-party b ystande r, rather than a co-pe rpetrator.

Turner, C.C.A. No. 02C01-9512-CR-00390, slip op. at 9-10. In Turner, the jury

found the intended victim of robbery guilty of second degree murder of the

bystander. Id. We noted that, in order to so find, the jury mus t necessarily have

concluded that the rob bery had ended and that the inte nded robbe ry victim did

not act in self-de fense. Id. The jury verdict of second degree murder indicated

that the facts suppo rted “a separa te, knowing ac t” of murder. Id. This is also not

the case before this C ourt, and we affirm the conv iction of ea ch Defe ndant fo r

felony m urder.



                                     B. Ma xwell




                                          -8-
       Defendant Maxw ell raises one additional issue relating to sufficiency of the

evidence: he complains that the evidence was in sufficie nt to sh ow his

participation in the acts charged because the only testimony implicating him was

that of Marquel Horton, an accomplice. Maxwell contends that an accused

cannot be convicted based upon the uncorroborated testimony of an accomplice

and tha t the jury sho uld have been s o instructe d.



       The record does reflect th at the tria l court did not instruct the jury that

testimony of an accomplice must be corroborated. However, we need not decide

whether the trial cour t had a du ty to provide the instruc tion unde r these fac ts

because we find that, even if the failure was error, the error was harmless. The

testimony necessary to corroborate an accomplice’s testimony “may be direct or

entirely circumstantial, and it need no t be ade quate, in a nd of itself, to suppo rt a

conviction; it is sufficient to meet the requirements of the rule if it fairly and

legitim ately tends to connect the defendant with the commission of the crime

charge d.” Henley v. State, 489 S.W.2d 53, 56 (Tenn. Crim. App. 1972) (citing

Sher rill v. State, 321 S.W .2d 811 (Te nn. 1959)). ; see also State v. Bigbee, 885

S.W .2d 797, 803 -04 (Tenn . 1994).



       Here, police found in Maxwell’s bedroom closet a nine millimeter handgun

that the ac com plice, H orton, te stified M axwe ll carried in the burgla ry. In addition,

police found the nine millimeter weapon that belonged to the victim and caused

his death in the sam e location. W e believe this evidence more than satisfies the

State’s burden of corroboration in this case. Therefore, the jury was given

evidence sufficient to s upport its find ing that M axwell pa rticipated in th e events




                                            -9-
at hand, and any error by the trial court in failing to provide an instruction on

corrobo ration wa s harm less.



                                 II. IMPARTIAL JURY

      Defen dants Adams and Willoughby claim an abridgment of their right to a

fair trial because of a “tainted” jury panel. This argument has two pron gs: First,

Defen dants conte nd tha t the ven ire was com prised of too fe w pote ntial jurors.

Second, Defendants argue that their panel was not impartial because it had

previo usly rende red gu ilty verdic ts in several first degree murder cases, including

two cap ital cases. W e reject this a ssignm ent of erro r and find n o violation.



      The crux of Defend ants’ first argument is that jurors were selected even

after the point at wh ich De fenda nts ha d bee n “force d to exh aust a ll of their

peremp tory challeng es.”    Although the reco rd does not clearly d emon strate

whether all peremptories had been exercised, we need not determ ine this fact.

A jury is not rendered “tainted” simply because Defendants exhaust their allotted

number of peremptory challenges. Moreover, the record reflects that a new panel

of potential jurors was ready and available had the original venire been depleted.




       In addition, Defendants contend that the final juror, selected after

peremptories had been exhausted, should have been removed for cause. The

record does not reflect that this final juror was ever challenged for cause by any

of the parties; therefore, we have no alleged error presented for review.

Furthermore, we would find n o abuse o f discretion by the trial co urt eve n if this

juror had been challenged for cause but not excused. The record reveals a

                                         -10-
lengthy and compreh ensive exam ination of the juror, during which he ultim ately

express ed the u nqualified ability to follow the law withou t partiality.



       Defendants’ argum ent tha t the jury was im partial b ecau se it ha d prev iously

been seated during the term for first degree murder cases must also be rejected.

Although the record indicates that four jurors in this case had indeed decided

such prior cases, the record must also demonstrate prejudice on the part of

Defen dants. We find no such prejudice here. Counsel for Defendants brought

this matter to the attention of the trial judge, who respo nded, “I am ve ry

com fortable with this jury, and when I say ‘comfortable’ I mean that I feel like

there is a jury in the box, all of whom would be fair and impartial to the State and

to the defenda nts.” (R. at Vol. II, 51-52.) The reco rd revea ls noth ing tha t would

call into question the impartiality of a particular juror; 3 therefore, we conclude that

the trial judge did not abu se his disc retion. See Trail v. State, 526 S.W.2d 127,

129 (Tenn. Crim. App. 1974) (following Wa rden v. State, 381 S.W.2d 247, 250

(Tenn. 1964)), to hold that jurors are not rendered impartial simply by virtue of

hearing “an earlier, similar an d related case”); State v. Percy McIntosh, C.C.A.

No. 88-230-III, Robertson County (Tenn. Crim. App., Nashville, Feb. 16, 1989),

perm. to appeal denied (Tenn. 198 9).




      III. MERGER OF FELONY MURDER AND UNDERLYING FELONY

       Defenda nts Adams and Willoughby also assert that their convictions for

espe cially aggra vated burgla ry shou ld have been dismissed or merged with the ir

       3
           We also note that no specific instances have been alleged by either Defendant.

                                            -11-
felony murder co nvictions. Neither dism issal nor merg er is appropriate in this

case, but we redu ce the co nviction for e specially a ggravate d burgla ry to

aggravated burglary.



      In State v. Blackbu rn, 694 S.W .2d 934 (Te nn. 1985), ou r supreme court

held that a criminal defendant can constitutionally be tried and convicted for first

degree felony m urder and th e und erlying felony in a sing le trial. Id. at 936. The

“key issue, ” acco rding to the su prem e cou rt, is “whether the leg islature intended

cum ulative punishm ent.”     Id.   In a prosecution for felony murder and the

underlying felony, the court concluded, there is no double jeopardy violation

requiring dismissal or merger because “[t]he two statutes a re directed to separ ate

evils. Id. (citing Albernaz v. United States, 450 U.S. 333, 343 (1981)); see also

State v. Denton, 938 S.W .2d 37 3, 377 n.11 (T enn. 1 996) (in dictum , retainin g this

rule in light of clarified double jeopard y analysis); State v. Lewis , 919 S.W.2d 62,

69 (Tenn . Crim. A pp. 199 5); State v. Brown, 756 S.W.2d 700, 703 (Tenn. Crim.

App. 1988 ).



      Defen dants may no t, howeve r, be con victed of bo th felony murder and

espe cially aggravated burglary. See Tenn. Code Ann. § 39-14-404(d). The

legislature has p rohibite d suc h mu ltiple prosecution: “Acts which constitute an

offense under this [especially aggravated burglary] section may be prosecuted

under this section or any other applicable section, but not both.” Id. This Court

has construed § 39-14-40 4(d) to prohibit the factor o f “serious bodily injury” from

being used to con stitute especially aggravated burglary and to enhance or

comprise an element of anothe r offense . See State v. Holland, 860 S.W.2d 53,

60 (Tenn . Crim. A pp. 199 3); State v. Oller, 851 S.W .2d 841, 843 (Tenn. Crim.

                                         -12-
App. 1992); State v. Jehie l Fields, C.C.A. No. 03C01-9607-CC-00261, Bradley

County (T enn. Crim. A pp., Knoxville, Mar. 18, 1 997). The S tate acknowledges

that the especially aggravated burglary convictions cannot stand. We therefore

modify the convictions for all Defendan ts to aggravated burglary, and we reduce

the sentences as follows: Adams, from twenty years to ten years;4 Maxw ell, from

twelve years to six years; and Willoughby, from twelve years to six years.5



                            IV. DENIAL OF SEVERANCE

       Maxw ell alone complains that the trial court improperly denied his motion

to sever the proceed ings and that this d enial was prejud icial. The trial court

possesses great discretion to grant or deny severance of properly joined

defendants, and “the court’s decision will not be reversed unless it clearly

prejudiced the defenda nt.” State v. Hutchison, 898 S.W.2d 161, 166 (Tenn.

1994) (citing State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981)). In addition,

“ [m]ere hostility between defendants, attempts to cast the blame for the offense

on each other, or other ‘finger pointing and tattling will not, stand ing alone , justify

the granting of [a] severance on the ground the defendants’ respective defenses

are antagonistic.’” State v. Mabry, C.C.A. No. 01C01-9112-CC-00369, Davidson

Coun ty (Tenn . Crim. A pp., Nas hville, June 19, 199 2), perm. to appeal denied

(Tenn. 1992) (quoting United States v. Arruda, 715 F.2d 67 1, 679 (1st Cir.

1983)). We find neither abuse of that discretion nor clear prejudice in this case.




       4
          The trial court found Adams to be a Range II offender and applied the maximum
Class B sentence of twenty years. Accordingly, we reduce his sentence to the maximum
penalty available for a Range II Class C felony.
       5
       The trial court found Maxwell and Willoughby to be Range I offenders and applied the
maximum Class B sentence of twelve years. Accordingly, we reduce his sentence to the
maximum penalty available for a Range I Class C felony.

                                           -13-
         Maxw ell identifies three po rtions of alleg edly inapp ropriate tes timony to

support his claim of prejudice, but does not identify any prejudicial use of the

testimony. In two of the cited instances, Defendan t’s counsel objected to the

offensive testimony, and the trial court sustained the objection and ordered the

testimony stricken from the reco rd. We have no rea son to believe tha t the jury

conside red this tes timony in deliberatio ns.



         In the third instance, Horton testified that Defendant Willoughby stated, “He

fired twice.” Maxwell asserts that the context of questioning incorrectly indicated

that Willou ghby’s sta temen t implicate d anoth er Defe ndant, ra ther than himse lf.6

However, the record reflects that any confusion was clarified on redirect by the

State:

         Q.    (By Mr. Alle n) Mr. H orton, I b elieve y ou sa id that w hen y’a ll
         were in the woods, and [Willoughby] and [Adams] came out into the
         woods , you aske d, “W ho sho t;” is that corre ct?

         A.     Yes, sir.

         Q.     And what did [Willoughby] tell you?

         A.     He just s aid -- he sa id, “I fired two tim es.”

         Q.     All right. And who was he referring to?

         A.    W h o was he referring to -- who shot the person? He said, “he
         did.”

         Q.     Talking about h imself?

         A.     Yes, sir.

         Q.     He ne ver said tha t anybod y else sho t?

         A.     No, sir.



         6
          To clarify, it is the difference between (1) Horton testifying, “Willoughby said he fired
twice” (implicating Willoughby), and (2) Horton testifying, “Willoughby said, ‘He fired twice’”
(implicating either Adams or Maxwell).

                                               -14-
       Q.       Just him self?

       A.       Yes, sir.

Any confusion concerning the misleading cross examination of Horton was

undo ubted ly cured by the State’s redirect examination. In addition, we have no

evidence tendin g to sh ow tha t the jury failed to disreg ard an y objec tionab le

statem ents stricke n from the rec ord. W e mu st rejec t this assignment of error by

Defe ndan t Maxw ell.



                                 V. JURY MISCONDUCT

       In his next issue for review, Maxwell argues that jury misconduct violated

his right to a fair trial. Specifically, he claims th at at lea st two ju rors fou nd him

“not guilty” in the initial vote during deliberations. He presented an affidavit from

a juror in s uppo rt of his m otion for a new trial, in w hich a juro r disclose d that a

statement by counsel indicating that all three Defendants were at the scene

caused tho se jurors to find Ma xwell guilty.7



       Maxw ell cites a good portion of the body of law regarding when (and by

what evidence) a jury verd ict may be imp eache d, but we find it unne cessar y to

delve into the legal landscape of this issue. First, the juror who provided the

supporting affidavit was not one of the two in itially finding Ma xwell “not gu ilty.”

The affiant s tated th at she “perso nally thought that M r. Maxwell was the re [at the

scene ],” but that it was her “opinion that the people who had voted not guilty on

the first call perhaps would not ha ve changed their mind” had they not relied on

the statemen t by counsel. (Em phasis add ed.) Second, the offensive statement

has been desc ribed but has not bee n cited to the record with any particularity.

       7
           Maxwell’s counsel argued in closing that Maxwell was not present at the scene.

                                            -15-
Third, the statem ent com plained o f, allegedly m ade du ring que stioning o f a

witness, was made by Maxwell’s own counsel. We simply decline to hold that

Defendant may assign error wh en the jury listens to the qu estion s aske d by his

attorney in the course of questioning a witness. Jury misconduct has not been

established.



                VI. APPLICATION OF THE MAXIMUM SENTENCE

       Maxw ell’s final argument is that the trial court erre d in sente ncing him to

the maximum penalty available for burglary, consp iracy, and theft. 8 Althou gh this

Court mus t cond uct a d e novo review when a crim inal defenda nt appeals the

length, range, or manner of service of sentence; the legislature has imposed a

“presumption that the determinations made by the court from which the appeal

is taken are correct.” Tenn. Code Ann. § 40-35-401(d). The presumption of

correctness is conditioned, however, upon proper consideration b y the trial court

of the sentencing principles in Tennessee Code Annotated § 40-35-103. State

v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Following review, we find no errors

and affirm the decis ion of the tria l court. 9



       For Defen dant Ma xwell, the trial co urt found two enhancement factors:

First, “the defenda nt has a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the range . . . ; and the

defendant was ajudicated [sic] to have committed deliquent [sic] act or acts which


       8
         After finding Maxwell to be a Range I offender, the trial court sentenced him to twelve
years for especially aggravated burglary, four years for conspiracy to commit aggravated
burglary, and two years for theft.
       9
          We affirm the decision to apply the maximum available penalty. Maxwell’s burglary
sentence stands reduced pursuant to modification of his conviction from especially aggravated
burglary to aggravated burglary. See supra Part III.

                                             -16-
would constitute a felony.”         Second, the court found that the defendant

posse ssed a firearm d uring com mission of the offen se.



       Both enhance ment factors a re well borne ou t by the facts: De fenda nt’s

juvenile convictions include three thefts of prope rty under $ 500, attem pted the ft

under $500, tw o thefts ove r $500, tw o coun ts of aggra vated burglar y, six

additional felony thefts, vehicle burglary, auto theft, another theft, possession of

a deadly weapon, vehicle theft over $1,000, and vehicle theft over $5,000. With

respect to the se cond enh ancem ent factor, Marquel Horton testified at trial that

Maxw ell carried a n ine millim eter han dgun d uring the course of the burg lary. In

addition, police located this gun and the victim’s gun, the murder weapon , in

Maxw ell’s bedroom closet; and Defendan t presen ted no e vidence tending to

show that anyone other than Maxwell placed the firearms in his poss ession. W e

conclude that the trial court properly a pplied the se enh ancem ent factors to

increase Defen dant’s se ntence from the minim um in the range.



       Maxw ell tendered three mitigation factors: that his participation in the

offense was minor, that there was no evidence to show he fired a weapon, and

that he lacked substantial judgment because of his youth . The trial court rejected

all three fac tors, and we find no abuse of discretion in his doing so.



       Maxw ell challenges the rejection of only one of his proposed mitigating

factors—that he lacked substantial judgment because of his youth. He cites

State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993), and State v. Carter, 908

S.W.2d 410 (Tenn. Crim . App. 1 995), fo r the pro positio n that th e trial co urt sho uld

have accepted this mitigating factor. In Adams, our supreme court affirmed the

                                           -17-
trial court’s rejection of this factor based upon facts dissimilar to this case but

nevertheless tendin g to sh ow tha t the de fenda nt did not lack judgment because

of his youth. 864 S.W.2d at 33. Likewise, this Court approved the rejection of

the same factor in Carter, based upon a finding that “the defendant was

sufficie ntly mature to understand the nature o f his cond uct.” 908 S.W.2d at 413.



      According to Adams, a court presented with this mitigating factor “shou ld

consider the concept of youth in context, i.e., the defendant’s age, education,

maturity, experien ce, me ntal capacity or development, and any other pertinent

circumstance tending to demo nstrate the defend ant’s ability or in ability to

apprec iate the nature of his con duct.” 864 S.W.2d at 33. We are convinced that

the trial judge below weighed the above considerations. Although Defendant

Maxw ell committed these crimes at the age of 16, we find no abuse of discretion

in concluding that his youthful age did not cause a lack of su bstantial jud gmen t.



      The judgm ent of th e trial co urt is the refore revers ed as to the e spec ially

aggravated burglary convictions and affirmed as to the remainder of the

convictions. We vacate th e conviction for especially aggravated burglary and

order instead entry of convictions for aggravated burglary. The Defendants’

sentences for aggravated burglary are set as follows: Ad ams , 10 yea rs; Ma xwell,

6 years; and Willoughby, 6 years. All sentences are to be served conc urrently.




                                         ___________________________
                                         DAVID H. WELLES, JUDGE




                                        -18-
CONCUR:



______________________________
JOE G. RILEY, JUDGE



______________________________
DAVID R. FARMER, SPECIAL JUDGE




                             -19-
