             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                            May 7, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                )    No. 01C01-9612-CC-00514
                                   )
      Appellee                     )
                                   )    LINCOLN COUNTY
V.                                 )
                                   )    HON. CHARLES LEE,
ANTHONY JOEL ALLEN, JR.,           )    JUDGE
                                   )
      Appellant.                   )    (Attempted Second Degree Murder)
                                   )
                                   )


For the Appellant:                      For the Appellee:

John Harwell Dickey                     John Knox Walkup
District Public Defender                Attorney General and Reporter

Michael D. Randles                      Karen M. Yacuzzo
Assistant Public Defender               Assistant Attorney General
105 S. Main Street                      425 Fifth Avenue North
Fayetteville, TN 37334                  Nashville, TN 37243-0493
(At trial)

Curtis H. Gann                          W. Michael McCown
Assistant Public Defender               District Attorney General
(On appeal)
                                        Frank Charles Crawford
                                        James Barnes Cox
                                        Assistant District Attorneys
                                        215 E. College Street
                                        Fayetteville, TN 37334




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                         OPINION

       The appellant, Anthony Joel Allen, Jr., appeals as of right his conviction in the

Lincoln County Circuit Court of attempted second degree murder. Appellant was

sentenced to ten years as a Range I offender. On appeal, he contends that the

evidence was insufficient to support his conviction and that his sentence is excessive.

After a thorough review of the record, we affirm the judgment of the trial court.

       On the evening of May 21, 1995, John Berryhill, the victim, was driving from

Wal-Mart to Funland on Highway 431 in Fayetteville. He approached from behind a

red Ford Escort that was traveling slowly. Because his turn into the parking lot at

Funland was very close, he remained behind the Escort. The driver of the Escort

turned into the Funland parking lot and Berryhill followed, as it was his destination.

The Escort stopped and the driver shouted at Berryhill, accusing him of tailgating.

Heated words were exchanged between Berryhill and the driver of the Escort. Finally,

Berryhill said, “Well, whatever,” and began to drive away.

       The Escort followed and Berryhill again stopped his car. The two men

continued to argue about the alleged tailgating. The driver of the Escort and his

passengers, appellant and Vincent McKinney, got out of the car and walked to

Berryhill’s car. Berryhill told the men to stay away from the car. Anticipating a

confrontation, he reached on the console of his car for a hair tie to pull his hair into a

ponytail. Suddenly, appellant pulled out a gun, pointed it at Berryhill, and fired a shot.

Berryhill immediately began to drive away, but the appellant continued shooting, firing

four more times. Berryhill testified that he was not in possession of a weapon that

night and he did nothing intimidating before appellant began firing.

       As Berryhill sped away, he made a U-turn in the parking lot and began chasing

appellant and Vincent McKinney, who were on foot. As Berryhill approached,

appellant turned and fired another shot at the car, striking the windshield. Berryhill

then began to chase McKinney. However, both men were able to evade Berryhill.



                                             2
       Appellant fired a total of six shots. Three bullets lodged in the driver’s side

door, one struck the front fender, and another penetrated the side of the driver’s seat.

The last bullet struck the windshield of the car. Fortunately, Berryhill escaped

unharmed. State witness Rebecca Parks corroborated the events that Berryhill

related. Specifically, she stated that during the entire incident, Berryhill’s hands

remained on the steering wheel and he never made any threatening movement.

       Appellant testified at trial and admitted that he fired the shots at the victim.

However, in both his statement to police and at trial, he claimed that he did so in self-

defense. According to appellant, Berryhill put his hair in a ponytail and then began to

reach under the passenger’s seat of the car. Fearing that Berryhill was trying to

retrieve a weapon, appellant pulled a .380 pistol out of his pocket and fired at Berryhill.

Appellant denied any intent to kill Berryhill, stating instead that he was just shooting at

the car and did not aim at Berryhill. He also stated that he believed his life was in

danger when he fired the shots.

       On cross-examination, appellant admitted that he never saw Berryhill with any

type of weapon, nor did he warn him that he was going to shoot. Appellant claimed

that he continued to fire his weapon as Berryhill drove away because he perceived

that Berryhill was still a threat.

       Although indicted for the attempted first degree murder of Berryhill, the jury

convicted appellant of the lesser offense of attempted second degree murder. The

jury also imposed a fine of $5,000. At a subsequent sentencing hearing, the trial court

found the presence of three enhancement factors and no mitigating factors to arrive at

a sentence of ten years in the Department of Correction.

       Appellant alleges that the evidence was insufficient to support his conviction for

attempted second degree murder. He argues that since he was acting in self-

defense, his actions did not constitute a “substantial step” and his entire course of

conduct was not corroborative of an intent to commit the offense. See Tenn. Code



                                             3
Ann. §39-12-101 (1991). He further submits that the jury did not give his self-defense

testimony the same consideration as the testimony of other witnesses.

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

must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are

required to afford the State the strongest legitimate view of the proof contained in the

record, as well as all reasonable and legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1979).

       In essence, appellant’s argument challenges the jury’s decision to believe the

State’s witnesses instead of his self-defense testimony. However, issues concerning

the credibility of witnesses and the weight and value to be given the evidence are

resolved by the trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. W hile

appellant and another defense witness testified to their belief that the victim reached

for a weapon, the prosecution witnesses presented contrary testimony. Self-defense

is a classic question for the jury to decide. Arterburn v. State, 391 S.W.2d 648, 653

(Tenn. 1965); State v. Fugate, 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988).

       The jury in appellant’s case was instructed on the law applicable to self-

defense. The trial court also properly instructed the jury with respect to considering

and weighing the testimony of the witnesses. In exercising that duty, the jury

accredited the State’s witnesses and discredited appellant’s theory of self-defense.

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973) (jury’s verdict of guilty accredits

testimony of State’s witnesses). We will not disturb that finding.

       The evidence introduced at trial unquestionably supports the jury’s verdict.

Appellant readily admitted that he fired six shots at Berryhill. He fired the first shot

while standing only twenty feet from Berryhill’s car and it likely was the bullet which

penetrated the side of the driver’s seat where Berryhill was sitting. The remaining

                                             4
bullets struck the victim’s automobile in the driver’s door, the fender, and the

windshield. The jury was justified in concluding that appellant was aiming at Berryhill.

The victim was not in possession of a weapon and never displayed one. We

conclude, as did the jury, that appellant’s actions were a substantial step toward the

commission of second degree murder and were indicative of his intent to commit that

offense. Tenn. Code Ann. §39-12-101 (1991); State v. Frederick R. Porter, No.

03C01-9606-CC-00238 (Tenn. Crim. App. at Knoxville, October 23, 1997), perm. app.

filed (Tenn. February 2, 1998) (finding proof that the defendant deliberately aimed a

pistol and shot several times at his intended victim is sufficient to support conviction

for attempted second degree murder). Appellant’s argument is without merit.

       Appellant challenges his sentence as being excessive and contrary to law. He

argues that the trial court incorrectly applied certain enhancement factors and that his

sentence does not comport with the principles of sentencing. We disagree.

       When a defendant challenges his or her sentence, we must conduct a de novo

review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence imposed

by the trial court is accompanied by a presumption of correctness and the appealing

party carries the burden of showing that the sentence is improper. Tenn. Code Ann.

§40-35-401 Sentencing Commission Comments. The presumption, however, is

conditioned upon an affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). Because the trial court considered relevant

sentencing principles, we accord the trial court’s order the presumption.

       Appellant was convicted of a Class B felony which has a sentencing range of

eight to twelve years for a Range I offender. Tenn. Code Ann. §40-35-112(a)(2)

(1990). Procedurally, the trial court is required to begin with the minimum sentence in

the range and then increase the sentence appropriately based upon enhancement

factors. The sentence should then be appropriately reduced based upon the



                                            5
presence and strength of any mitigating factors. Tenn. Code Ann. §40-35-210(e)

(Supp. 1995).

       In sentencing appellant to a mid-range ten year sentence, the trial court applied

three enhancement factors: (1) that appellant had a previous history of criminal

behavior; (9) that appellant employed a firearm in the commission of the offense; and

(16) that the crime was committed under circumstances in which the potential for

bodily injury to a victim was great. Tenn. Code Ann. §40-35-114 (Supp. 1995).

Appellant does not contest the application of enhancement factor (9).

       Appellant does contend, however, that the trial court erred in applying

enhancement factor (1) when he had no prior criminal record. W hile the presentence

report confirms that appellant has no prior convictions, the trial court nevertheless

applied that factor because of appellant’s previous criminal behavior. Appellant

testified that he had been carrying the pistol used in this offense for two to three

months and that he had no permit to carry it. The trial court determined that such

criminal conduct could be used for enhancement, although it declined to place great

weight on the factor.

       The enhancement was proper. The plain language of the statute does not limit

consideration to previous convictions only. The statute specifies a “previous history of

criminal convictions or criminal behavior.” Tenn. Code Ann. §40-35-114(1) (Supp.

1995) (emphasis added). While it is impermissible to use only arrest records to

establish criminal behavior, enhancement is permissible when the episodes of criminal

behavior are established by the testimony of witnesses. State v. William Jeffery

Carico, No. 03S01-9610-CR-0009 (Tenn. Knoxville, April 27, 1998). See also State v.

Hunter, 926 S.W.2d 744, 748-49 (Tenn. Crim. App. 1995), perm. app. denied (Tenn.

1996) (allowing victim’s testimony of unindicted sexual abuse to establish criminal

behavior).

       Carrying a firearm with the intent to go armed is a criminal offense. Tenn. Code

Ann. §39-13-1307 (1991). In his testimony, the appellant admitted his criminal


                                            6
behavior; thus, the factor was applicable. Moreover, we note that appellant reported

in the presentence report that he has used marijuana on a daily basis since age 16.

That, too, constitutes criminal behavior and could have been considered in enhancing

the sentence. State v. Dale Nolan, No. 01C01-9511-CC-00387 (Tenn. Crim. App. at

Nashville, June 26, 1997), perm. app. denied (Tenn. 1998); State v. John L. Smith,

No. 01C01-9309-CR-00308 (Tenn. Crim. App. at Nashville, October 20, 1994).

        Appellant also contests the application of enhancement factor (16). He argues

that the factor is inapplicable in the absence of proof that another person was in the

line of fire when the shooting occurred. Application of the factor is warranted provided

that individuals other than the victim are in the area and subject to injury. State v.

Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). 1 The record reflects that there

were at least two other people present in the parking lot when appellant shot at

Berryhill. The trial court did not err in its application of that enhancement factor.

        Contrary to appellant’s claims, the length of his sentence is fully supported by

evidence in the record. Based upon the foregoing, we affirm appellant’s conviction

and sentence.



                                                         _______________________________
                                                         William M. Barker, Judge



____________________________
Joe B. Jones, Judge



____________________________
Joe G. Riley, Judge




        1
         Appellant also challenges the trial court’s application of enhancement factor (10), that
defendant had no he sitation in committing a crime in which the risk to hum an life was high. The record
reveals that the trial court declined to apply that factor to enhance appellant’s sentence. However, when
persons other than the victim are present in the area and in danger of appellant’s gunfire, both factor
(10) and (16) m ay be app lied. Sim s, 909 S.W .2d at 50. See also State v. Makoka, 885 S.W.2d 366,
373 (Tenn. Crim . App. 1994) (applying factor (10) when other people present cou ld have been injured).

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