             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                  FILED
                            JUNE 1999 SESSION
                                                                July 9, 1999

                                                            Cecil W. Crowson
STATE OF TENNESSEE,             )                          Appellate Court Clerk
                                )
             Appellee,          )    No. 01C01-9809-CR-00374
                                )
                                )    Davidson County
v.                              )
                                )    Honorable Cheryl Blackburn, Judge
                                )
ERVIN LEE HAYES,                )    (Attempted first degree murder, two counts)
                                )
             Appellant.         )



For the Appellant:                   For the Appellee:

J. Michael Engle                     Paul G. Summers
Assistant Public Defender            Attorney General of Tennessee
1202 Stahlman Building                      and
Nashville, TN 37201                  Clinton J. Morgan
(AT TRIAL)                           Assistant Attorney General of Tennessee
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493
Jeffrey A. DeVasher
Assistant Public Defender            Victor S. Johnson, III
1202 Stahlman Building               District Attorney General
Nashville, TN 37201                          and
(ON APPEAL)                          Dan Hamm
                                     Assistant District Attorney General
                                     Washington Square, Suite 500
                                     222 2nd Avenue North
                                     Nashville, TN 37201-1649
                                             and
                                     Sharon Brox
                                     Assistant District Attorney General
                                     Washington Square, Suite 500
                                     222 2nd Avenue North
                                     Nashville, TN 37201-1649




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                     OPINION



             The defendant, Ervin Lee Hayes, appeals as of right from his convictions

by a jury in the Davidson County Criminal Court for two counts of attempted first degree

murder, a Class A felony. He was sentenced as a Range II, multiple offender to thirty-

five years confinement in the custody of the Department of Correction for each count to

be served consecutively. The defendant contends that (1) the evidence is insufficient to

support his convictions, and (2) the trial court erred by imposing an excessive sentence

and by ordering consecutive sentences. We affirm the judgments of conviction.



             At trial, Tawanda Parker testified that she lived with her boyfriend, Andreal

McLemore, in a duplex in Nashville. She testified that after midnight on December 12,

1996, the defendant and his girlfriend knocked on her door. She testified that she knew

the defendant and that he had previously been to her apartment. She testified that the

defendant entered and asked if he could borrow her car, to which she replied that the

car was not working because the tailpipe had fallen off. She said the defendant

responded, “[D]o you mean to tell me that damn car ain’t working?” She said she told

the defendant that it was not, then the defendant pulled out a handgun from his pocket

and shot Mr. McLemore. She said the defendant then shot her in the left jaw, walked

toward her and shot her again in the neck. She testified that before the defendant shot

her and Mr. McLemore, she and the defendant had not been arguing but had been

talking in a normal tone. She said the defendant did not say anything immediately

before or after he shot them.



             Ms. Parker testified that she and Mr. McLemore lay still until they heard

the defendant leave. She said she crawled to the telephone to dial 9-1-1 but could not

dial the numbers. She said she thought she was dialing 9-1-1, but an operator kept



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coming on the line telling her to hang up and try again. She said she prayed and went

to sleep. She said she awoke several times and tried to dial 9-1-1 but was

unsuccessful. She said the next time she awoke, it was daylight. She stated that the

telephone then rang, and she was able to answer it. She said it was a friend, and she

told him to call the police because she had been shot. Ms. Parker testified that the

police arrived shortly thereafter and that she told them that the defendant had shot

them. She testified that a detective later showed her two photograph lineups. She

testified that she did not see the defendant in the first lineup but that she identified him

in the second one. She stated that she has been confined to a wheelchair since the

shooting.



              On cross-examination, Ms. Parker testified that she had known the

defendant for about three months before the shooting. She stated that he lived with his

mother down the street from her. She said that he had been at her house a couple of

times on the day of the shooting to use her telephone. She testified that the defendant

had previously bought a car and furniture from her. She said she had borrowed money

from the defendant in the past but had always paid it back. She denied mentioning a

robbery to one of the responding officers. She said that when the defendant was at her

apartment, no one was angry, upset or yelling. She said she did not know why the

defendant shot her.



              Andreal McLemore testified that he had known the defendant about three

months before the shooting and that the defendant had previously been in his and Ms.

Parker’s apartment. He said he was friendly with the defendant and never had any

problems with him. He said that he was lying in bed when the defendant came to their

apartment at about 12:30 a.m. on December 12. He said the defendant wanted to

borrow Ms. Parker’s car but could not do so because the tailpipe had fallen off. He said

he heard the defendant and Ms. Parker talking but could not hear what they were



                                              3
saying. He testified that he was sitting upright on the bed when the defendant shot him

from about eight feet away. He said he had no conversation with the defendant before

he was shot. He said the bullet struck his upper left neck, and he fell to the floor. He

said that after he was shot, he heard two more shots, and Ms. Parker fell on top of him.

He said that after the defendant left, Ms. Parker crawled to get the telephone but could

not use it. He said they were not discovered until 1:30 p.m. the following day, and he

said he was awake the entire time and was unable to move his lower body. He testified

that he has been confined to a wheelchair since the shooting and that he has to live in a

nursing home facility.



              On cross-examination, Mr. McLemore admitted that he had served a

three-year sentence for possession of cocaine in 1993. He said that neither he nor Ms.

Parker had any dispute with the defendant.



              Sergeant Gary Young testified that he was dispatched to the scene and

discovered that the victims had been shot inside their apartment. He said he asked Ms.

Parker who shot her, and she responded, “Ervin did it.” On cross-examination, he

testified that he did not know if the case was originally handled by a robbery unit, but he

had called for a homicide unit.



              Detective Frank Pierce testified that he works for the Homicide Unit and

that when he arrived at the scene at about 1:30 p.m., the victims had already been

transported to the hospital. He said he learned from another detective that the victims

said that a man named Ervin had shot them. He said that Detective Dean Haney

prepared a photograph lineup that did not contain the defendant’s photograph. He said

he showed the lineup to the victims, and they could not identify the defendant in the

lineup. He said he prepared a second lineup containing the defendant’s picture, and

the victims were able to identify the defendant immediately.



                                             4
              On cross-examination, Detective Pierce testified that he did not preserve

the first lineup. He said the photographs in the first lineup were selected by a computer

based upon the information from the victims. He said he did not believe any written

description of the defendant by the victims existed. On redirect examination, he

testified that although he showed the first lineup to the victims, it was prepared by

Detective Haney. He said that as far as he knew, the only information provided by the

victims was the defendant’s name.



              Officer William Merrill of the Identification Division of the Metropolitan

Police Department testified that he was in the area of the victims’ apartment on

December 12 and saw ambulances and police cars. He said that when he went inside

the apartment, Ms. Parker was being treated and was unresponsive. He testified that

Mr. McLemore was able to speak. He said he asked Mr. McLemore who shot him, and

Mr. McLemore responded, “Ervin.” Officer Merrill testified that he found blood in several

areas, including on the bed, but that he did not find any shell casings, bullet holes or

weapons at the scene.



              Detective Dean Haney of the Armed Robbery Unit testified that he was

dispatched to the scene on the report of a potential armed robbery. He said he arrived

at about 2:00 p.m. He said that the Armed Robbery Unit was dispatched because Ms.

Parker had mentioned robbery to an officer on the scene. He said he looked through

the apartment, but it did not look as if anything had been taken. He said a billfold and

pocketbook were still in the apartment. He testified that he saw Mr. McLemore at the

hospital the next day and that he asked Mr. McLemore if he had been robbed. He said

that Mr. McLemore was unable to speak but that he shook his head to indicate “no.” He

said Mr. McLemore shook is head to indicate “yes” when he asked if Ervin had shot

him. Detective Haney testified that the case was then turned over to the Homicide Unit.

He testified that he assisted Detective Pierce by generating a computer lineup based



                                             5
upon the name “Ervin.” He said he did not know whether the defendant was in the

lineup, and he gave his paperwork to Detective Pierce. The jury convicted the

defendant upon the foregoing evidence.



                          I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is insufficient to support his

convictions. He argues that no evidence exists to support a finding of premeditation

necessary for an attempted first degree murder conviction. The state contends that the

evidence is sufficient.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

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

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              A person commits the offense of criminal attempt when, “acting with the

kind of culpability otherwise required for the offense [the person] . . . [i]ntentionally

engages in action or causes a result that would constitute an offense if the

circumstances surrounding the conduct were as the person believes them to be[.]”

Tenn. Code Ann. § 39-12-101. First degree murder is the “premeditated and intentional

killing of another[.]” Tenn. Code Ann. § 39-13-202(a)(1).



              A premeditated act is one “done after the exercise of reflection and

judgment. ‘Premeditation’ means that the intent to kill must have been formed prior to



                                               6
the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the

accused for any definite period of time.” Tenn. Code Ann. § 39-13-202(d).

Furthermore, the element of premeditation is a question for the jury and may be

established by proof of the circumstances surrounding the killing. State v. Bland, 958

S.W.2d 651, 660 (Tenn. 1997). Our supreme court has delineated the following factors

that demonstrate the existence of premeditation: the use of a deadly weapon upon an

unarmed victim, the particular cruelty of the killing, declarations by the defendant of an

intent to kill, evidence of procurement of a weapon, preparations before the killing for

concealment of the crime, and calmness immediately after the killing. Id.



              The defendant contends that the evidence is insufficient to support a

finding of premeditation because no evidence of reflection or judgment exists. He

argues that the evidence shows that he pulled out the gun and shot the victims. He

claims that the evidence only supports a conviction for attempted second degree

murder. We disagree.



              We believe that the facts in the light most favorable to the state support

the jury’s finding of premeditation. The defendant entered the victims’ apartment armed

with a loaded weapon. He calmly took the weapon out of his pocket and, without

warning or provocation, shot Mr. McLemore, who was unarmed. He then turned the

gun upon Ms. Parker, also unarmed, and shot her without warning. He then walked

toward Ms. Parker and shot her again. The defendant then left the apartment, without

comment, leaving the injured victims alone. The defendant’s advance procurement of a

weapon, his use of that weapon on two unarmed victims, his calmness immediately

after the shooting, and the cruelty of leaving the injured victims to their fate supports a

finding of premeditation.




                                              7
                                    II. SENTENCING

              The defendant contends that the trial court erred in sentencing. He

argues that (1) his sentences are excessive because the trial court misapplied an

enhancement factor, and (2) consecutive sentences are not warranted. The state

contends that the defendant’s sentences are appropriate. We agree.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is

now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the


                                             8
principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              The sentence to be imposed by the trial court for a Class A felony is

presumptively the midpoint in the range when there are no enhancement or mitigating

factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range based upon the existence of enhancement

factors and then reduce the sentence as appropriate for any mitigating factors. Tenn.

Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the

trial court's discretion so long as it complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record. Tenn.

Code Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.



              A presentence report was introduced at the sentencing hearing. It reflects

that the defendant was twenty-seven years old at the time of sentencing and had no

mental or physical health problems. It reflects that the defendant has previous

convictions for voluntary manslaughter and aggravated assault in 1993, possession of

cocaine in 1992, and assault with the intent to commit armed robbery in 1990. The

report shows that the defendant completed no education beyond the seventh grade and

reported no employment history.



              The trial court found the following enhancement factors applicable, as

listed in Tenn. Code Ann. § 40-35-114:




                                             9
             (1) The defendant has a previous history of criminal
             convictions or criminal behavior in addition to those necessary
             to establish the appropriate range;

             (5) The defendant treated or allowed the victim to be treated
             with exceptional cruelty during the commission of the offense;

             (6) The personal injuries inflicted upon or the amount of
             damage to property sustained by or taken from the victim was
             particularly great;

             (8) The defendant has a previous history of unwillingness to
             comply with the conditions of a sentence involving release in
             the community;

              (9) The defendant possessed or employed a firearm, explosive
              device or other deadly weapon during the commission of the
              offense; [and]

              (11) The felony resulted in death or bodily injury or involved the threat of
              death or bodily injury to another person and the defendant has previously
              been convicted of a felony that resulted in death or bodily injury[.]



              The trial court found no applicable mitigating factors and sentenced the

defendant as a Range II, multiple offender to thirty-five years for each conviction, to be

served consecutively. In ordering consecutive sentences, the trial court found that the

defendant has an extensive record of criminal activity and is a dangerous offender

whose behavior indicates little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-

115(b)(2), (4). The trial court also determined that consecutive sentences reasonably

relate to the severity of the offenses and are necessary to protect the public from further

criminal activity by the defendant. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.

1995).




                              A. LENGTH OF SENTENCE

             First, the defendant contends that the trial court erred by applying

enhancement factor (5), that he treated or allowed the victims to be treated with

                                            10
exceptional cruelty during the commission of the offense. The trial court applied

enhancement factor (5) based upon the cruelty of the unprovoked shooting and the fact

that the defendant left the injured but conscious victims in their apartment, and they

were not found until the next day. In applying factor (5) based upon the cruelty of the

unprovoked shooting, the trial court relied upon this court’s opinion in State v. Terry

Antonio Lawrence, No. 01C01-9603-CR-00122, Davidson County (Tenn. Crim. App.

Sep. 19, 1997). In that case, a panel of this court held that factor (5) was applicable to

enhance the defendant’s attempted first degree murder conviction. The panel

concluded that “[t]he unarmed victim offered no resistance . . . . However, the

defendant’s response to the victim’s compliance was to shoot him at close range in the

face. The trial court was correct in finding this to be an act of exceptional cruelty.”

Terry Antonio Lawrence, slip op. at 7.



              Initially, we note that the application of factor (5) requires “exceptional

cruelty,” which is usually found in cases of abuse or torture. See State v. Williams, 920

S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our supreme court has held that the facts

must “support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability distinct

from and appreciably greater than that incident to’” the crime. State v. Poole, 945

S.W.2d 93, 98 (Tenn. 1997) (quoting State v. Jones, 883 S.W.2d 597, 601 (Tenn.

1994)).



              In Poole, the supreme court concluded that knocking the victim

unconscious and leaving her on the floor bleeding under circumstances making it

unlikely that she would soon be discovered or receive treatment demonstrated a greater

culpability than that needed for the commission of the especially aggravated robbery for

which the defendant was convicted. 945 S.W.2d at 99. In this regard, though, a

distinction exists in the present case because the offense is the attempt to commit first

degree murder. A rational argument can be made that a person who simply enters a



                                             11
victim’s home, shoots the victim with the intent to kill the victim, and then leaves the

home does not necessarily have greater culpability through exceptional cruelty if the

victim survives, although left alone. In any event, we believe that the remaining factors

adequately support the sentences imposed.



                               B. MANNER OF SERVICE

              Next, the defendant contends that the trial court erred by imposing

consecutive sentencing. He does not contest the trial court’s findings with respect to

Tenn. Code Ann. § 40-35-115 but asserts that consecutive sentences do not

reasonably relate to the severity of the offenses and are not necessary to protect the

public. See Wilkerson, 905 S.W.2d at 938.



              We conclude that the record supports the trial court’s imposition of

consecutive sentencing. The consecutive sentences in the present case reasonably

relate to the severity of the offenses and are necessary to protect the public. The

defendant, without provocation or warning and for no apparent reason, shot Mr.

McLemore in the neck and shot Ms. Parker twice in the jaw and neck, leaving the

unarmed and helpless victims lying on the floor. Both victims suffered serious injuries

and are confined to wheelchairs as a result of the shooting. Furthermore, the

defendant’s criminal record reflects three previous convictions involving physical

violence or death. These facts support consecutive sentencing.




              In consideration of the foregoing and the record as a whole, we affirm the

judgments of conviction.



                                                         __________________________
                                                         Joseph M. Tipton, Judge


                                             12
CONCUR:


___________________________
Joe G. Riley, Judge


___________________________
Alan E. Glenn, Judge




                              13
