          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs September 20, 2000

              STATE OF TENNESSEE v. JAMES EDWARD COWAN

                      Appeal from the Criminal Court for Davidson County
                         No. 98-D-2586    J. Randall Wyatt, Jr., Judge



                    No. M1999-02572-CCA-R3-CD - Filed October 27, 2000


Defendant was convicted by a Davidson County jury of attempted first degree murder, attempted
especially aggravated robbery, and especially aggravated burglary. At sentencing his conviction for
especially aggravated burglary was reduced to aggravated burglary. He was sentenced as a Range II
offender to thirty-six years for the Class A felony of attempted first degree murder, sixteen years for
the Class B felony of attempted especially aggravated robbery, and eight years for the Class C felony
of aggravated burglary. The attempted first degree murder and attempted especially aggravated
robbery sentences were run consecutively to each other, and the aggravated burglary sentence ran
concurrently, for an effective fifty-two year sentence. In this appeal, defendant makes the following
allegations: (1) the trial court erred in refusing to suppress the bullet which was removed from
defendant during surgery; (2) the evidence was insufficient to support his conviction for attempted
first degree murder; (3) his separate convictions for attempted first degree murder and aggravated
burglary violate due process since they were incidental to attempted especially aggravated robbery;
and (4) the trial court erred in determining the length and consecutive service of his sentences. Upon
our review of the record we conclude the trial court properly admitted the bullet removed from the
defendant; the evidence was sufficient to sustain defendant's conviction for attempted first degree
murder; there was no due process violation; and defendant was properly sentenced. Thus, the
judgment of the trial court is affirmed.


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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE , JJ., joined.

Karl Dean, Public Defender; Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial),
Assistant Public Defenders, Nashville, Tennessee, for the appellant, James Edward Cowan.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brett T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                              OPINION

        Defendant was convicted of attempted first degree murder, attempted especially aggravated
robbery, and especially aggravated burglary. He was sentenced as a Range II offender to thirty-six
years for attempted first degree murder, sixteen years for attempted especially aggravated robbery,
and eight years for the reduced charge of aggravated burglary. Counts one and two were run
consecutively for an effective sentence of fifty-two years. Defendant alleges: (1) the trial court erred
by denying his motion to suppress the bullet seized from the hospital after it had been removed from
his arm; (2) the evidence was insufficient to sustain his conviction for attempted first degree murder;
(3) his convictions for attempted first degree murder and aggravated burglary violate due process
since he was also convicted of attempted especially aggravated robbery; and (4) the trial court erred
in determining both the length and consecutive service of his sentences. Upon our review of the
record, we affirm the judgment of the trial court.


                                               FACTS

         On June 9, 1998, at approximately 4:00 a.m. the victim and his girlfriend heard gunfire in
their duplex, and the shattering of the sliding glass door downstairs. They testified that the gunfire
was coming through the ceiling into their bedroom and the bedroom where the victim’s three-year-old
and five-year-old children were sleeping. Additionally, the victim testified that someone was standing
outside of his bedroom window and shooting inside. The victim shoved his girlfriend into the closet,
grabbed his .357 revolver, and went to the top of the stairs in an attempt to keep the gunmen from
coming up the stairs. One perpetrator was coming up the stairs, and another person was standing at
the foot of the stairs. The perpetrator fired at the victim and struck him in the left arm. The victim
testified that when the pistol was empty, the man at the bottom of the stairs threw the perpetrator a
"big gun." The perpetrator then ran further up the stairs and asked the victim, "do you have any
money?" The victim returned fire, stated that he did not have any money, and continually told the
perpetrator that his children were in the house. The victim claims the intruders then began to shoot
even more.

       Once the perpetrator reached the top of the stairs, he and the victim began to wrestle. The
victim shot him at least once. The perpetrator eventually fell down the stairs, and the other man
grabbed him and helped him exit the premises.

        The victim testified that the men were dressed in black and wearing ski masks. However,
during the struggle, he was able to ascertain that the perpetrator was black. He further testified that
during the struggle, the perpetrator shot him approximately five times in the chest, arm and head.
Miraculously, the victim survived.




                                                   2
       After their arrival at the scene, the police found a .9 mm Ruger in the backyard as well as
numerous shell casings on the lower level of the residence. In addition, the victim turned his .357
revolver over to the police.

        At 4:40 a.m. the wounded defendant and another man arrived at General Hospital in Nashville.
When hospital personnel stated that the police would be contacted, the man accompanying the
defendant left the hospital. When police arrived, defendant told them that someone shot him from
a car. The location of the alleged shooting as described by the defendant was not the victim’s address,
and there were no reports of “shots fired” at the location described by defendant.

       The defendant had multiple gunshot wounds to his left shoulder, right arm and scrotum.
During surgery, a bullet was removed from his arm. The bullet was stored in the pathology
department of the hospital and later recovered by Detective Mike Roland.

        The bullet removed from the defendant, the victim’s .357 revolver, the .9 mm Ruger found
in the backyard, and other items found at the scene were examined by the Tennessee Bureau of
Investigation. It was determined that the bullet removed from the defendant came from the .9mm
pistol recovered from the backyard.

       The defense offered no proof at trial.


                               SUPPRESSION OF THE BULLET

        The defendant argues that the warrantless seizure of the bullet which was surgically removed
from his arm was improper. He claims that the seizure did not fall within one of the recognized
exceptions to the warrant requirement, nor was it based upon exigent circumstances. The state, on
the other hand, contends the defendant had no reasonable expectation of privacy in the “abandoned”
bullet.

                                     (1) Suppression Hearing

        Evidence at the suppression hearing indicated that the defendant appeared at General Hospital
at 4:40 a.m. with multiple gunshot wounds. He underwent surgery, and the bullet was removed by
medical personnel. The bullet was stored at the hospital in accordance with its custom. At no time
did the defendant request that he be given the bullet. Subsequently, authorities recovered the bullet
from the hospital without a warrant.

        The trial court determined that the defendant abandoned the bullet by consenting to the surgery
and failing to request that the bullet be returned. Furthermore, the trial court concluded that even if
the bullet had not been abandoned, the defendant did not have a reasonable expectation of privacy in
the bullet. Thus, defendant's motion to suppress the bullet was denied.



                                                  3
                                            (2) Analysis

(a) Removal of the Bullet

        The Fourth Amendment only limits governmental activity; consequently, evidence secured
by private persons, even by illegal means, creates no constitutional violation. Burdeau v. McDowell,
256 U.S.465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). A private party acting for a reason
independent of a governmental purpose does not implicate the Fourth Amendment. State v.
Burroughs, 926 S.W.2d 243, 246 (Tenn. 1996).

       We conclude that the removal of the bullet by medical personnel did not implicate the Fourth
Amendment. It was not done at the direction of governmental law enforcement, and the removal was
done for a reason independent of a governmental purpose. See Commonwealth v. Johnson, 727 A.2d
1089 (Penn. 1999) (removal of bullet by medical personnel, not at the direction of law enforcement,
does not implicate Fourth Amendment); Commonwealth v. Storella, 35 N.E.2d 348 (Mass. App. Ct.
1978) (same holding as Johnson).

(b) Procurement of Bullet From Hospital

        We now examine whether law enforcement’s procurement of the bullet from the hospital
violated defendant’s Fourth Amendment rights.

         Under the Fourth Amendment it is recognized that the application of the constitutional
limitations upon governmental intrusion depends upon whether or not the individual has a reasonable
expectation of privacy. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed. 2d
210 (1986); Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed. 2d 576 (1967)
(Harlan, J., concurring); State v. Roode, 643 S.W.2d 651, 652-53 (Tenn. 1982). These cases reflect
that in determining what is a constitutionally protected reasonable expectation of privacy, a two-part
inquiry is made: (1) whether the person manifested a subjective expectation of privacy in the object
of the challenged intrusion; and (2) whether society is willing to recognize that expectation as
reasonable or justified. State v. Bowling, 867 S.W.2d 338, 341 (Tenn. Crim. App. 1993) (citations
omitted). Where the government violates an expectation of privacy which is both subjectively and
reasonably entertained, evidence obtained thereby is not admissible in a criminal prosecution.
However, one has no reasonable expectation of privacy in a bullet surgically removed by medical
personnel during a customary medical procedure. Johnson, 727 A. 2d at 1098.

        In this case the defendant voluntarily submitted himself to the hospital and underwent surgery.
The bullet was surgically removed, but not at the direction of law enforcement. It was stored by the
hospital in its customary manner. Defendant demonstrated no subjective expectation of privacy in
the bullet, nor do we find that society is willing to recognize a reasonable expectation of privacy in
a bullet surgically removed under these circumstances. Thus, the motion to suppress was properly
overruled.


                                                  4
                              SUFFICIENCY OF THE EVIDENCE

        The defendant contends the state failed to prove attempted first degree murder by failing to
establish that he acted with premeditation. Thus, he argues the evidence, at most, supports attempted
second degree murder. He specifically argues that the state failed to demonstrate that he had any
motive other than robbery.

                                       (1) Standard of Review

        Where sufficiency of the evidence is challenged, the relevant question for an appellate court
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 or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

                               (2) Attempted First Degree Murder

        The applicable definition of first degree murder is “[a] premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation necessitates “a previously formed
design or intent to kill,” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992)(citations omitted), and “an
act done after the exercise of reflection and judgment . . . [meaning] that the intent to kill must have
been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also requires that the accused
be “sufficiently free from excitement and passion as to be capable of premeditation.” Id. A homicide,
once proven, is presumed to be second degree murder, and the state has the burden of proving
premeditation to raise the offense to first degree murder. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn.
1998). Although a jury may not engage in speculation, it may infer premeditation from the manner
and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis,
905 S.W.2d 214, 222 (Tenn. Crim. App. 1995).

        In order to prove attempted first degree murder, the state must prove that the defendant acted
with intent to commit premeditated first degree murder “and the conduct constitutes a substantial step
toward commission of the offense.” Tenn. Code Ann. § 39-12-101(a)(3).

        We find that the jury could have reasonably concluded the defendant intended to murder the
victim with premeditation. The victim was shot during a violent home invasion. At trial, both the
victim and his girlfriend testified that shots were being fired through the ceiling, up the stairs and
through the bedroom window. Furthermore, the victim testified that when the perpetrator ran out of
bullets in one gun, he grabbed another weapon and continued to shoot at him. The perpetrator
continued to come up the stairs, even after the victim told him he did not have any money and that


                                                   5
his children were asleep in the house. Furthermore, he continued to shoot even after the victim had
been wounded.

        The defendant claims the motive was robbery. Although a defendant committing a killing in
the course of a robbery can be convicted of felony murder without proof of premeditation, the killing
could also be a premeditated murder, provided the defendant acted intentionally and with
premeditation.1 Thus, the jury could infer that the defendant intended to kill anyone who got in his
way, even if it meant he had to shoot and kill the victim. Thus, we conclude the evidence was
sufficient to support the defendant’s conviction for attempted first degree murder.


                                                DUE PROCESS

       The defendant contends the trial court erred in allowing convictions for attempted first degree
murder and aggravated burglary because they were incidental to attempted especially aggravated
robbery. The defendant relies on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) (holding that a
conviction for kidnapping and armed robbery growing out of a single episode could not be sustained
where the kidnapping was essentially incidental to the accompanying robbery). In Anthony the
Supreme Court was concerned that proving one felony, the armed robbery, inherently and necessarily
proved the elements of the second felony, kidnapping. Id. at 303

        The analysis adopted in Anthony has not yet been applied by the Supreme Court outside the
kidnapping context. See State v. Ralph, 6 S.W.3d 251, 256 (Tenn. 1999). We decline to extend its
application in this case to separate convictions for attempted first degree murder, aggravated burglary
and attempted especially aggravated robbery.

        In Ralph the Supreme Court examined the statutes and requisite elements of burglary and
theft. Id. at 255. The Court found each offense to be narrowly defined by statute and clearly
requiring proof of different elements. Id. Thus, the court found no due process violation by dual
convictions for both burglary and theft. Id. at 256.

       Likewise, attempted first degree murder, aggravated burglary and attempted especially
aggravated robbery are narrowly defined by statute and each contains different elements. Aggravated
burglary is a property offense and is completed upon entry into the habitation. Tenn. Code Ann. §




         1
           Where both premeditated and felony murder are alleged in an indictment, the trial court should instruct the
jury to rende r a verdict as to each coun t of such an ind ictment. State v. Cribbs, 967 S.W.2d 773 , 787-88 (Tenn.
1998) . If the jury returns a v erdict of guilt on both cou nts, the trial court sho uld merge the convictio ns. Id.

                                                          6
39-14-402(a)(1), - 403(a); see Ralph, 6 S.W.3d at 255. Attempted first degree murder is a crime
against the person, involves an intent to kill, and does not require an attempt to rob. Tenn. Code Ann.
§ 39-13-202(a)(1). Attempted especially aggravated robbery is a crime against the person which
focuses upon the intent to rob, a deadly weapon and serious bodily injury. Tenn. Code Ann. § 39-13-
403(a). Any of these offenses can be committed without necessarily committing another.

       Accordingly, we conclude there is no due process violation.


                                                SENTENCING

        Defendant challenges the length of his sentences. Specifically, he alleges the trial court erred
in concluding there was more than one victim. Tenn. Code Ann. § 40-35-114(3). Defendant also
challenges the imposition of consecutive sentences for the offenses of attempted first degree murder
and attempted especially aggravated robbery.

                                           (1) Standard of Review

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

                          (2) Trial Court’s Findings - Enhancement Factors

        The trial court determined that for purposes of enhancement the defendant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range,2 and the offense involved more than one victim. Tenn. Code Ann. § 40-35-114(1),
(3). These two factors were applied to each of the three counts. Additionally, the trial court
concluded that with regard to his attempted first degree murder and aggravated burglary convictions,
the defendant’s possession and employment of a firearm should be used to enhance his sentence.
Tenn. Code Ann. § 40-35-114(9). Furthermore, with regard to his aggravated burglary conviction,
the trial court found that the fact that the crime was committed under circumstances in which the
potential for bodily injury to a victim was great should serve to enhance the defendant’s sentence.
Tenn. Code Ann. § 40-35-114(16).




         2
          The defendant has an extensive prior criminal history including three felony drug convictions, a felony
conviction for aggravated riot, and multiple misdemeanor convictions. It appears the parties agreed that the
defendant should be sentenced as a Range II offender.

                                                         7
       In determining that there were multiple victims, enhancement factor (3), the trial court
considered the victim’s two children. The trial court found that, “even though the listed victim was
Charles Brown, there were little children present,” and held “that was a serious situation there that
exposed all these people as victims...”

                              (3) Analysis - Enhancement Factor (3)

        The defendant contends the trial court erroneously concluded the children were “victims”
under enhancement factor (3). We must agree. A victim is “a person or entity that is injured, killed,
had property stolen, or had property destroyed by the perpetrator of the crime.” State v. Raines, 882
S.W.2d 376, 384 (Tenn. Crim. App. 1994). It appears from the record that the children had no
physical contact with the defendant during the commission of the crime, nor was any property taken
from them. In addition to the children, the defendant’s girlfriend was present in the house. Likewise,
she had no physical contact with the defendant and could not identify any property as being taken
during the intrusion. No one was injured in the altercation other than Brown. Thus, we conclude this
enhancement factor should not apply to any of the offenses.

       However, we conclude that the trial court’s misapplication of this one enhancement factor
does not necessitate a reduction of the sentences. See State v. Lavender, 967 S.W.2d 803, 809 (Tenn.
1998). The trial court found additional enhancement factors for each offense. Furthermore, the
defendant presented no mitigating evidence. Thus, we conclude no reduction in the defendant’s
sentence based upon misapplication of this factor is warranted.

                                     (4) Consecutive Sentencing

       Defendant contends the trial court erred in concluding his sentences for attempted first degree
murder and attempted especially aggravated robbery should run consecutively for an effective
sentence of fifty-two years. The trial court determined that defendant was a professional criminal,
had an extensive criminal record, and was a dangerous offender. See Tenn. Code Ann. § 40-35-
115(b)(1), (2), and (4).

       Defendant challenges the trial court’s determination that he was a professional criminal who
knowingly devoted his life to criminal acts as a major source of livelihood. Tenn. Code Ann. § 40-
35-115(b)(1). Regardless of the propriety of this finding, there was ample basis to impose
consecutive sentences.

        We conclude that consecutive sentencing is warranted by the appellant’s extensive criminal
activity. Tenn. Code Ann. § 40-35-115(b)(2). We further conclude the aggregate fifty-two year
sentence is “justly deserved in relation to the seriousness of the offense,” and is “no greater than that
deserved for the offense committed.” State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999).




                                                   8
        We also conclude that the trial court correctly determined that the defendant is a dangerous
offender. Tenn. Code Ann. § 40-35-115(b)(4). As to this category, there must also be a finding that
the sentences are reasonable in relation to the offenses committed, are necessary to protect the public
from further criminal acts of the defendant, and are appropriate in relation to general sentencing
principles. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Although the trial court did not
make these specific findings, we so find. The defendant entered a dwelling and shot multiple rounds
with different weapons, severely injuring the victim and endangering the lives of his girlfriend and
small children. Furthermore, he has a history of violent behavior and generally poses a danger to the
public.

       Accordingly, we conclude that consecutive sentences were proper.


                                          CONCLUSION

       Upon our review of the record, the judgment of the trial court is affirmed in all respects.


                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




                                                  9
