         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 6, 2007

                 STATE OF TENNESSEE v. GEORGE FRANKLIN

                  Direct Appeal from the Criminal Court for Shelby County
                       Nos. 02-08108 & 02-08109    Chris Craft, Judge



                   No. W2006-01204-CCA-R3-CD - Filed October 15, 2008


Following a jury trial Defendant, George Franklin, was convicted of the second degree murder of
three-year-old Jessica Borner and the attempted murder of nine other people. Defendant was
convicted under the theory of criminal responsibility for the conduct of another. It is undisputed that
Defendant did not fire the shot that killed Jessica. Defendant was sentenced to twenty-five years at
one-hundred percent for second degree murder and twelve years at thirty percent for each count of
attempted murder. The trial court ordered the sentences to be served consecutively for an effective
sentence of one-hundred and thirty-three years. On appeal, Defendant challenges: (1) the sufficiency
of the evidence to sustain convictions of second degree murder and nine counts of attempted second
degree murder; (2) whether the trial court properly refused to grant a mistrial when the assistant
district attorney general referenced the statement of a co-defendant; (3) whether the trial court
properly prohibited the defense attorney from eliciting information about the alleged dangerousness
of the house; (4) whether the trial court properly excluded certain prior bad acts of witnesses; (5)
whether the trial court properly applied enhancement factors in sentencing; and (6) whether the trial
court properly imposed consecutive sentences. After a thorough review of the record, we affirm the
judgements of the trial court except the sentencing. Because of the improper use of enhancement
factors in sentencing, we modify Defendant’s sentence from twenty-five years to twenty-one years
for second degree murder and from twelve years to nine years for each of the nine convictions for
attempted second degree murder. Otherwise the judgments are affirmed.

                          Tenn. R. App. P. 3 Appeal as of Right;
          Judgments of the Criminal Court Affirmed in Part and Modified in Part

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and J.C. MCLIN , JJ., joined.

Paul K. Guibao, Memphis, Tennessee, (on appeal); Gerald Skahan, Memphis, Tennessee; and Jake
Erwin, Memphis, Tennessee, (at trial) and for the appellant, George Franklin.

Robert J. Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Robert Carter, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                             OPINION

I. Background

       The events surrounding the death of Jessica and the injury to the other victims occurred on
June 12, 2002 at 3448 Rosamond in Memphis. The incident was the result of a drug transaction.
That day several people were “hanging out” in the front yard of the house. Sometime in the early
afternoon, Chris Burnett, who was in the yard, decided he wanted to buy a bag of marijuana.
Another person present in the yard, Antonio Hawthorne, knew Defendant dealt drugs and called
Defendant for Mr. Burnett. Defendant came to the home on Rosamond and sold a ten dollar bag of
marijuana to Mr. Burnett sometime in the early afternoon hours. Defendant then left the premises.
About ten minutes later, the group of adults in the yard determined that the marijuana was “no
good,” and Defendant was called to return and give Mr. Burnett his money back. Defendant came
back to the house and took the marijuana and returned Mr. Burnett’s ten dollars.

        There was differing testimony as to what occurred when Defendant returned to give the
money back. According to the State’s witnesses, Defendant was angry and yelling obscenities. Ms.
Helen Hobbs, who lived at 3448 Rosamond, testified that she told Tyrone Taylor who was present
in the yard and Defendant to “get out of my yard with the arguing.” Ms. Hobbs testified that she did
not hear anymore shouting after she said this. Dennis Taylor testified that Defendant returned with
“an attitude.” Mr. Calvin Reed, who was also present in the yard, testified that Tyrone Taylor and
Defendant got into a “big argument.” Defendant testified that he was not angry that Mr. Burnett
wanted his money back but that Tyrone Taylor still acted aggressively towards him. Defendant
stated that Tyrone Taylor yelled at him even after he walked away. Tyrone Taylor testified that he
heard Defendant say he would return to the house when he was leaving. Derek Borner, the eleven-
year-old brother of Jessica, testified that he heard Tyrone Taylor, Chris Burnett, and Defendant
arguing in the front yard. Mr. Borner testified that he told Ms. Hobbs about the argument and then
stood behind her in the doorway. The argument continued and Mr. Borner saw Tyrone Taylor take
off his shirt like “he was getting ready to fight.” Defendant then said he was leaving but that he
would come back.

        Chris Burnett testified that Defendant was “cool” to him and was not angry when he returned
to give back the money. Mr. Burnett stated that Tyrone Taylor was angry and that both men were
“talking shit” to each other. Mr. Burnett testified that he did not see Defendant shoot when he came
to the house the third time because he was on the ground trying to avoid the shooting. Mr. Burnett
further stated that Defendant never threatened him.

        Defendant testified that after he left the house, he received a “few” phone calls from Tyrone
Taylor. Defendant stated that Tyrone Taylor was threatening him and that he hung up on him.
Shortly thereafter, Defendant received a phone call from a friend, Rico. Rico told Defendant that
Tyrone Taylor wanted to “talk” and that Defendant should go back to the house. Defendant testified
that he feared what Tyrone Taylor would do to him if they ran into each other on the streets so he
decided to go talk to him. As Defendant drove around the neighborhood, he noticed his cousin’s
car. Defendant testified that he got into the car with his cousin, Leslie Franklin, and Mack Jones and
that they smoked for a short period of time. Defendant and his two friends then drove to the house

                                                 -2-
on Rosamond in Mr. Franklin’s car. When they arrived, they did not park in front of the house
where the drug transaction had occurred earlier because Defendant knew that house was a “hot” spot
that the police watched.

        According to the State’s witnesses, Defendant, Leslie Franklin, and Mr. Jones got out of the
car with their guns drawn. Defendant had in his possession a nine millimeter handgun and his two
friends each had an assault rifle. Tyrone Taylor testified that he asked Defendant what he was going
to do and that Defendant “started shooting.” Tyrone Taylor stated that Defendant aimed at him and
was the first of the three men to start shooting. Tyrone Taylor was shot in the arm.

        Defendant admitted that he wanted his cousin and Mr. Jones to accompany him because he
did not feel safe going back to Rosamond alone. Defendant stated that this was because he knew
that Tyrone Taylor, Antonio Hawthorne, Calvin Reed, and Dennis Taylor were members of the gang
known as the Crips. Defendant testified that after Tyrone Taylor threatened him he was scared, but
he feared running into him on the street more than if he went to the house to talk to him.

         Defendant testified that when he arrived at Rosamond he parked down the street and exited
the car. Tyrone Taylor was walking towards him and they exchanged “what’s up.” Then, according
to Defendant, Tyrone Taylor reached for his gun and pointed it at Defendant. Defendant stated that
while he and Tyrone Taylor were greeting each other he heard the other car doors open and he
assumed Mr. Jones and Leslie Franklin had exited the car. Tyrone Taylor fired a shot and Defendant
said he “was ducking.” After that shot was fired, Defendant testified there were “shots coming in
front of me and behind me [from Mr. Jones and Leslie Franklin].” Although Defendant testified that
he always carries a gun and on that day was carrying a nine millimeter, he said he never drew his
gun. Despite the fact that Defendant testified that he never drew his gun, several of the state’s
witnesses testified that they saw that he was carrying a nine millimeter handgun. Tyrone Taylor
testified that Defendant shot him in the arm. However, the crime scene investigator, Ricky Davison,
testified that no nine millimeter casings were found at the scene.

        Tyrone Taylor testified that Defendant, Leslie Franklin, and Mr. Jones “started shooting
straight in the house.” Defendant denied that he ever fired his weapon. Defendant also stated that
he did not know there were children in the house. There were, however, several children in the
house that day. There were three-year-old Jessica, four-year-old Lloyd Banks, Jr., ten-year-old
Michael Owens, eleven-year- old Derek Borner, and teenagers Nequeshia Hobbs, Shaquesha Hobbs,
and Sherry Hobbs. Lloyd was shot in the shoulder. A bullet grazed Michael’s shoulder. Derek was
not injured in the incident. Nequeshia was shot in the finger, Shaquesha in the leg, and Sherry was
shot in the right breast.

        Many of the adults testified to the chaos during the incident and damage that occurred to the
house. Dennis Taylor testified that he heard more than forty shots fired in the house. Mr.
Hawthorne said he heard “many shots.” Sandra Hawthorne testified that she heard “a whole lot of
shots” and was shot in the back. Ms. Hobbs testified she told the children to “lay down . . .
someone’s shooting.” Ms. Hobbs was shot in her arm, chest, knee, toe, and three places on her side.
Several police officers testified that the damage to the house and the crime scene in general was one
of the worst they had ever seen.

                                                -3-
       J.C. Fair, who was present at the house that day, testified for the defense. Mr. Fair testified
that when Defendant returned to give back the money he was calm and that Tyrone Taylor was
aggressive. Mr. Fair also testified that Tyrone Taylor had a gun in his waistband on the day the
incident occurred.

        Dr. O’Brian Smith testified that Jessica died as a result of a high velocity gun shot wound
to the chest and abdomen. He further testified that a high velocity gun is a gun like an assault rifle,
while a low velocity gun is a gun like a nine-millimeter.

        The jury convicted Defendant of the second degree murder of Jessica and attempted second
degree murder of Chris Burnett, Tyrone Taylor, Lloyd Banks, Michael Owens, Sherry Hobbs,
Nequeshia Hobbs, Sandra Hawthorne, Helen Hobbs, and Shaquesha Hobbs. After a sentencing
hearing, the trial court sentenced Defendant to the maximum of twenty-five years for Jessica’s death
and to twelve years on each attempted murder conviction. The trial court found Defendant to be a
dangerous offender and ordered that the sentences be run consecutively. This created an effective
sentence of 133 years.

II. Analysis

        On appeal, Defendant challenges the sufficiency of the evidence to sustain convictions of
second degree murder and nine counts of attempted second degree murder, whether the trial court
properly refused to grant a mistrial when the assistant district attorney general referenced the
statement of a co-defendant, whether the trial court properly prohibited the defense attorney from
eliciting information about the alleged dangerousness of the house, whether the trial court properly
excluded certain prior bad acts of witnesses, whether the trial court properly applied enhancement
factors in sentencing, and whether the trial court properly imposed consecutive sentences.

       A. Sufficiency of the Evidence

        When an accused challenges the sufficiency of the evidence, this Court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App. 1996).

        In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App. 1995).



                                                 -4-
        The trier of fact, not this Court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, “[a] guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        At the time of the offense, the second degree murder was defined as “the knowing killing of
another.” T.C.A. § 39-13-201(1) (2003). Tennessee Code Annotated section 39-11-302(b) defines
“knowing” as referring “to a person who acts knowingly with respect to the conduct or
circumstances surrounding the conduct when the person is aware of the nature of the conduct or that
the circumstances exist. A person acts knowingly with respect to a result when the person is aware
that the conduct is reasonably certain to cause the result.”

      Defendant was also convicted of nine counts of attempted second degree murder. Tennessee
Code Annotated section 39-12-101 defines criminal attempt as:

        (a) A person commits criminal attempt who, acting with the kind of culpability
        otherwise required for the offense:

        (1) Intentionally 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;

        (2) Acts with intent to cause a result that is an element of the offense, and believes
        the conduct will cause the result without further conduct on the person’s part; or

        (3) Acts with intent to complete a course of action or cause a result that would
        constitute the offense, under the circumstances surrounding the conduct as the person
        believes them to be, and the conduct constitutes a substantial step toward the
        commission of the offense.

        (b) Conduct does not constitute a substantial step under subdivision (a)(3), unless the
        person’s entire course of action is corroborative of the intent to commit the offense.

        (c) It is no defense to prosecution for criminal attempt that the offense attempted was
        actually committed.

       Defendant was convicted under the criminal responsibility statute. A person is criminally
responsible for an offense committed by the conduct of another if:



                                                   -5-
        (1) Acting with the culpability required for the offense, the person causes or aids an
        innocent or irresponsible person to engage in conduct prohibited by the definition of
        the offense;

        (2) Acting with intent to promote or assist the commission of the offense, or to
        benefit in the proceeds or results of the offense, the person solicits, directs, aids, or
        attempts to aid another person to commit the offense; or

        (3) Having a duty imposed by law or voluntarily undertaken to prevent commission
        of the offense and acting with intent to benefit in the proceeds or results of the
        offense, or to promote or assist its commission, the person fails to make a reasonable
        effort to prevent commission of the offense.

T.C.A. § 39-11-402. This statute codifies the longstanding common law theories of “accessories
before the fact and aiders and abettors.” Id., Sentencing Commission Comments. However, criminal
responsibility is not itself a separate crime; rather, it is “solely a theory by which the State may prove
the defendant’s guilt of the alleged offense . . . based upon the conduct of another person.” State v.
Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under a theory of criminal responsibility, a
defendant’s presence and companionship with the perpetrator of a felony before and after the
commission of the offense are circumstances from which the defendant’s participation in the crime
may be inferred. State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need
be shown, and the defendant need not have played a physical role in the crime in order to be held
criminally responsible for the crime. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002).
Rather, to be held criminally responsible for the acts of another, the defendant need only “‘associate
himself with the venture, act with knowledge that the offense is to be committed, and share in the
criminal intent of the principle in the first degree.’” Id. (quoting State v. Maxey, 898 S.W.2d 756,
757 (Tenn. Crim. App. 1994)).

        In the instant case, Defendant admitted that he wanted Mack Jones and Leslie Franklin to
accompany him to the house on Rosamond. Defendant stated that this was because he thought
“something could happen.” Defendant also stated that if he had not returned to the house then no
one would have been injured or killed that day. Defendant knew Mack Jones and Leslie Franklin
were in possession of assault rifles, and he admitted he was in possession of a nine-millimeter
handgun. Defendant stated that he thought there was a possibility that Tyrone Taylor would want
to fight and that Defendant was willing to get it over with “right there.” From the Defendant’s
testimony alone, there is ample evidence to support his convictions under the theory of criminal
responsibility for the conduct of another person.

        In addition to Defendant’s testimony, Tyrone Taylor testified that he tried to talk to
Defendant and Defendant responded that he did not want to talk. Tyrone Taylor testified that
Defendant was the first to shoot his gun. Dennis Taylor testified to similar happenings that day.
Dennis Taylor stated that Tyrone Taylor tried to talk to Defendant but that Defendant would not talk
to him and “just started shooting.” Because a reasonable trier of fact could have found Defendant
guilty of one count of second degree murder under the theory of criminal responsibility and nine
counts of attempted second degree murder, Defendant is not entitled to relief as to this issue.

                                                   -6-
       B. The Denial of the Motion for Mistrial

        Defendant contends that the trial court erred when it refused to grant a mistrial after the
assistant district attorney referenced a comment made by Defendant’s co-defendants during his
cross-examination of Defendant. The co-defendants were not available to testify. The statement at
issue occurred as follows:

       [ASSISTANT DISTRICT ATTORNEY ]:       But y’all had to go to another location to get
                                             the weapon.

       [DEFENDANT]:                          No sir.

       [ASSISTANT DISTRICT ATTORNEY ]:       You know that’s what they [co-defendants]
                                             said.

       [DEFENSE COUNSEL]:                    Objection.

               ...

       [DEFENSE COUNSEL]:                    If we could approach, Judge?

       [THE COURT ]:                         Yes.

               ...

       [DEFENSE COUNSEL]:                    Judge, if I understand him, he’s talking about
                                             what Leslie and Mack said?

       [ASSISTANT DISTRICT ATTORNEY ]:       Right.

       [DEFENSE COUNSEL]:                    They’re not going to be able to be cross-
                                             examined.

       [ASSISTANT DISTRICT ATTORNEY ]:       It’s not being offered for the truth of the
                                             matter.

       [DEFENSE COUNSEL]:                    But he’s talking about comments and
                                             statements that co-defendants made and
                                             asking questions about that. Judge, I think
                                             that’s highly improper.

       THE COURT :                           I don’t think you should do that, [Assistant
                                             District Attorney], because unless you are
                                             going to put them on and call them as
                                             witnesses, you can’t - I mean, that’s what

                                                -7-
                                               Bruton is all about, you know, not allowing
                                               statements in.

               ...

       THE COURT :                             I’m going to give a curative instruction.

       [DEFENSE COUNSEL]:                      Ok, thank you.

       THE COURT :                             Ladies and Gentlemen, attorneys [sic]
                                               statements aren’t evidence. What other people
                                               said or didn’t say or what people suggest they
                                               might have said are not evidence at all unless
                                               they are here, called as a witness by either
                                               side, and they can be cross-examined, so I’m
                                               going to ask you just to strike that question
                                               from your minds because it’s just not - at this
                                               point, people could ask, “Well isn’t it true that
                                               President Bush said you did this and that,” and
                                               it’s just not evidence, so I’m going to ask you
                                               to strike it.”

        The determination of whether to grant a mistrial rests within the sound discretion of the trial
court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn
that decision absent an abuse of discretion. State v. Brown, 53 S.W.3d 264, 284 (Tenn. Crim. App.
2000). The burden of establishing the necessity for mistrial lies with the party seeking it. State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be
mechanically applied in making this determination, and all circumstances should be taken into
account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

        Defendant’s counsel properly objected, and the trial court issued a curative instruction;
therefore, we must determine if the trial court abused its discretion by not granting a mistrial. In the
instant case, the reference made by the assistant district attorney regarding the statement made by
the co-defendants was brief and vague. After the objection the trial court informed the jury that
statements or questions asked by attorneys are not evidence and should not be considered by them
in determining their verdict. This instruction was repeated in the oral and written jury charge as
well. Therefore, we conclude that the curative instruction was sufficient to clarify to the jury what
they could consider in determining Defendant’s guilt or innocence. Accordingly, the trial court did
not abuse its discretion, and Defendant is not entitled to relief as to this issue.

       C. The Exclusion of Evidence of the Alleged Dangerousness of the House

        Defendant contends that the trial court erred in refusing to allow him to introduce evidence
of the alleged dangerousness of the house in order to explain why Defendant went back to the home
armed and with two armed friends. In the jury-out offer of proof as to this issue, Defendant cross-

                                                  -8-
examined Geraldine Borner, Jessica Borner’s mother. Defense counsel asked Ms. Borner, who lived
at 3448 Rosamond, if she was aware of several instances involving violence at the residence. Ms.
Borner responded that she was unaware of any of the violent instances asked about by defense
counsel. This cross-examination was the only evidence presented in the offer of proof by the
defense. Because Ms. Borner denied any knowledge of the alleged dangerousness of the house and
because no other evidence was presented as to the relevancy of the issue, the trial court did not err
when it refused to allow Defendant to introduce evidence or cross-examine witnesses on this issue.

       D. The Exclusion of Certain Prior Bad Acts of Witnesses

        Defendant contends that the trial court erred in refusing to allow the defense to elicit
information about prior bad acts of witnesses other than Tyrone Taylor. The court also held a jury-
out hearing to determine what prior bad acts, if any, could be inquired into by the defense. The trial
court determined that only the prior bad acts of Tyrone Taylor could be brought out by the defense.
The trial court determined that the jury could find that Tyrone Taylor was the first aggressor.
Defendant testified that his co-defendants began shooting after Tyrone Taylor pulled a gun on them.
The court determined that “they would have a right to put on proof of Tyrone Taylor’s
aggressiveness, but not anyone else’s aggressiveness or fights in the neighborhood . . .”

         The rulings on admissibility of evidence are largely within the sound discretion of the trial
court and will not be disturbed on review absent abuse of discretion. State v. DuBose, 953 S.W.2d
649, 652 (Tenn. 1997). Abuse of discretion is found when “it appears that the trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.” State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (quoting
State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). In the instant case, the court held a jury-out
hearing and determined that only the prior bad acts of Tyrone Taylor could be admitted. Defense
counsel objected to the exclusion of the other witnesses’ prior bad acts, but the trial court determined
that evidence of prior bad acts of the others present in the yard was irrelevant. Specific violent acts
of the victim are admissible to corroborate Defendant’s assertion that the victim (Tyrone Taylor) was
the first aggressor. State v. Furlough, 797 S.W.2d 631, 649 (Tenn. Crim. App. 1990). However,
those acts are not admissible to prove the victim (or witnesses) acted in accordance with a character
trait. Furlough, 797 S.W.2d at 649. While the trial court properly allowed the defense to present
evidence of Tyrone Taylor’s prior bad acts because, under the defense’s theory, he was the first
aggressor, the other witnesses’ or victims’ prior bad acts were not admissible under Furlough or
Tennessee Rules of Evidence Rule 404(b). Accordingly, Defendant is not entitled to relief as to this
issue.

       E. Sentencing Issues

        We note that the legislature has recently amended several provisions of the Sentencing
Reform Act of 1989, which became effective June 7, 2005. However, although Defendant was
sentenced after the effective date of the amended Act, Defendant’s crimes in this case occurred prior
to June 7, 2005, and Defendant did not elect to be sentenced under the provisions of the amended
Act by executing a waiver of his ex post facto protections. See 2005 Tenn. Pub. Acts ch. 353 § 18.


                                                  -9-
Therefore, this case is not affected by the 2005 amendments, and the statutes cited in this opinion
are those that were in effect at the time the instant crimes were committed.

        Defendant was sentenced to twenty-five years for his second degree murder conviction and
twelve years for each of the nine convictions of attempted second degree murder all to be served
consecutively for a total effective sentence of 133 years. A person convicted of second degree
murder, a Class A felony, faces fifteen to twenty-five years in prison. The statutory presumptive
sentence was twenty years. T.C.A. §§ 39-13-210(c), -40-35-112(a)(1). A person convicted of
attempted second degree murder, a Class B felony, faces eight to twelve years in prison. The
statutory presumptive sentence was eight years. T.C.A. §§ 39-12-107(a), -39-13-210(c), -40-35-
112(a)(2).

        When a defendant challenges the length or the manner of service of his or her sentence, this
Court must conduct a de novo review with a presumption that the determinations made by the trial
court are correct. T.C.A. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This
presumption, however, is contingent upon an affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986
S.W.2d 540, 543-44 (Tenn. 1999).

        In making its sentencing determinations the trial court had to consider: (1) the evidence
presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;
(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of
potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own
behalf. T.C.A. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim.
App.1995). The defendant bears the burden of showing that his sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

        1. Enhancement Factors

        The sentencing hearing in this case was held on March 14, 2006. In April 2005, our supreme
court concluded that the pre-2005 Sentencing Reform Act did not violate Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004). State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005) (Gomez I).
In Blakely, the United States Supreme Court concluded that the “‘statutory maximum’ for
[sentencing] purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2536; (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)).
In Blakely, the Court held that “‘o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’” Id. The United States Supreme Court subsequently vacated
our supreme court’s ruling in Gomez I and remanded the case to the supreme court for additional
consideration in light of the Court’s opinion in Cunningham v. California, 549 U.S.           , 127 S. Ct.
856, 166 L. Ed. 2d 856 (2007). In Cunningham, the Supreme Court held “[b]ecause circumstances
in aggravation are found by the judge, not the jury, and need only be established by a preponderance

                                                  -10-
of the evidence, not beyond a reasonable doubt . . . the DSL violates Apprendi’s bright-line rule:
Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
Cunningham, 549 U.S. at ___, 127 S.Ct. 856. (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2348).

       Upon reconsideration, our supreme court in Gomez II concluded that other than a defendant’s
previous history of criminal convictions or other facts admitted to by the defendant, the application
of enhancement factors which increases the defendant’s sentence over the statutorily presumptive
sentence deprives the defendant of his or her Sixth Amendment right to have a jury determine
whether those enhancement factors applied. State v. Gomez, 239 S.W.3d 733, 739-40 (Tenn. 2007)
(Gomez II ) (citing Cunningham, 127 S. Ct. at 860).

        Although Defendant challenged the length of his sentence on appeal, Defendant did not base
his claim on Sixth Amendment principles but rather on the misapplication of enhancement factors.
Defendant does have a prior criminal record consisting of three misdemeanor convictions. The trial
court during the sentencing hearing stated that it found, as an enhancement factor for all the
convictions, the fact that Defendant did have a prior criminal record, but did not “give a good deal
of weight to it” because the convictions were misdemeanors. The court went on to find three more
enhancement factors. See T.C.A. 40-35-114(3), (5), (10). The court stated that it gave a “good deal
of weight” to factor (2), that Defendant was the leader in the commission of the offense. The court
also found that Jessica was particularly vulnerable because of her age and that Defendant possessed
a firearm during the offense. The court found no mitigating factors. When sentencing Defendant for
the nine attempted second degree murders, the court found five enhancement factors. See T.C.A.
40-35-114 (2), (3), (10), (11), (17). The court stated that it sentenced Defendant to twelve years on
each attempted second degree murder conviction because “there are just a whole lot of enhancement
factors.”

        In Gomez II, our supreme court reviewed the defendants’ sentencing claims under plain error
analysis. Gomez, 239 S.W.3d at 737. Rule 52 of the Tennessee Rules of Criminal Procedure
provides that “[w]hen necessary to do substantial justice, an appellate court may consider an error
that has affected the substantial rights of an accused at any time, even though the error was not raised
in a motion for new trial or assigned as error on appeal.” Relief is granted under plain error review
“only where five prerequisites are met: (1) the record clearly establishes what occurred in the trial
court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was
adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration
of the error is “necessary to do substantial justice.” Id. (quoting State v. Smith, 24 S.W.3d 274, 282
(Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)).

         In the case sub judice, the record clearly establishes what occurred in the trial court in
determining the length of Defendant’s sentences, and thus the first prerequisite is met. In Gomez II,
our supreme court concluded that “the trial court’s application of the two other enhancement factors
[not based on the defendants’ prior convictions] breached a clear and unequivocal rule of law” in
light of Cunningham. Gomez II, 239 S.W.3d at 740-41. Further, the trial court’s determination that
enhancement factors (3), (5), (10), (11), and (17) were applicable to increase Defendant’s sentences
deprived him of the Sixth Amendment right to have a jury determine whether those enhancement

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factors applied and, thus, a substantial right of the accused was adversely affected. See id. At the
time of Defendant’s sentencing hearing, Gomez I, which concluded that Tennessee’s sentencing
structure did not violate Sixth Amendment principles, was controlling precedent. Therefore, it
cannot be said that Defendant waived his Sixth Amendment claim for tactical reasons. See id.
Finally, although Defendant has a criminal record, the trial court admittedly did not give that much
weight and enhanced his sentence because of the many other enhancements factors found. In light
of Gomez II, we conclude that granting Defendant relief is necessary to do substantial justice in this
case. Accordingly, we reduce Defendant’s sentence to twenty-one years for the second degree
murder conviction and to nine years for each of the nine convictions for attempted second degree
murder.

       2. Consecutive Sentencing

         This Court has consistently held that Blakely does not impact consecutive sentencing. See
State v. William Shane Bright, No. E2006-01906-CCA-R3-CD, 2007 WL 1259176, at *3 n.1 (Tenn.
Crim. App., at Knoxville, April 30, 2007) perm. app. denied (Tenn. July 6, 2007); State v. Earice
Roberts, No. W2003-02668-CCA-R3-CD, 2004 WL 2715316 at *14-15 (Tenn. Crim. App., at
Jackson, Nov. 23, 2004) perm. app. denied (Tenn. April 6, 2005); State v. Lawrence Warren Pierce,
No. M2003-01924-CCA-R3-CD, 2004 WL 2533794 at *16 (Tenn.Crim.App., Nashville, Nov. 9,
2004) perm. app. denied (Tenn. March 15, 2005).

         Under Tennessee Code Annotated section 40-35-115(b)(4), a court may impose consecutive
sentences when the defendant is convicted of more than one offense and when the trial court finds
by a preponderance of the evidence that “the defendant 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.” “Proof that an offender’s behavior indicated little or no regard for human
life and no hesitation about committing a crime in which the risk to human life was high, is proof
that the offender is a dangerous offender.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
Once a court has determined that a defendant is a dangerous offender, it must also determine that
an “extended sentence is necessary to protect the public against further criminal conduct by the
defendant and that the consecutive sentences must reasonably relate to the severity of the offenses
committed.” Wilkerson, 905 S.W.2d at 939.

         In the instant case, the trial court properly determined that Defendant was a dangerous
offender. The court stated, “[a]nyone [sic] who would get two armed men with automatic rifles and
descend upon a person’s house, after having already left, and then come back, [with] fully loaded
weapons . . . has no regard for human life and no hesitation about committing a crime in which the
risk to human life is high.” The court then found that extended confinement was necessary to protect
the public from Defendant’s “unwillingness to lead a productive life, and his resort to criminal
activity in furtherance of an anti-social lifestyle.” Lastly, the court concluded that “with the
devastation that he wrought on this community and these people, I find that that reasonably relates
to these offenses.” Because the trial court properly determined that Defendant was a dangerous
offender and applied consecutive sentencing, Defendant is not entitled to relief as to this issue.

                                          CONCLUSION

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         For the foregoing reasons, the judgments of the trial court are affirmed except in regard to
sentencing. In regard to the issue of sentencing we modify Defendant’s sentence to twenty-one years
for the conviction of second degree murder and to nine years for each conviction of attempted second
degree murder, to be served consecutively for a total effective sentence of 102 years.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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