            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          FEBRUARY SESSION, 2000       March 10, 2000

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,                *            Appellate Court Clerk
                                   *     No. M1999-00647-CCA-R3-CD
      Appellee,                    *
                                   *     DAVIDSON COUNTY
vs.                                *
                                   *     Hon. Walter Kurtz, Judge
JEFFREY EUGENE WRIGHT,             *
a.k.a. JEFFREY EUGENE ARNELL       *     (Attempted Voluntary
                                   *     Manslaughter; Aggravated
      Appellant.                   *     Assault)


For the Appellant:                 For the Appellee:

Thomas H. Miller                   Paul G. Summers
Attorney for Appellant             Attorney General and Reporter
P. O. Box 681662
Franklin, TN 37068-1662            David H. Findley
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   Victor S. (Torry) Johnson III
                                   District Attorney General

                                   Lisa Naylor
                                   Asst. District Attorney General
                                   Washington Sq., Suite 500
                                   222-2nd Ave. N.
                                   Nashville, TN 37201-1662



OPINION FILED:

AFFIRMED IN PART; DISMISSED AND VACATED IN PART



David G. Hayes, Judge
                                             OPINION



        The appellant, Jeffrey Eugene Wright, a.k.a., Jeffery Eugene Arnell, was

indicted by a Davidson County Grand Jury for the offenses of attempted first degree

murder, aggravated assault, and aggravated robbery. Following a jury trial, the

appellant was found guilty of attempted voluntary manslaughter and aggravated

assault.1 He was found not guilty of aggravated robbery. At the sentencing hearing,

the trial court imposed concurrent sentences of four years for attempted voluntary

manslaughter and six years for aggravated assault. The court denied any form of

alternative sentencing. In this appeal as of right, the appellant contends (1) that the

sentence imposed by the trial court is excessive and (2) that the court erred by

imposing a sentence of total confinement.



        After review, we modify the appellant’s six year sentence for aggravated

assault to reflect a sentence of five years. In all other respects, the sentence is

affirmed. However, we find that the appellant’s conviction for attempted voluntary

manslaughter and its accompanying sentence is constitutionally infirm under basic

principles of double jeopardy. Accordingly, this conviction and sentence must be

vacated and dismissed.



                                           Background

        On September 29, 1997, Leslie McGehee was mowing the lawn of a

residence on Nassau Street in Nashville which was owned by his employer, Dewey

Barnett. At approximately 3:30 p.m., Latasha and LaToya McDaniel, residents of

1711 Nassau Street, were outside their residence talking with several male

adolescents. One of the youths, Jerome Buchanan, began throwing rocks at a cat.

One rock missed and hit a house near where McGehee was mowing the lawn.


        1
          At the conclusion of the State’s case-in-chief, the trial court entered a judgment of
acquittal as to the charge of attempted first degree murder. The jury was instructed on the lesser
included charges of attem pted second degree murder and a ttempted voluntary manslaug hter.

                                                2
McGehee stopped his yard work and approached the group of youths. He told

Buchanan to stop throwing rocks. Buchanan ignored McGehee and continued

throwing rocks. McGehee again told Buchanan to stop throwing the rocks. An

argument ensued between McGehee and Buchanan.



        Meanwhile, the appellant, and his associates Elmer Dansby, James Riley,

and Charles Williams, were returning from “the park” where they had been smoking

marijuana.2 The group observed the altercation between McGehee and James

Buchanan. The appellant approached and asked McGehee what the problem was.

At some point, McGehee began to direct his anger toward the appellant and “swung

at [him].” The appellant was able to avoid being hit and moved back. McGehee

then tried to kick the appellant. The appellant picked up a brick and threw it at

McGehee. After being struck in the head by the brick, McGehee shook his head

and began chasing the appellant. Several male youths that were watching the

altercation grabbed McGehee and tried to throw him to the ground. Eventually, the

mob of youths was successful in pushing McGehee to the ground and began

“stomping” and “kicking” him in the head and body. 3 During this attack, a car pulled

up, several other males jumped out and joined the assault. The assault ended only

when the victim stopped moving. One youth took the victim’s wallet while another

removed his checkbook. The appellant later admitted to law enforcement officers

that, following the incident, he and some others “went and bought some weed and .

. . smoked it.”



        A nearby resident observed the young men running from the motionless

victim. The resident called Mr. Barnett asking him to come to the Nassau Street



        2
          The a ppellant alo ng with thre e co-de fendan ts were ind icted for the assau lt of McG ehee.
Jam es “Dirty” R iley was foun d guilty of attem pted volun tary ma nslaugh ter and a ggrava ted ass ault.
Elmer Dansby pled guilty to attempted first degree murder and aggravated robbery. Charles
W illiam pled g uilty to false repo rt.

        3
           Latasha McDaniel testified that approximately ten to fifteen boys were involved in the
initial beating of M cGeh ee.

                                                    3
address because “some boys were beating up Lester.” “When [Mr. Barnett] arrived

on Nassau, the street was empty, and there was nobody but Les laying there . . . .”

“When [Mr. Barnett] arrived, McGehee was laying in a fetal position and. . . was

breathing heavy . . . .” “He was bleeding from his mouth and nose.” Metro Police

Officer Vincent Archuleta responded to this incident. As he approached McGehee,

he observed that the victim “was laying face down in a rocky gravel dirt area. . .he

could see a growing pool of blood that his head was laying in and several large

gashes in his head.”



      Dr. Daniel Himes was the attending physician the day that McGehee was

brought into the emergency room at Vanderbilt Medical Center. Upon arrival, the

victim was close to unconsciousness, he was sedated and intubated to help him

breathe. There was bleeding inside his brain, causing a very serious brain injury.

Following his admission, McGehee remained in a coma for twenty-three days. From

Vanderbilt, he went to National Healthcare in Murfreesboro for six months and then

was in an outpatient program for two months. After completing the outpatient

program, McGehee entered the Tennessee Rehabilitation Center where he was in

the Traumatic Brain Injury Center for seven months. Since his release, he has been

at home with his mother and he remains in outpatient therapy. As a result of the

beating, Leslie McGehee is paralyzed in his face and on the left side of his body.

“He has a balance problem in walking. . .and has a hard time getting around.” He

suffers from memory loss and specifically cannot recall the events of September 29.



       Based upon this proof, the jury found the appellant guilty of attempted

voluntary manslaughter and aggravated assault resulting in bodily injury.



       At the subsequent sentencing hearing, the nineteen year old appellant4

stated that he has been incarcerated since his arrest for the offense. While in jail,


      4
          The appellant was seventeen at the time of the offense.

                                                4
he has obtained his GED, successfully completed a drug program and currently

participates as a counselor. Prior to the offense, he stated that he was employed at

Wendy’s. Wendy’s Restaurants were unable to verify the appellant’s employment.

The appellant maintains that he would like to find employment and attend college.

He admitted smoking marijuana since his early teen years up until his arrest for the

present offense, in addition to the use of alcohol and cocaine. His juvenile record

consists of adjudications for assault and theft for which he was granted probation in

1994 and one count of assault and two counts of disorderly conduct in 1997 for

which he was granted probation.



      Based upon this evidence, the trial court imposed the maximum sentence

available for each offense and ordered the sentences to be served concurrently for

an effective six year sentence.



                                    I. Plain Error

      Before we begin our examination of the issues raised on appeal, we are first

compelled to examine a non-raised issue which affects a constitutional right. The

United States and Tennessee Constitutions protect the accused from being twice

placed in jeopardy for the same offense. U.S. CONST . amend. V; TENN. CONST . Art. I,

Sec. 10. As our supreme court has stated on numerous occasions, three

fundamental principles underlie the constitutional protections against double

jeopardy: (1) protection against a second prosecution after an acquittal; (2)

protection against a second prosecution after conviction; and (3) protection against

multiple punishments for the same offense. See State v. Lewis, 958 S.W.2d 736,

738 (Tenn. 1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (citing North

Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969)).



      After the jury returned their verdict in the present case, the appellant filed a

motion for judgment of acquittal pursuant to Tenn. R. Crim. P. 29. In this motion,


                                         5
the appellant argued that the evidence was insufficient to support either a conviction

for aggravated assault or a conviction for attempted voluntary manslaughter.

Additionally, he asserted that his convictions violate principles of double jeopardy as

they arise from one incident and involve one victim. The trial court denied the

motion, finding the proof sufficient and no violation of double jeopardy principles in

that the convictions arose from two separate incidents. Specifically, the trial court

found that (1) the appellant’s action of hitting the victim in the head with a brick

constituted attempted voluntary manslaughter and (2) once the victim was on the

ground as a result of being hit on the head, the appellant and his co-defendants

“kicked and stomped the victim unmercifully, supporting the conviction for

aggravated assault.” No motion for new trial, pursuant to Tenn. R. Crim. P. 33, was

filed, and the appellant does not raise the double jeopardy issue on appeal.



       A review of the record in the case presently before us leads this court to

conclude that the principle protecting against multiple punishments for the same

offense is implicated. Generally, this court will not consider issues that are not

raised by the parties; however, plain error is an appropriate consideration for an

appellate court whether properly assigned or not. State v. Walton, 958 S.W.2d

724, 727 (Tenn. 1997); State v. Ogle, 666 S.W.2d 58, 60 (Tenn.1984). Indeed, an

error affecting "the substantial rights of an accused may be noticed at any time ...

where necessary to do substantial justice." Tenn. R. Crim. P. 52(b). Thus, we

address the issue in order to correct an error of constitutional dimension and to

prevent manifest injustice. Tenn. R. Crim. P. 52; Lewis, 958 S.W.2d at 738.



       Our supreme court has addressed the issue of multiple punishments arising

from a single criminal episode on numerous occasions. See, e.g., State v. Barney,

986 S.W.2d 545 (Tenn. 1999); Denton, 938 S.W.2d at 373; State v. Phillips, 924

S.W.2d 662 (Tenn. 1996). In this respect, the court found the legislative intent to be

crucial. Denton, 938 S.W.2d at 379; see also Barney, 986 S.W.2d at 549.


                                          6
Specifically, the court articulated a four part test to determine whether two offenses

are the “same” for double jeopardy purposes. The factors to be considered are:

       1. An analysis of the statutory offenses under Blockburger to
       determine whether each provision requires proof of an additional fact
       which the other does not;

       2. An analysis, guided by the principles of Duhac v. State, 505 S.W.2d
       237 (Tenn. 1973), of whether the same evidence is required to prove
       each offense;

       3. A consideration of whether there were multiple victims or discrete
       acts; and

       4. A comparison of the purposes of the respective statutes.

See Denton, 986 S.W.2d at 381; see also Barney, 986 S.W.2d at 549. The court

stressed that “[n]one of these steps is determinative; rather the results of each must

be weighed and considered in relation to each other.” Denton, 938 S.W.2d at 381;

see also Barney, 986 S.W.2d at 549. Additionally, in State v. Phillips, 924 S.W.2d

at 662, the court set forth several principles to be considered when determining

whether multiple punishments were imposed arising from a single criminal episode:

       1. A single offense may not be divided into separate parts; generally,
       a single wrongful act may not furnish the basis for more than one
       criminal prosecution;

       2. If each offense charged requires proof of a fact not required in
       proving the other, the offenses are not multiplicitous; and

       3. Where time and location separate and distinguish the commission
       of the offenses, the offenses cannot be said to have arisen out of a
       single wrongful act.


Phillips, 924 S.W.2d at 665. Additional factors such as the nature of the act; the

time elapsed between the alleged conduct; the intent of the accused; i.e., was a new

intent formed; and cumulative punishment may be considered for guidance in

determining whether the multiple convictions violate double jeopardy. Id.



       We note that the case sub judice is similar to Denton which also involved

convictions for aggravated assault and attempted voluntary manslaughter. In

Denton, the defendant’s convictions arose out of an incident wherein the defendant

first attacked and then stabbed an individual. Denton, 938 S.W.2d at 378. The

                                         7
court noted that aggravated assault and attempted voluntary manslaughter have

different elements under Blockburger. Id. Notwithstanding, the court ruled that the

convictions violated double jeopardy. Id. It reached this conclusion by determining

that proof of both convictions necessarily relied upon the same evidence, a single

attack of a single victim, in violation of the principle announced in Duhac. Id.



       With guidance from these principles and consideration of the same, we

conclude that the appellant’s convictions for attempted voluntary manslaughter and

aggravated assault violate the constitutional protections against double jeopardy.

Initially, we note that the assault and the homicide statutes have similar legislative

purposes, i.e., to deter “assaultive-type conduct.” Denton, 938 S.W.2d at 382.

Moreover, despite the numerous inconsistencies in the testimony, we conclude that

the record preponderates against the trial court’s finding that two separate and

distinct acts occurred; (1) the appellant hitting the victim with a brick, rendering him

unconscious, and (2) the group’s actions, including those of the appellant, in “kicking

and stomping” the victim. Rather, the proof reveals that, after the appellant threw

the brick at the victim, the victim began to chase the appellant at which time the

victim was attacked by the group. Contrary to the trial court’s findings at the hearing

on the motion for judgment of acquittal, we find, from the evidence presented in the

record, that the attempted voluntary manslaughter and the aggravated assault arose

from a single intent to inflict harm upon McGehee; the actions were contiguous in

time and place, and involved the same victim. Accordingly, only one offense was

committed and only one conviction may stand. “[U]pon a finding that two

convictions cannot both stand, the conviction for the greater offense[, aggravated

assault, a class C felony,] must stand and that for the lower offense must be

vacated.” See State v. Beard, 818 S.W.2d 376, 379 (Tenn. Crim. App.

1991)(citations omitted). Thus, the judgment and sentence upon the charge of

attempted voluntary manslaughter, a class D felony, is, therefore, vacated and

dismissed.


                                          8
                                    II. Sentencing

       The appellant challenges both the length and the manner of service of his

sentence. As we have dismissed and vacated the appellant’s sentence for

attempted voluntary manslaughter, we need only address his remaining six year

incarcerative sentence for aggravated assault.



       In its imposition of the maximum allowable sentence for a range I offender

convicted of aggravated assault, the trial court remarked that there are “several

enhancement factors applicable.” Despite this statement, the court only

enumerated two specific factors, (6) the personal injuries inflicted upon the victim

were particularly great, and (9) the defendant employed a deadly weapon during the

commission of the offense. See Tenn. Code Ann. § 40-35-114(6), -114(9) (1997).

With reference to factor (6), the trial court commented that it was placing

“tremendous weight” on this enhancement factor in imposing a six year sentence.

Additionally, the court only considered one factor in mitigation, the appellant’s youth.

See Tenn. Code Ann. § 40-35-113(6) (1997). The appellant contends that the trial

court misapplied enhancement factor (6), resulting in an excessive sentence.

Additionally, the appellant asserts that he is entitled to an alternative sentence

despite the trial court’s cursory denial based upon the circumstances of the case.



       Review, by this court, of the length, range, or manner of service of a sentence

is de novo with a presumption that the determination made by the trial court is

correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption only applies if

the record demonstrates that the trial court properly considered relevant sentencing

considerations. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial

court’s findings in the record are cursory and do not reflect a consideration of the

relevant sentencing principles, thus, the presumption does not apply.



                       A. Enhancing and Mitigating Factors


                                         9
       Again, the trial court found that two enhancement factors and one mitigating

factor are applicable and imposed the maximum six year sentence. The appellant

contends that the trial court erred in applying enhancement factor six, that the

injuries were particularly great. He concedes application of factor nine, that a deadly

weapon was employed in the commission of the offense.



       1. Injuries Sustained by Victim were Particularly Great

       We conclude that the trial court’s application of enhancement factor six was

clearly erroneous. Factor (6) may be used when "[t]he personal injuries inflicted

upon ... the victim [were] particularly great." Tenn. Code Ann. § 40-35-114(6). Our

supreme court has precluded application of enhancement factor six to convictions

for aggravated assault when the indictment charges serious bodily injury. State v.

Jones, 883 S.W.2d 597 (Tenn.1994). Specifically, the court in Jones concluded

that since "serious bodily injury" includes "a substantial risk of death," "protracted

unconsciousness," "extreme physical pain," "protracted or obvious disfigurement,"

and "protracted loss or substantial impairment of a function of a bodily member,

organ, or mental faculty" as defined in Tenn. Code Ann. §§ 39-13-102;

39-11-106(a)(2) & (33), factor (6) is always an element of aggravated assault

causing serious bodily injury and cannot be used to enhance a sentence for that

offense. Jones, 883 S.W.2d at 602; see also State v. Crowe, 914 S.W.2d 933, 940

(Tenn. Crim. App. 1995). Therefore, enhancement factor (6) may not be used to

enhance the appellant's sentence.



                      2. Presence of Enhancement Factor (9)

       Regarding application of enhancement factor nine, we note that

enhancement factors based on facts which are used to prove the offense or which

establish the elements of the offense are excluded. State v. Poole, 945 S.W.2d 93,

98 (Tenn. 1997). However, the use of a deadly weapon, in this case a brick, is not

an element of the offense of aggravated assault resulting in serious bodily injury.


                                         10
Accordingly, factor 9 is applicable.



                                3. Mitigating Factors

       Our de novo review of the record supports the trial court’s application of

factor (6), the defendant lacked substantial judgment due to his youth. See Tenn.

Code Ann. § 40-35-113(6) (1997). The record does not support any other mitigating

circumstances. Thus, upon de novo review, we apply enhancement factors (9) and

mitigating factor (6).



                               4. Length of Sentence

       In determining the appropriate sentence for a felony conviction, Tenn. Code

Ann. § 40-35-210(c) and (e) (1997), instruct the sentencing court that “[t]he

presumptive sentence shall be the minimum sentence in the range . . . [s]hould

there be enhancement and mitigating factors, the court must start at the minimum

sentence . . ., enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as appropriate

for the mitigating factors.” The range I sentence for aggravated assault is three to

six years. See Tenn. Code Ann. § 40-35-112(a)(3) (1997).



       No specific value is attributed to any particular enhancing or mitigating factor.

See State v. Boggs, 932 S.W.2d 467, 476 (Tenn. Crim. App. 1996). Rather, the

weight afforded the mitigating and enhancement factors derives from balancing

relative degrees of culpability within the totality of the circumstances of the case

involved. Boggs, 932 S.W.2d at 476 (citing State v. Moss, 727 S.W.2d 229, 238

(Tenn. 1986)). Upon consideration of the facts and circumstances of the case and

the applicable principles of sentencing, we conclude that a sentence of confinement

of five years is justified.



                              B. Alternative Sentencing


                                         11
         Finally, the appellant contends that the trial court erred by imposing a

sentence of total confinement, rather than granting a sentencing alternative.5

Without articulating more, the trial court made a cursory statement that confinement

was necessary due to the circumstances of the present case.



         The appellant, is a range I offender of a class C felony who does not have a

criminal history evincing either a “clear disregard for the laws and morals of society”

or “failure of past efforts at rehabilitation.” See Tenn. Code Ann. § 40-35-102(5); -

102(6) (1997). Accordingly, the appellant is provided the presumption favoring

alternative sentencing. See State v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1995). Where a defendant is entitled to the

statutory presumption of alternative sentencing, the State has the burden of

overcoming the presumption with evidence to the contrary. See, e.g., Tenn. Code

Ann. § 40-35-103(1)(A-C).



         The fact that a defendant is entitled with a presumption favoring alternative

sentencing does not mean that he is entitled to an alternative sentence. Indeed, the

presumption may be rebutted by evidence to the contrary. Tenn. Code Ann. § 40-

35-102(6); see also Bingham, 910 S.W.2d at 454. Guidance as to what constitutes

evidence to the contrary may be found in Tenn. Code Ann. § 40-35-103(1)(A)-(C). If

it is shown that the appellant has a long history of criminal conduct, that the

appellant has not been rehabilitated with less restrictive methods, or that

confinement is necessary to avoid depreciating the seriousness of the offense or to

provide an effective deterrent to others, alternative sentences may be denied. Id.



         5
           The a ppellant co ncede s that he is in eligible for a se ntence under th e Com mun ity
Correc tions Act. See Tenn. Code Ann. § 40-36-106(a)(2) (1997) (offender cannot be convicted
of crime against person as provided in title 39, chapter 13, parts 1-5);Tenn. Code Ann. § 40-36-
106(a)( 3) (offen der can not be co nvicted o f violent felon y offense ). Moreve r, he doe s not claim to
me et an exc eptio n to th ese requ irem ents unde r Te nn. C ode Ann . § 40 -36- 106 (c) (in eligible
offend ers with sp ecial nee ds). In add ition to the app ellant’s prec lusion from a com mun ity
corr ectio ns s ente nce , we a ckn owle dge that th e app ellant had a lread y serv ed nin etee n m onth s in
confinement at the time of his sentencing hearing; accordingly, total probation is not a logical
consideration.

                                                     12
See also Bingham, 910 S.W.2d at 454 (citing Ashby, 823 S.W.2d at 169).



       In order to deny an alternative sentence based on the seriousness of the

offense, “the circumstances of the offense as committed must be especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree” and the nature of the offense must outweigh all factors

favoring a sentence other than confinement.” Bingham, 910 S.W.2d at 454 (quoting

State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). The

circumstances of the case sub judice satisfy this criteria. It is difficult to envision a

much more horrifying, shocking, or reprehensible situation than that which was

perpetrated by the appellant and his accomplices in the present case. After an

initial confrontation with the appellant, the victim was pushed to the ground by a mob

of youths, including the appellant, at which time he was kicked, stomped, and

punched by the group. The rage of each youth was encouraged by the violence of

the others, more joining in the assault as they approached the scene. The brutal

attack ended only when the victim was rendered unconscious and a bystander

threatened to call law enforcement officers. Before leaving the scene, however, the

attackers removed the victim’s wallet and checkbook. Apparently unscathed by their

actions, the appellant and his cohorts proceeded to purchase and then smoke

marijuana. Accordingly, we conclude that a sentence of total confinement is

justified based upon the seriousness of the offense. See Tenn. Code Ann. § 40-35-

103(1)(B).



       After a review of the record and in consideration of our finding of one

enhancement and one mitigating factor , we modify the six year incarcerative

sentence imposed for the appellant’s conviction for aggravated assault to a term of

five years. In all other respects, this sentence is affirmed. However, the appellant’s

conviction and sentence for attempted voluntary manslaughter is reversed and

vacated as violative of principles of double jeopardy. This cause is remanded to the


                                          13
trial court for the purpose of permitting the court to amend its minutes and

accompanying judgments of conviction to reflect the same.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:




____________________________________
JERRY L. SMITH, Judge




____________________________________
NORMA MCGEE OGLE, Judge




                                        14
