         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 23, 2009

          STATE OF TENNESSEE v. WILLIE DOUGLAS JOHNSON

                       Appeal from the Criminal Court for Knox County
                          No. 87077    Mary Beth Leibowitz, Judge



                      No. E2008-02057-CCA-R3-CD - Filed July 27, 2009


A Knox County Criminal Court jury convicted the defendant, Willie Douglas Johnson, of attempted
second degree murder, two counts of aggravated assault, and three counts of unlawful possession of
a weapon. After merging the aggravated assault convictions into the conviction of attempted second
degree murder and the weapon possession charges into a single conviction, the trial court imposed
consecutive sentences of 25 years for attempted second degree murder and six years for unlawful
possession of a weapon. In this appeal, the defendant asserts that the trial court erred by ruling that
the State would be permitted to impeach his testimony through the use of prior felony convictions
and that the trial court erred by enhancing his sentence on the basis that he showed no hesitation in
committing the crimes when the risk to human life was high. Discerning no error, we affirm the
judgments of the trial court.

               Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE, J., joined.

Eric Lutton, Knoxville, Tennessee (on appeal), and Mary Ward, Knoxville, Tennessee (at trial), for
the appellant, Willie Douglas Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                The convictions in this case relate to the December 19, 2006 shooting of the victim,
Kenneth L. King, in Knoxville. At approximately 10:15 p.m., the victim returned to his residence
with his girlfriend, and as he exited his vehicle, the defendant approached him with a gun drawn.
The victim elaborated, “By the time I got out of my car and turned around, [the defendant] was up
on me with a pistol in my stomach, walked up on me and was like, ‘Empty your pockets, mother
f*****.’” According to the victim, he dropped approximately $140 to the ground, and when the
defendant bent over to retrieve the money, he pushed the defendant and ran away. At that point, the
defendant fired four shots at the victim, and one shot struck the victim in the lower back. The victim
stated that when he looked back, he saw the defendant drive away in a blue or black Buick LeSabre.

                The victim testified that he had known the defendant since “growing up.” He recalled
that just before the shooting, he received a telephone call from Katoia Banks, whom he had dated
for two to three months earlier in the year, but he did not answer the call. He stated that Ms. Banks
had also briefly dated the defendant. Immediately after the shooting, the victim returned Ms.
Banks’s call and told her that the defendant had shot him. He recalled that his girlfriend took the
telephone from him and began arguing with Ms. Banks.

                The victim was transported to the hospital by ambulance and remained hospitalized
for three days following the shooting. He testified that doctors elected to leave the bullet rather than
remove it, and he stated that he continued to experience “problems” with his back.

               Knoxville Police Department Detective A.J. Loefller interviewed the victim at the
hospital. The victim identified the defendant as the perpetrator from a photographic lineup.

                Ms. Banks testified that she had dated the defendant for nine or ten months, but the
relationship ended before the shooting. She stated that the defendant blamed the victim for the
breakup. She recalled that on the day of the shooting, the defendant telephoned her several times
to “apologize about going off on [her] the day before.” When Ms. Banks refused to meet with the
defendant, he told her he was “going to get that n*****,” meaning the victim. Ms. Banks testified
that she “immediately hung up the phone and called [the victim] to let him know that he needed to
be careful because . . . [the defendant] was about to do something to him.” She was unable to reach
the victim at that time, but he “called [her] about five or ten minutes after [she] called him and he
said [her] name, and [she] couldn’t really understand what he was saying and then his girlfriend got
on the phone and said he’d been shot.” When Ms. Banks spoke with the defendant later, he told her
“it was [her] fault that he shot” the victim.

               During cross-examination, Ms. Banks reiterated that although she was dating neither
man at the time of the shooting, the defendant’s unrequited love for her motivated him to shoot the
victim. Ms. Banks denied that it was she who had been rebuffed in her attempts to rekindle a
romantic relationship with the defendant. She admitted that the defendant never actually told her
he shot the victim and conceded that she did not contact police with information regarding the
shooting.

                Knoxville Police Department Officer Ray Offenbacher, who responded to the
shooting, testified that he observed a single gunshot wound to the victim’s lower back. He recalled
the victim’s “screaming” in pain. He stated that the victim told him that “the subject approached him
from the rear, made a statement to him, and then he took off running towards the house from the car,


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and that’s when he heard the shots.” Officer Offenbacher testified that the victim never told him that
he had thrown money onto the ground or that the defendant took any money from him.

              Other evidence established that four Winchester .380 caliber shell casings were
recovered from the area of the shooting. No weapon was ever recovered.

                The State rested its case, and the defendant offered no proof. Based on the evidence
presented, the jury convicted the defendant of attempted second degree murder and two counts of
aggravated assault. Following a second, bifurcated proceeding, the jury also convicted the defendant
of three counts of unlawful possession of a weapon.

                      I. Use of Prior Convictions as Impeachment Evidence

                The defendant asserts that the trial court erred by ruling that the State would be
permitted to use his prior convictions of possession of cocaine and aggravated assault to impeach
his testimony. He claims that the aggravated assault conviction was too stale and that the probative
value of all three convictions was outweighed by the danger of unfair prejudice. The State asserts
that the trial court did not abuse its discretion by ruling that the convictions could be used as
impeachment evidence. In the alternative, the State contends that any error would be harmless in
light of the overwhelming proof of the defendant’s guilt.

               Tennessee Rule of Evidence 609 provides in pertinent part:

                       (a) General Rule. For the purpose of attacking the credibility
               of a witness, evidence that the witness has been convicted of a crime
               may be admitted if the following procedures and conditions are
               satisfied:

                       (1) The witness must be asked about the conviction on
               cross-examination. If the witness denies having been convicted, the
               conviction may be established by public record. If the witness denies
               being the person named in the public record, identity may be
               established by other evidence.

                      (2) The crime must be punishable by death or imprisonment
               in excess of one year under the law under which the witness was
               convicted or, if not so punishable, the crime must have involved
               dishonesty or false statement.

                       (3) If the witness to be impeached is the accused in a criminal
               prosecution, the State must give the accused reasonable written notice
               of the impeaching conviction before trial, and the court upon request
               must determine that the conviction’s probative value on credibility

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                  outweighs its unfair prejudicial effect on the substantive issues. The
                  court may rule on the admissibility of such proof prior to the trial but
                  in any event shall rule prior to the testimony of the accused. If the
                  court makes a final determination that such proof is admissible for
                  impeachment purposes, the accused need not actually testify at the
                  trial to later challenge the propriety of the determination.

                          (b) Time Limit. Evidence of a conviction under this rule is
                  not admissible if a period of more than ten years has elapsed between
                  the date of release from confinement and commencement of the
                  action or prosecution; if the witness was not confined, the ten-year
                  period is measured from the date of conviction rather than release.
                  Evidence of a conviction not qualifying under the preceding sentence
                  is admissible if the proponent gives to the adverse party sufficient
                  advance notice of intent to use such evidence to provide the adverse
                  party with a fair opportunity to contest the use of such evidence and
                  the court determines in the interests of justice that the probative value
                  of the conviction, supported by specific facts and circumstances,
                  substantially outweighs its prejudicial effect.

Tenn. R. Evid. 609. We review the trial court’s determination of this issue via an abuse of discretion
standard. State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000).

               Here, the State filed pretrial notice that it would seek to impeach the defendant’s
testimony, should he choose to testify, with his prior convictions of two counts of aggravated
robbery, aggravated assault, Class D felony theft, and two counts of cocaine possession. The
defendant filed a motion asking the trial court for a pretrial ruling on the admissibility of the
convictions for impeachment. The trial court ruled that the State would be permitted to utilize the
convictions of aggravated assault, felony theft, and cocaine possession but determined that the
convictions of aggravated robbery were too similar to the current charges to allow their use. Based
upon this ruling, the defendant chose not to testify.

               The defendant first contends that his aggravated assault conviction was too stale to
be used as impeachment evidence. The defendant asks this court to “assume, based upon the
[defendant’s] parole date, that [the defendant] had served a substantial amount of time in custody
awaiting a disposition” of the aggravated assault charge, which disposition came on May 7, 1993.
Thus, he argues, “his aggravated assault conviction should have been completed on May 7, 1997 -
well before the parole revocation” that came in September 1998.1



         1
          Inexplicably, the defendant states in another portion of his brief that his two-year sentence for felony theft,
imposed on the same day as the four-year sentence for aggravated assault and ordered to be served concurrently with that
sentence, did not expire until March 11, 2000.
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                The record is silent, however, on the length of any pretrial incarceration on the
aggravated assault charge, the date upon which the parole violation warrant was issued, or the
amount of time, if any, that was credited to the petitioner’s sentence during his parole, see T.C.A.
§ 40-28-122(a) (“Upon revocation of parole, the time an inmate spent on parole shall not be
considered as service of the sentence unless the board determines to grant all or part of the time to
the inmate.”). Without knowing the precise amount of time the defendant served prior to entering
the Department of Correction on the aggravated assault conviction, the amount of time the parole
violation was pending before September 1998, or whether the parole board chose to credit the
petitioner’s sentence with the time he spent on parole, we cannot say with any certainty that the
defendant’s four-year sentence for the aggravated assault conviction terminated on or before May
7, 1997, as the defendant claims.

                The defendant also claims, for the first time on appeal, that the probative value of the
aggravated assault conviction as impeachment evidence was outweighed by its unfair prejudicial
effect. Because the defendant first makes this challenge on appeal, it is waived. State v. Adkisson,
899 S.W.2d 626, 635 (Tenn. Crim. App. 1994) (holding that a “party cannot assert a new or different
theory to support the objection in the motion for a new trial or in the appellate court”); State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988) (holding that a party cannot object on one
ground at trial and assert new basis on appeal); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim.
App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12 (Tenn. Crim. App. 1987).

                 Finally, the defendant asserts that the probative value of his 2004 and 2006
convictions of possession of cocaine was outweighed by the unfair prejudicial effect of the
convictions. He argues that the probative value of these convictions, which were not crimes of
dishonesty, was low while the prejudicial nature of the convictions was “quite high.” The State
concedes that the drug convictions were only slightly probative of the defendant’s credibility but
nevertheless asserts that “because the defendant’s prior crimes could be found to be probative for
credibility, the trial court did not abuse its discretion.” In the alternative, the State contends that any
error in the trial court’s ruling was harmless. In this second assertion, we agree with the State.

                In State v. Waller, 118 S.W.3d 368 (Tenn. 2003), our supreme court concluded that
convictions for the possession, sale, manufacture, or delivery of illegal drugs do not involve
dishonesty, see id. at 372, and, as such, are “only slightly probative” on the issue of credibility, id.
at 373. The supreme court also concluded that before such convictions are used as impeachment
evidence, the trial court must “carefully balance the impeaching conviction’s relevance with regard
to credibility against its unfair prejudicial effect on substantive issues.” Id. at 373. Here, the trial
court did not engage in such an analysis. Instead, the court ruled simply that “if [the defendant] does
testify [the State] may use those” convictions. Despite the trial court’s failure to engage in the
appropriate analysis, any error in the court’s ruling was harmless.

              Although the defendant correctly asserts that case law does not require the defendant
to make an offer of proof to preserve the issue of the erroneous admission of previous convictions
for impeachment, our courts have consistently held that “an offer of proof may be the only way to

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demonstrate prejudice.” State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999). Here, as in both
Galmore and Waller, the defendant did not testify at trial, did not make an offer of proof, and offers
no summation of his intended testimony on appeal. Moreover, because the defendant presented no
proof at trial, it is difficult to ascertain any specific theory of defense against which we could gauge
the strength of the prosecution’s case. See id. at 124-25. The evidence adduced at trial established
that the defendant told Ms. Banks he was “going to get” the victim shortly before he arrived at the
victim’s residence and shot him in the back. The victim positively identified the defendant as the
shooter. Without any idea as to how the defendant intended to refute this evidence, we hold that the
error was harmless. See Waller, 118 S.W.3d at 374 (holding erroneous ruling harmless where
defendant failed to make an offer of proof and “presented no argument on appeal concerning the
substance of his contemplated testimony”); see also Galmore, 994 S.W.2d at 125.

                                            II. Sentencing

               In his final issue, the defendant claims that the trial court erred by enhancing his
sentences based upon its finding that the defendant had no hesitation about committing a crime when
the risk to human life was high. The State asserts that “the trial court did not err in applying the
factor and even assuming otherwise, the other five factors found justified the mid-range sentence.”
We agree with the State.

                When there is a challenge to the length of a sentence, it is the duty of this court to
conduct a de novo review of the record with a presumption that the determinations made by the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden
of showing that the sentence is improper is upon the appellant. Id. In the event the record fails to
demonstrate the required consideration by the trial court, review of the sentence is purely de novo.
Id. If appellate review, however, reflects that the trial court properly considered all relevant factors
and its findings of fact are adequately supported by the record, this court must affirm the sentence,
“even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
determines the range of sentence and then determines the specific sentence and the propriety of
sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing
hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing
alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and
information offered by the parties on the enhancement and mitigating factors, (6) any statistical
information provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement the defendant wishes to make in the defendant’s behalf
about sentencing, and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b);
-103(5); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                                                  -6-
                After finding that the defendant was a Range III, persistent offender, see T.C.A. § 40-
35-107, for his conviction of attempted second degree murder, and a career offender, see id. § 40-35-
108, for his conviction of unlawful possession of a weapon, the trial court considered as
enhancement factors the defendant’s “considerable criminal history,” that the injuries to the victim
were particularly great, that the defendant committed the crimes while out on bond, that the
defendant possessed a firearm during the commission of the attempted second degree murder, that
the defendant had no hesitation about committing a crime where the risk to human life was high, and
the defendant’s previous failures at complying with sentences involving release into the community.
See T.C.A. § 40-35-114(1), (6), (8), (9), (10), (13) (2006). The defendant contests only the
application of the enhancement factor for unhesitatingly causing a high risk to human life,
complaining that this factor should not have been applied because it is inherent in the offense of
attempted second degree murder.

                Code section 40-35-114 provides that “[i]f appropriate for the offense and if not
already an essential element of the offense, the court shall consider, but is not bound by,” a list of
statutory enhancement factors. T.C.A. § 40-35-114. “In the case of attempted second degree
murder, a high risk to human life will obviously exist,” generally making factor 10 inapplicable to
a conviction for attempted second degree murder. See State v. Jerry B. Crow, No. 01C01-9310-
CR-00348, slip op. at 8 (Tenn. Crim. App., Nashville, May 11, 1995). This court has held, however,
that “enhancement factor (10) may be applied where the defendant creates a high risk to the life of
a person other than the victim.” State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995),
overruled in part on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Here, the
proof established that as the defendant fired his gun at the victim, the victim’s girlfriend sat in the
car nearby. From this, the trial court concluded that the defendant endangered the life of a person
other than the victim. We will not disturb the sentencing decision of the trial court.

                                             Conclusion

               Based on the foregoing analysis, the judgments of the trial court are affirmed.


                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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