         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 5, 2008

                    STATE OF TENNESSEE v. ROBERT RUBIN

                      Appeal from the Criminal Court for Shelby County
                         No. 04-03615    John P. Colton, Jr., Judge



                      No. W2007-00907-CCA-R3-CD - Filed July 8, 2008


The defendant, Robert Rubin, was convicted by a Shelby County Criminal Court jury of the first
degree murder of Michael Gross. He was also convicted of the attempted first degree murder of
Charles Gross, a Class A felony. The defendant is serving consecutive sentences of life for the first
degree murder conviction and thirty-five years for the attempted first degree murder conviction. In
this direct appeal, the defendant contends (1) that the evidence is insufficient to convict him of first
degree murder, and (2) that the trial court erred in sentencing him to a thirty-five year term for
attempted first degree murder and in imposing the sentences consecutively. We hold that no error
has been shown, and we affirm the trial court’s judgments.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.

Robert Wilson Jones, District Public Defender; Garland Ingram Erguden (on appeal) and Michael
J. Johnson and Jane Sturdivant (at trial), Assistant Public Defenders, for the appellant, Robert Rubin.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience R. Branham and Rachel Newton,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

        At the trial, Shirley Wilson testified that the victims, Michael Gross and Charles Gross, were
her brothers. She said that on November 15, 2003, her nephew, David Hillard, got married and that
she attended a celebration at Hillard’s sister Amy’s apartment. She said she arrived between 8:00
and 8:30 p.m. and left with her fiancé, Prentice Well, at 10:30 or 11:00 p.m. She said that Michael
and Charles were there and that Michael had just awakened. She said the celebrants had not yet
started drinking while she was there. She said Amy, Charles, David, David’s wife Delores, and two
other people went out to clubs that evening, but she did not. After she was home and asleep in bed,
her son informed her that Michael had been shot. She attempted to go to the place where he was
shot, but she was not permitted access.

       David Hillard testified that Michael Gross was his uncle and Charles Gross was his father.
He said he was married on the day in question. He and his wife celebrated with a group at his sister
Amy’s apartment that afternoon and evening, where they were drinking whiskey. He said his Uncle
Michael became so intoxicated that he and his father put Michael to bed. He said that he and his
wife went to a club at about 9:00 or 10:00 p.m. with Amy, Charles, “Christy,” and “Alisha,” that they
continued drinking whiskey at the club, and that he and his wife left about 1:30 a.m. He said
Michael stayed at Amy’s apartment in bed. He said that he did not know the defendant and that the
defendant did not go to the club with the group.

         Amy Hillard testified that at the time of the offenses, her next-door neighbor was Christy
Stokes. She said Stokes and the defendant were dating. She identified Alisha Farmer as the
defendant’s daughter. She said Farmer had been at her house for the marital celebration and had
gone to the club with them. She said they left the club around 2:30 a.m. She said Michael was
waking up as she arrived home. She said that Stokes went to her own apartment and Farmer went
to Hillard’s apartment. She said that Farmer later went to Stokes’ apartment and that eventually,
both Stokes and Farmer returned to Hillard’s apartment. She said that Farmer returned with a bloody
nose and that Farmer went outside. She said that when Charles saw Farmer’s bloody nose, he got
off the couch and went outside. She said Michael went outside, also. She heard arguing and fighting
outside and then heard two gunshots about fifteen to twenty minutes after the argument. She
acknowledged that she had given a statement to the police shortly after the offenses in which she said
she heard shots five or ten minutes after the argument.

         Charles Gross testified that Michael Gross was his brother. He said that on November 15,
2003, he had gone out with the group to celebrate his nephew’s wedding. He said he did not know
the defendant before that night. He said he had only one beer and no whiskey that evening. He said
that he went to Ms. Hillard’s apartment from the club and that his brother Michael was just waking
up. He said that Farmer and Stokes came to Hillard’s apartment and that one of them was crying and
the other had a bloody nose or mouth. He said Farmer went outside to talk to the defendant and that
he went outside and tried to stop an argument between the two of them. He said that he was trying
to get Farmer away from the defendant and that when he had his head turned to the side, the
defendant hit him, which started a fight that lasted “a few minutes.” He said that he was about six
feet tall and that at the time of the fight, he weighed about 245 or 250 pounds. He said that Stokes
and Michael came outside and that Michael said, “Ya’ll stop. This is my brother.” He said Michael
attempted to block the two men from fighting. He said Michael was about five feet, nine inches tall
and weighed about 200 pounds. He said that he did not know whether Michael hit the defendant but
that he and the defendant stopped fighting. He said that the defendant was on the ground at this
point and that the defendant ran away.

       Mr. Gross testified that he and his brother went back to Hillard’s apartment. He said his
brother wanted to go to Mr. Gross’s house to spend the night and that they left about ten minutes


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after returning to the apartment. He said that as they got into the parking lot, they saw the defendant
raise his hand and they ran in opposite directions. He said he was hit in the arm and then hid. He
heard a second shot. He said that about ten minutes later, he heard about three or four more shots.
He did not see what happened to his brother. He said he did not know whether the defendant
intended to kill him.

        Mr. Gross acknowledged that his brother had so much to drink at Ms. Hillard’s apartment
that he was unable to go to the club with the group and stayed behind to sleep and recover from his
drinking. He denied that the defendant’s shirt came off when he slung him to the ground by his shirt
collar but acknowledged that his memory was better hours after the incident when he gave a
statement to the police to this effect. He admitted that he had said in his previous statement that only
about three minutes elapsed between the fight and the shooting. He admitted that he was sorry he
fought with the defendant over the defendant’s domestic dispute because his doing so cost Michael
Gross his life.

        David Yates testified that at the time of the offenses, he was working as a security guard at
the apartment complex that included the crime scene. He said he heard but did not see arguing,
about a minute or two of silence, and then shots. He said he saw someone on the ground and another
person standing above the person with a gun pointed down. He said he saw the last shot being fired
into the victim’s motionless body. He said that he identified himself but that he saw the hand of the
person with the gun coming up and that he ran away. He called the authorities.

        Lieutenant Donald Crowe of the Memphis Police Department testified that he and Sergeant
Locastro were driving past the scene of the offenses when a report of shots having been fired was
broadcast on his radio and that he responded to the scene, where he encountered David Yates. He
said it was about 3:30 a.m. He said Yates indicated the direction where the shooting occurred and
where the suspect was. Sergeant Locastro captured the suspect, and Lieutenant Crowe located the
victim, whom he determined had no pulse and whose pupils were not reactive to light. He said the
police found blood spots on the steps of an apartment and a shell casing on the sidewalk between that
apartment and another. They did not recover a weapon at the scene. He took a statement from
Charles Gross after finishing his investigation at the scene.

       Lieutenant Joseph Locastro testified that he and Lieutenant Crowe were two or three blocks
from the scene and responded to a radio report. He said that a witness gave them a description of
the suspect and that they saw a person matching that description running away. He chased and
apprehended the person and took him into custody. He said that as a result of information the police
received, he went to an apartment and found a blue gym bag containing a box of Blazer .38 caliber
ammunition and a spent casing. He said he did not strike the defendant in the process of arresting
him.

       Officer David Galloway of the Memphis Police Department testified that he was part of the
crime scene investigation unit that processed the scene of the offenses. He identified various items
recovered, including a spent shell casing, a Blazer box, and a bag of .38 caliber ammunition.


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       Officer Michael Hill of the Memphis Police Department testified that he was part of the
crime scene investigation unit that collected evidence. He prepared sketches of the scene depicting
the location of the items of evidence and the victim. He identified the sketches, as well as
photographs of the scene.

        Detective John Pasley of the Memphis Police Department testified that he was the lead
investigator. He identified numerous exhibits, including items of physical evidence collected and
photographs which depicted the scene, the evidence collected, the injuries to the victims, and the
defendant.

        Special Agent Teri Arney of the Tennessee Bureau of Investigation testified that she
examined bullets recovered by the medical examiner from Michael Gross’s body. She identified
them as .38 caliber and having been fired from a .38 caliber or .357 revolver. She concluded that
two of the bullets had been fired from the same weapon, but a third bullet was too mutilated for her
to make that comparison to the others.

        Doctor O’Brian Cleary Smith testified as an expert witness in forensic pathology that he
performed the autopsy of Michael Gross and determined that this victim died as a result of multiple
gunshot wounds. He said the victim had five wounds from four bullets. He said three of the
entrance wounds were on the front of the body and the fourth was on the back. He examined the
victim’s clothing and determined that blood had dripped from the wounds in the upper torso down
the front of the victim’s pants legs and on the tops and sides, but not the soles, of the victim’s shoes.
He stated that this indicated the victim was upright and moving forward, rather than stationary, as
he bled. He said one of the bullets struck the victim’s spinal cord and would have caused the victim
to lose use of his legs immediately. He said the gunshot wounds appeared to have been distant,
meaning they were inflicted by a bullet fired from more than two feet away. He said he retrieved
three bullets from the victim’s body. He said that Michael Gross’s blood alcohol level was .155
grams per decaliter, which he said was approximately two times the presumed level of intoxication
for driving.

         The defendant chose not to testify on his own behalf or present any other evidence. After
considering the evidence, the jury found the defendant guilty of first degree murder of Michael Gross
and guilty of attempted first degree murder of Charles Gross. The trial court sentenced the defendant
to life for the first degree murder conviction and to thirty-five years as a Range II offender for the
attempted first degree murder conviction. The court found that the defendant was a dangerous
offender and imposed the sentences consecutively. This appeal followed.

                                                   I

        In his first issue, the defendant challenges the sufficiency of the convicting evidence of his
first degree murder conviction. Our standard of review when the sufficiency of the evidence is
questioned on appeal is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond


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a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This
means that we do not reweigh the evidence but presume that the jury has resolved all conflicts in the
testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       As relevant here, first degree murder is an unlawful “premeditated and intentional killing of
another[.]” T.C.A. §§ 39-13-201; -202(a)(1).

               “[P]remeditation” is an act done after the exercise of reflection and
               judgment. “Premeditation” means that the intent to kill must have
               been formed prior to the act itself. It is not necessary that the purpose
               to kill pre-exist in the mind of the accused for any definite period of
               time. The mental state of the accused at the time the accused
               allegedly decided to kill must be carefully considered in order to
               determine whether the accused was sufficiently free from excitement
               and passion as to be capable of premeditation.

T.C.A. § 39-13-202(d). The presence of premeditation is a question for the jury and may be
established by proof of the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651,
660 (Tenn. 1997). Our supreme court has noted many factors tending to support the existence of
premeditation, including: “the use of a deadly weapon upon an unarmed victim, the particular
cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, destruction or secretion of
evidence of the murder, and calmness immediately after the killing.” State v. Nichols, 24 S.W.3d
297, 302 (Tenn. 2000). Without sufficient evidence of premeditation, a homicide in Tennessee is
presumed to be second degree murder. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992).
“‘Intentional’ means that a person acts intentionally with respect to . . . a result of the conduct when
it is the person’s conscious objective or desire to . . . cause the result.” T.C.A. § 39-11-106(a)(18).

        The defendant claims that the evidence establishes that he is guilty of no offense greater than
voluntary manslaughter or second degree murder. He argues that the offense occurred when both
the defendant and the victim were intoxicated, that Charles Gross interjected himself into a family
fight between the defendant and his daughter, that Charles Gross was unprovoked but threw the first
punch and got the better of the defendant in the ensuing fight, and that the defendant retrieved a gun
in “a seamless continuation of events” and shot Michael Gross. The defendant’s argument overlooks
the actual facts of the case as well as the applicable legal standard on appeal.

        We note, first of all, that the undisputed proof is that the defendant landed the first blow in
the fight with Charles Gross. Further, accepting the defendant’s characterization of the facts would
require us to overlook the legal requirement that we view the evidence in the light most favorable
to the state. Accepting the evidence from the state’s perspective, the defendant and Charles Gross
were involved in a fight after Charles Gross attempted to separate the defendant and his daughter
from an altercation. Michael Gross attempted to stop the fight between his brother and the


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defendant, and Charles Gross got the better of the defendant in the fight. The Grosses went inside
after the fight for a short period of time, and the defendant went to another apartment and retrieved
a gun. The Grosses went outside to get into a car and leave when the defendant fired shots, striking
both of them. Michael Gross was struck four times, and by the end of the attack, the defendant was
standing over Michael Gross firing into his body. There was a period of time between the end of the
fight and the shooting of at least a minute or two but possibly as long as fifteen to twenty minutes.
The evidence demonstrates that the defendant was able to get away from the fight with Charles
Gross, but instead of staying in the safety of the apartment to which he fled, he retrieved a gun and
shot both of the Grosses later as they were attempting to leave the apartment complex. The evidence
is sufficient to support the defendant’s conviction of an unlawful, intentional, and premeditated
killing.

                                                            II

         The defendant also claims that he was improperly sentenced to an enhanced sentence and to
consecutive sentencing. He argues that the trial court relied upon two inappropriate enhancement
factors and that consecutive sentencing is not supported by the evidence of record. He also argues
that the increased and consecutive sentences were imposed in violation of State v. Gomez, 239
S.W.3d 733 (Tenn. 2007), because application of the enhancement factors found by the judge, rather
than a jury, deprived him of his right to jury trial. He acknowledges that this issue was not raised
at trial but argues that he is entitled to plain error relief under the Gomez decision. The state
concedes that the trial court erred in applying two enhancement factors but argues that the defendant
has not demonstrated plain error in the length of his attempted first degree murder sentence. The
state also argues that the trial court made proper oral and written findings to support its imposition
of consecutive sentencing on the basis the defendant was a dangerous offender.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d).1 As the Sentencing Commission
Comments to this section note, the burden is now on the defendant to show that the sentence is
improper. This means that if the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing


         1
           W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal. The defendant was sentenced after the change in the sentencing laws took effect,
but the record does not reflect that the defendant signed a waiver of their ex post facto protections to be sentenced under
the amended provisions. See T.C.A. § 40-35-210, Compiler’s Notes.

                                                           -6-
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

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

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

        Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his or her own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -
103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

A.     Length of Sentence for Attempted First Degree Murder

         With respect to the defendant’s attempted first degree murder conviction, the defendant was
a Range II offender facing a sentence of twenty-five to forty years for this Class A felony. See
T.C.A. § 40-35-112(b)(1). The trial court applied enhancement factors on the basis that the
defendant had “a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range”; “[t]he offense involved more than one victim”; and
“[t]he defendant had no hesitation about committing a crime when the risk to human life was
high[.]” See T.C.A. § 40-35-114(2), (4), (11) (2003). We agree with the parties that the trial court
erred in applying the factors for multiple victims and the defendant’s lacking hesitation to commit
the crime when the risk to human life was high. See State v. Freeman, 943 S.W.2d 25, 31 (Tenn.
Crim. App. 1996) (holding that factor did not apply when defendant was charged and convicted of
separate convictions for each victim) (cited with approval by State v. Reid, 943 S.W.2d 247, 311
(Tenn. 2002); State v. Butler, 900 S.W.2d 305, 313-14 (Tenn. Crim. App. 1994) (holding that factor
involving lack of hesitation did not apply to offense of second degree murder); cf. State v. Makoka,
885 S.W.2d 366, 373 (Tenn. Crim. App. 1994) (holding that lack of hesitation factor could be
applied where there was proof that individuals other than the victim were present and placed in
peril), questioned on other grounds by Freeman, 943 S.W.2d at 31-32.

        Notwithstanding the trial court’s error in applying two enhancement factors, the court
properly applied the enhancement factor for the defendant’s prior criminal convictions. The
presentence report reflects that, in addition to the felony convictions which qualified him for Range
II sentencing, the defendant had numerous misdemeanor convictions for assault, driving offenses,
drug offenses, and malicious mischief. Although the defendant’s last conviction was several years


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before his present offenses, his history of criminal convictions demonstrates an alarming pattern of
illegal activity during much of his adult life. Upon de novo review, we conclude that on the basis
of the defendant’s criminal convictions alone, he was deserving of a thirty-five year sentence.
Moreover, sentencing on the basis of prior criminal convictions without a jury determination does
not run afoul of the Sixth Amendment. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531,
2536 (2004); Apprendi v. New Jersey, 530 U.S. 466, 489,120 S. Ct. 2348, 2362-63 (2000). Because
we have concluded that the trial court’s imposition of a thirty-five year sentence was proper based
upon the facts of the case and applicable precedent regarding judicial fact-finding of enhancement
factors, it is not necessary for us to conduct a plain error review.

B.     Consecutive Sentencing

       The remaining issue is that of consecutive sentencing. We begin by noting that the
Tennessee Supreme Court has recently concluded that jury fact-finding in consecutive sentencing
determinations is not constitutionally required. See State v. Anthony Allen, ___ S.W.3d ___, No.
W2006-01080-SC-R11-CD, Shelby County (Tenn. June 24, 2008). Thus, the defendant’s claim of
Gomez sentencing error is of no consequence in our consideration of this issue.

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which
states in pertinent part that the court may order sentences to run consecutively if it 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.” T.C.A. § 40-35-115(b)(4). For dangerous offenders, “consecutive sentences
cannot be imposed unless the terms reasonably relate to the severity of the offenses committed and
are necessary in order to protect the public from further serious criminal conduct by the defendant.”
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see State v. Lane, 3 S.W.3d 456, 461 (Tenn.
1999). Rule 32(c)(1) of the Tennessee Rules of Criminal Procedure requires that the trial court
“specifically recite the reasons” behind its imposition of a consecutive sentence. See State v. Donnie
Thompson, No. M2002-01499-CCA-R3-CD, Maury County, slip op. at 5 (Tenn. Crim. App. Mar.
3, 2003) (reversing the trial court’s imposition of consecutive sentencing because it failed to make
a finding under Tennessee Code Annotated section 40-35-115(b) and the record did not support a
conclusion that the defendant met the consecutive sentencing prerequisites).

       The court made the following findings in classifying the defendant as a dangerous offender:

               [T]he reason for the consecutive sentence is this man’s been . . .
               arrested since 1980 twenty-three times, and he’s ended up here – even
               though some of these were a while back, he’s ended up here now
               killing one person and hurting another by shooting a gun at them, and
               the Court finds that he’s a danger to society for doing that.

In its written findings, the court found:



                                                 -8-
               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; and all three of the
               following factors apply:

                       (a) the circumstances surrounding the commission of
                       the offense are aggravated,
                       (b) confinement for an extended period of time is
                       necessary to protect society from the defendant’s
                       unwillingness to lead a productive life and the
                       defendant’s resort to criminal activity in furtherance
                       of an anti-societal lifestyle, and
                       (c) the aggregate length of the sentences reasonably
                       relates to the offense of which the defendant stands
                       convicted.

The defendant argues that his convictions are from an earlier time in his life and that he has been a
productive member of society as evidenced by his continuous employment from 1992 until 2003.
This evidence was before the trial court, yet it afforded greater consideration to the defendant’s
lengthy criminal history and the egregious circumstances of the present offenses. We believe that
the defendant’s argument is somewhat diminished by evidence that he continued to receive criminal
convictions during the first few years of his employment and that he resigned from this job six
months before committing the present offenses. Upon our de novo review, we hold that the trial
court made proper findings and did not err in imposing consecutive sentences. The court properly
relied on the defendant’s protracted criminal history and his use of a weapon against multiple victims
in the present offenses. The trial court properly determined that the defendant was an offender who
was deserving of an extended sentence.

        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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