        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              November 10, 2010 Session

   STATE OF TENNESSEE v. TIMOTHY WASHINGTON LYONS AND
                 ANTONIO LAMONT SCALES

                Appeal from the Criminal Court for Davidson County
                    No. 2007-C-1951     Monte Watkins, Judge




               No. M2009-02524-CCA-R3-CD - Filed January 18, 2011

A Davidson County Criminal Court jury convicted the defendants, Timothy Washington
Lyons and Antonio Lamont Scales, of the attempted second degree murder of Teresa
Crenshaw and the reckless aggravated assault of Quanita Robinson. The trial court sentenced
each defendant to 22 years’ incarceration. In this appeal, both defendants challenge the
sufficiency of the convicting evidence, the trial court’s failure to provide the “missing
witness” instruction, and the propriety of the sentences imposed. Discerning no reversible
error, we affirm the convictions. Because the trial court mistakenly believed it was imposing
sentences for Class C felony aggravated assault rather than Class D felony aggravated
assault, utilized improper enhancement factors, and imposed consecutive sentences without
making required findings of fact, the sentences imposed are vacated, and the case is
remanded for resentencing. In addition, new judgment forms for the aggravated assault
convictions must be entered to reflect that the defendants were convicted of Class D felony
aggravated assault.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Vacated and
                                Remanded in Part

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Timothy Washington
Lyons.

Colin B. Calhoun, Nashville, Tennessee, for the appellant, Antonio Lamont Scales.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              The convictions in this case relate to the shootings of Teresa Crenshaw and
Quanita Robinson on March 31, 2007. At the joint trial, Ms. Crenshaw testified that on that
date she was driving along Coffee Street near Eleventh Avenue in Nashville when she saw
the defendants sitting in a gray, two-door car parked in an alley. She recalled that Mr. Scales
was in the driver’s seat, Mr. Lyons was in the passenger’s seat, and two individuals were in
the backseat. Ms. Crenshaw stated that she spoke briefly to the defendants and then drove
a very short distance to offer a ride to Ms. Robinson, who was walking. Just after Ms.
Robinson got into the vehicle, Ms. Crenshaw turned back to see guns being pointed at her
by the occupants of the gray car. Ms. Crenshaw testified that both defendants had guns
pointed at her.

               When the men started to fire, Ms. Crenshaw “scrunched down in the vehicle
and accelerated.” She stated that the men pursued her and continued to fire at her as she
attempted to get away. A short distance later, Ms. Crenshaw made a left turn and the gray
car made a right turn. She then continued to drive until she saw her aunt driving by. She
flagged down the aunt and asked for transportation to the hospital. Ms. Crenshaw stated that
a bullet struck her right upper arm and that another bullet grazed Ms. Robinson’s left upper
arm.

               On the way to the hospital, Ms. Crenshaw telephoned Mr. Scales and asked him
why he had shot at her. According to Ms. Crenshaw, Mr. Scales told her that “they was
going to kill [her], [her] boyfriend, and everything he loved.”

              Once at the hospital, Ms. Crenshaw learned that she had also suffered a
gunshot wound to her back. She stated that doctors were forced to leave a bullet fragment
in her arm and to leave the entire bullet in her back near her lung.

              Crime scene investigators with the Metropolitan Nashville Police Department
discovered 13 cartridge casings “scattered along . . . a hundred” yard path from Ms.
Crenshaw’s abandoned vehicle backwards toward Eleventh Avenue. They found no blood
inside the vehicle.

              At the conclusion of this proof, the State rested, and neither defendant
presented any evidence. Based upon the evidence presented by the State, the jury convicted
the defendants, who had originally been charged with attempted first degree murder, of the
lesser included offense of attempted second degree murder in count one and reckless assault

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as charged in count two.1

               Following the denial of their timely but unsuccessful motions for new trial,
both defendants appealed to this court, claiming that the evidence adduced at trial was
insufficient to support their convictions, that the trial court erred by refusing to provide the
“missing witness” instruction, and that the sentences imposed are excessive.

                                            I. Sufficiency

              Both defendants challenge the sufficiency of the convicting evidence. Mr.
Lyons contends that the State failed to establish that he acted knowingly with regard to the
attempt on Ms. Crenshaw’s life and that Ms. Crenshaw’s testimony regarding both offenses
was unreliable. Mr. Scales asserts that the State failed to establish the elements of either
offense “due to the shockingly inconceivable testimony of Ms. Crenshaw.”

                We review the sufficiency challenge mindful that our standard of review is
whether, after considering 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 a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. Winters, 137 S.W.3d at 654.

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must 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. Id.

             Examining the proof adduced at trial in the light most favorable to the State,
as we are required to do, we find the evidence sufficient to support the convictions of
attempted second degree murder of Ms. Crenshaw. “Second degree murder is . . . [a]
knowing killing of another.” T.C.A. § 39-13-210(a)(1) (2006). Code section 39-12-101



       1
         The defendants were additionally charged with the reckless aggravated assault of Antwan Bowers,
the felony reckless endangerment of Michael Massey, and the felony reckless endangerment of Linda
Sylvain. Those charges were dismissed by the State.
                                                  -3-
defines criminal attempt:

              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.

Id. § 39-12-101(a).

               Here, Ms. Crenshaw, the victim of the attempted second degree murder,
testified that both defendants began firing guns at her and Ms. Robinson just after Ms.
Robinson entered Ms. Crenshaw’s vehicle. She stated that the defendants continued to fire
at her as she tried to get away and that Mr. Scales stated an intent to kill her. Despite the
defendants’ characterizing Ms. Crenshaw’s testimony as “vacillating,” “unbelievable,”
“outrageously inconceivable,” and essentially incredible, the jury, as the trier of fact,
accredited her testimony. This court may not go behind that credibility determination.

                 The evidence was also sufficient to support the defendants’ convictions of the
reckless aggravated assault of Ms. Robinson. As charged in this case, “[a] person commits
aggravated assault who . . . [r]ecklessly commits an assault as defined in § 39-13-101(a)(1),
and . . . [u]ses or displays a deadly weapon.” Id. § 39-13-102(a)(2)(B). Code section 39-13-
101(a)(1) provides: “A person commits assault who . . .[i]ntentionally, knowingly or
recklessly causes bodily injury to another.” Id. § 39-13-101(a)(1). “‘Bodily injury’ includes
a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or
impairment of the function of a bodily member, organ, or mental faculty.” Id. § 39-11-
106(2). Ms. Crenshaw testified that Ms. Robinson was wounded during the encounter,
suffering a grazing bullet wound to her shoulder that resembled a burn, and that she screamed
in pain. This testimony sufficiently establishes the offense of reckless aggravated assault.

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              In a related issue, both defendants also allege that despite being charged with
reckless aggravated assault, they were actually convicted of the greater offense of intentional
or knowing aggravated assault. The State asserts that the defendants were charged with and
convicted of aggravated assault by recklessness but that the trial court and the parties failed
to recognize that the aggravated assault by recklessness is graded one conviction class lower
than an intentional or knowing assault and that, as a result, the trial court erroneously
imposed a sentence within the wrong conviction class. We agree with the State.

               The indictment in this case charged that the defendants “recklessly did cause
bodily injury to Quanita Robinson by the use or display of a deadly weapon, to wit: a
handgun, in violation of Tennessee Code Annotated § 39-13-102.” Similarly, the trial court
instructed the jury that it must find “(1) that the defendants recklessly caused bodily injury
to another; [and] (2) that the defendants used or displayed a deadly weapon, to wit: a
handgun.” This language tracks that of Code section 39-13-102(a)(2)(B), aggravated assault
by recklessness. As a result, the only assault offense of which the defendants could have
been convicted is reckless aggravated assault, which is a Class D felony. The judgment
forms, however, indicate that the defendants were convicted of Class C felony aggravated
assault.

              There is no question that Class C felony convictions were entered in error. The
record is clear that neither the trial court nor the parties realized during sentencing that
reckless aggravated assault is a Class D felony rather than a Class C felony. The trial court
imposed sentences of eight years for the convictions of aggravated assault, which are valid
Range II sentences for a Class D felony conviction. Given that the trial court believed it was
imposing a sentence for a Class C felony conviction, however, it is our view that the case
should be remanded to the trial court for reconsideration of the sentences for aggravated
assault.

                                II. Missing Witness Instruction

              Both defendants claim that the trial court erred by refusing to provide a missing
witness instruction to the jury based upon the State’s failure to call Ms. Robinson as a
witness.

               Initially, although Mr. Lyons lists as an issue the trial court’s failure to provide
the missing witness instruction, he omitted the issue from the argument portion of his brief.
The issue is not supported by argument, citation to the relevant portions of the record, or
citation to applicable authorities. As such, Mr. Lyons has waived our consideration of this
issue. See Tenn. Ct. Crim. App. R. 10(b).



                                                -5-
              The “missing witness” or “absent material witness” instruction provides:

              When it is within the power of the [S]tate or the defendant to
              produce a witness who possesses peculiar knowledge
              concerning facts essential to that party’s contentions and who is
              available to one side at the exclusion of the other, and the party
              to whom the witness is available fails to call such witness, an
              inference arises that the testimony of such witness would have
              been unfavorable to the side that should have called or produced
              such witness. Whether there was such a witness and whether
              such an inference has arisen is for you to decide and if so, you
              are to determine what weight it shall be given.

1-42 T.P.I. Criminal 42.16. Before the instruction may be given, the party requesting it must
establish “that ‘the witness had knowledge of material facts, that a relationship exists
between the witness and the party that would naturally incline the witness to favor the party
and that the missing witness was available to the process of the Court for trial.’” State v.
Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317,
334-35 (1992)) (internal citation and quotation marks omitted). To justify a missing witness
instruction, “the witness who was not called must not have been equally available to both
parties.” See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (citing State v.
Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim. App. 1982); Bolin v. State, 472 S.W.2d 232,
235 (Tenn. Crim. App. 1971)); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App.
1988).

               At trial, the prosecutor indicated that the State had issued a subpoena for Ms.
Robinson, that a State investigator had tracked her down, and that Ms. Robinson had assured
the investigator that she would attend the trial. Despite the State’s efforts, Ms. Robinson did
not show up for trial. The record establishes that Ms. Robinson, as an eyewitness victim, had
knowledge of material facts in the case and that she was available to the process of the court.
Other than stating that the victim of a crime would necessarily favor the State as a party,
however, Mr. Scales neither asserted that Ms. Robinson had a relationship with the State that
would have predisposed her to favor the State nor established that Ms. Robinson was not
equally available to both parties. Under these circumstances, the trial court did not err by
refusing to provide the missing witness instruction.




                                       III. Sentencing



                                              -6-
                Both defendants contend that the sentences are excessive, arguing that the trial
court improperly enhanced the individual sentences and erred by imposing consecutive
sentences. The State correctly points out that the sentences for the defendants’ convictions
of aggravated assault should be vacated and remanded for resentencing in light of the fact
that the trial court erroneously believed that the defendants had been convicted of Class C
felony aggravated assault rather than Class D felony aggravated assault. In addition, the
State concedes that a remand for resentencing is appropriate because the trial court imposed
consecutive sentencing without making the required findings under State v. Wilkerson, 905
S.W.2d 933 (Tenn. 1995). We agree with the State.

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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 appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court must consider:

              (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
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;
              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

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              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

               The parties presented no live testimony at the sentencing hearing, choosing
instead to rely upon the presentence reports and argument. The presentence reports as well
as certified copies of the judgments established that on August 2, 2001, both defendants
pleaded guilty in case number 2001-A-406 to two counts of aggravated robbery in exchange
for a total effective sentence of nine years’ incarceration. Mr. Lyons’ presentence report
established that the 28-year-old Mr. Lyons, a suspected member of the “Crips” gang,
garnered convictions of possession of drug paraphernalia and simple possession of marijuana
following his release on parole. Mr. Lyons was on parole at the time of the offenses in this
case. In addition to these convictions, Mr. Lyons had numerous juvenile adjudications dating
back to age 14. Twenty-five-year-old Mr. Scales, a confirmed member of the “Gangster
Disciples” gang, was released on parole from the nine-year sentence only one month before
the offenses in this case.

               The defendants’ aggravated robbery convictions qualified them for Range II
sentencing. The trial court concluded that both defendants had histories of criminal
convictions in addition to those necessary to establish the range, that the offenses involved
more than one victim, that the defendants employed firearms, that the defendants had no
hesitation about committing a crime where the risk to human life was high, and that the
defendants had juvenile adjudications that would have been felonies if committed by an
adult. See T.C.A. § 40-35-114(1), (3), (9), (10), (16). Based upon these enhancement
factors, the trial court imposed sentences of 14 years for both defendants’ convictions of
attempted second degree murder and sentences of eight years for both defendants’
convictions of aggravated assault.

              The court also concluded, for purposes of imposing consecutive sentences, that
the defendants were “dangerous offenders whose behavior indicates little or no regard for
human life and they had no hesitation of committing a crime.” The trial court ordered both
defendants to serve their sentences consecutively, for total effective sentences of 22 years for
both defendants.

               As indicated above, when imposing the eight-year sentences for aggravated
assault, the trial court was under the mistaken impression that the defendants had been
convicted of a Class C felony. The defendants were actually convicted of Class D felony

                                              -8-
aggravated assault and are entitled to be sentenced for that offense. In consequence, the case
must be remanded for reconsideration of the sentences imposed for aggravated assault.

                With regard the application of the enhancement factors in this case, the record
establishes that the trial court erroneously applied factor (3), that the offenses involved more
than one victim, to both convictions. See State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002)
(holding that factor (3) may not be applied where a defendant is convicted of separate
offenses committed against each victim); see also State v. Williamson, 919 S.W.2d 69, 82
(Tenn. Crim. App. 1995) (“This Court has held that this factor may not be applied to enhance
a sentence when the appellant is separately convicted of the offenses committed against each
victim.”). In addition, the trial court erroneously applied enhancement factor (9), that the
defendants used or displayed a firearm, to the defendants’ convictions of aggravated assault
because the use of a firearm is an element of aggravated assault as charged in this case. See
T.C.A. § 40-35-114 (“If appropriate for the offense and if not already an essential element
of the offense, the court shall consider, but is not bound by, the following advisory factors in
determining whether to enhance a defendant’s sentence[.]”) (emphasis added). The trial
court also erroneously applied enhancement factor (10), that the defendants had no hesitation
about committing a crime when the risk to human life was high, to the defendants’
convictions of attempted second degree murder because that offense necessarily includes a
high risk to human life and because the State failed to establish the presence of anyone but
the two named victims. See, e.g., State v. Tony E. Cannon, Jr., No. M2007-00557-CCA-
R3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, June 19, 2008). Finally, the trial court
erred by applying enhancement factors (1) and (16) to Mr. Scales’s convictions. The record
established that Mr. Scales’s only previous convictions were the two convictions of
aggravated robbery used to move him from Range I into Range II. Moreover, although the
trial court stated that both defendants had a record of juvenile adjudications that would have
been felonies if committed by an adult, no record of Mr. Scales’s juvenile adjudications was
placed into the record.

               With regard to the imposition of consecutive sentences, the State concedes and
the record establishes that the trial court imposed consecutive sentencing based upon its
finding that both defendants were dangerous offenders without making the requisite findings
under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Code section 40-35-115(b)(4)
provides that the trial court may order sentences to be served consecutively if the court finds
by a preponderance of the evidence that “[t]he 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). Wilkerson limits
the application of this section, however, and holds that the trial court may order consecutive
sentences for the dangerous offender only after also finding by a preponderance of the
evidence “that an extended sentence is necessary to protect the public against further criminal

                                              -9-
conduct by the defendant and that the consecutive sentences must reasonably relate to the
severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
The trial court in this case made no such findings. Moreover, although consecutive
sentencing may be based upon any of the factors enumerated in Code section 40-35-115(b),
the record does not cogently establish that any of the remaining factors are applicable. See
T.C.A. § 40-35-115(b)(1)-(3), (5)-(7). Under these circumstances, the imposition of
consecutive sentences in this case was in error.

                                        Conclusion

              The evidence adduced at trial was sufficient to support both defendants’
convictions of second degree murder and aggravated assault. Accordingly, the convictions
are affirmed. Because numerous errors attend the sentences imposed in this case, the case
must be remanded to the trial court for resentencing for all convictions. New conviction
judgments for the convictions of aggravated assault must be entered reflecting the correct
conviction class and a sentence within that conviction class. Before it may impose
consecutive sentences upon remand, the trial court must complete the fact finding required
by Wilkerson.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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