                                                                                           11/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 24, 2018

              STATE OF TENNESSEE v. DEMETRIUS GRIMES

                  Appeal from the Criminal Court for Knox County
                       No. 103500A Bobby R. McGee, Judge
                     ___________________________________

                           No. E2017-01022-CCA-R3-CD
                       ___________________________________


The Defendant, Demetrius Grimes, was convicted of two counts of attempted first-degree
murder; five counts of employing a firearm during a dangerous felony; four counts of
employing a firearm during the commission of a dangerous felony with a prior dangerous
felony conviction; two counts of attempted especially aggravated robbery; two counts of
attempted carjacking; one count of attempted first-degree murder with serious bodily
injury; two counts of assault; and one count of simple possession of a controlled
substance, third offense. The sentences for the attempted first-degree murders of Michael
Dixon and Carl Chesney were ordered to be served consecutively to each other, as well as
to both of the 10-year sentences for employing a firearm during a dangerous felony,
which were, in turn, to be served consecutively to each other, resulting in a total effective
sentence of sixty years. Further, all the sentences were to be served consecutively to a
sentence for a prior conviction. On appeal, the Defendant asserts that, since the State
argued at trial that Michael Dixon was the intended target of the shots, the attempted
first-degree murder conviction for the shooting of Carl Chesney could not stand. Further,
the Defendant argues on appeal that the multiple convictions for employment of a firearm
during the commission of multiple dangerous felonies cannot stand, for the evidence
showed that the Defendant used only one weapon, thus supporting only a single firearm
conviction; and that the trial court erred in ordering consecutive sentencing. The State
agrees on appeal that the court erred as to sentencing in Counts 15 through 18, which
enhanced the Defendant’s sentences for employing a firearm during the commission of
four attempted dangerous felonies, for the prior felonies upon which the enhancement
was based, were not “dangerous” felonies, as required by statute, but, rather, were simple
drug possession convictions. Accordingly, we reverse the convictions as to Counts 15
through 18 and dismiss those charges. We reinstate the convictions for Counts 2, 4, 8, 10
and 12, which were merged into Counts 15 through 18, and remand for entry of amended
judgments. We conclude that the other issues raised on appeal by the Defendant are
without merit.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part, Reversed in
                             Part, Case Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

J. Liddell Kirk (on appeal); Mary L. Ward (at trial), Knoxville, Tennessee, for the
appellant, Demetrius Grimes.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Charme P. Allen, District Attorney General; and Takisha Fitzgerald and Phillip
H. Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

       As we will set out, the State’s proof showed that the Defendant fired shots with a
pistol at B.J.’s Market in Knoxville on the evening of March 8, 2014, striking Carl
Chesney and Michael Dixon. Mr. Chesney had no prior connection with the Defendant,
while Mr. Dixon was acquainted with Mr. Ramod Shepard, a passenger in the
Defendant’s vehicle, from when both were inmates at the same prison. The Defendant
fired approximately seven shots in all, striking Mr. Dixon twice in the leg and Mr.
Chesney once in the foot. Now, we will review the trial testimony.

       The first two witnesses for the State were Michael Alan Mayes and Cheryl Green.
Mr. Mayes, the record keeper for the Knox County Emergency Communications District,
played a recording of the 9-1-1 calls from B.J.’s Market just after the shooting. Ms.
Green testified regarding the medical records of the victim, Michael Dixon, and his
injuries as the result of being wounded. Danielle Wieberg testified that she was a crime
scene technician with the Knoxville Police Department and various photographs taken at
the crime scene received as exhibits during her testimony, as well as various items of
physical evidence collected at the scene.

       Steven Charles Lundy, Sr., testified that he was working at B.J.’s Market the
evening of the shooting, when he heard gunshots and saw people running. One of the
wounded men came into the store and fell down, and Mr. Lundy continued to hear shots
being fired outside. He testified that he had identified the Defendant in a photo lineup as
the shooter, and he identified the Defendant again in the courtroom.
                                           -2-
      Carl Chesney testified that that he had been wounded while at B.J.’s Market on
March 8, 2014. He was shot in the foot while he was outside, waiting for a food order.
He said he did not see who shot him.

       Michael Dixon was wounded the same evening, also at B.J.’s Market, where he
had driven his vehicle to purchase gasoline, when he was returning to his vehicle after
paying for it. On the way to his car, he recognized Ramod Shepard, whom he earlier met
when they were incarcerated at the same penal institution. Mr. Shepard got out of a black
car, which had just pulled up to Mr. Dixon, as did the Defendant, Demetrius Grimes. The
Defendant was armed with a pistol, which he pointed at Mr. Dixon, demanding the keys
to his car. A third man got out of the black car, as well as a woman, Latickia Burgins,
who was repeatedly saying to the victim, “just give him the keys.” As she got into the
victim’s car, the Defendant pointed his pistol at the victim, saying he would shoot if he
were not given the keys. The Defendant pulled the trigger, but his weapon misfired. As
the victim then ran back towards the store, he heard gunshots and was struck twice in one
of his legs. He was taken to a hospital, where he received two blood transfusions, and
had two operations, with a rod being inserted into his leg. The victim said that he now
walks with a limp, and his leg swells daily. Mr. Dixon said he had identified the
Defendant as his shooter in a photographic lineup while in the hospital, and he identified
the Defendant during his testimony.

       Tim Riddle testified that he was employed by the Knoxville Police Department as
a major crimes investigator and had responded to the shooting call at B.J.’s Market.
From witnesses at that location, he learned that the shooter was a black male, with long
dreadlocks, who had been wearing “fancy glasses.” He later met in the hospital with Mr.
Dixon, who told him that Ms. Burgins had been involved in the shooting, as well as the
Defendant, whom the victim knew as Demetrius or Demetria Grimes. The other victim,
Mr. Chesney, was reluctant to speak with Officer Riddle or to assist in the prosecution of
the shooting. When shown the photographic lineup, Mr. Chesney pointed to the
photograph of the Defendant but refused to sign the card as having done so. Officer
Riddle testified regarding the surveillance video from the time of the shooting, saying it
showed Ramod Shepard getting out of a black car, followed by the Defendant, who put a
gun in Mr. Dixon’s face. The Defendant then fired the weapon, sending others running,
returned to his vehicle and drove off with his companions. Following this testimony, the
State rested its case-in-chief. The Defendant presented no witnesses at the trial.

                                      ANALYSIS

                              I. Sufficiency of the Evidence

                                 A. Standard of Review
                                          -3-
       On appeal, the Defendant asserts that the evidence was insufficient to support the
guilty verdicts for the attempted first-degree premediated murder of Carl Chesney and for
the five counts of employing a firearm during the commission of a dangerous felony.
The State disagrees with this argument, as do we.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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 a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-91
(Tenn. 1992). All questions involving the credibility of witnesses, the weight and value
to be given the evidence, and all factual issues are resolved by the trier of fact. See State
v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). In Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v.
State, 370 S.W.2d 523 (1963)), our supreme court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin, 405 S.W.2d at 771.

        “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted
defendant has the burden of demonstrating that the evidence is insufficient.” State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

      Applying these standards, we will review the convictions challenged by the
Defendant on appeal.

          B. Conviction for the Attempted First-degree Murder of Mr. Chesney



                                             -4-
       Pointing to the fact that the State had argued to the jury that the Defendant’s
intended shooting victim was Mr. Dixon, not Mr. Chesney, the Defendant asserts that he
cannot be convicted for the attempted first-degree murder of Mr. Chesney because he was
wounded by a bullet intended for Mr. Dixon. The State disagrees with this argument; and,
as we will explain, so do we.

       In cases where the defendant has been charged with the attempted commission of
a crime, there must be evidence that the defendant acted “with the kind of culpability
otherwise required for the offense,” acted “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[.]” Tenn. Code Ann. § 39-12-101(a), (a)(2). First-degree murder is
defined as “[a] premeditated and intentional killing of another.” Id. § 39-13-202(a)(1).
Further:

    “Premeditation” is an act done after the exercise of reflection and judgment, and
    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.

Id. § 39-13-202(d).

        The “element of premeditation is a question of fact” for the jury to determine
based upon a consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).
“[P]remeditation may be established by any evidence from which a rational trier of fact
may infer that the killing was done ‘after the exercise of reflection and judgment’ as
required by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121
S.W.3d 600, 615 (Tenn. 2003). A jury may infer premeditation from circumstantial
evidence surrounding the crime. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998);
State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). There are several
factors which our courts have concluded may be evidence of premeditation: “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; and calmness immediately after the
killing.” Bland, 958 S.W.2d at 660. An additional factor from which a jury may infer
premeditation is evidence establishing a motive for the killing. See State v. Nesbit, 978
S.W.2d 872, 898 (Tenn. 1998). State v. Jeremy Jones, No. W2015-01528-CCA-R3-CD,

                                            -5-
2016 WL 7654954, at *4 (Tenn. Crim. App. Sept. 26, 2016), perm. app. denied (Jan. 20,
2017).

       In this matter, as we have set out, the Defendant is appealing the sufficiency of the
evidence as to his conviction for the shooting of Carl Chesney. Taken in the light most
favorable to the State, the evidence at trial showed that the Defendant intended to take
Mr. Dixon’s vehicle and was willing to shoot him to do so. After Mr. Dixon did not
comply with the demand for the keys to the vehicle, the Defendant aimed the pistol at Mr.
Dixon, but it misfired. As Mr. Dixon ran towards the market, the Defendant kept
shooting, wounding Mr. Dixon twice and Mr. Chesney once. Mr. Lundy, Sr. and Mr.
Dixon both identified the Defendant as the person firing the shots that wounded the two
victims. From this, we find a reasonable jury could have concluded that the Defendant
committed the attempted first-degree premeditated murder of the two victims during the
attempted car-jacking of Mr. Dixon’s vehicle.

        Additionally, the Defendant argues on appeal that only the conviction for the
attempted first-degree premeditated murder of Mr. Dixon can stand, because the
Defendant’s intent was to shoot Mr. Dixon, but not Mr. Chesney. He asserts that the
doctrine of transferred intent cannot be applied because Mr. Dixon was the only intended
target. The State responds that the Defendant failed to present this argument either at the
trial or the motion for new trial, and that this contention is waived, absent a plain error
review. As we will explain, even if we proceeded with a plain error review, the
Defendant’s claim still would fail.

       In Millen v. State, 988 S.W.2d 164 (Tenn. 1999), the defendant had fired his pistol
at the intended victim but killed a bystander. Our supreme court held that Tennessee
Code Annotated section 39-11-302(a) did not require that a defendant kill his intended
victim:

       A plain reading of this statute as applied to first-degree murder indicates
       that a defendant’s conscious objective need not be to kill a specific victim.
       Rather, the statute simply requires proof that the defendant's conscious
       objective was to kill a person, i.e., “cause the result.” In short, if the
       evidence demonstrates that the defendant intended to “cause the result,” the
       death of a person, and that he did so with premeditation and deliberation,
       then the killing of another, even if not the intended victim (i.e., intended
       result), is first-degree murder.

Id. at 168.



                                           -6-
       Applying the holding in Millen, this court concluded in State v. Joseph Jackson,
Jr., No. W2001-02779-CCA-R3-CD, 2002 WL 31887657, at *4 (Tenn. Crim. App. Dec.
17, 2002), no perm. app. filed, that if a defendant fires a weapon, intending to kill one
person, but strikes another instead, the intent to injure the intended victim transfers to the
actual victim. We disagree with the Defendant’s argument that the holding in State v.
Ronald Turner, No. E2016-00651-CCA-R3-CD, 2017 WL 18300106, at *6 (Tenn. Crim.
App. May 5, 2017), no perm. app. filed, is applicable to this appeal, for, in that case, only
a single shot was filed, and this court concluded that a single shot could not provide the
basis for multiple attempted homicide convictions.

       This claim is without merit.

  C. Convictions for Employing a Firearm during Commission of a Dangerous Felony

        As we have set out, the Defendant was convicted of multiple counts for the use of
a firearm to commit a dangerous felony, and he argues on appeal that the multiple firearm
convictions violate his protection against double jeopardy. The State responds that this
claim is waived because it was not made either at trial or in the motion for new trial.
Even if we were to conduct a plain error review of this matter, the Defendant would not
benefit, for, since the trial in this case, our supreme court concluded in State v. Harbison,
539 S.W.3d 149 (Tenn. 2018), that each act of employing a firearm during the
commission of a dangerous felony may be prosecuted as a separate offense:

       [We] conclude that the legislature intended the unit of prosecution for
       Tennessee Code Annotated section 39-17-1324 to be each act of employing
       a firearm during the commission of or attempt to commit a dangerous
       felony. Nothing in the language of the statute indicates that the legislature
       intended to limit the unit of prosecution to the number of firearms
       employed by a defendant. Therefore, Harbison’s three convictions for
       employing a firearm during the commission of a dangerous felony based on
       three convictions for the attempt to commit voluntary manslaughter
       involving three victims do not violate the prohibition against double
       jeopardy.

Id. at 169-70.

       Accordingly, this assignment is without merit.

                        D. Sentence Enhancement for Counts 15-18



                                            -7-
       Applying Tennessee Code Annotated section 39-17-1234(h)(2), the trial court
enhanced the Defendant’s sentences in Counts 15 through 18 from six years to ten years.
However, as the parties agree, this court concluded in Josh L. Bowman v. State, No.
E2016-01028-CCA-R3-PC, 2017 WL 1449232, at *7 (Tenn. Crim. App. Apr. 24, 2017),
perm. app. denied (Tenn. Aug. 16, 2017), that prior felony convictions used for
enhancement purposes must have been “dangerous” felonies before there may be
enhanced sentences pursuant to this statute. Accordingly, the State agrees that, because
the Defendant’s prior felony convictions were for simple drug possession and not
statutory dangerous felonies, enhancement was in error. We agree, and reverse and
dismiss Counts 15 through 18.

                                      II. Sentencing

       On appeal, the Defendant argues that the trial court abused its discretion by
ordering partial consecutive sentencing. The State disagrees, as do we, for reasons which
we will explain.

        Initially, we note that since we have reversed and dismissed the enhanced firearm
convictions in Counts 15 through 18, and reinstated the merged convictions in Counts 2,
4, 8, 10, and 12, the Defendant’s effective sentence is 52 years, rather than 60.

       A trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) applies, including that the defendant is an offender
whose record of criminal activity is extensive or 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 was high. Id. § 40-35-
115(b)(2), (4). When the court bases consecutive sentencing upon its classification of the
defendant as a dangerous offender, it must also find that an extended sentence is
necessary to protect the public against further criminal conduct by the defendant and that
the consecutive sentences reasonably relate to the severity of the offense committed.
State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995). We review the trial court’s consecutive sentencing determinations
for abuse of discretion, with a presumption of reasonableness afforded to the trial court's
decision. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013) (applying the same
deferential standard announced in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012)).

       The sentencing order sets out that the trial court found that the Defendant had
“accosted” the victim, Mr. Dixon, at the convenience store, held a gun to his head and
demanded his car keys. The Defendant’s weapon did not fire the first time he pulled the
trigger, and, as Mr. Dixon ran towards the store, the Defendant fired multiple shots
                                           -8-
towards him. Mr. Dixon was struck twice in his leg, resulting in a year’s recovery before
he could again walk, which, at the time of trial, he did with a pronounced limp. The
second victim, Carl Chesney, who was a customer in the store, was struck in the foot by a
bullet, resulting in serious bodily injury. Additionally, the court noted that the Defendant
had an extensive criminal history, which included five felony and four misdemeanor drug
convictions. Based upon all of this, the court determined that the enhancement factors
which applied were that the Defendant had a previous history of criminal convictions in
addition to those necessary to establish the appropriate range; that he was the leader in
the commission of an offense involving two or more criminal actors, and was the one in
the group who had demanded the car keys from the victim and fired the shots striking the
two victims; that the offenses involved more than one victim; that previously the
Defendant had failed to comply with the conditions of a sentence involving release into
the community, in that four previous times he had been placed on probation, he had been
found to have violated the conditions and the probations had been revoked; and that the
Defendant had no hesitation committing a crime when the risk to human life was high, in
that he had fired a semi-automatic pistol at a fleeing victim who was running into a gas
station, with a number of people in his line of gunfire, and with one bystander being
wounded and a number of others being potential victims.

       The court found that the Defendant was a professional criminal, given his multiple
convictions and “lack of any work history,” and had knowingly devoted his life to
criminal acts as a major source of his livelihood. Further, the court determined that the
Defendant was a dangerous offender whose behavior indicated that he had little or no
regard for human life, especially because he previously had pled guilty to a felony gun
offense and to four felony drug offenses, and knew as a convicted felon that he was not
allowed to possess firearms. The court also noted that on the day that the Defendant shot
Mr. Dixon and Mr. Chesney, the Defendant was out on bond while awaiting sentencing
on five felony convictions. Accordingly, the court imposed consecutive sentences, as we
have set out.

       The trial court’s thorough sentencing order shows that proper consideration was
given to the sentencing principles, the facts of the two shootings, and the Defendant’s
extensive criminal history. From all of this, we conclude that the record easily supports
the sentences.


                                     CONCLUSION

      Based upon the foregoing authorities and reasoning, we affirm the judgments for
Counts 1 through 14 and reverse the judgments for Counts 15 through 18, which are

                                           -9-
dismissed. We reinstate the merged judgments in Counts 2, 4, 8, 10, and 12. The case is
remanded for entry of amended judgments consistent with this opinion.



                                           ____________________________________
                                           ALAN E. GLENN, JUDGE




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