        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 8, 2014

                  STATE OF TENNESSEE v. CURTIS TAYLOR

                  Appeal from the Criminal Court for Shelby County
                        No. 1203591 Glenn Wright, Judge




                No. W2013-01820-CCA-R3-CD - Filed August 27, 2014



Appellant, Curtis Taylor, was indicted by the Shelby County Grand Jury in a multi-count
indictment for first degree murder (Count 1), attempted first degree murder (Count 2),
possession of a firearm after having been convicted of a felony (Count 3), and use of a
firearm during the commission of a dangerous felony (Count 4). After a jury trial, Appellant
was convicted of voluntary manslaughter in Count 1, and was convicted of the offenses as
charged in Counts 2 through 4. According to the judgment forms, Appellant was sentenced
to ten years in Count 1, fifteen years in Count 2, four years in Count 3, and ten years in Count
4, for a total effective sentence of thirty-five years. However, the transcript of the sentencing
hearing reflects a sentence of two years in Count 3, but the same total effective sentence.
After the denial of a motion for new trial, Appellant presents the following issues for our
review on appeal: (1) whether the evidence is sufficient to sustain the conviction for
voluntary manslaughter; and (2) whether the trial court properly sentenced Appellant. After
a review of the record and applicable authorities, we affirm the judgments and sentences.
However, because the judgment forms do not accurately reflect the sentence as imposed by
the trial court during the sentencing hearing, the matter is remanded for entry of corrected
judgments to reflect that Appellant was sentenced to two years in Count 3, possession of a
firearm after having been convicted of a felony, and that the sentences in Counts 1, 2, and
4 are to run consecutively to each other but concurrently to the sentence in Count 3, for a
total effective sentence of thirty-five years. Accordingly, the matter is affirmed and
remanded for further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed
                                  and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
C AMILLE R. M CM ULLEN, JJ., joined.
Juni Samrat Ganguli, Memphis, Tennessee for the appellant, Curtis Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Colin Campbell, Assistant District
Attorney General; and Charles Summers, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                          OPINION

                                     Factual Background

       On July 27, 2011, at the Parkway Food Market, otherwise known as the “Nite-N-Day”
by neighborhood residents, a group of people were standing outside talking. The group
included Radrako Newsom, Timothy Watson, Appellant, Dominic Cooper, “Red,” and
“Nook.” Appellant was also known as “Cblow.” The conversation between Mr. Cooper and
“Red” became heated when “Red” asked Mr. Cooper why he was going around town telling
people that he was going to kill “Red.” Mr. Cooper informed “Red” that if he wanted to kill
him, he would have done so already.

       At that point, a crowd started to gather around the men. A fistfight broke out during
which “Nook” punched Mr. Cooper. Mr. Watson heard someone shout, “he got a gun.”
Surveillance video showed Appellant holding a gun. Sallam Alothmani, an employee of the
market, heard seven or eight shots. Mr. Newsom was hit twice before he managed to run
away. Mr. Watson ran away from the scene. Mr. Newsom called out to Mr. Watson, telling
him that he was shot. Mr. Watson turned around, ran back to Mr. Newsom, and laid him
down in the street. Mr. Newsom died as a result of two gunshot wounds, one to the chest
and one to the right leg. The medical examiner opined that the chest wound itself would
have been fatal and, based on the bullet’s path, the only person in a position to fire the shot
and hit Mr. Newsom in the chest was Appellant.

       The Memphis Police Department received a tip after the shooting that Mr. Cooper was
involved in the incident. When he was located at a house on Lealand Street near the Parkway
Food Market, a search of the home resulted in the recovery of a box of .25 caliber
ammunition, the same caliber of ammunition that was found at the scene of the shooting. Mr.
Watson identified Appellant and Mr. Cooper as the people that were shooting. Additionally,
the surveillance video showed Appellant shooting a gun at the crowd.

       The bullets recovered from Mr. Newsom’s body were .22 caliber. There was
testimony to indicate that if the bullets were fired through a .22 caliber revolver, there would

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not be any shell casings at the scene. Additionally, a .22 caliber bullet could not have been
fired through a .25 caliber weapon.

       At the conclusion of the testimony, the jury convicted Appellant of voluntary
manslaughter of Mr. Newsom, attempted first degree murder,1 possession of a firearm after
having been convicted of a felony, and use of a firearm during the commission of a
dangerous felony. Appellant was sentenced to a total effective sentence of thirty-five years.
After the denial of a motion for new trial, Appellant appeals.

                                           Analysis

                                I. Sufficiency of the Evidence

       On appeal, Appellant argues that “a rational jury would have acquitted him of all
offenses” and that the proof showed that Appellant “shot to stop the beating of [Mr.] Cooper
by several gang members.” In other words, Appellant argues that the proof at trial supported
the defense of third person or self-defense. The State disagrees.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus,
although the accused is originally cloaked with a presumption of innocence, the jury verdict
of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant
question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord
the State “the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App.
1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may
not substitute our own “inferences for those drawn by the trier of fact from circumstantial

       1
         The indictment charged Appellant with attempted first degree murder of “a person whose
identity is to the Grand Jurors aforesaid unknown.” Appellant does not challenge the sufficiency
of the evidence for the conviction for attempted first degree murder on appeal.

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evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of
the witnesses and the weight and value to be given to evidence, as well as all factual issues
raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        “Voluntary manslaughter is the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” T.C.A. § 39-13-211(a). The existence of adequate provocation is a
question of fact for the jury to determine. State v. Johnson, 909 S.W.2d 461, 464 (Tenn.
Crim. App. 1995). Interestingly, on appeal, Appellant does not dispute that he killed the
victim. Instead, he claims that he did so in defense of Mr. Cooper. Appellant points to
Tennessee Code Annotated section 39-11-612, which provides:

       A person is justified in threatening or using force against another to protect a
       third person, if:

       (1) Under the circumstances as the person reasonably believes them to be, the
       person would be justified under § 39-11-611 in threatening or using force to
       protect against the use or attempted use of unlawful force reasonably believed
       to be threatening the third person sought to be protected; and

       (2) The person reasonably believes that the intervention is immediately
       necessary to protect the third person.

The jury is charged with determining whether defense of another is justified. See State v.
Marquette Houston, No. W2006-00095-CCA-R3-CD, 2007 WL 1890650, at *6 (Tenn. Crim.
App., at Jackson, June 29, 2007), perm. app. denied, (Tenn. Nov. 19, 2007).

        Viewing the evidence in a light most favorable to the State, the proof shows that
Appellant was standing outside the market when a fight broke out. Appellant had a gun and
shot into the crowd, even after the crowd started to disperse. As previously noted, the
credibility and weight given to a witnesses’ testimony are issues resolved by the jury as the
trier of fact. See Bland, 958 S.W.2d at 659. The jury, as was their prerogative, chose not to
credit Appellant’s theory of defense of others, and we will not second-guess the factual
determinations of the jury. Accordingly, Appellant is not entitled to relief on this issue.




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                                         II. Sentencing

       Appellant insists that he was improperly sentenced. Specifically, Appellant argues
that the trial court gave “impermissible weight to enhancement factors,” did not give any
weight to mitigating factors, and improperly imposed consecutive sentences. The State
argues that the trial court did not abuse its discretion in sentencing Appellant to an effective
sentence of thirty-five years.

        The trial court held a sentencing hearing. At that hearing, several friends and family
members of the victim testified about the strong negative impact the victim’s death had on
their lives. Appellant apologized to the family of the victim. The trial court recalled the facts
of the case, commenting that if Appellant did not have a gun at the scene, the victim would
still be alive. Additionally, the trial court noted that Appellant had an extensive criminal
record and performed actions that put a lot of people in danger. For Count 1, the trial court
found Appellant to be a Range II, multiple offender and sentenced him to ten years. In Count
2, the trial court determined Appellant was a Range I, standard offender, and sentenced him
to fifteen years. For Count 3, the trial court sentenced Appellant to two years. Finally, for
Count 4, the trial court sentenced Appellant to ten years. The trial court commented:

       The Court is of the opinion, based upon [Appellant’s] past record and based
       upon the fact that we had multiple people that were endangered and certainly
       the criminal attempt murder, first-degree, and the voluntary manslaughter
       being, of course, two separate individuals whose - - one whose life was
       terminated; the other whose life was certainly put in danger, the Court feels
       that those sentences should be served consecutive, one to the other.

       The Count 3 sentence will run concurrent with those and the Court 4, of
       course, mandatory sentence of 10 years, to run consecutive for a total sentence
       of 35 years.

              ....

       These - - again, the sentences in Count 1 and 2 will run consecutive with each
       other as will Count 4, and the sentence in Count 3 will run concurrent for a
       total effective sentence of 35 years.

        At the outset of our sentencing analysis, we note that the judgment forms are contrary
to the ruling from the trial court at the sentencing hearing. Specifically, the judgment forms
order Counts 1 and 2 to be served concurrently with Count 3 but consecutive to Counts 1, 2,
and 4; Count 3 to be served concurrently with Counts 1, 2, and 3 but consecutively to Count

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4; and Count 4 to be served consecutively to Counts 1, 2, and 3. The judgment forms state
that the total effective sentence is thirty-five years. At the sentencing hearing, as stated
above, the trial court ordered the sentence in Count 3 to be served “concurrent.”
Additionally, the trial court ordered Appellant to a two-year sentence on Count 3 and the
judgment form reflects a four-year sentence. Generally, when there is a conflict between the
judgments of conviction and the transcript of the proceedings, the transcript controls. State
v. Crowe, 168 S.W.3d 731, 735 n.1 (Tenn. 2005). As such, we must remand the case for entry
of correct judgments of conviction to reflect the proper sentences.

       Appellate review of sentencing decisions is now based on an abuse of discretion
standard. This Court must apply “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination 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 regarding sentences for similar offenses;
(7) any statements 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. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

       The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 706 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, a sentence should be upheld so long as it is within the appropriate range and
the record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.

       During the sentencing hearing, the trial court found that the following enhancement
factors applied to Appellant: (1) Appellant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range; (3) the
offense involved more than one victim; (9) Appellant employed a firearm during the
commission of the offense; (10) Appellant had no hesitation about committing a crime when

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the risk to human life was high; and (13) at the time the felony was committed, Appellant
was released on probation. T.C.A. § 40-35-114(1), (3), (9),(10), and (13). Appellant
concedes that the enhancement factors applied but argues that the trial court should have used
mitigating factors to lower his sentence.

       We disagree. The trial court did not abuse its discretion by sentencing Appellant to
sentences that are within the appropriate range. Additionally, the record demonstrates that
the sentences are otherwise in compliance with the purposes and principles listed by statute.
Appellant is not entitled to relief on this issue.

                                III. Consecutive Sentencing

        Appellant also challenges the trial court’s decision to order consecutive sentencing.
 Specifically, Appellant argues that the trial court failed to consider all the sentencing
guidelines before ordering consecutive sentencing. When a defendant is convicted of more
than one criminal offense, there is a presumption in favor of concurrent sentencing. See
T.C.A. § 40-35-115(d). However, the court may order the sentences to run consecutively if
it finds by a preponderance of the evidence that one or more of the seven factors listed in
Tennessee Code Annotated section 40-35-115(b) exists. Those factors are as follows:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;
       (2) The defendant is an offender whose record of criminal activity is extensive;
       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;
       (4) 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;
       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims;
       (6) The defendant is sentenced for an offense committed while on probation;
       or
       (7) The defendant is sentenced for criminal contempt.

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T.C.A. § 40-35-115(b). Before a trial court can impose consecutive sentences based upon
the dangerous offender classification, the trial court must conclude that the evidence has
established that the aggregate sentence is reasonably related to the severity of the offenses
and necessary to protect the public from further criminal acts by the defendant. State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

        After a review of the record, it appears that the trial court based its determination on
two of the statutory factors: “[t]he defendant is an offender whose record of criminal activity
is extensive” T.C.A. § 40-35-115(b)(2), and “[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).

       After a period of uncertainty, our Supreme Court recently ruled that the same standard
of review that applies to a trial court’s decisions about the length of sentences under Bise,
also applies to its decisions regarding concurrent or consecutive sentences: “We hold that,
when a trial court places findings on the record to support its sentencing decision, the
applicable standard of appellate review for a challenge to the imposition of consecutive
sentences is abuse of discretion with a presumption of reasonableness.” State v. Pollard, ___
S.W.3d ___, 2013 WL 6732667 at *7 (Tenn. 2013).

        We note that the trial court failed to properly place application of the Wilkerson
factors in the record on appeal. However, the record in this case included proof of two other
statutory factors, either of which could have been used by itself to justify consecutive
sentencing. Appellant had an extensive criminal history; he does not deny this fact.
Additionally, even though the trial court did not appear to base its decision to order
consecutive sentencing on Appellant’s probationary status, Appellant does not deny that he
was on probation on the day that the incident occurred. This could have provided additional
justification for consecutive sentencing. We therefore determine that the trial court did not
abuse its discretion. Appellant is not entitled to relief.

                                       CONCLUSION

       For the foregoing reasons, the judgments of the trial court are affirmed. However, the
matter is remanded to the trial court for entry of corrected judgment forms to reflect the
sentences as imposed during the sentencing hearing. Specifically, on remand, the trial court
should enter corrected judgments to reflect that Appellant was sentenced to two years for the
conviction in Count 3 for possession of a firearm after having been convicted of a felony and
that the sentences in Counts 1, 2, and 4 are to run consecutively to each other but
concurrently to the sentence in Count 3, for a total effective sentence of thirty-five years.
Accordingly, the matter is affirmed and remanded for further proceedings consistent with this

                                              -8-
opinion.




                 _________________________
                 JERRY L. SMITH, JUDGE




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