         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           JANUARY 1998 SESSION
                                                     FILED
                                                     January 26, 1998

STATE OF TENNESSEE,                  )
                                                  Cecil Crowson, Jr.
                                     )    NO. 02C01-9702-CC-00051
                                                    Appellate Co urt Clerk
      Appellee,                      )
                                     )    DECATUR COUNTY
VS.                                  )
                                     )    HON. C. CREED McGINLEY,
BRIAN CHRISTIAN                      )    JUDGE
LAUTENSCHLAGER,                      )
                                     )
      Appellant.                     )    (Attempted First Degree Murder
                                    )     and Aggravated Robbery)



FOR THE APPELLANT:                        FOR THE APPELLEE:

RICHARD H. WALKER                         JOHN KNOX WALKUP
19 Natchez Trace Drive                    Attorney General and Reporter
P. O. Box 530
Lexington, TN 38351-0530                  DEBORAH A. TULLIS
                                          Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          G. ROBERT RADFORD
                                          District Attorney General

                                          JERRY W. WALLACE
                                          Assistant District Attorney General
                                          P. O. Box 637
                                          Parsons, TN 38363-0637




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION


       Defendant, Brian Christian Lautenschlager, filed this direct appeal as a result of his

convictions by a Decatur County jury of the offenses of aggravated robbery and attempted

first degree murder. He was sentenced to thirty (30) years as a Career Offender for the Class

B offense of aggravated robbery and sixty (60) years as a Career Offender for the Class A

offense of attempted first degree murder with the sentences to run consecutively. He

presents the following issues for our review:

               (1) whether the evidence was sufficient to support the
               conviction of attempted first degree murder;

             (2) whether the trial court erred in refusing to compel the state to
       produce certain weapons;

               (3) related tothe trial court district attorney to excuse jurors
                    whether the assistant erred in failing general;

                (4) whether the trial court erred in not allowing the defendant to
       testify as to certain statements made by a co-defendant; and

               (5) whether the sentencesproper. by the trial court were
                                         imposed

After a careful review of the record, we affirm the judgment of the trial court.



                                           FACTS



       At approximately 10:00 p.m. on October 19, 1995, the defendant, along with Diane

Brown and Charlie Davis, entered the Sportsman Club in Decatur County. The victim,

Dennis White, was the operator of the establishment and was the only other person present

at that time. While Brown and Davis were playing pool, defendant stated he was going

outside to get a pool stick.

       Defendant re-entered the establishment armed with a sawed-off shotgun. Defendant

pointed the shotgun at White’s head from only a few feet away and demanded money. White

predictably complied by placing approximately $500 from the cash register onto the bar and

pleaded with the defendant, “There’s no need to kill me... I’ve got two (2) kids at home...

I don’t even know you.” The defendant replied, “Yeah, you know me. My name is Chris.”

The defendant then smiled at White and fired the shotgun at him. White dodged, causing the

primary shotgun pattern to miss him; however, part of the blast left a flesh wound on his left

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shoulder and “blowed [his hat] over the back of [his] head.” White then secured his own

pistol causing defendant to flee the building. While outside, White wounded Brown and

observed the defendant retrieve a pistol from an automobile. White fled. Defendant then

fired two (2) or three (3) shots, and White was hit in the right leg while he was running away.

White eventually made it to the safety of a neighbor’s home.

       The defendant, Brown, and Davis subsequently fled to Florida and then to California

where defendant’s grandmother resided. All three (3) were captured in California.

       White and Brown testified for the state and positively identified the defendant as the

person who fired both the shotgun and the pistol at White. Davis had fled the jurisdiction

and was unavailable at the time of trial. Defendant testified that Davis was the person who

confronted White and fired the weapons. The jury obviously rejected the testimony of the

defendant.



                         SUFFICIENCY OF THE EVIDENCE



       Defendant contends there was no evidence of premeditation; therefore, the evidence

was insufficient to support attempted first degree murder.

       In determiningthe sufficiencyof the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury

verdict approved by the trial judge accredits the state's witnesses and resolves all

conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the State is entitled to

the strongest legitimate view of the evidence and all legitimate or reasonable

inferences which may be drawn therefrom. Id. This court will not disturb a verdict

of guilt due to the sufficiency of the evidence unless the defendant demonstrates

that the facts contained in the record and the inferences which may be drawn

therefrom are insufficient, as a matter of law, for a rational trier of fact to find the

accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.

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Crim. App. 1996). Accordingly, it is the appellate court's duty to affirm the

conviction if the evidence, viewed under these standards, was sufficient for any

rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99

S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.

1994).

       At the time of the commission of this offense first degree murder was the

“premeditated and intentional killing of another.”            Tenn. Code Ann. § 39-13-

202(a)(1)(Supp.1995). “‘Premeditation’ is an act done after the exercise of reflection and

judgment,” and “the intent to kill must have been formed prior to the act itself.” Tenn. Code

Ann. § 39-13-202(d); State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). It was not necessary

to show that a killing was “deliberate” as the statute had recently been amended to delete this

element. 1995 Public Acts, Chapter 460, § 1. In order to be convicted of an attempted first

degree murder, one would have to act intentionally and with premeditation in an attempt to

murder another. Tenn. Code Ann. § 39-12-101(a). These necessary elements may be

established by circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).

       The evidence is certainly sufficient to support the intentional and premeditated

attempt to kill the victim. The defendant left the establishment and returned with a deadly

weapon. Upon the victim pleading for his life, the defendant smiled at the victim and fired

his shotgun at the victim from only a few feet away. Outside the defendant retrieved a pistol

from his car and shot at the fleeing victim two (2) or three (3) more times, striking him with

one of those shots. It was the jury’s prerogative to reject defendant’s version of the events.

Accordingly, the evidence is sufficient to support the jury’s verdict.

       This issue is without merit.



                         FAILURE TO PRODUCE WEAPONS



       Defendant complains of the trial court’s failure to order the state to produce the

weapons confiscated at the time of defendant’s arrest in California. Defendant believes these

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weapons would have provided exculpatory evidence showing that Davis committed the

crimes.

          Firstly, this issue is waived since the defendant has failed to make appropriate

references to the record. Tenn. Crim. App. Rule 10(b); State v. Turner, 919 S.W.2d 346, 358

(Tenn. Crim. App. 1995); State v. Hill, 875 S.W.2d 278, 283-84 (Tenn. Crim. App. 1993);

State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also Tenn. R. App.

P. 27(a)(7) and (g).

          Secondly, as noted by the trial court, there has been no showing that the production

of these weapons would provide exculpatory information.

          This issue is without merit.



                              FAILURE TO EXCUSE JURORS



          Defendant next contends the trial court erred in failing to excuse “several jurors” who

were related to the assistant district attorney general. Again, the defendant failed to cite to

appropriate references in the record. Accordingly, the issue is waived.

          Secondly, our cursory review of the voir dire reveals that two (2) potential jurors

were related to the prosecuting attorney. There was no request that these jurors be excused

for cause. The issue is, therefore, waived. Tenn. R. App. P. 36(a). Furthermore, these jurors

were excused by peremptory challenges, and the defendant did not exercise all of his

peremptory challenges. The failure to excuse a juror for cause is grounds for reversal only

if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon

him. Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988);

State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990).

          This issue is without merit.



                                  HEARSAY TESTIMONY



          Defendant contends the trial court erred in not allowing the defendant to testify as to

statements made by Davis. During his direct examination the defendant was asked who

                                                5
made the statement to White about going outside to get a pool stick. The defendant replied

that Davis was the person who said he was going to get a stick. The trial court sustained the

state’s hearsay objection.

       We agree with defendant’s contention that the testimony was not hearsay. The

statement was not introduced to prove the truth of the matter asserted. See Tenn. R. Evid.

801(c). The statement was introduced to show the identity of the person who made the

statement, not its truth or falsity. However, this was clearly harmless error. Tenn. R. Crim.

P. 52(a).



                                      SENTENCING



       Finally, defendant contends the trial court erred by classifying him as a Career

Offender and further erred by imposing excessive sentences. The trial court sentenced the

defendant as a Career Offender to sixty (60) years for attempted first degree murder and

thirty (30) years for aggravated robbery with the sentences to run consecutively.

       If a defendant is convicted of a Class A or Class B felony, he is a Career Offender if

he has at least three (3) prior Class A felony convictions or any combination of four (4) prior

Class A or Class B felony convictions. Tenn. Code Ann. § 40-35-108(a)(2). The defendant

had four (4) prior Class A convictions for assault with intent to commit first degree murder.

Therefore, he had the requisite number and class of prior convictions.

       Defendant argues that the four (4) prior Class A felonies should not be separately

considered since they were committed within a 24-hour period. Tenn. Code Ann. § 40-35-

108(b)(4) provides that multiple felonies committed as a part of a single course of conduct

within a 24-hour period are to be considered only one conviction for purposes of determining

prior convictions; however, the statute exempts offenses threatening bodily injury to the

victim. Defendant’s prior convictions for assault with intent to commit first degree murder

come within this exemption.

       Defendant was, therefore, properly classified as a Career Offender. As such, the trial

court only had one option as to the length of the sentences for these offenses. A Career

Offender sentenced for a Class A felony must receive a sentence of sixty (60) years. Tenn.


                                              6
Code Ann. § 35-40-108(c); Tenn. Code Ann. § 40-35-112(c)(1). A Career Offender

sentenced for a Class B felony must receive a sentence of thirty (30) years. Tenn. Code Ann.

§ 40-35-108(c); Tenn. Code Ann. § 40-35-112(c)(2). The classification and length of the

sentences were properly determined by the trial court.

        The trial court found that the sentences should run consecutively finding the

defendant to be 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.

Tenn. Code Ann. § 40-35-115(b)(4). The court further found that consecutive sentences

properly related to the severity of the offenses, and society needed to be protected from the

defendant. See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Since the record

clearly supports these findings, we conclude that the defendant was properly sentenced.



                                     CONCLUSION



        After a thorough review of the record, we AFFIRM the judgment of the trial court

in all respects.




                                              JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




PAUL G. SUMMERS, JUDGE




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