        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs July 28, 2009

             STATE OF TENNESSEE v. XAVIER TYRONE NOLAN

                      Appeal from the Criminal Court for Knox County
                       No. 88669 Richard R. Baumgartner, Judge



                  No. E2008-02762-CCA-R3-CD - Filed December 28, 2009


The Defendant, Xavier Tyrone Nolan, was convicted by a Knox County Criminal Court jury of
attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. The
trial court merged the attempted voluntary manslaughter conviction into the aggravated assault
conviction and sentenced the Defendant to a Range I sentence of five years in the Department of
Correction. On appeal, he argues that the trial court improperly enhanced his sentence. We affirm
the judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
D. KELLY THOMAS, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Adam Elrod, Knoxville, Tennessee (at trial),
for the appellant, Xavier Tyrone Nolan.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Ta Kisha Monette Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                             FACTS

       The case arises out of the July 14, 2007, shooting of the victim, Leslie Renard Benson, also
known as Scott LaRoc, at the Walter P. Taylor housing development in Knoxville, Tennessee, for
which the Defendant was indicted on one count of attempted first degree murder, two counts of
attempted especially aggravated robbery, and two counts of aggravated assault.
                                                Trial

        Knoxville Police Officer Mark Eslinger testified that he responded to a shooting call at a
store on July 14, 2007. Officer Eslinger testified that when he arrived at the scene, he observed the
victim, who had been shot, leaning against the counter inside the store. Officer Eslinger stated that
he spoke with the victim, who was conscious but not able to communicate very well, and ensured
that backup and emergency personnel were en route. Officer Eslinger testified that he searched the
area for shell casings but did not find any. Officer Eslinger identified a photograph of the crime
scene showing the victim’s motorcycle parked outside the doorway of the store. Officer Eslinger
acknowledged that no mention of a robbery was in his first responder report and that the victim’s
area of injury was noted only as “the right side.”

        Lena Maynard, a nurse at the University of Tennessee Hospital, testified that she was the
primary nurse who cared for the victim from the time he arrived at the hospital until he went into
surgery. Maynard testified that her report noted that the victim had suffered a gunshot wound to the
back. Looking at a photograph of the victim’s injury, Maynard described the gunshot wound as
being “in the flank area,” but she acknowledged that other hospital personnel could have termed the
location differently. She said that when the victim arrived, he was “oriented to person, place, and
time, and he was interactive.”

       Danielle Davis testified that she was at the store with her fiancé, Emanuel Moore, on July
14, 2007. Davis stated that Moore left to run an errand, while she stayed at the store with the clerk.
Davis said that when she started to go outside to clear away loiterers in response to a customer
complaint, she heard a gunshot. She stated that she ran to the back of the store, at which point she
questioned whether the sound had been a gunshot or a firecracker. She said that when she went
toward the front of the store, the victim walked inside slumped over, saying he had been shot and
holding his stomach. (II: 69-71)

        Ms. Davis testified that Moore walked into the store behind the victim and locked the door.
She recalled that the victim dialed 9-1-1 and handed the phone to Moore, who reported the incident.
Davis said she knew the Defendant and Victor Harrison and did not recall seeing them outside the
store. She said she knew the shooting occurred outside the store.

        Emanuel Moore testified that he was an employee of the Walter P. Taylor Market & Deli on
July 14, 2007. He said he was getting out of his car “[a] couple of feet” from the front of the store
when he heard a gunshot or a firecracker and saw the victim run “slumped over” into the store.
Moore stated that twenty or thirty people were standing around outside and everyone scattered at the
sound of gunfire. Moore said that he followed the victim into the store and locked the door. Moore
recalled that the victim told him that he had been shot and called 9-1-1 but that Moore spoke with
the dispatcher. Moore acknowledged he told the 9-1-1 dispatcher that the victim had been shot in
the stomach, and the victim did not correct him.




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        The forty-three-year-old victim testified that he lived in the Defendant’s mother’s house
when he first moved to Knoxville in 1998. He said he had never had any problems with the
Defendant. The victim recalled that on July 14, 2007, he attended hair design school from 9:00 a.m.
to 5:30 p.m. and then had dinner at Applebee’s in East Towne Mall with some of his fellow students.
He said that afterward, he rode his motorcycle to the Walter P. Taylor Market & Deli to purchase
a Black & Mild cigar.

        The victim testified that a crowd of thirty to fifty people was standing around outside the
store and that he parked his motorcycle on the sidewalk. He said he went inside the store and bought
a cigar. He said that when outside the store, the Defendant approached him and said, “Scott, can I
holler at you for a minute?” The victim said that he was not concerned at this point because he and
the Defendant always spoke whenever they saw one another and that the victim was dating the
Defendant’s aunt, Lajuan Nolan. The victim recalled the Defendant said he had heard that the victim
had told people the Defendant and his cousins had committed a robbery. The victim said that he
denied having told anyone that.

        The victim testified that the Defendant told him that he did not need to talk about the
Defendant and that the victim told the Defendant that he had no reason to talk about the Defendant.
The victim said that the next thing he knew, the Defendant pulled out a gun and pointed it at him.
The victim recalled that he asked the Defendant why he had a gun and that the Defendant said,
“[Y]ou ready to set that out?” The victim said this meant “[g]ive [me] your money.” The victim
stated that with his palms facing forward for the Defendant to see, he told the Defendant that he
would not give him money and that the Defendant would have to shoot him. The victim testified
that he had $2,189 in his pocket for his school tuition and that he was not going to give it to anyone
even if he had to die.

        The victim testified that because he did not believe the Defendant would shoot him, he turned
around and walked off. However, the victim observed that the crowd of people outside “looked
cruel” and were “dressed in red all the time,” so he thought it would be safer to return to the store
rather than drive away on his motorcycle and be a “moving target.” The victim testified that as he
reached for the store door, he heard one of the Defendant’s friends say that the Defendant should
shoot the victim. He said that the next thing he knew, he had been shot and “was grabbing [his]
stomach because, evidently, the . . . bullet landed in [his] stomach, and it was burning.”

         The victim testified that he made it inside the store, someone locked the door, and he called
9-1-1 on his cell phone. He said that because he started “gurgling,” he handed the phone to Moore.
The victim recalled that EMS arrived and that he was taken to the hospital where he underwent
surgery. He stated that his injuries were caused by a gunshot wound to the back and will affect him
for life. The victim stated that he had seen the Defendant in the community since the incident and
that the Defendant had “throw[n] little gestures,” indicating that he still had a problem with the
victim.




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        The victim acknowledged that he had prior convictions for theft and evading arrest. He said
that he had been on Community Alternatives to Prison Program (CAPP) since 2003 but had been
released to state probation. He said that in 2005, he pled guilty to possession with intent to sell,
which stemmed from a charge in the late 1990s. The victim denied carrying a gun the day of the
incident but admitted possessing a gun in the past.

         Beth Goodman, a forensic evidence technician with the Knoxville Police Department,
testified that she responded to the scene. She stated that she photographed the scene, collected
evidence, and went to the hospital to photograph the victim.

         Daniel Crenshaw, a forensic evidence technician with the Knoxville Police Department,
testified that he responded to the University of Tennessee Hospital on the night of the incident to
retrieve the bullet that was extracted from the victim’s body. Crenshaw said that the bullet was small
and appeared to be .22 or .25 caliber.

        Knoxville Police Officer Andrew Gyorfi testified that on August 6, 2007, he responded to
Fort Sanders Regional Medical Center where the Defendant was being treated for a gunshot wound
to his hand. Officer Gyorfi said that when he began his investigation into the Defendant’s injury,
he discovered that the Defendant had several outstanding juvenile petitions for his arrest and took
him into custody. The State rested.

        The defense called Victor Harris, also known as “Lil Vic,” who testified that he was at the
Walter P. Taylor housing development with the Defendant and one of the Defendant’s friends, Justin
Jackson, also known as “Little Bonter,” on July 14, 2007. Harris said that he had been good friends
with the Defendant for many years but did not regularly socialize with Jackson. Harris stated that
on the night in question, he saw the Defendant and the victim having a quiet conversation outside
the store, but then the victim started arguing and acting like he wanted to fight the Defendant. Harris
said that he tried to get the Defendant to accompany him into the store but that the Defendant
remained outside. Harris recalled that after he entered the store, he thought that he heard fireworks
but that everyone said it was a gunshot. Harris said he saw the victim bleeding and holding his
stomach as he tried to enter the store.

        Harris testified that the victim did not go into the store before the incident. Harris denied
being in a gang called the Rollin 20s or the Bloods. Harris also denied that the background color on
his MySpace page was red or that it showed an individual wearing a red rag over his face.

         Lajuan Nolan, the Defendant’s aunt, testified that she and the victim had been engaged for
two years but were no longer dating. She said that the victim had a reputation of being “short-
tempered and [a] bully.” She stated that he was also known to be a gun-carrying drug dealer. Nolan
testified that when she left the courthouse the previous day, the victim approached her, called her “a
black bitch,” and threatened her. She said that she had an escort take her to her car. She stated that
the morning of the day she testified, her car tire was flat which delayed her in getting to court. With



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regard to the Defendant, Nolan admitted that he was known to “hang around with the thug boys” in
the community and had a reputation for carrying a gun.

        The Defendant testified that he was sixteen years old at the time of the incident. He said that
he knew the victim well through his family and was on a friendly basis with him even though they
did not spend much time together. The Defendant stated that he previously had seen the victim with
a gun and that the victim was “a known gun carrier.”

        The Defendant testified that on the day of the incident, he was visiting his grandmother in
the housing development and then met his friends, Harris and Jackson. He said that he and his
friends were hanging out in the parking lot behind the store when a “chronic,” or drug user, asked
if he wanted to purchase a gun. The Defendant stated that he purchased the gun for $10, thinking
he could later sell it for a profit. He said that the gun was loaded with six bullets but that he was
unable to sell it because it was small.

        The Defendant testified that later that day, he saw the victim riding his motorcycle toward
the store and went to talk to him about a rumor he had heard the victim was spreading. The
Defendant recalled that he said, “Scott, can I holler at you?” and that the victim asked him to wait
while he went inside the store. The Defendant testified that when the victim came outside, the
victim asked him, “What’s up?” The Defendant said that he asked the victim about a rumor the
victim was spreading that the Defendant had robbed someone of money and drugs.

        The Defendant testified that the victim started to insult the Defendant and his family and then
came toward him. The Defendant said that the victim put his hand under his shirt, and he thought
the victim was reaching for a gun, so he pulled out his gun, turned his head, and shot the victim once.
The Defendant said that the victim was facing him when he pulled out his gun. The Defendant stated
that the victim held his stomach and walked back into the store. He said that he was so shocked that
he took off running and was “on the run” for twenty-two days. The Defendant stated that he was
arrested when he went to the hospital for treatment after accidentally shooting his finger while
“messing with” a friend’s gold gun.

        The Defendant denied that he was a member of the Bloods or Rollin 20s gang. The
Defendant stated that members of the Bloods wore red, and members of the Crips, a rival gang, wore
blue. The Defendant recognized the words to a specific gang song. The Defendant admitted that
he put the words to that gang song on one of his MySpace pages but said he did so because he liked
that part of the song, not because he was a gang member. The Defendant denied that the background
was red on his MySpace page but admitted that it had a “B” on it. When shown his page, the
Defendant acknowledged that the background was red and black and a crown over the “B.” The
Defendant admitted that his page was last logged into eleven days before the incident.

        The Defendant initially acknowledged that he may have opened a new MySpace page in
January 2008 but then denied that he created it. He said that his nickname is “Lil Zay” and admitted
that the page identified “Lil Zay” as a Rollin 20. He also admitted that the page contained a


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photograph of him wearing red shoes and red pants with a red flag hanging out of his back pocket
and standing on top of a blue flag.

         The victim testified in rebuttal that he did not threaten the Defendant or put his hand under
his shirt as if he had a gun. He said that the Defendant shot him in the back as he was getting ready
to step into the store. He stated that he did not sell drugs in order to get the $2,100 he had with him
that night, nor was he carrying a gun at that time. He denied that he had ever carried a gun and said
he had not sold drugs since 1998. He said he did not see Victor Harris the day of the incident.

       Patricia Resig, a firearms examiner with the Knoxville Police Department, testified about the
expected gunshot residue burns and stippling at various distances. She stated that she was not
involved in this case.

         Officer Bernhard Braeuner with the Knoxville Police Department testified that he had been
assigned to the gang task force until recently. He explained that the Bloods is a street gang that
started in Los Angeles, California but that there are spontaneous groups, without a hierarchy, across
the county fashioning themselves after the Los Angeles Bloods. He further explained that the Rollin
20s originated from Los Angeles Bloods symbolism where the gang would take over multiple street
blocks. Thus, the Rollin 20s would “roll” from 20th Street to 29th Street. He said that the Bloods
generally used the color red, and the Crips, a rival gang, generally used the color blue. He also
explained that the Bloods, who fall under the “people nation” of street gangs, used a five-point crown
in its symbolism and that the Crips, part of the “folk nation,” used a six-point crown. After viewing
the MySpace page created in January 2008, Officer Braeuner stated that the page, in its entirety,
included Bloods symbolism.

        The jury found the Defendant guilty of the lesser-included offense of attempted voluntary
manslaughter in count one, not guilty of attempted especially aggravated robbery in counts two and
three, and guilty of aggravated assault in count five.1

                                               Sentencing Hearing

         Officer Braeuner testified that since the trial, he had reviewed the Defendant’s file, which
included correspondence to and from the Defendant while in custody. Officer Braeuner said that the
Defendant had written letters, containing Bloods terminology and symbolism, to a number of
confirmed gang members and had also received correspondence containing similar signs and
terminology. Officer Braeuner concluded that the Defendant’s correspondence indicated that he
affiliated himself with the Bloods. Officer Braeuner acknowledged that aside from the Defendant’s
correspondence and MySpace accounts, he had no personal knowledge of any criminal investigations
involving the Defendant that were related to gang activity. The trial court merged the attempted
voluntary manslaughter conviction into the aggravated assault conviction and sentenced the
Defendant to five years as a Range I offender in the Department of Correction.


       1
           The record reflects that aggravated assault charged in count four was dismissed before trial.

                                                          -6-
                                            ANALYSIS

         On appeal, the Defendant challenges the trial court’s enhancement of his sentence from three
to five years. 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) (2006). 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).
As the Sentencing Commission Comments to Tennessee Code Annotated section 40-35-401(d) note,
the burden on appeal is on the defendant to show that the sentence is improper.

        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
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.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e) (2006).

        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 statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in Tennessee, (7)
any statement that the defendant made on his or her own behalf, and (8) the potential for
rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168;
State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

       In imposing a specific sentence within the appropriate range of punishment for the defendant:

               [T]he court shall consider, but is not bound by, the following advisory
               sentencing guidelines:

                       (1) The minimum sentence within the range of punishment is
               the sentence that should be imposed, because the general assembly set
               the minimum length of sentence for each felony class to reflect the


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                relative seriousness of each criminal offense in the felony
                classifications; and

                      (2) The sentence length within the range should be adjusted,
                as appropriate, by the presence or absence of mitigating and
                enhancement factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c). The weighing of the various mitigating and enhancement factors is “left to
the trial court’s sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

         The sentencing range for aggravated assault, a Class C felony, is not less than three nor more
than six years. T.C.A. § 40-35-112(a)(3) (2006). In sentencing the Defendant, the trial court first
stated that it was not going to enhance the Defendant’s sentence based on his juvenile record,
although it noted that the Defendant had an extensive juvenile record. The court found that the
Defendant exhibited additional criminal behavior in addition to that necessary to establish his range.
Specifically, the Defendant’s conduct since he had been in custody indicated that he was affiliated
with a gang and planned to continue that lifestyle. See T.C.A. § 40-35-114(1). The court also noted
that the Defendant used a deadly weapon, which was not the basis for conviction, and that the victim
suffered extensive serious bodily injury more than necessary to establish the offense. See T.C.A. §
40-35-114(6), (9). The court arrived at a sentence of five years.

        We conclude that our review is de novo without a presumption of correctness because the
trial court incorrectly applied enhancement factor (1), finding that the Defendant had a “previous
history of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.” The trial court noted the Defendant had a record of juvenile adjudications but
stated it would not consider those adjudications for enhancement of the sentence. The court later
stated that it would consider the Defendant’s affiliation with a street gang, which “indicates his intent
to continue that affiliation and continue that lifestyle.” Although there was proof at trial and the
sentencing hearing concerning the defendant’s correspondence while in jail and his MySpace page
reflected that the defendant affiliated himself with the Bloods street gang, and the trial court also
observed the defendant flashing gang signs as he was leaving the courtroom following one of his
earlier bond hearings, there is no proof of the Defendant’s being involved in any criminal activity
by virtue of his association with a street gang. Although the presentence report reflects that the
defendant admitted to smoking marijuana weekly since the age of fourteen, the Defendant was a
juvenile during the time period he acknowledged marijuana use. This court has said that offenses
committed as a juvenile may be considered only under then-factor (20), now (16), which permits
enhancement for offenses committed by a juvenile that would be felonies if committed by an adult.
See State v. Adams, 45 S.W.3d 46, 58 (Tenn. Crim. App. 2000). The State offered no proof that the
Defendant’s drug use was felonious, and we cannot consider this evidence to enhance the
Defendant’s sentence.

       In addition, the trial court erred in enhancing the Defendant’s aggravated assault sentence
based on the seriousness of the injuries inflicted on the victim. See T.C.A. § 40-35-114(6). Our


                                                  -8-
supreme court has concluded that “proof of serious bodily injury will always constitute proof of
particularly great injury.” State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). Thus, our courts have
held that application of the “particularly great injury” enhancement factor is not appropriate in cases
where serious bodily injury was an element of the offense. See, e.g., Jones, 883 S.W.2d at 602
(aggravated assault); State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995) (especially
aggravated robbery); State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995) (vehicular
assault). Therefore, because “serious bodily injury” was an element of aggravated assault as charged
in the present case, the trial court erred in applying the “particularly great” injury enhancement factor
to the sentence.

Factor (8)

       Upon de novo review, we note that the presentence report reflects that the Defendant violated
probation in juvenile court on at least five occasions. As noted by our supreme court in State v.
Jackson, 60 S.W.3d 738 (Tenn. 2001):

                [W]e hold today that section 40-35-114[(16)] is not the exclusive
                means for using juvenile court records to enhance sentences in
                subsequent adult criminal proceedings. Because probation violations
                are not “delinquent acts” as that term is defined by our legislature,
                factor [(16)] does not prevent these violations from being considered
                under other enhancement factors. . . . Moreover, because measures
                less restrictive than confinement have failed, the application of
                [section 40-35-114(8)] is also proper.

Id. at 743-44 (footnote omitted). Therefore, the Defendant’s sentence is enhanced based on his prior
violations of probation in juvenile court. See T.C.A. § 40-35-114(8).

Factor (9)

        The Defendant’s sentence was also subject to enhancement based on his use of a deadly
weapon during the commission of the offenses. See T.C.A. § 40-35-114(9). Under our Sentencing
Act, enhancement factors to be applied are those that are “appropriate for the offense” and which are
“not themselves elements of the offense as charged in the indictment.” T.C.A. § 40-35-114. Thus,
“[f]acts which establish the elements of the offense charged may not also be the basis of an
enhancement factor increasing punishment.” Jones, 883 S.W.2d at 601. Here, the charge of
aggravated assault presented to the jury was aggravated assault by virtue of causing serious bodily
injury. Therefore, the Defendant’s sentences are subject to enhancement for his use of a deadly
weapon. See State v. Carter, 986 S.W.2d 596, 598 (Tenn. Crim. App. 1998).

       Upon de novo consideration of the applicable factors, we hold that the trial court did not err
in imposing a five-year sentence for the Defendant’s conviction. That the Defendant used a deadly



                                                  -9-
weapon and had previously and repeatedly violated terms of probation weigh heavily in favor of
enhancement to five years.

                                         CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.


                                                      ____________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




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