             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1996 SESSION
                                                            July 23, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )
                    APPELLEE,      )
                                   )    No. 01-C-01-9601-CC-00005
                                   )
                                   )    Lawrence County
v.                                 )
                                   )    William B. Cain, Judge
                                   )
                                   )    (Attempted Voluntary Manslaughter)
ROLAND JOHN WELCH,                 )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Daniel J. Runde                         John Knox Walkup
Assistant Public Defender               Attorney General & Reporter
128 North Second Street                 500 Charlotte Avenue
Pulaski, TN 38478                       Nashville, TN 37243-0497

OF COUNSEL:                             M. Allison Thompson
                                        Assistant District Attorney
Shara Ann Flacy                         450 James Robertson Parkway
District Public Defender                Nashville, TN 37243-0493
128 North Second Street
Pulaski, TN 38478                       T. Michael Bottoms
                                        District Attorney General
                                        P.O. Box 459
                                        Lawrenceburg, TN 38464

                                        James G. White, II
                                        Assistant District Attorney General
                                        P.O. Box 459
                                        Lawrenceburg, TN 38464




OPINION FILED:_________________________________________

AFFIRMED

Joe B. Jones, Presiding Judge

                                OPINION
       The appellant, Roland John Welch (defendant), was convicted of attempted

voluntary manslaughter, a Class D felony, by a jury of his peers. The trial court, finding

that the defendant was a multiple offender, imposed a Range II sentence consisting of

confinement for eight (8) years in the Department of Correction. In this Court, the

defendant contends the admission of certain hearsay statements constituted reversible

error, and the trial court misapplied certain mitigating factors and aggravating

circumstances. After a thorough review of the record, the briefs submitted by the parties,

and the law governing the issues, it is the opinion of this Court the judgment of the trial

court should be affirmed.

       On the evening of March 26, 1993, Ronnie Escue and the defendant were at the

Ponderosa, a bar. They were pushing each other near the pool tables. Later, Escue

approached an acquaintance, Anita Patterson. He subsequently removed Patterson's

clothes from a motor vehicle. Patterson called Kelly Furlong to come get her.

       Furlong went to the Ponderosa. Escue wanted to talk to her. However, she did not

want to talk to him. Escue would not permit Furlong to leave. Ray F. Barnett, Furlong’s

then-boyfriend, was driving by the Ponderosa and saw the scuffle between Furlong and

Escue and pulled into the Ponderosa parking lot. Escue spoke roughly to Barnett. He

attempted to follow Barnett as he exited the Ponderosa. A patron who knew the parties

grabbed Escue and held him until Barnett, Furlong, and Patterson left.

       Escue called Barnett and threatened to harm him. The defendant and Escue left

the Ponderosa and went to the home of Escue’s parents. Escue went inside the home,

obtained a .22 pistol and a shotgun, and the defendant drove to an area near Barnett’s

trailer. Escue went inside the trailer. He was armed with the .22 pistol. The defendant

was armed with the shotgun. He went to the rear of the trailer.

       Barnett attempted to avoid an armed confrontation. He attempted to leave the

trailer through the rear door. When he opened the door, the defendant placed the shotgun

against his body and said, “Are you going somewhere?” Barnett went to the front porch

armed. When Escue pointed a pistol at him, he shot Escue three times. The defendant

returned to the front of the trailer and told Barnett, “You forgot about me, buddy.” He then

                                             2
shot Barnett with the shotgun. The defendant then fled into a grove of trees.



                                             I.



      The defendant contends the trial court committed error of prejudicial dimensions by

admitting three statements made by Escue as substantive evidence of his guilt. The

defendant contends these statements were rank hearsay, and the statements should not

have been introduced as evidence. The state contends the three statements were

admissible as the statements of a co-conspirator, which are admissible as an exception

to the hearsay rule.

      The defendant filed a motion in limine seeking to exclude the statement of Escue

to Alvin Dudley, an employee of a food mart/gas station. The motion alleged the evidence

was hearsay as well as irrelevant. He requested the trial court exclude the evidence, or,

in the alternative, give a limiting instruction regarding the reason the evidence was

admissible. The defendant filed a second motion in limine seeking to exclude the

statements of Escue to Kelly Furlong regarding the threats he made against Barnett. He

argues the statements made by Escue constituted hearsay, were irrelevant, and the

prejudicial effect of the statements far outweighed the probative value of the statements.

       The allegedly objectionable testimony of Alvin Dudley was as follows:


              Q. (By Mr. Bottoms): Okay. When he [Ronnie Escue] got
              into the car, did he say anything?

              A. (Alvin Dudley): He raised a -- what looked to be a .22
              automatic pistol, and he said, I’m going to take care of it now.
              I’m going to kill the S.O.B., and they pulled out.

              Q.   Okay. And he was sitting in the passenger side?

              A.   Yes, sir.

              Mr. RUNDE: Let me object for the record on that, Your Honor,
              for the reasons stated.

              THE COURT: Overruled.


     The allegedly objectionable testimony of Kelly Furlong was as follows:

              Q. (By Mr. Bottoms): Well, how was he waiving it [the pistol]
              around?

                                             3
             A. (By Kelly Furlong): Well, he put it to my head several
             times.

             Q.   What did he [Escue] say then?

             MR. RUNDE: Same objection, Your Honor.

             THE COURT: Overruled.

             A. He [Escue] said a lot of things. He said that he could kill
             all three of us, if he wanted to. He just went on and on. I don’t
             remember exactly what he said.


     The defendant also objected to a telephone call Escue made to Barnett. The

following testimony was objected to by the defendant during Barnett’s testimony:


             Q. (By General Bottoms): Okay. And when you got home to
             the trailer, did you receive any phone call?

             A.   (By Ray Barnett): Yes, sir, I did.

             Q.   Who called?

             A.   Ronnie Escue.

             Q.   All right. And what was the substance of that call?

             A. I don’t remember the exact wording, but he said he was
             coming out there to get me.

             MR. RUNDE: Objection, Your Honor. Same basis as before.

             THE COURT: Overruled.


     The defendant correctly argues the statements made by Escue are hearsay. Tenn.

R. Evid. 801. Therefore, the aforementioned testimony is inadmissible as evidence unless

it is admissible pursuant to an exception to the hearsay rule. Tenn. R. Evid. 802.

     A statement made by a co-conspirator is admissible as an exception to the hearsay

rule. Tenn. R. Evid. 803(1.2)(E). This rule provides “a statement by a co-conspirator of

a party during the course of and in the furtherance of the conspiracy” may be offered

against that party. Thus, before such statements are admissible as evidence, (1) there

must be a conspiracy, (2) the declarant must be a co-conspirator of the defendant, (3) the

statement must be made during the course of the conspiracy, (4) the statement must be

made in furtherance of the conspiracy, and (5) there must be independent evidence that

the conspiracy existed. Tenn. R. Evid. 803(1.2)(E); State v. Hutchinson, 898 S.W.2d 161,



                                            4
170 (Tenn. 1994), cert. denied, ____ U.S. ____, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995);

State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992), per. app. denied (Tenn.

1993); State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App.), per. app. denied

(Tenn. 1989).

     This Court has defined the term “conspiracy” as “a combination between two or more

persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means.”

Gaylor, 862 S.W.2d at 553. When attempting to prove the existence of a conspiracy, the

state is not required to


              show a formal agreement between the parties to do the
              unlawful act; a mutual understanding is sufficient, although not
              manifested by any formal words, or a written agreement. The
              unlawful confederation may be established by circumstantial
              evidence and the conduct of the parties in the execution of the
              criminal enterprise.


Gaylor, 862 S.W.2d at 553.

     In this case, there is independent and circumstantial evidence to establish that a

conspiracy existed between Escue and the defendant.            The two men were close,

personable friends. They had been together several hours before the incident in question.

They went to the Ponderosa together in the defendant’s motor vehicle. The defendant was

present at the Ponderosa when Escue made the telephone call to Barnett. They then left

in the defendant’s motor vehicle en route to the home of Escue’s parents. Escue went into

the home, retrieved his brother’s .22 pistol and a shotgun. Escue told his mother he was

“taking care of business.” These weapons remained in the front seat of defendant’s

vehicle. They went and obtained gas. Thereafter, the defendant drove to an area

approximately one-half mile from Barnett’s trailer. Escue armed himself with the .22 pistol

and the defendant armed himself with the shotgun. They walked to the trailer.

     Escue went to the front of the trailer, entered the trailer through the front door, and

Furlong took him by the arm and they exited the trailer through the front door. The

defendant went to the back door of the trailer. When Barnett attempted to exit through the

rear door to avoid an armed conflict with Escue, the defendant placed the shotgun in his

stomach and said, “Are you going somewhere?” Barnett closed the door and exited

through the front door. When Escue pointed a pistol at Barnett, he shot Escue three times.

                                             5
Shortly thereafter, the defendant gravitated to the front of the trailer. He told Barnett, “you

forgot about me, buddy.” Thereafter, the defendant shot Barnett with the shotgun. He

then ran into a wooded area where he hid from the police.

     All three statements occurred during the course of the conspiracy. The next question

is whether the statements were made in furtherance of the conspiracy.

     The telephone call made by Escue to Barnett was clearly in furtherance of the

conspiracy. He in essence told Barnett he would be murdered. The statements made by

Escue at the scene of the crime prior to being killed by the victim were also made in

furtherance of the conspiracy. The statement made to Dudley was not made in furtherance

of the conspiracy. It constituted a gratuitous statement of Escue’s intent as he rode off into

the night, pistol in hand. Hutchinson, 898 S.W.2d at 170.

     The statement made to Dudley was nevertheless admissible based upon another

exception to the hearsay rule. It can be reasonably inferred the defendant, as the driver

of the motor vehicle, heard the statements made by Escue to Dudley regarding what he,

Escue, was going to do after leaving the food mart/gas station. Once hearing this

statement, the defendant remained silent and drove his motor vehicle to an area near the

victim’s trailer.   Thus, Escue’s statements to Dudley could be admitted against the

defendant as an adoptive admission.          Tenn. R. Evid.      803(1.2)(B); N. Cohen, S.

Sheppeard, and D. Paine, Tennessee Law of Evidence § 803(1.2).3 (3rd Edition 1995).

     This issue is without merit.



                                              II.



     The defendant challenges the length and the nature of the service of the sentence.

He argues the sentence is excessive, and the trial court should have imposed an

alternative sentence to incarceration.

                                              A.



     When an accused challenges the length and manner of service of a sentence, it is the

duty of this Court to conduct a de novo review on the record with a presumption that “the


                                              6
determinations made by the trial court from which the appeal is taken are correct.” Tenn.

Code Ann. § 40-35-401(d). This presumption 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 presumption

does not apply to the legal conclusions reached by the trial court in sentencing the accused

or to the determinations made by the trial court which are predicated upon uncontroverted

facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891

S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Bonestel, 871

S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this Court is required to give great

weight to the trial court’s determination of controverted facts as the trial court’s

determination is based upon the witnesses’ demeanor and appearance.

     In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and /or sentencing hearing, (b) the presentence report, (c)

the principles of sentencing, (d) the arguments of counsel relative to sentencing

alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or

enhancing factors, (g) any statements made by the accused in his own behalf, and (h) the

accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code. Ann. §§

40-35-103 and -210. State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app.

denied (Tenn. 1987).

     When the accused is the appellant, the accused has the burden of establishing that

the sentence imposed by the trial court was erroneous. Sentencing Commission

Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900

S.W.2d at 311.



                                             B.



     The defendant contends the trial court abused its discretion by refusing to apply

certain mitigating factors when determining the length of the sentence within the proper

range. The trial court found the defendant’s intoxication to be a mitigating factor. The

record supports this finding. The defendant argues the trial court should have found (1)



                                              7
he acted under strong provocation, (2) the crime occurred under such unusual

circumstances that it is unlikely a sustained intent to violate the law motivated his conduct,

(3) substantial grounds existed to excuse his behavior, (4) he acted under duress or the

domination of Escue, and (5) remorse.

     As previously stated, Escue and the defendant were co-conspirators. The defendant

drove Escue to the home of his parents where he obtained the two weapons. He also

drove Escue to an area near Barnett’s trailer. The defendant armed himself with the

shotgun and guarded the back door. Barnett attempted to avoid an armed conflict with

Escue by existing through the back door. The defendant placed a shotgun in his stomach

and asked him if he was going somewhere. The defendant then gravitated to the front of

the trailer. After Barnett killed Escue, the defendant told Barnett he had forgotten about

him and then fired the shotgun at Barnett. The projectiles struck Barnett. The defendant

ran into a wooded area to avoid apprehension from by the police.

     The trial court properly refused to consider these mitigating circumstances to reduce

the sentence within the appropriate range. The evidence contained in the record supports

the findings of the trial court in this regard. Moreover, the trial court heard the testimony

and saw the defendant’s demeanor while he was testifying as a witness and sitting in the

courtroom during the trial and sentencing hearing. The trial court was in the best position

to determine the credibility of the defendant when he testified.



                                             C.



     The trial court found the defendant had a previous history of criminal convictions,

Tenn. Code Ann. § 40-35-114(1), the victim’s injuries were particularly great, Tenn. Code

Ann. § 40-35-114(6), the defendant possessed a deadly weapon in the commission of this

offense, Tenn. Code Ann.        § 40-35-114(9), the defendant had no hesitation about

committing this crime when the risk to human life was high, Tenn. Code Ann. § 40-35-

114(10), the felony resulted in bodily injury to the victim and the defendant had been

previously convicted of a felony which resulted in death or bodily injury, Tenn. Code Ann.

§ 40-35-114(11), and the crime was committed under circumstances where the potential



                                              8
for bodily injury was great. Tenn. Code Ann. § 40-35-114(16).

     The defendant contends the trial court improperly applied factors (6), (10) and (16).

This Court agrees all three factors may not be used to enhance the defendant’s sentence.

The defendant may not have his sentence enhanced for creating a risk of bodily harm

under factor (16) and for bringing about bodily harm under factor (6).      Factor (16) was

therefore inappropriately applied. State v. Myers, 03C01-9108-CR-00255, Washington

County (Tenn. Crim. App., Knoxville, Oct. 22, 1992.)

     The defendant argues the offense of attempted voluntary manslaughter necessarily

contemplates a high risk to human life, making the application of factor (10) duplicative of

the elements of the offense. This is the case except in those cases where others are

present and are placed in harm’s way by the defendant’s conduct. State v. Ruane, 912

S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Makoka, 885 S.W.2d 366, 373 (Tenn.

Crim. App.), per. app. denied (Tenn. 1994). The defendant engaged in an exchange of

gunfire with Ray Barnett while Kelly Furlough stood next to Barnett on the porch. The

defendant created a risk to human life beyond the risk to the victim, whom he severely

injured.

     The finding that a trial court has misapplied one or more enhancement factors does

not equate to a reduction in a sentence. State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim.

App.), per. app. denied (Tenn. 1994).       The circumstances surrounding the offense

established the defendant’s active participation in the shooting of the victim. The victim

suffered serious injuries. Moreover, the defendant has a history of criminal convictions.

He has been convicted of voluntary manslaughter, DUI, leaving the scene of an accident,

no driver’s license, carrying a dangerous weapon, simple possession of marijuana, robbery

with a deadly weapon, larceny from a vending machine, attempt to commit a felony, and

felony escape. Thus, a lengthy sentence is necessary to protect society from an accused

who had a long history of criminal conduct. Tenn. Code Ann.§ 40-35-103(1)(A). Also,

lengthy confinement is required in this case to avoid depreciating the seriousness of the

offense of attempting to kill another and provide an effective deterrent to the defendant and

others likely to commit similar offenses.         Tenn. Code Ann. § 40-35-103(1)(B).

Unfortunately, the defendant’s background establishes he does not have the potential to



                                             9
rehabilitate himself. Tenn. Code Ann. § 40-35-103(5).



                                           D.



     The defendant contends the trial court abused its discretion by refusing to impose

some form of alternative sentence. While the defendant was entitled to the presumption

of fitness, the state overcame this presumption.

     The defendant was not entitled to an alternative sentence in any form given the

factors hereinabove set forth. See State v. Davis, 940 S.W.2d 558 (Tenn. 1997).




                                  ____________________________________________
                                       JOE B. JONES, PRESIDING JUDGE



CONCUR:




_________________________________________
     WILLIAM M. BARKER, JUDGE




_________________________________________
   J. STEVEN STAFFORD, SPECIAL JUDGE




                                          10
