        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 9, 2013

       STATE OF TENNESSEE v. LADARIUS DEVONTE MAXWELL

                  Appeal from the Circuit Court for Madison County
                        No. 11510     Donald H. Allen, Judge


             No. W2012-00729-CCA-R3-CD - Filed September 13, 2013


The Defendant, Ladarius Devonte Maxwell, challenges his jury convictions for two counts
of attempted second degree murder, a Class B felony, and two counts of aggravated assault,
a Class C felony, alleging that the evidence was insufficient to support his convictions and
that the trial court improperly imposed consecutive sentencing. After a thorough
examination of the record and the applicable authorities, we affirm the judgments of the trial
court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Ladarius Devonte Maxwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; James
G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General; for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       On September 6, 2011, a Madison County Grand Jury returned a four-count
indictment against the Defendant: Count 1, attempted first degree murder (Cedric Kinnie);
Count 2, aggravated assault (Cedric Kinnie); Count 3, attempted first degree murder (Lavelle
Kinnie); and Count 4, aggravated assault (Lavelle Kinnie). A jury trial was held on January
26, 2012, and the following facts were adduced.
                                                I. Jury Trial

       Cedric Kinnie,1 one of the victims in this case, testified that on March 3, 2011, he and
his brother, Lavelle Kinnie,2 were on their way home in his 1990 Buick LaSabre when they
passed by a convenience store where the Defendant was standing outside. Cedric testified
that he was aware that the Defendant and Lavelle had problems in the past but that he was
not aware of the source of their animosity. Cedric further testified that as they passed the
Defendant, he made several gestures at the car which Cedric described as, “You know, just
throwing up his hands and talking or yelling or whatever.”

       Approximately an hour later, Cedric and his brother arrived at Cedric’s home, 251
Lincoln Courts, located about a quarter of a mile from the convenience store. As Cedric and
Lavelle were exiting the car, Cedric noticed the Defendant walking across the street toward
them. When the Defendant was approximately ten to fifteen feet away, Cedric testified that
the Defendant drew a black handgun and began firing at them. Both Cedric and Lavelle
ducked back into the car and subsequently drove away. Neither Cedric nor Lavelle sustained
injuries as a result of the attack, however, there was damage to Cedric’s Buick. Cedric
further testified that neither he nor Lavelle had a gun that day and that he recalled
approximately five shots having been fired by the Defendant.

       After the two escaped, Cedric let his brother out of the car a few blocks away and
subsequently received a phone call from his girlfriend that the police had arrived on the
scene. Cedric returned to the scene of the crime where he spoke briefly with Officer David
Evans of the Jackson Police Department (JPD).

        Officer Evans testified that he was on patrol on March 3, 2011, when, around 2:50
p.m., he received a report that shots were fired at 251 Lincoln Courts. As Officer Evans was
in the process of gathering information and speaking to potential witnesses, Cedric returned
to the scene. Officer Evans noted that Cedric had no apparent injuries but noted that the
driver-side turn signal appeared to have been shot out. Officer Evans testified that the JPD
was unable to uncover any weapon on the scene and discovered no bullets or shell casings.
Officer Evans did not take an official statement from Cedric at that time.

      The final witness offered by the State was Sergeant Alberto Colon of the JPD.
Sergeant Colon testified that he became involved in the investigation on March 16, 2011,
when Cedric contacted the JPD indicating that he wanted to make a formal statement


1
    Because they share the same surname, we will refer to the victims by their first names for clarity.
2
    Lavelle Kinnie died on April 7, 2011.

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regarding the March 3 shooting. Sergeant Colon testified that Cedric identified the
Defendant out of a photo-lineup as the person that shot at him and his brother on March 3
and signed his name underneath the picture of the Defendant. A copy of the photo-lineup
with Cedric’s signature was entered into evidence.

       Based on this information, Sergeant Colon interviewed the Defendant on April 7,
2011. There, the Defendant was given his Miranda warnings, signed a waiver form, and
dictated a statement to Sergeant Colon which he later initialed and signed. In this statement,
the Defendant claimed, “I did shoot back . . . I shot twice and my gun jammed, I left and ran
into them again[. B]efore I saw them[,] I unjammed my gun. I shot till [sic] the gun was
empty. I had about 5 or 6 bullets.”

        At the close of the State’s proof, the Defendant moved for a judgment of acquittal as
to both attempted murder charges and the charge as to aggravated assault of Lavelle. He
argued that there had not been sufficient proof adduced to demonstrate an intent to kill either
of the Kinnies and, because Lavelle was not present to testify, the proof was insufficient for
the jury to find the Defendant committed aggravated assault on Lavelle. The State responded
that Cedric’s testimony in combination with the Defendant’s statement, as introduced through
Sergeant Colon, was sufficient for the jury to find that the Defendant had committed the
crimes for which he was charged. The trial court took the matter under advisement and
ultimately denied the motion for judgment of acquittal. The Defendant did not put on any
proof.

      At the close of trial, the Defendant was convicted as charged on both counts of
aggravated assault, Counts 2 and 4, and found guilty of the lesser-included offense of
attempted second degree murder in Counts 1 and 3.


                                   II. Sentencing Hearing

        A sentencing hearing was held on March 5, 2012. The presentence report was
admitted into evidence, and the Defendant’s mother, Patricia Maxwell, testified on his behalf.
She relayed his difficult childhood, how his behavior seemed to take a turn for the worse
after the death of his grandmother in 2006, and of his subsequent diagnosis with ADHD and
Bipolar Disorder. The Defendant urged the court to consider, in mitigation, the youth of the
Defendant, his mental health diagnosis, and his lack of criminal convictions as an adult.

       At the close of the sentencing hearing, the trial court merged the aggravated assault
convictions with the convictions for attempted second degree murder. The trial court
sentenced the Defendant as a Range I, standard offender to twelve years on each count to be

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served at thirty percent. In a lengthy and detailed ruling from the bench, the trial court
ordered the Defendant’s sentences to be served consecutively, for an effective sentence of
twenty-four years. To support its decision, the trial court found that the Defendant was an
offender whose record of criminal activity was extensive and that the Defendant was a
dangerous offender whose behavior indicated he had little to no regard for human life and
had no hesitation in committing a crime where the risk to human life was high.


                                 III. Motion for New Trial

       A motion for new trial was timely filed, and a hearing was held on March 19, 2012.
The Defendant asserted two errors: (1) that the evidence was insufficient to support the
jury’s verdict of guilt and (2) that the court erred in imposing consecutive sentences.

       On April 10, 2012, the trial court denied the motion for a new trial, finding that the
evidence was sufficient to support all four convictions and that its imposition of two twelve-
year sentences to be served consecutively for a total effective sentence of twenty-four years
was proper. The Defendant filed a timely notice of appeal.


                                        ANALYSIS

        The Defendant contends that the evidence was insufficient to support his convictions
for attempted second degree murder and aggravated assault and that the trial court erred in
the imposition of consecutive sentences. The State responds that the evidence was sufficient
to support the Defendant’s convictions and that the trial court properly imposed consecutive
sentences.


                               I. Sufficiency of the Evidence

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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). This court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the State.
See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); see also State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See

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State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury's
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).

        Our supreme court recently clarified that circumstantial evidence is as probative as
direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the
supreme court rejected the previous standard which “required the State to prove facts and
circumstances so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct
and circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” Id. at 381. To that end, the duty of this court “on appeal of a conviction is
not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all
reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60,
67 (Tenn. 2011).

       A. Attempted Second Degree Murder

      As to his convictions for attempted second degree murder, the Defendant specifically
argues that the evidence is insufficient because “[n]o proof was adduced to show that
Appellant intended to kill either Cedric or Lavelle Kinnie.” The State responds that the
evidence adduced at trial was sufficient for convictions on both the attempted second degree
murder charges. We agree with the State.

        A person is guilty of the offense of second degree murder, as relevant here, upon
committing a knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1). A person
attempts to commit second degree murder when he or she acts with the intent to knowingly
kill the victim and his or her conduct constitutes a substantial step toward the victim’s death.
Tenn. Code Ann. § 39-12-101(a)(3). “A person acts knowingly with respect to a result of
the person’s conduct when the person is aware that the conduct is reasonably certain to cause
the result.” Tenn. Code Ann. § 39-11-302(b). Whether a defendant acts knowingly is a
question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App.
2000). The jury may infer a defendant’s mental state from “the character of the assault, the
nature of the act and from all the circumstances of the case in evidence.” Id. at 105.

       We conclude that there was sufficient evidence for a jury to find, beyond a reasonable

                                              -5-
doubt, that the Defendant attempted to commit second degree murder. Viewed in a light
most favorable to the State, a reasonable jury could have found that the Defendant saw the
two victims as they passed him at the convenience store. There was animus between him and
Lavelle, so the Defendant decided to go to the apartment complex, where he knew one of the
victims lived, and wait for them to return. While the Defendant awaited Lavelle and Cedric’s
return, he “unjammed” his gun to ensure it would fire. Upon their arrival, the Defendant
began walking toward the victim’s car, and when the Defendant was approximately ten to
fifteen feet away, fired five to seven shots at the victims, damaging Cedric’s car, before they
managed to escape.

       Therefore, we conclude that given the character of the assault—the Defendant’s firing
every bullet in his gun at the victims— and the nature of the act—use of a deadly weapon
directed at the victims from such a short distance away, there was ample evidence from
which a reasonable jury could conclude that the Defendant knowingly attempted to kill both
victims and took a substantial step toward the commission of said offense when he fired the
shots at the victims from ten to fifteen feet away.

       B. Aggravated Assault

       The Defendant also challenges the sufficiency of evidence for his two aggravated
assault convictions.

       As relevant here, aggravated assault is defined as follows: “A person commits
aggravated assault who ... [i]ntentionally or knowingly commits an assault as defined in § 39-
13-101 and . . . [u]ses or displays a deadly weapon[.]” Tenn. Code Ann. § 39-13-
102(a)(1)(A)(ii). Tennessee Code Annotated section 39-13-101 states, in pertinent part, that
“[a] person commits assault who . . . [i]ntentionally or knowingly causes another to
reasonably fear imminent bodily injury[.]” Tenn. Code Ann. § 39-13-101(a)(2).

        Viewing the evidence in a light most favorable to the State, we conclude that there
was sufficient evidence for the jury to find the Defendant guilty of aggravated assault. Cedric
testified that the Defendant approached him and Lavelle and began shooting at them from
a distance of approximately ten to fifteen feet away. Further, in his statement to Sergeant
Colon, the Defendant admitted to using a gun and firing five to six shots at the victims.
Cedric testified that he was in fear of his life at that point and that his brother ducked behind
the vehicle and fled the scene with him after the Defendant fired multiple shots. Cedric also
testified that his car sustained damage during the incident, which further provides evidence
that the Defendant fired the shots directly at the victims. Accordingly, Cedric’s testimony
and the Defendant’s statement to Sergeant Colon provided ample evidence to support the
jury’s finding that the Defendant used a deadly weapon, knowingly placing the victims in

                                               -6-
fear of impending bodily harm or death. Consequently, the Defendant is not entitled to relief
on this issue.

                                 II. Consecutive Sentencing

       The Defendant contends that the trial court erred in imposing consecutive sentencing
because his criminal record was comprised of juvenile offenses and were mostly
misdemeanors. The State responds that consecutive sentencing was properly imposed
because the Defendant’s juvenile adjudications involved multiple felony offenses. We agree
with the State.

       To facilitate appellate review, “it is critical that trial courts adhere to the statutory
requirement set forth in Tennessee Code Annotated section 40-35-210(e)” and articulate in
the record its reasons for imposing the specific sentence. See State v. Bise, 380 S.W.3d 682,
705 n.41 (Tenn. 2012). The standard of review on the issue of consecutive sentencing is
unclear under our State’s current jurisprudence. State v. Ray Neil Thompson,
M2012-01064-CCA-R3-CD, 2013 WL 1912591 (Tenn. Crim. App. May 8, 2013). Our
supreme court recently announced that “sentences imposed by the trial court within the
appropriate statutory range are to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Bise, 380 S.W.3d at 708. Our supreme court has further
explicitly stated that “the abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        However, in the arena of consecutive sentencing, our supreme court has not issued a
definitive ruling on the standard of review to be applied by this court. In response, some
panels of this court are applying an abuse of discretion standard based upon the recent
decisions of Bise and Caudle, while others are continuing to apply a de novo standard of
review until instructed otherwise by our supreme court, and yet others are avoiding the
standard of review altogether in deciding the issue. See generally State v. Robert Fusco, No.
M2012-01068-CCA-RM-CD, 2012 WL 6062856, at *38-39 (Tenn. Crim. App. Dec. 06,
2012) (silent on standard of review to be applied), perm. app. denied, (Tenn. Apr.11, 2013);
State v. Eric Demond McCathern, No. M2011-01612-CCA-R3-CD, 2012 WL 5949096, at
*4-5 (Tenn. Crim. App. Nov. 16, 2012) (majority applying abuse of discretion standard of
review and concurring opinion advocating de novo standard of review), perm. app. denied,
(Tenn. Feb. 25, 2013).

       Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order
sentences to run consecutively if it finds any one of the following criteria by a preponderance

                                              -7-
of the evidence:

       (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.

Tenn. Code Ann. § 40-35-115. These criteria are stated in the alternative; therefore, only one
need exist to support the imposition of consecutive sentencing. See id. However, the
imposition of consecutive sentencing is subject to the general sentencing principles that the
overall sentence imposed “should be no greater than that deserved for the offense
committed” and that it “should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed[.]” Tenn. Code Ann. § 40-35-103(2), (4).

       In the instant case, the trial court imposed consecutive sentencing on the bases that
the Defendant’s record of criminal activity was extensive and that he was a dangerous
offender. Tenn. Code Ann. § 40-35-115(2), (4). In discussing criterion (2), the court noted
that though the Defendant was very young, not yet nineteen at the time of sentencing, the

                                             -8-
court described the Defendant’s criminal record as follows:

           Now, as far as the request for consecutive sentencing, I have looked at this in
           great detail[,] and I certainly consider his young age. I know he’s 18 and a half
           years of age, but it’s probably one of the worst records I’ve seen in terms of
           juvenile behavior for someone who’s that age. He’s now 19 years of age, but
           in his first 18 and a half years on this earth, he’s been in trouble since he was
           about 13 up until this trouble in March of [2011]. The Court finds that the
           Defendant is an offender whose record of criminal activity is extensive. Even
           though it’s a juvenile records, it certainly is extensive. I find that to be a factor.

        Despite the Defendant’s contention that the trial court’s use of his juvenile convictions
to support consecutive sentencing was in error, “[t]his Court has repeatedly approved the
consideration of a defendant’s history of juvenile adjudications in determining whether a
defendant has an extensive record of criminal activity for consecutive sentencing purposes.”
Lamario Sumner a/k/a Lamario Flemming v. State, W2009-00453-CCA-R3-PC, 2010 WL
4544955, at *8 (Tenn. Crim. App. Nov. 10, 2010); see State v. Gann, 251 S.W.3d 446, 465
(Tenn. Crim. App. 2007); State v. Mickens, 123 S.W.3d 355, 396 (Tenn. Crim. App. 2003);
State v. Deshaun Emmanuel Brown and Jerome Cardell Holt, M2011-01383-CCA-R3-CD,
2012 WL 6115603, at *12 (Tenn. Crim. App. Dec. 10, 2012), perm. app. denied, (Tenn. Apr.
10, 2013); State v. Andre Perkins, No. W2007-02774-CCA-R3-CD, 2009 WL 1741400, at
*9 (Tenn. Crim. App. June 17, 2009); State v. Robert Donterious Connor, No. M2007-
01619-CCA-R3-CD, 2008 WL 4614449, at *14 (Tenn. Crim. App. Oct. 17, 2008). Further,
while the Defendant correctly points out that many of his juvenile adjudications were
misdemeanors, the record reflects that at least five of those adjudications were felony
convictions: aggravated burglary; aggravated robbery; carjacking; felony evading arrest, and
especially aggravated kidnapping. If the Defendant had been an adult when these offenses,
among others, were committed, they would have been felony convictions that would have
required extensive jail time. Considering the Defendant’s young age in conjunction with the
number and character of the offenses he committed as a juvenile, we conclude that the trial
court had ample support for its finding that the Defendant was an offender with an extensive
record of criminal activity. Given this conclusion, it is unnecessary for this court to analyze
the trial court’s application of the “dangerous offender” criterion, see Tenn. Code Ann. § 40-
35-115(b)(4), to support consecutive sentencing. See State v. Denise Dianne Brannigan, No.
E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *19 (Tenn. Crim. App. June 13,
2012)(stating that because the statutory criterion are stated in the alternative, only one need
exist to support the imposition of consecutive sentencing).3 Nevertheless, we briefly note


3
    We note that the Defendant did not present any argument in his brief that the trial court’s application of the
                                                                                                   (continued...)

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that the trial court also made sufficient findings to support its application.

       The record in this case reflects that the trial court properly considered the requisite
statutory factors in determining that consecutive sentencing was appropriate in this case.
Based upon either standard of review, de novo or abuse of discretion, we affirm the trial
court’s imposition of consecutive sentencing.


                                         CONCLUSION

       Based upon the foregoing, the judgments of the Madison County Circuit Court are
affirmed.

                                                       _________________________________
                                                       D. KELLY THOMAS, JR., JUDGE




3
 (...continued)
dangerous offender factor was in error. He solely argued that the trial court’s finding that he had an
extensive record of criminal activity was in error due to its use of his juvenile adjudications.

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