            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON               FILED
                       FEBRUARY 1999 SESSION
                                                           May 5, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,        )     C.C.A. No. 02C01-9803-CR-00086
                           )
      Appellee,            )     Shelby County
                           )
v.                         )     Honorable Chris Craft, Judge
                           )
ROY GREEN,                 )     (Attempt to Commit Second Degree
                           )      Murder, Aggravated Assault, Assault,
      Appellant.           )      Theft of Property under $500)




FOR THE APPELLANT:               FOR THE APPELLEE:

Gerald Stanley Green             John Knox Walkup
147 Jefferson Avenue             Attorney General & Reporter
Suite 1115                       425 Fifth Avenue North
Memphis, TN 38103                Nashville, TN 37243-0493
(On Appeal)
                                 Peter M. Coughlan
David Hooper                     Assistant Attorney General
1870 Union Avenue                425 Fifth Avenue North
Memphis, TN 38104                Nashville, TN 37243-0493
(At Trial)
                                 William L. Gibbons
                                 District Attorney General
                                 201 Poplar Avenue, Suite 301
                                 Memphis, TN 38103-1947

                                 Lorraine Craig
                                 Assistant District Attorney General
                                 201 Poplar Avenue, Suite 301
                                 Memphis, TN 38103-1947




OPINION FILED: ________________________________


AFFIRMED AND REMANDED FOR
CORRECTED JUDGMENT ON AGGRAVATED ASSAULT


JAMES C. BEASLEY, SR., SPECIAL JUDGE




                               OPINION
       The appellant, Roy Green, was convicted by a Shelby County jury of attempt to

commit second degree murder, aggravated assault, assault, and theft of property under

the value of $500. The trial court imposed concurrent sentences of ten years, seven

years,1 nine months, and eleven months and twenty-nine days, along with fines totaling

$40,000. In this appeal as of right, the appellant challenges the sufficiency of the evidence

and contends his sentence for attempted second degree murder was improperly

enhanced. For the reasons stated herein, we find no reversible error, but remand for the

entry of a corrected judgment on the aggravated assault in No. 97-05410.



       The appellant and an unidentified man entered a Blockbuster Video store in Shelby

County shortly before 5 p.m. on January 15, 1997. A few minutes later as the appellant

started to walk out the exit door, the sensor alarm sounded. Each time the appellant

sought to leave, the alarm sounded until he removed his jacket and “gently” laid it on the

floor. The appellant was then able to walk past the sensor without the alarm sounding.

As the appellant was putting his coat back on, a store employee, Darrell Brewer, Jr.,

noticed a bulge in the sleeve similar in size and shape to a videotape. When he asked the

appellant to remove the object from his coat, the appellant struck Brewer in the face with

his fist and left the store.



       Employees Stefan Gilbreath, Greg Rogers, and Patricia Johnson followed the

appellant who ran toward a nearby church and hid behind some bushes. The store

employees backed away when the appellant pulled a knife from his pocket.



       Donald Miller, the store manager, was in his office when he was called to the front

and told that a shoplifter had just left the store. While trying to get information from a man

identified as a friend of the alleged shoplifter, Miller saw two store employees chasing the

appellant outside. Miller went to assist his employees and tackled the appellant in a grassy

area between the street and the parking lot. Miller testified that, as they fell to the ground,

       1
       The transcript reflects the trial court imposed a sentence of seven years for
aggravated assault. However, the judgment sheet erroneously reflects a four-year
sentence.

                                             -2-
he rolled off the appellant and was in an “upside-down crab walk” position on all fours when

the appellant stabbed him in the side. Miller described the look on the appellant’s face as

if he were saying, “I tagged you guy . . . got you good.” As a result of the stabbing, Miller

suffered a punctured lung and was classified in critical condition. To inflate his lung, a

large tube was painfully inserted into his chest. Miller spent a week in the hospital and two

weeks convalescing at home.



         Stefan Gilbreath testified that, after the stabbing, he ran up and kicked the appellant

off Donald Miller. The appellant then approached Gilbreath and swung at him with the

knife before running from the scene. Within a few minutes, the appellant was arrested

approximately three blocks from the scene. The knife was never recovered. Empty boxes

for the videotapes, The Frighteners and The Crow, City of Angels, were found on the floor

of the store and the broken tapes were discovered on the paved area outside the video

store.



         When an appellant challenges the sufficiency of the evidence, this Court must

determine whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of a crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). The

weight and credibility of a witness’s testimony are matters entrusted exclusively to the jury

as the trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). On appeal, the State is entitled to both the

strongest legitimate view of the evidence and all reasonable inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, guilty

verdicts remove the presumption of innocence, enjoyed by defendants at trial, and replace

it with a presumption of guilt. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Appellants carry the burden of overcoming a presumption of guilt when appealing jury

convictions. Id.




                                               -3-
      The appellant does not include his convictions for theft and simple assault in

challenging the sufficiency of the evidence to convict. He states the issue thusly:

             It is improper to find a defendant guilty of the felonies of
             aggravated assault and attempt to commit a felony, to wit,
             second degree murder, when the state’s proof showed that the
             appellant was a fleeing person who had committed
             misdemeanor offenses and had escaped apprehension by the
             store employees but, was pursued by a store employee who
             tackled the defendant and was the first aggressor.

He cites as authority and relies on the first sentence of Tenn. Code Ann. § 39-11-611(a)

which provides, “A person is justified in threatening or using force against another person

when and to the degree the person reasonably believes the force is immediately necessary

to protect against the other’s use or attempted use of unlawful force.” However, the

section goes on to say:

             The person must have a reasonable belief that there is an
             imminent danger of death or serious bodily injury. The danger
             creating the belief of imminent death or serious bodily injury
             must be real, or honestly believed to be real at the time, and
             must be founded upon reasonable grounds. There is no duty
             to retreat before a person threatens or uses force.


       When fairly raised in the proof, self-defense becomes an issue for determination by

the jury under proper instructions by the trial court. State v. Ivy, 868 S.W.2d 724, 728

(Tenn. Crim. App. 1993).



      In the instant case, the appellant did not testify and did not call any witnesses. From

our careful review of this record, we are unable to find any proof tending to show self-

defense and we have not been shown any evidence that would fairly raise the issue. The

record includes discussions between the trial judge and counsel regarding proposed jury

instructions, but at no time was self-defense mentioned. Thus, self-defense was not

requested or charged, nor do we think it should have been under the facts and

circumstances present in this case.



SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION OF CRIMINAL ATTEMPT
     TO COMMIT MURDER SECOND DEGREE AGAINST DONALD MILLER

       Second degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-

210(a)(1). Tennessee Code Annotated § 39-12-101(a)(3) defines criminal attempt as

                                            -4-
follows:

                 A person commits criminal attempt who, acting with the kind of
                 culpability otherwise required for the offense, acts with intent
                 to complete a course of action or cause a result that would
                 constitute the offense, under the circumstances surrounding
                 the conduct as the person believes them to be, and the
                 conduct constitutes a substantial step toward the commission
                 of the offense.


       While Miller was on his “all fours” attempting to get up from the ground, the

appellant stabbed him in the side with sufficient force to penetrate Miller’s lung. Paramedic

Mark Cupples listed the victim’s condition as critical and opined that the wound could

cause death. This evidence clearly establishes the essential elements of criminal attempt

to commit murder in the second degree beyond a reasonable doubt and the appellant’s

guilt thereof.



       As sub-issues, the appellant contends the State used irrelevant and nonprobative

evidence and argument when the State had Miller exhibit his scar to the jury and when the

State questioned Miller about his hospital experience and the insertion of a large tube into

his body.



       The appellant cites no authority but avers the evidence was irrelevant and

nonproductive. Likewise, the appellant has failed to designate where the testimony relating

to the hospital experience can be found. However, in our review of the record, we find that

no objection was made to the introduction of this evidence, nor was this issue stated in the

motion for a new trial. We agree with the State that this issue has been waived. Tenn. R.

App. P. 3(e) and 36(a); State v. Baker, 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989).

Waiver notwithstanding, we view this evidence as relevant and of probative value in

establishing an attempt to kill.



       When the prosecution sought to have the victim show his scar to the jury, the

defense objected on the grounds that Miller had already testified that he had been stabbed,

and the exhibition of the scar had no probative value and would inflame the jury.




                                               -5-
       The trial court found that the location of the injury was relevant to prove intent.

Since there were no photographs of the wound and the testimony referred only to the

general area of the wound, the trial court ruled that the proposed demonstration was

proper. We find nothing in the record to suggest that the scar was gruesome or of an

inflammatory nature.



       The question of whether such evidence is admissible rests within the sound

discretion of the trial court, and this Court will not interfere with the exercise of this

discretion unless clear abuse appears on the face of the record. State v. Hill, 885 S.W.2d

357, 361 (Tenn. Crim. App. 1994). There is no showing of abuse of discretion here.



            SUFFICIENCY OF EVIDENCE TO ESTABLISH GUILT IN THE
               AGGRAVATED ASSAULT OF STEFAN GILBREATH

       A person commits aggravated assault who commits an assault as defined in Tenn.

Code Ann. § 39-13-101 and uses or displays a deadly weapon. Tenn. Code Ann. § 39-13-

102(a)(1)(B). An assault may be committed when one intentionally or knowingly causes

another to reasonably fear imminent bodily injury. Tenn. Code Ann. § 39-13-101(a)(2).



       When the appellant approached and swung at him with the knife, Gilbreath testified

that he was scared out of his mind. Again, we find this evidence sufficient for any rational

trier of fact to find the essential elements of aggravated assault and the appellant’s guilt

beyond a reasonable doubt.



                                  SENTENCING ISSUE

       The appellant states his sentencing issue as follows:

              Whether or not when an enhancement factor is prohibited from
              being used to enhance a sentence for one of the charged
              offenses in a multiple indictment prosecution arising from a
              single set of facts, it must be prohibited from being used to
              enhance a sentence in another offense in the same
              prosecution.



       He specifically avers error on the part of the trial court in enhancing the punishment



                                            -6-
for attempt to commit second degree murder based on appellant’s use of a deadly weapon

pursuant to Tenn. Code Ann. § 40-35-114(9). The appellant argues that since the deadly

weapon factor could not be used in the aggravated assault case, it could not be used in

the attempt to commit second degree murder. He cites no authority for this position and

we know of none.



       The trial court did not use Tenn. Code Ann. § 40-35-114(9) to enhance appellant’s

punishment for the aggravated assault because the use of a deadly weapon is an essential

element of the offense as charged here. On the other hand, the murder statute does not

require the use of a deadly weapon. This Court has ruled that enhancing a murder

sentence for the use of a deadly weapon is permissible. State v. Butler, 900 S.W.2d 305,

313 (Tenn. Crim. App. 1994). The conviction of the appellant for aggravated assault and

attempt to commit second degree murder in the same trial does not change that fact.

These convictions resulted from two separate acts committed against two different people.

This issue is without merit.



       From our review, we uphold the convictions on each indictment and remand for the

entry of a corrected judgment reflecting the seven-year sentence for the aggravated

assault.


                                         ________________________________________
                                         JAMES C. BEASLEY, SR., SPECIAL JUDGE




                                           -7-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                 -8-
