              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE           FILED
                           SEPTEMBER 1997 SESSION      October 24, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                 )
                                    )    C.C.A. NO. 03C01-9606-CC-00238
              Appellee,             )
                                    )    ANDERSON COUNTY
VS.                                 )
                                    )    HON. JAMES B. SCOTT, JR.,
FREDERICK R. PORTER,                )    JUDGE
                                    )
              Appellant.            )    (Attempted second-degree murder;
                                          second-degree murder)


FOR THE APPELLANT:                      FOR THE APPELLEE:


CHARLES L. BEACH                        JOHN KNOX WALKUP
365 Market St.                          Attorney General & Reporter
Clinton, TN 37716
(At trial and on appeal)                MARVIN E. CLEMENTS, JR.
                                        Asst. Attorney General
DEBORAH MURPHY BEACH                    450 James Robertson Pkwy.
365 Market St.                          Nashville, TN 37243-0493
Clinton, TN 37716
       (At trial)                       ROBERT L. JOLLEY, JR.
                                        Special Prosecutor
DAVID HILL                              P. O. Box 1468
301 E. Broadway                         Knoxville, TN 37901-1468
Newport, TN 37821-3105
      (At trial)




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



             The defendant was charged with the premeditated murder of Gerald Brown,

the felony murder of Gerald Brown, and the attempted premeditated murder of Jerome

Anderson. After a jury trial, he was convicted of the second-degree murder of Gerald

Brown and attempted second-degree murder of Jerome Anderson; following the verdict,

the trial court dismissed the charge of felony murder. After a hearing, the trial court

sentenced the defendant as a Range I standard offender to twenty-five years

incarceration for the murder offense and twelve years incarceration on the attempted

murder offense. The sentences were run consecutively. In this direct appeal, the

defendant raises the following issues:

             1.     The sufficiency of the evidence;

             2.     Whether the trial court erred in admitting the defendant’s statement;

             3.     Whether the trial court should have granted a mistrial after hearing
                    two jurors discussing a weapon;

             4.     Improper prosecutorial argument to the jury;

             5.     Whether the trial court erred in refusing to admit proffered defense
                    evidence which would have “impeached the integrity of the
                    prosecution;” and

             6.     The propriety of his sentence.

Upon our review of the record, we find no merit to any of the defendant’s issues and

affirm the judgment below.



             On the evening of February 26, 1993, numerous persons had gathered in

an area near the Scarboro Community Center in Oak Ridge, Tennessee. An argument

broke out between Jerome Anderson, Andre Porter and Robert Smith. During the course

of the argument, Anderson pulled out a pistol and shot three or four times at Andre

Porter, causing a single bullet wound to Porter’s neck. Following these shots, Anderson

and Smith began running from the scene toward the Community Center.

                                           2
              The defendant was in the vicinity of the argument; Porter was his cousin.

Several eyewitnesses testified that, after Anderson shot Porter, the defendant pulled a

pistol and began shooting toward the direction in which Anderson and Smith were

running. Anderson testified that he had looked back and seen the defendant shooting

at him. Gerald Brown was proceeding in the same direction as Anderson and Smith, but

on a path that put him between them and the defendant. He was killed by a single

gunshot wound with a nine millimeter bullet. Witnesses testified that the defendant had

shot numerous times; the police later found ten nine millimeter shell casings in the area

in which the defendant was alleged to have been standing while he was shooting. The

weapon from which the fatal bullet was fired was not recovered.



              The defendant did not testify. However, during the investigation of Brown’s

death, he made a voluntary statement to the police which was admitted into evidence.

This statement included the defendant’s assertion that, “W hen I heard and saw the two

shots fired at my cousin, I looked and saw that [Anderson] was fixing to try and shoot me.

So when I proceeded to run he shot once at me and then I heard many other shots as

I was running.” Nowhere in his statement to the police did the defendant admit that he

had fired any shots. However, Angela Brown, the murder victim’s sister, testified that she

had spoken with the defendant over the phone after her brother was killed, and that he

had told her that he hadn’t shot at her brother but had been “shooting up in the air.”

Derrick Smith testified that the defendant had offered him money to change his statement

in which he reported having seen the defendant pull a gun.



              The defendant first contends that the evidence is not sufficient to support

his convictions for attempted second-degree murder and second-degree murder because

the weapon was never recovered (and was, accordingly, never linked to him) and

because there was proof that other people in the same vicinity were or may have been


                                            3
armed. He further contends that the proof demonstrates, at most, that he is guilty of

attempted voluntary manslaughter and voluntary manslaughter. We disagree.



              When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to

afford the State the strongest legitimate view of the proof contained in the record as well

as all reasonable and legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              The State adduced testimony from numerous eyewitnesses that they had

seen the defendant shooting multiple times toward the direction in which Anderson and

Smith were running. Anderson himself testified that he had seen the defendant shooting

at him as he ran. Additional testimony and physical evidence, including blood splatters

and the location of Brown’s body, placed Brown between the defendant and his target,

in the line of fire. Brown was killed by a gunshot wound. That the police never recovered

the murder weapon is not fatal to the State’s case. That others in the area may have

been armed is not fatal to the State’s case. The evidence was sufficient to support a jury


                                            4
finding that the defendant shot and killed Gerald Brown in his attempts to shoot and kill

Anderson.



              With respect to Brown’s homicide, the jury was instructed on first-degree

murder (both premeditated and felony murder) and the lesser offenses of second-degree

murder, voluntary manslaughter and criminally negligent homicide. It returned a verdict

of second-degree murder. Similarly, with respect to the attempt crime against Anderson,

the jury was instructed on attempted premeditated murder and the lesser offenses of

attempted second-degree murder, attempted voluntary manslaughter and attempted

criminally negligent homicide. It returned a verdict of attempted second-degree murder.



              Second-degree murder is defined as “A knowing killing of another.” T.C.A.

§ 39-13-210(a)(1) (1991). “Knowing” is in turn defined as referring “to a person who acts

knowingly with respect to the conduct or to circumstances surrounding the conduct [and]

the person is aware of the nature of the conduct or that the circumstances exist.” T.C.A.

§ 39-11-302(b). A person commits an attempted second-degree murder when he

knowingly acts with the intent to kill his target and his actions constitute “a substantial

step toward the commission” of the murder. T.C.A. § 39-12-101(a)(3). Proof that a

person has deliberately aimed a pistol and shot several times at his intended victim is

sufficient to support a conviction for attempted second-degree murder. In this case,

Anderson testified that, as he had run away from his confrontation with Porter, he looked

back and saw the defendant shooting at him. Jamman T. Booker also testified that he

had seen the defendant shooting “toward the way that [Anderson] and [Smith] was

running.” Two other eyewitnesses also testified that they had seen the defendant

shooting his pistol in the direction toward which Anderson had been running. This was

sufficient evidence on which to support a conviction for the attempted second-degree

murder of Anderson.


                                            5
               With respect to the defendant’s contention that the evidence supports only

a conviction of the attempted voluntary manslaughter of Anderson, we first note that

voluntary manslaughter is the “intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act

in an irrational manner.” T.C.A. § 39-13-211(a). Although the defendant did not testify,

there was proof that he was Andre Porter’s cousin, and Anderson testified that he thought

the defendant was shooting at him “Because [he] shot his cousin.”          Therefore, the

defendant now argues, any shots he took at Anderson were the result of Anderson’s

attack on his cousin and he was therefore shooting “in a state of passion produced by

adequate provocation sufficient to lead a reasonable person to act in an irrational

manner.”



               As this Court has previously stated, however, “Whether the [defendant’s]

acts constitute a <knowing killing’ (second degree murder) or a killing due to <adequate

provocation’ (voluntary manslaughter) is a question for the jury.” State v. Johnson, 909

S.W.2d 461, 464 (Tenn. Crim. App. 1995). In this case, the jury obviously determined

that the defendant had attempted to commit a knowing killing which was not the result of

adequate provocation and/or did not involve such provocation as to lead a reasonable

person to act in an irrational manner. This was the jury’s prerogative. The evidence

being sufficient to support its verdict that the defendant attempted to commit a knowing

killing, this issue is without merit.



               With respect to his conviction for second-degree murder, we first note that

the defendant was convicted of Brown’s homicide on the basis of the doctrine of

transferred intent. That is, the level of culpability which the defendant demonstrated in

his attempt to kill Anderson is transferred to his actual killing of Brown. See State v.

Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). Because the jury convicted


                                            6
the defendant of knowingly attempting to kill Anderson, the doctrine of transferred intent

permits a finding that the defendant knowingly killed Brown and therefore committed

second-degree murder. The evidence is sufficient to support this verdict. As set forth

above, the State’s proof demonstrated that the defendant fired his gun numerous times

in Anderson’s direction. The proof further demonstrated that Brown was located in the

line of fire between the defendant and Anderson. The logical inference supported by the

proof was that a bullet intended for Anderson struck and killed Brown.          The jury

determined that the defendant’s actions were not committed in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner. The jury’s verdict of second-degree murder being supported by the

proof, this issue is without merit.



              In his next issue, the defendant asserts that the trial court erred when it

allowed the State to introduce into evidence the voluntary statement he made to the

police prior to his arrest. The defendant bases his assertion on the grounds that his

statement was “entirely exculpatory.” As authority, the defendant cites us to a single

case, State v. Robert Brian Chaffin, No. 01C01-9001-CR-00001, Overton County (Tenn.

Crim. App. filed March 21, 1991, at Nashville). We find this case to be inapposite,

however, because it dealt with the defendant’s attempt to introduce his own prior and

self-serving statement. Here, the statement was being offered by the State against the

defendant.



              In his statement, the defendant told the police that he had been present at

the argument between Anderson and Porter, that Anderson had subsequently shot at him

and that he had run away. To the extent that this statement was offered to prove that the

defendant had been at the scene of the crimes, it is an admission by a party-opponent

and therefore admissible as an exception to the hearsay rule. See Tenn. R. Evid.


                                            7
803(1.2).



                 Moreover, while his statement contains no explicit denial of having shot a

gun himself, the defendant’s explanation to the police of what happened contains no

reference to his having fired shots and paints a picture of himself as victim rather than

aggressor. In minimizing his role in the crimes, the statement is consistent with Angela

Brown’s testimony that the defendant had told her he had shot into the air, and with

Derrick Smith’s testimony that the defendant had offered him money to change his

statement. Thus, in addition to being offered in order to prove the defendant’s presence

at the scene of the crime, the statement was also offered as proof that the defendant had

tried to cover up the extent of his involvement in the shootings. In that respect, the proof

was relevant and therefore admissible.1 Tenn. R. Evid. 402. This issue is without merit.



                 In his third issue, the defendant contends that the trial court should have

granted a mistrial after hearing two jurors discussing a weapon prior to the case being

submitted to the jury. The record reveals that, during a recess, the trial judge overheard

two jurors conversing with something being said about a “nine millimeter.” Because a

nine millimeter weapon had been introduced into evidence earlier in the trial, the court

was concerned that the jurors were discussing the case prematurely. Accordingly, the

court questioned the two jurors about their conversation, out of the presence of the

remainder of the jury, asking them if they had been discussing “anything about the

evidence in this case?” One of the jurors responded, “Just trying to clarify a point. He

misunderstood a point. I apologize for that.” Defense counsel then moved for a mistrial.


        1
          Offered for this purpose, the defendant’s prior statement was not hearsay because it was not
being off ered to p rove the tru th of the m atter ass erted (or n ot asse rted) there in. See Tenn. R. Evid.
801(c).

                                                       8
The court continued to question the two jurors, asking if “anything [had been] concluded

in that respect?” Both jurors said “no” and one of the jurors stated that he “was trying to

explain that, you know, we couldn’t discuss that part.” The court then asked the other

juror if they had been “saying we can’t discuss about a 9 millimeter gun or something?”

The juror answered, “Yes, sir.” The court then asked, “And no discussion was taking, had

taken place?” and the other juror said, “No.” The court then stated to both jurors, “You

can go forward without violating your oaths, is that what you’re telling me?” to which both

jurors answered in the affirmative. The court overruled the motion for mistrial.



               As this Court recently stated in State v. Williams,

              The decision to grant a mistrial is within the sound discretion
              of the trial court and such decision will not be overturned
              absent an abuse of discretion. A mistrial is usually
              appropriate in a criminal case only where there is a <manifest
              necessity.’ The purpose for declaring a mistrial is to correct
              damage done to the judicial process when some event has
              occurred which precludes an impartial verdict. The burden
              of establishing a <manifest necessity’ lies with the appellant.

929 S.W. 2d 385, 388 (Tenn. Crim. App. 1996) (citations omitted). The defendant has

failed utterly to demonstrate a manifest necessity for a new trial arising from what the

record demonstrates to have been a rebuffed inquiry from one juror to another about an

item of evidence. We see no abuse of discretion by the trial court in this case in its denial

of the defendant’s motion for a mistrial. This issue is without merit.



              The defendant next contends that he was denied a fair trial as a result of

prosecutorial misconduct during closing argument. Specifically, he claims that the

prosecuting attorney stated during closing argument that he was a liar and that the jury

had to find him guilty in order for our justice system to work. The defendant further

claims that the prosecuting attorney made statements not based on the evidence.




                                             9
              We have carefully examined the prosecuting attorney’s closing arguments

as well as defense counsel’s objections thereto and the trial court’s rulings and

instructions following objections. The trial judge has wide discretion in controlling the

argument of counsel. That discretion will not be interfered with on appeal in the absence

of an abuse thereof. Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). We find no

abuse of discretion in this matter, nor do we find any errors stemming from the State’s

argument by which the defendant was denied a fair trial. This issue is without merit.



              For his fifth issue, the defendant alleges that the trial court erred when it

refused to allow him to introduce “evidence that District Attorney General James Ramsey

had information that there were problems with the handling of evidence and harassment

by the Oak Ridge Police Department.” The record contains a copy of a letter from

General Ramsey to the Deputy Director of the Tennessee Bureau of Investigation which

refers to certain complaints voiced by the community of which the defendant was a

member against the local police department, including “harassment, fabrication of

evidence [and] theft of evidence.” This letter was included in the record as an offer of

proof. The trial court ruled that it was not admissible into evidence under Tennessee

Rule of Evidence 616. The trial court was correct.



              Tennessee Rule of Evidence 616 provides that, “A party may offer evidence

by cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or

prejudiced against a party or another witness.” The letter does not establish that any of

the State’s witnesses in this case were either biased in favor of the State (or any of its

other witnesses) or prejudiced against the defendant or any of his witnesses. Nor did the

defendant develop any proof that the police department harassed him with respect to this

case, or that it or any of its officers fabricated or stole any evidence relevant to this case.



                                             1 0
Thus, not only is the letter not admissible under Rule 616, it appears not to have any

relevance with respect to this particular case. Evidence that is not relevant is not

admissible. Tenn. R. Evid. 402. This issue is without merit.



              In his final issue, the defendant complains about his sentences. He was

sentenced as a Range I standard offender to twenty-five years for the second-degree

murder conviction, a Class A felony, and to twelve years for the attempted second-degree

murder conviction, a Class B felony. These were the maximum sentences for both

offenses. See T.C.A. § 40-35-112(a)(1) & (2). The trial court also ordered the sentences

to be served consecutively. The defendant now contends that the trial court erred in

finding no mitigating factors, in applying certain enhancement factors, and in ordering

consecutive sentences.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).



              A portion of the Sentencing Reform Act of 1989, codified at T.C.A.

§ 40-35-210, established a number of specific procedures to be followed in sentencing.

This section mandates the court’s consideration of the following:


              (1) The evidence, if any, received at the trial and the
              sentencing hearing; (2) [t]he presentence report; (3) [t]he
              principles of sentencing and arguments as to sentencing


                                           1 1
                alternatives; (4) [t]he nature and characteristics of the
                criminal conduct involved; (5) [e]vidence and information
                offered by the parties on the enhancement and mitigating
                factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
                statement the defendant wishes to make in his own behalf
                about sentencing.

T.C.A. § 40-35-210.



                In addition, this section provides that the minimum sentence within the

range is the presumptive sentence.2 If there are enhancing and mitigating factors, the

court must start at the minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within the range

as appropriate for the mitigating factors. If there are no mitigating factors, the court may

set the sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992).



                The Act further provides that “[w]henever the court imposes a sentence, it

shall place on the record either orally or in writing, what enhancement or mitigating

factors it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A.

§ 40-35-210(f) (emphasis added).              Because of the importance of enhancing and

mitigating factors under the sentencing guidelines, even the absence of these factors

must be recorded if none are found. T.C.A. § 40-35-210 comment. These findings by

the trial judge must be recorded in order to allow an adequate review on appeal.



                The defendant contends that the trial court should have found two mitigating


        2
          This section was amended in 1995 to require trial judges to consider the presumptive sentence
for a Clas s A felon y to be the m id-point ran ge. See T.C.A. § 40-35-210(c) (Supp. 1995). Because these
offenses occurred in 1993, however, the defendant is entitled to be sentenced under prior law which
provided that the presumptive sentence was the minimum sentence in the range for all classes of
felonies. T.C.A. § 40-35-210(c) (1990).

                                                  1 2
factors. He argues that he acted under strong provocation and that substantial grounds

existed which tended to excuse or justify his criminal conduct. T.C.A.

§ 40-35-113(2) & (3). The trial judge refused to apply these factors, asking, “What was

the provocation to take a life? What was the provocation to take a gun and spray it

across a parking lot? How could that possibly be a justification for what occurred here?”



              In his appellate brief, the defendant fails to offer any reasons as to why

these mitigating factors should have been applied. Accordingly, this issue has been

waived. Tenn. Crim. App. R. 10(b). Furthermore, although the record indicates that the

defendant was Andre Porter’s cousin, and therefore supports the inference that he was

shooting at Anderson in retaliation for Anderson’s having shot Porter, we do not think this

is an appropriate reason to apply either of these two mitigating factors. To do so would

simply encourage future vigilante acts of this nature. We think that the trial court was

correct in refusing to apply these mitigating factors. This issue is without merit.



              The defendant next argues that the trial court erred in its application of two

enhancement factors. The trial court found that the following enhancement factors

applied to each conviction: that the defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate range; that he has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; that he possessed or

employed a firearm during the commission of the crime; that he had no hesitation about

committing the crime when the risk to human life was high; and that the crime was

committed under circumstances under which the potential for bodily injury to a victim was

great. T.C.A. § 40-35-114(1), (8), (9), (10) and (16). Factor (12), that during the

commission of the offense, the defendant willfully inflicted bodily injury upon another



                                            1 3
person, or the actions of the defendant resulted in the death or serious bodily injury to a

victim or a person other than the intended victim, was also applied to the attempted

second-degree murder conviction.3 Of these factors, the defendant argues only that

factors (12) and (16) were improperly applied.



                  In State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994), this

Court ruled that the sentence for an attempted murder conviction was properly enhanced

by the factor for no hesitation about committing the crime when the risk to human life was

high, T.C.A. § 40-35-114(10). The Court recognized that this factor should not be applied

when the only person subjected to the risk is the intended victim, but distinguished those

situations where other people present are subjected to this risk. In those situations, the

factor is not “inherent” and may properly be applied. Makoka, 885 S.W.2d at 373.

Similarly, we find the same reasoning is appropriate and supports the application of factor

(16) to both of the defendant’s convictions in this case; that is, the crimes were committed

under circumstances in which the potential for bodily injury to a victim was great.

Although all murders and attempted murders involve this potential for the intended victim,

they do not all involve this potential for other persons. In this case, there was great

potential for bodily injury to at least Smith in addition to Anderson, the intended target.



                  Nor do we find any error in the trial court’s application of factor (12) -- that

the defendant’s actions resulted in the death or serious bodily injury to a victim or person

other than the intended victim -- to the attempted second-degree murder conviction. Not

every attempted second-degree murder results in the death of an innocent bystander.

Thus, this factor is not an essential element of the offense. See State v. Freeman, 943

         3
         The trial court appeared to recognize that factor (12) could not apply to the conviction for
second-degree murder. The court’s verbal ruling is not entirely clear. It is clear, however, that in the
State’s no tice of enh ancem ent facto rs, it reques ted that fac tors (1), (8) , (9), (10) an d (16) ap ply to both
convictions and that the additional factor (12) be applied to the attempted second-degree murder
conviction.

                                                         1 4
S.W.2d 25, 32 (Tenn. Crim. App. 1996) (“because bodily injury is not an essential

element of the offense of attempted second-degree murder, the trial court properly

enhanced the defendant’s sentence for that offense with regard to the victim who was

actually wounded.”) This issue is without merit.



                  These multiple enhancement factors, combined with the absence of any

mitigating factors, are more than sufficient to sentence the defendant at the top of the

range for each conviction. It is well-settled that the weight given to enhancement factors

is left to the discretion of the trial court. State v. Shelton, 854 S.W.2d 116, 123 (Tenn.

Crim. App. 1992). Finding no abuse of discretion, we affirm the length of the defendant’s

sentences.



                  In his final argument, the defendant contends that the trial court erred when

it ordered him to serve his sentences consecutively.                   Our Code provides for the

imposition of consecutive sentences where, among other things, the defendant is “an

offender whose record of criminal activity is extensive” or where 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.” T.C.A.

§ 40-35-115(b)(2) & (4). This defendant, who was twenty-four years old at the time of

sentencing, has a criminal history including convictions for a federal drug offense,4 two

assaults, two resisting arrest offenses, one assault and battery, and one weapons

offense. He has also been convicted of twelve traffic offenses and several other

misdemeanors. These numerous convictions lead us to conclude that the defendant is

an offender whose record of criminal activity is extensive. The instant crimes also lead

us to conclude that the defendant is a dangerous offender whose behavior indicates little



       4
           He was convicted of this charge while on bond for the current charges.

                                                    1 5
or no regard for human life, and no hesitation about committing a crime in which the risk

to human life is high. In other words, the defendant meets the statutory criteria for

consecutive sentences.



              In addition to considering the statute, however, we must consider the two

Tennessee Supreme Court opinions which the consecutive sentencing statute essentially

codified: Gray v. State, 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739 S.W.2d

227 (Tenn. 1987). In Gray, our Supreme Court stated that “a consecutive sentence

should be imposed only after a finding by the trial judge that confinement for such a term

is necessary in order to protect the public from further criminal conduct by the defendant.”

Gray, 538 S.W.2d at 393. Thus, the defendant’s potential for rehabilitation is a significant

factor under the Gray rationale. Id. Similarly, in Taylor, our Supreme Court stated that

consecutive sentences should not be routinely imposed and that the aggregate sentence

“must be reasonably related to the severity of the offenses involved.” Taylor, 739 S.W.2d

at 230. Taken together, these two cases establish “that consecutive sentences cannot

be imposed unless the terms reasonably relate to the severity of the offenses committed

and are necessary in order to protect the public from further serious criminal conduct by

the defendant.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).



              In this case the trial court found the defendant to be “a threat to society” and

determined that he should serve his sentences consecutively. Given the defendant’s

criminal history and his behavior in committing the instant crimes, we agree with the trial

court and find that these sentences should be run consecutively in order to protect the

public from further serious criminal conduct by the defendant. Moreover, we note that the

offenses of second-degree murder and attempted second-degree murder are among the

most severe offenses that can be committed. We find therefore that the terms of



                                             1 6
        imprisonment reasonably relate to the severity of the defendant’s crimes. The facts and

        circumstances of these crimes and the defendant’s past and instant behavior satisfy the

        criteria for consecutive sentencing set forth in both the statute and the case law. This

        issue is without merit.



                      The trial court having committed no reversible error, the judgment below is

        affirmed.



                                                         ______________________________
                                                         JOHN H. PEAY, Judge



        CONCUR:



        ______________________________
        DAVID G. HAYES, Judge



        ______________________________
        WILLIAM M. BARKER, Judge




                       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                        AT KNOXVILLE
                                  SEPTEMBER SESSION, 1997                FILED
                                                                         October 24, 1997

                                                                        Cecil Crowson, Jr.
        STATE OF TENNESSEE,               )                              Appellate C ourt Clerk
                                          )      No. 03C01-9606-CC-00238
               Appellee                   )
                                          )      ANDERSON COUNTY
        vs.                               )
                                          )      Hon. JAMES B. SCOTT, JR., Judge

porterfr.opn                                       1 7
        FREDERICK R. PORTER,                   )
                                               )       (Attempted second-degree murder;
               Appellant                       )       second-degree murder)



                                            SEPARATE CONCURRING



               Although I concur with the majority in affirming the appellant’s conviction, I write separately

        to note my concern with the opinion’s application of the doctrine of “transferred intent.” The majority

        opines that the evidence is sufficient to support a verdict of second degree murder based upon

        transferred intent. First, I find that application of “transferred intent” to this case is unnecessary.

        Although not having an actual intent to kill another, one may be found guilty of second degree murder,

        a knowing killing of another, if that person is consciously aware of the nature of his conduct and that

        the conduct is reasonably certain to cause death. Tenn. Code Ann. § 39-11-302(b). Clearly, a rational

        jury could infer that the appellant’s conduct in repeatedly firing a nine millimeter weapon into a crowd

        of people is reasonably certain to cause death. The proof establishes the essential elements of second

        degree murder beyond a reasonable doubt. No further analysis is necessary.



                Also of concern is the question of whether “transferred intent” is a recognizable doctrine under

        this state’s current law. In Sullivan v. State, 121 S.W.2d 535, 537 (Tenn. 1938), our supreme court

        held that the doctrine of “transferred intent” applies only to cases involving first degree felony murder.

        The court noted that Tennessee, representing the minority view, has never acknowledged the doctrine

        of “transferred intent.” Id. See also Bratton, 29 Tenn. 103 10 Humph. 103 (1849) (holding that the

        doctrine of “transferred intent” is not compatible with the plain terms of the statute”). C.f. State v.

        Harper, 334 S.W.2d 933, 936 (Tenn. 1960) (affirming a second degree murder conviction upon a

        finding of malice and, in dictum, announced that the holding would have been the same under

        transferred intent.); Burton v. State, 394 S.W.2d 873 (Tenn. 1965).




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               Moreover, it is noted that, since the adoption of the 1989 CRIMINAL CODE , no supreme court

        decision has addressed the issue of whether this state recognizes the doctrine of “transferred intent”

        under the current code. Our Criminal Code, in large part an adoption of the MODEL PENAL CODE, did

        not explicitly adopt the MODEL CODE’S approach which would have, in effect, incorporated “transferred

        intent.” See   MODEL PENAL CODE    § 2.03. Generally, it is presumed that where the legislature includes

        language in one section, but omits it in another section of the same act, the legislature acted

        purposefully in the subject excluded. Additionally, the majority cites as authority this court’s decision

        in State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). I do not find Summerall

        dispositive of this issue as the opinion merely summarily adopts transferred intent without discussion

        of our supreme court’s conflicting decision in Sullivan. See State v. Millen, (No. 02C01-9602-CR-

        00049 (Tenn. Crim. App. at Jackson, Mar. 7, 1996).



               For the foregoing reasons, I find application of the doctrine of transferred intent unnecessary.




                               ____________________________________
                                           DAVID G. HAYES, Judge




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