          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997          FILED
                                                    October 24, 1997

                                               Cecil W. Crowson
STATE OF TENNESSEE,         )
                                             Appellate Court Clerk
                            )   No. 01C01-9607-CC-00315
      Appellee              )
                            )   BEDFORD COUNTY
vs.                         )
                            )   Hon. William Charles Lee, Judge
ANTONIO D. MASON,           )
                            )   (Attempted First Degree Murder;
      Appellant             )   Attempted Aggravated Robbery;
                                Aggravated Assault)



For the Appellant:              For the Appellee:

CURTIS H. GANN                  CHARLES W. BURSON
Assistant Public Defender       Attorney General and Reporter
105 South Main
P. O. Box 1119                  JANIS L. TURNER
Fayetteville, TN 37334          Assistant Attorney General
                                Criminal Justice Division
(ON APPEAL)                     450 James Robertson Parkway
                                Nashville, TN 37243-0493
MICHAEL D. RANDLES
Assistant Public Defender
117 S. Main, STE. 203           WILLIAM MICHAEL MCCOWN
Shelbyville, TN 37160           District Attorney General

(AT TRIAL)                      ROBERT CRIGLER
                                Asst. District Attorney General
JOHN HARWELL DICKEY             One Public Square, STE 100
District Public Defender        Shelbyville, TN 37160




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                      OPINION



       The appellant, Antonio D. Mason, appeals his jury convictions for

attempted first degree murder, attempted aggravated robbery, and aggravated

assault. The Bedford County Circuit Court imposed sentences of twenty-three

years and six months for the attempted first degree murder conviction, six years

for the attempted aggravated robbery conviction, and four years and six months

for the aggravated assault conviction. The attempted aggravated robbery

conviction was ordered to run consecutive to the attempted first degree murder

conviction, resulting in a total effective sentence of twenty-nine years and six

months. In this appeal, the appellant contends that the evidence presented at

his jury trial was insufficient to support his conviction for attempted first degree

murder. Second, the appellant asserts that the sentences imposed by the trial

court were excessive.



       After a careful review of the record, we affirm the trial court’s judgment.



                               Factual Background



       On the evening of March 7, 1995, the appellant and his brother entered

Smith’s Food Town, a grocery store located in Shelbyville. They purchased a

bag of potato chips and left the store. Mildred Smith, the owner of the store,

asked a customer to remain in the store until the two left. After the customer left,

the appellant returned to the store. He brandished a gun and held it to Ms.

Smith’s head. The appellant stated, “This is a robbery. This is a robbery. I’m

going to kill you. I’m going to kill you. Give me your money. Give me your

money.” The victim, at this point, attempted to wrestle away from the appellant.

Hearing a disturbance at the front of the store, part-time employee, Morris Dean

Arnold, emerged from the back where she had been working. The appellant saw


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Ms. Arnold and immediately announced that he was going to kill her, too. He

repeated that, if Ms. Smith did not give him the money, he would kill Ms. Arnold.

At this time, Ms. Smith sprayed the appellant with mace. According to Ms.

Arnold, the appellant then turned and ran to the door. Within moments, he

turned back toward them and said, “I’m going to kill you.” He then aimed the gun

at Ms. Smith, fired, and ran from the store. The bullet grazed the left side of Ms.

Smith’s head and lodged in the light fixture over the register. Officer Stacey of

the Shelbyville Police Department arrived at the scene shortly thereafter. He

found the two women inside the store. Ms. Smith’s head was bleeding. She was

treated at Bedford County Hospital for a laceration caused by the bullet. After a

two day search, the police arrested the appellant and his brother. During

questioning at the police station, the appellant admitted that he held a gun to Ms.

Smith’s head and threatened to kill her. Despite these admissions, he stated

that he had no intent to kill his victim and that the gun went off accidentally when

he was trying to rub the mace from his eyes. He further explained that the

robbery was a “spur of the moment” happening and that he needed “some

money to buy dope.”



       Based upon this evidence, the jury returned guilty verdicts on the charges

of attempt to commit first degree murder, criminal attempt to commit aggravated

robbery, and aggravated assault.



                                       Analysis



I.     Sufficiency of the Evidence

       When reviewing a trial court’s judgment, the appellate court will not disturb

a verdict of guilt unless the facts of the record and inferences which may be

drawn from it are insufficient as a matter of law for a rational trier of fact to find

the defendant guilty beyond a reasonable doubt. Tenn.R.App.P. 13(e); State v.


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Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In other words, this court will not

reevaluate or reweigh the evidence brought out at trial. It is presumed that the

judge or 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); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Since a verdict of

guilt removes the presumption of a defendant’s innocence and replaces it with a

presumption of guilt, the defendant has the burden of proof on the sufficiency of

the evidence at the appellate level. Grace, 493 S.W.2d at 476.



         The appellant argues that the evidence is insufficient as a matter of law to

support his conviction for criminal attempt to commit first degree murder. He

admits that, while he entered the store to rob, he had no intent to kill anyone.



         Before a defendant can be convicted of an attempt to commit first degree

murder, the proof must establish that the defendant:

         [Acted] with the intent to complete a course of action or cause a
         result that would constitute the offense [first degree murder] 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.

Tenn. Code Ann. § 39-12-101(3). W hether the appellant “intended” to kill is a

question of fact for the jury. The appellant’s “intent” may be inferred from

surrounding circumstances, including his conduct. The proof established that

the appellant placed a gun to the head of his victim and repeatedly told her that

he was going to kill her. After being sprayed with mace, he aimed the gun and

fired, the bullet grazing the side of the victim’s head. Clearly, from these facts a

jury could rationally infer that the appellant was carrying out his announced intent

to kill the victim. We find the evidence sufficient to establish his guilt of attempt

to commit first degree murder beyond a reasonable doubt. This issue is without

merit.


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II.   Sentencing

      The appellant next contends that the trial court imposed excessive

sentences for his three convictions. Review, by this court, of the length, range,

or manner of service of a sentence is de novo with a presumption that the

determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1990). This presumption only applies, however, if the record

demonstrates that the trial court properly considered relevant sentencing

principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In making our

review, this court must consider the evidence heard at trial and at sentencing,

the presentence report, the arguments of counsel, the nature and characteristics

of the offense, any mitigating and enhancement factors, the appellant’s

statements, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§

40-35-102,-1-3(5),-210(b) (1990); see also State v. Byrd, 861 S.W.2d 377, 379

(Tenn. Crim. App. 1993) (citing Ashby, 923 S.W.2d at 168). The burden is on

the appellant to show that the sentence imposed was improper. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401(d).



      The trial court applied two enhancement factors to the appellant’s

sentence for attempted first degree murder; five enhancement factors to his

sentence for attempted aggravated robbery; and three enhancement factors to

his sentence for aggravated assault. The trial court found no mitigating factors.



A.    Mitigating Factors

      The appellant contends that the trial court erred in failing to consider two

relevant mitigating factors when sentencing him on all three convictions. First,

he claims that, because he was merely eighteen at the time he committed the

offenses, he lacked substantial judgment while committing the offense. Tenn.

Code Ann. § 40-35-113(6) (1990). However, the trial court declined to consider


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this mitigator due to the appellant’s lengthy record as a juvenile offender,

including delinquent adjudications for shoplifting, theft, and aggravated robbery.

The application of this mitigating factor is not determined simply by the

chronological age of the offender but, rather, upon the offender’s “youth in

context” of various pertinent circumstances tending to demonstrate his or her

ability or inability to appreciate the nature of his or her conduct. State v. Adams,

864 S.W.2d 31, 33 (Tenn. 1993); See e.g., State v. Carter, No. 01C01-9312-CC-

00447 (Tenn. Crim. App. at Nashville, Apr. 27, 1995), perm. to app. denied,

(Tenn. Sept. 5, 1995). The appellant’s first petition for adjudication as a

delinquent occurred at the age of ten. His record reflects repeated juvenile

adjudications culminating in his commitment to the Department of Youth

Development until his nineteenth birthday. We agree with the trial court that the

proof in the record does not support consideration of this mitigating factor.



       Second, the appellant contends that, as a non-enumerated mitigating

factor, he is entitled to consideration for “telling the truth.” Tenn. Code Ann. §

40-35-113(13). The trial court rejected this factor, finding that the appellant did

not testify truthfully at trial to the facts relating to the charge of attempted first

degree murder. As noted by the trial court, “[Y]ou shouldn’t look for some reward

for telling the truth, . . . .” We agree and find that the proof before us does not

preponderate against the trial court’s rejection of this factor.




B.     Enhancement Factors

       1. Enhancement Factors (1) and (4)

       The trial court found that enhancement factors (1), previous criminal

history, and (4), victim particularly vulnerable, applied to all three of the

appellant’s convictions. Tenn. Code Ann. § 40-35-114(1), - 114(4) (1995 Supp.).

The appellant does not challenge application of factor (1), however, he does


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contest the court’s finding that the victims were vulnerable due to their age. The

State contends that Ms. Smith, who was 65 years old at the time of the crimes,

and Ms. Arnold, who would not give her age at trial but was old enough to be

retired, were particularly vulnerable. The appellant argues, on the other hand,

that age alone is not the dispositive factor. Our supreme court, in the recent

case of State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997), reaffirmed the principle

that more than mere proof of the victim’s age is necessary to establish the

victim’s particular vulnerability. But see Poole 943 S.W.2d at 99, (Drowota J.,

dissenting).

       A person’s age alone may have little or no bearing on size, strength
       or vitality. Thus, unless the State produces evidence of physical or
       mental limitations at the time of the offense, along with proof of the
       victim’s age, it cannot be presumed that the victim was particularly
       vulnerable based solely on her age.

Id. at 98. Because the record is absent this proof, enhancement factor (4) is not

applicable.



       2. Enhancement Factor (7)

       The trial court applied enhancement factor (7), the offense was committed

to gratify the defendant’s desire for pleasure or excitement, to the appellant’s

convictions for attempted aggravated robbery and aggravated assault. Tenn.

Code Ann. § 40-35-114(7) (1995 Supp.). The court applied this factor based

upon its finding that the appellant’s attempt to rob the store and the assault of

Ms. Arnold were committed for the purpose of purchasing marijuana, a non-

physically addictive drug. Thus, the court reasoned that, because the marijuana

was sought for recreational use, the crimes were solely for the appellant’s desire

for pleasure or excitement. This court, in State v. Poole, No. 02C01-9506-CC-

00178 (Tenn. Crim. App. at Jackson, Jan. 31, 1996), aff’d by, 945 S.W.2d at 93,

refused to apply this enhancement factor where the record revealed that “the

motivation for the crime was to steal from the victim for the purpose of buying

drugs. The State did not carry the burden of proving that the offense was done


                                         7
to gratify the Defendant’s desire for pleasure or excitement." Accordingly, in the

instant case, we find that the State has not met its burden, therefore, factor (7) is

found inapplicable.



       3. Enhancement Factors (2) and (3)

       The trial court applied enhancement factor (2), defendant was a leader in

the offense, and (3), the offense involved more than one victim, to the appellant’s

conviction for criminal attempt to commit aggravated robbery. Tenn. Code Ann.

§ 40-35-114(2) and 114(3) (1995 Supp.). The appellant challenges the

application of both enhancement factors. The proof supports the trial court’s

finding that the appellant’s brother remained outside, acting as a lookout, while

the appellant attempted to rob the store. In reference to enhancement factor (3),

the trial court found that the attempted robbery also involved the victim, Ms.

Arnold, for which no charges were brought, because “both Ms. Smith and Ms.

Arnold were part and parcel” of the attempted robbery. From the proof

introduced, we find application of both enhancing factors (2) and (3) appropriate.

This issue is without merit.



       4. Length of Sentences

       In this case, the trial court applied various enhancing factors but found no

mitigating factors. In determining the appropriate sentence for a felony

conviction, Tenn. Code Ann. § 40-35-210(d)(1990) instructs the sentencing court

that “[t]he presumptive sentence shall be the minimum sentence in the range . . .

if there are enhancement and no mitigating factors, the court is free to increase

the defendant’s sentence within the standard range as the court deems

appropriate after considering all the aspects of the case. In arriving at its

sentencing decision, the trial court placed great weight on the appellant’s lengthy

juvenile criminal history which included a prior adjudication for a crime of

violence involving use of a weapon. The court’s decision to weigh a factor


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heavily is proper given the discretion allowed a trial court when considering

enhancing factors. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App.

1996).



         Although we have found enhancing factor (4) inapplicable to all of the

appellant’s sentences and factor (7) inapplicable to his sentences for attempted

aggravated robbery and aggravated assault, we find, upon de novo review, that

the remaining enhancement factors are sufficient to justify the respective

sentences imposed by the trial court.



         The judgment of conviction for the offense of criminal attempt to commit

first degree murder and the appellant’s effective sentence of twenty-nine years

and six months are affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



_______________________________
PAUL G. SUMMERS, Judge



_______________________________
JERRY L. SMITH, Judge




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