         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 9, 2002

              STATE OF TENNESSEE v. KENNETH JAVON BILLS

                     Appeal from the Circuit Court for Hardeman County
                            No. 6451    Kerry Blackwood, Judge



                     No. W2001-00396-CCA-R3-CD - Filed May 10, 2002


The Defendant, Kenneth Javon Bills, was convicted by a jury of attempted second degree murder
and aggravated assault. He was sentenced as a Range I standard offender to ten years for the
attempted murder and four years for the aggravated assault, to be served concurrently in the
Department of Correction. In this direct appeal, the Defendant raises the following issues: (1)
whether the evidence is sufficient to sustain his convictions; (2) whether double jeopardy principles
require dismissal of his aggravated assault conviction; (3) whether the trial court erred by admitting
certain rap lyrics authored by the Defendant; and (4) whether his sentence is excessive. Finding that
double jeopardy principles prohibit the Defendant’s dual convictions, we reverse and dismiss the
Defendant’s conviction for aggravated assault. In all other respects, we affirm the trial court’s
judgment.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT, JR., JJ., joined.

Marcus M. Reaves, Jackson, Tennessee, for the appellant, Kenneth Javon Bills.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        At about 5:00 a.m. on December 3, 1999, the victim, Morgan Robinson, Jr., arose to get
ready for work. While outside calling his dog, Mr. Robinson saw the barrel of a gun pointed at him
from some shrubbery at the end of his house. He heard a shot fire and fell to his left. Realizing that
he had not been hit, Mr. Robinson attacked his assailant, grabbing the pistol. The two men struggled
and wrestled on the ground. Mr. Robinson put his finger on the trigger of the gun and fired it several
times into the ground, trying to empty it. During the struggle, the gunman’s mask came off and Mr.
Robinson recognized his assailant as the Defendant. Mr. Robinson recognized the Defendant
because he had been friends with the Defendant’s father for many years, frequently visiting the
Defendant’s father’s home. Mr. Robinson eventually wrested the gun from the Defendant’s grasp,
and the Defendant left the scene. Mr. Robinson testified that the Defendant’s attempt to shoot him
had “scared’ him.

        Hearing the initial gunshot and seeing the commotion outside the window, Mrs. Robinson
called 911. After the Defendant left, Mr. Robinson reentered his house and told his wife that the
Defendant had tried to kill him. Mr. Robinson had the pistol used during the attack and put it on the
living room floor. The police subsequently took this gun into custody. At the time the police took
possession of the pistol, a .357 Magnum revolver, it had one live round in the chamber. Investigator
Pat Baker testified that the gun would hold a total of six bullets. No bullets or casings were
recovered from the scene. However, the police did recover from Mr. Robinson’s yard a “dog tag
necklace” bearing the name of the Defendant’s deceased father.

        A few minutes after Mrs. Robinson called 911, Sgt. Eddie Henson of the Bolivar Police
Department saw the Defendant walking in a wooded area near Mr. Robinson’s house. Sgt. Henson
described the Defendant as out of breath, with a lot of grass in his hair and on his clothing. The
Defendant appeared to be sweating. Sgt. Henson asked the Defendant his name, which the
Defendant gave as Kenneth Bills. The Defendant was unable to produce any identification, and Sgt.
Henson did not recognize the Defendant. Accordingly, Sgt. Henson called another officer to his
location. The officer who arrived knew the Defendant and had been told by Mr. Robinson that the
Defendant was the assailant. Upon this officer’s arrival, the Defendant was placed in a squad car
and driven to Mr. Robinson’s house. There, Mr. Robinson identified the Defendant as the man who
had shot at him.

        Mr. Robinson testified that his assailant had been wearing a dark hooded jacket and white
gloves during the attack. Investigator Pat Baker testified that he found a dark-blue, hooded jogging
jacket and pants about 75 to 80 yards from Mr. Robinson’s house, alongside a trail near a fence. The
jacket bore the logo “Hill Haven.” Investigator Baker testified that this jogging suit was similar to
a dark blue jogging suit that he had seen the Defendant wearing in October 1999, which also bore
the logo “Hill Haven.” In the pockets of the clothes found along the trail were a pair of white cotton-
lined gloves, a small bag of marijuana, some crack rocks, and some brass knuckles. Wrapped up in
the bundle of clothes was also a pistol holder and a back brace. The jacket and pants had grass on
them.

        Officer Frank Yalda also testified that he had seen the Defendant in October 1999 wearing
clothing that matched the clothing recovered in connection with the shooting.

      Ernestine Bills, the Defendant’s mother, testified that the Defendant had been living with her
on December 3, 1999, and was unemployed at that time. She stated that they lived about a mile from

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Mr. Robinson’s house. She acknowledged that Mr. Robinson and the Defendant’s father had been
friends for many years, and that Mr. Robinson had frequently visited the Defendant’s father.

        The Defendant testified, stating that he had been jogging on the morning he was picked up.
He acknowledged knowing Mr. Robinson but explained that they did not have a personal
relationship. The Defendant denied any involvement in the shooting and explained that the grass
in his hair was from a shortcut that he took through some trees and bushes. He denied ever owning
or wearing any jogging suit matching the one recovered by police. He stated that he had seen a man
running shortly before he was stopped by the police but did not recognize the man. He admitted that
he had worn his father’s “dog tags” in the past but denied that he had been wearing them on
December 3, 1999. The Defendant testified that he sometimes wore a back brace while jogging or
working out but denied wearing one on December 3, 1999.

                              SUFFICIENCY OF THE EVIDENCE
         The Defendant first contends that the evidence is not sufficient to support his convictions.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after
reviewing 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. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of
guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        Second degree murder is the knowing killing of another. See Tenn. Code Ann. § 39-13-
210(a)(1). A person attempts second degree murder when he or she acts with the intent to cause the
death and the person’s actions constitute a substantial step toward the commission of the offense.
See id. § 39-12-101(a)(3). In this case, the State proved that the Defendant hid himself at the
victim’s house, aimed a loaded pistol at the victim, and fired a shot at the victim. The victim

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identified the Defendant as his assailant. This proof is sufficient to support the Defendant’s
conviction for attempted second degree murder.

        The same proof supports a conviction for aggravated assault. As charged in this case,
aggravated assault is committed when the accused intentionally or knowingly causes another to
reasonably fear imminent bodily injury, accomplished with a deadly weapon. See id. § 39-13-
102(a)(1)(B). As set forth above, the Defendant secreted himself at the victim’s house, and then
fired a gunshot at the victim, scaring him. This proof is sufficient to support the Defendant’s
conviction for aggravated assault. This issue is without merit.1

                                      DOUBLE JEOPARDY
        The Defendant contends, and the State concedes, that the Defendant’s dual convictions based
upon the same conduct offend principles of double jeopardy under the Tennessee Constitution. We
agree. See State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997) (where defendant’s
convictions of attempted second degree murder and aggravated assault arose out of a single attack
upon a single victim, principles of double jeopardy under Tennessee’s Constitution required reversal
and dismissal of the defendant’s aggravated assault conviction). See generally State v. Denton, 938
S.W.2d 373 (Tenn. 1996). As was the case in Hall, the Defendant’s convictions in this case arose
out of a single attack upon a single victim, and the same evidence was relied upon to prove each
offense. Accordingly, we reverse and dismiss the Defendant’s conviction for aggravated assault.

                                 ADMISSION OF SONG LYRICS
         The Defendant contends that the trial court committed reversible error in admitting certain
song lyrics that he wrote. During the State’s cross-examination of the Defendant, the prosecutor
produced a document bearing handwritten song lyrics and asked the Defendant if that was his
handwriting. The Defendant admitted that it was and that he wrote “a lot of raps, poetry,
everything.” The Defendant admitted writing the lines, “pulling a gun and not pulling the trigger
is like breaking a mirror” and “ain’t no sunshine when the mortician pulls a curtain down.” Defense
counsel objected to the line of questioning on the grounds of relevance, and the prosecutor argued
that the rap lyrics went to the Defendant’s motive in shooting at the victim. The trial court overruled
defense counsel’s objection, and the prosecutor continued to ask the Defendant about additional rap
lyrics he had written. The Defendant admitted that his rap lyrics glorified violence but denied that
he himself believed in glorifying violence. The Defendant also stated that the rap lyrics were at least
five years old.

       The Defendant now argues that the lyrics “were irrelevant, too remote, and only offered for
the purpose of unconstitutionally prejudicing the jury against” him. The State concedes that the
Defendant’s rap lyrics “were irrelevant to prove motive.” We agree that, particularly due to its age,



         1
            Given our ruling on this issue, we also find without merit the Defendant’s contention that the trial court erred
in refu sing to gran t his m otion for judgm ent of acquittal.

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this evidence was irrelevant and should have been excluded pursuant to our Rule of Evidence 402
which states that “[e]vidence which is not relevant is not admissible.”

        However, “[n]o judgment of conviction shall be reversed on appeal except for errors which
affirmatively appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a).
Pursuant to this Rule, this Court will not reverse a conviction on the basis of improper admission of
evidence “unless it affirmatively appears that the error affected the result of the trial.” Davidson v.
Holtzman, 47 S.W.3d 445, 456 (Tenn. Crim. App. 2000). We do not believe that such a showing
has been made here. The proof of the Defendant’s guilt was overwhelming. Accordingly, although
we agree that the trial court erred when it overruled the Defendant’s objection to the admission of
his rap lyrics, we find the error to be harmless. This issue is, therefore, without merit.

                                        SENTENCING
       Finally, the Defendant argues that his sentence is excessive, and that he should have been
ordered to serve his sentence on Community Corrections. Because we have reversed and dismissed
the Defendant’s aggravated assault conviction, we need not review the Defendant’s sentence for that
offense. We will, however, review his sentence for the attempted second degree murder conviction.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       Attempted second degree murder is a Class B felony. See Tenn. Code Ann. §§ 39-12-107(a),
39-13-210(b). The trial court determined the Defendant to be a standard, Range I offender. The

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sentencing range to which the Defendant was subject was therefore eight to twelve years. See id.
§ 40-35-112(a)(2). The trial court sentenced the Defendant to the midrange term of ten years,
finding as enhancement factors that the Defendant has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range, and that he
employed a firearm during the commission of the offense. See id. § 40-35-114(1), (9). The trial
court found that no mitigating factors applied.

        The presumptive sentence for a Class B felony is the minimum sentence in the range,
increased as appropriate for applicable enhancement factors, and decreased as appropriate for
applicable mitigating factors. See id. § 40-35-210 (c), (e). Here, the trial court imposed a midrange
sentence based on two applicable enhancement factors and no applicable mitigating factors. The
Defendant argues that he should have received the minimum sentence in the range. We disagree.
The Defendant has two prior convictions for weapons offenses, a prior conviction for evading arrest,
and a prior conviction for possession of drugs. These prior convictions support the application of
enhancement factor (1). Additionally, the Defendant used a .357 Magnum pistol in his attempted
second degree murder of Mr. Robinson, supporting application of enhancement factor (9). The
record contains no proof of mitigating factors. Accordingly, a midrange sentence is appropriate.
This issue is without merit.

        The Defendant also contends that he should have been sentenced to Community Corrections.
However, because the Defendant committed a violent felony with a firearm, he does not meet the
minimum eligibility criteria for community corrections sentencing. See Tenn. Code Ann. § 40-36-
106(a). Nor is he eligible for Community Corrections on a “special needs” basis because he received
a sentence of ten years. See id. §§ 40-36-106(c), 40-35-303(a); see also State v. Boston, 938 S.W.2d
435, 438-39 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App.
1989). The Defendant’s argument has no merit.

                                          CONCLUSION
         The Defendant’s conviction of aggravated assault is reversed and dismissed. The judgment
of the trial court is otherwise affirmed.



                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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