         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 19, 2000 Session

                 STATE OF TENNESSEE v. MICHAEL P. INLOW

             Appeal as of Right from the Criminal Court for Williamson County
                           No. II-194-24   Timothy Easter, Judge



                  No. M1999-00092-CCA-R3-CD - Filed November 17, 2000


On December 18, 1998, a Williamson County Jury convicted Michael Inlow, the defendant and
appellant, of attempting to commit second-degree murder. Following a sentencing hearing, the court
sentenced the defendant to serve twelve (12) years incarceration. On appeal, the defendant claims
(1) that the evidence was insufficient to convict him; (2) that the trial court should have declared a
mistrial after a witness referred to the defendant’s prior criminal history; (3) that the trial court
improperly allowed the jury to consider hearsay testimony; (4) that the trial court improperly
instructed the jury regarding self-defense; and (5) that his sentence was excessive. After a thorough
review of the record, we affirm the judgment of the trial court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and L. T.
LAFFERTY, SR.J., joined.

Ernest W. Williams, Franklin, Tennessee, attorney for the appellant, Michael P. Inlow.

Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., and Ron Davis, District
Attorney General and Derek K. Smith, Assistant District Attorney, attorneys for the appellee, State
of Tennessee.

                                             OPINION

                                  FACTUAL BACKGROUND
         A feud began between the defendant and Mr. McDougal, two Brentwood High School
students, that lasted several weeks. During that time, Colin Bain, an acquaintance of the two men,
asked the defendant about the feud, and the defendant replied “[McDougal is] dead.” Several days
later, the defendant and Mr. McDougal almost fought in the Brentwood High School parking lot, but
a school official intervened before the confrontation escalated. Following that incident, the
defendant told an acquaintance, Jimmy Sullivan, “I’ve got something for [McDougal]. You’ll see.”
The day after that statement, the defendant and the victim saw each other in the Brentwood High
School parking lot. Although Mr. McDougal initially had a metal bar in his hands, he discarded it
as a crowd gathered around the pair. The defendant and Mr. McDougal began to fight. During the
fight, the defendant pulled a knife from his jacket and stabbed Mr. McDougal once in the groin area
and once in the abdomen. Mr. McDougal screamed, and onlookers pulled the defendant away from
Mr. McDougal. The defendant picked up the knife and left the scene, but turned himself in to police
later. Mr. McDougal was treated for extensive injuries at a local hospital. He is permanently
disabled.
         The state charged the defendant with attempted first degree murder and aggravated assault.
Before trial, the defendant made a motion in limine to preclude any mention of any other charges
pending against the defendant, and the court granted the motion. However, when Mr. Bain testified,
he mentioned that the defendant also faced “another charge.” The defendant immediately moved for
a mistrial, but the court denied the defendant’s motion. Mr. Bain then told the jury, over objection,
about the statement that the defendant made to Jimmy Sullivan. Jimmy Sullivan had already
testified about the statement.
         After the trial, the defendant moved the court to instruct the jury that they must consider
whether the State had negated self defense beyond a reasonable doubt before they considered the
defendant’s guilt. Instead, the trial court instructed the jury on self-defense according to the pattern
instruction. The jury convicted the defendant of attempted second-degree murder, a lesser included
offense of attempted first-degree murder. The court sentenced the defendant to (12) years
incarceration.

                                            SUFFICIENCY
        The defendant first challenges the sufficiency of the evidence. Specifically, the defendant
argues that no evidence was introduced at trial showing that he intended to kill the victim. When
an appeal challenges the sufficiency of the evidence, the standard of review is whether, after viewing
the evidence in the light most favorable to the State, 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, 318,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992), cert.
denied, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702 (1994); Tenn. R. App. P. 13(e). On
appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). This court will not reweigh the evidence, re-evaluate the evidence, or substitute its
evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973).
        Once approved by the trial court, a jury verdict accredits the witnesses presented by the State
and resolves all conflicts in favor of the State. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978);
State v. Townsend, 525 S.W.2d 842 (Tenn. 1975). The credibility of the witnesses, the weight to
be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted
exclusively to the jury as the trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
        In order to convict a defendant of attempted second-degree murder, the state is required to
prove that the defendant acted with the intent to cause the knowing killing of another, believing his
conduct would cause the result without further conduct on his part. Tenn. Code Ann. §§
39-12-101(a)(2) and 39-13-210(a). Whether the appellant "knowingly" attempted to kill his victim


                                                  -2-
is a question of fact for the jury. Intent, which can seldom be proven by direct evidence, may be
deduced or inferred by the trier of fact from the character of the assault, the nature of the act and
from all the circumstances of the case in evidence. State v. Holland, 860 S.W.2d 53, 59 (Tenn.
Crim. App. 1993).
        In this case, there was evidence that the defendant and the victim had been involved in a feud
for some time before the stabbing. Indeed, the state presented testimony that, before the day of the
stabbing, the defendant made statements that could easily have been interpreted as threats.
Furthermore, immediately before the fight, the victim was unarmed and the defendant had a knife
in his pocket. After only a brief struggle, the defendant was on top of the victim, and the defendant
stabbed the victim from this position. It is uncontested that the wounds were severe. The jury could
have found that the defendant's conduct was reasonably certain to cause the victim's death, that he
was not acting in self-defense, and that he intended to kill the victim based upon the use of a deadly
weapon, the seriousness of the wounds inflicted and the appellant's statements. State v. Elder, 982
S.W.2d 871, 875-76 (Tenn. Crim. App. 1998). In short, we find the evidence sufficient to support
the jury's verdict of attempted second-degree murder.
This issue is without merit.

                                             MISTRIAL
        The defendant also claims that the trial court erred by refusing to grant a mistrial after one
of the state’s witnesses made a reference to the defendant’s criminal history. During the state’s
direct examination of Colin Bain, an acquaintance of both the victim and the defendant, the
prosecutor asked Mr. Bain whether he had spoken to the prosecutor about Mr. Sullivan, another
witness in the case. Mr. Bain responded that he had. The prosecutor then asked Mr. Bain why he
had been discussing Jimmy Sullivan, and Mr. Bain responded
                I’m not quite sure. I think he was in court for another charge, and the
                name got brought up and I started talking to you about the stabbing
                case, and I was telling you what exactly I knew, and Jimmy’s name
                got brought into it.

The defendant immediately objected that the witness’s reference to “another charge” both violated
the trial court’s ruling excluding evidence of the defendant’s prior criminal history and so prejudiced
the jury that a mistrial was required. After excusing the jury and hearing arguments, the court denied
the defendant’s motion.
         The law is well-settled that the decision of whether or not to enter a mistrial rests within the
sound discretion of the trial court. This court will not interfere with the trial court's decision absent
a clear abuse of discretion on the record. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State
v. Allen, 976 S.W.2d 661, 668 (Tenn. Crim. App. 1997). The entry of a mistrial is appropriate when
the trial of an accused cannot continue, or, if the trial were to continue, a miscarriage of justice
would occur. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). A mistrial should
be declared in a criminal case only when there is a "manifest necessity" requiring such action by the
trial judge. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). Only when there
is "no feasible alternative to halting the proceedings" can a manifest necessity be shown. State v.
Knight, 616 S.W.2d 593, 596 (Tenn. Crim. App. 1981). The appellant has the burden of establishing


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the existence of a manifest necessity. State v. Arnold, 563 S.W.2d 792, 794 (Tenn. Crim. App.
1977).
        In this case, the trial court had granted the defendant’s motion in limine seeking to prevent
the state from eliciting any testimony that, at the time of trial the defendant had an assault charge
pending against him. After Mr. Bain testified that his conversation with the prosecutor arose because
the defendant was in court facing “another charge,” the prosecutor informed the court that the other
charge to which Mr. Bain referred was not the pending assault charge, but was, instead, a Driving
Under the Influence charge that had been reduced to Driving While Impaired. Neither the trial court
nor the defense attorney was aware of the D.W.I. charge. The prosecutor also apologized and
admitted that Mr. Bain may have been absent when he instructed the other witnesses not to refer to
the pending assault charge. The trial court then denied the defendant’s motion for a mistrial. After
refusing to grant the defendant’s motion for a mistrial, the court instructed the jury that the other
charge about which Mr. Bain spoke was a “minor misdemeanor” and that the jury was to disregard
Mr. Bain’s reference to it.1
        Mr. Bain’s brief and somewhat confusing reference to “another charge” did not necessitate
a mistrial, because the trial court’s immediate instruction likely cured any prejudicial effect the
defendant may have suffered as a result of the testimony. 2 “It is an elementary principle of law that
jurors are presumed to follow the instructions of the trial court.” State v. Williams, 977 S.W.2d 101,
106 (Tenn. 1998). This issue is without merit.

                                             HEARSAY
        Next, the defendant complains that the trial court erred by allowing the state to offer hearsay
testimony at trial. The night before the stabbing, the defendant told Jimmy Sullivan, “I’ve got
something for [Mr. McDougal]. You’ll see.” Mr. Sullivan testified about the statement on direct
examination. On cross-examination, the defense questioned the veracity of Mr. Sullivan’s testimony.
Next, Mr. Bain testified about the statement, and the defense objected that the statement was hearsay.
The prosecutor responded that Mr. Bain’s testimony was offered only to rebut the defendant’s cross-
examination of Mr. Sullivan which suggested that Mr. Sullivan lied about the statement. The trial
court agreed and overruled the objection.
         Ordinarily, prior consistent statements of a witness are not admissible to bolster the witness'
credibility. State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980). However, "prior
consistent statements may be admissible . . . to rehabilitate a witness when insinuations of recent
fabrication have been made, or when deliberate falsehood has been implied.” State v. Benton, 759
S.W.2d 427, 433 (Tenn. Crim. App.1988). Before prior consistent statements may be admissible,
the witness' testimony must have been assailed or attacked to the extent that the witness' testimony
needs rehabilitating. Id. at 434. In this case, the defense repeatedly asked Mr. Sullivan whether he
had reported the defendant’s statement to police, insinuating that Mr. Sullivan failed to do so because
the defendant never made the statement. Mr. Bain’s testimony merely served to rehabilitate Mr.


         1
          The trial court gave the defendant the option of either ignoring the testimony or having the jury instructed that
the charge was a minor m isdemeanor and that the jury was to disregard it. Obviously, the defendant chose the latter.

         2
             Indeed , it is unclear fro m the w itness’s testim ony tha t he was ev en referrin g to the de fendan t.

                                                                -4-
Sullivan’s credibility which had just been attacked. See State v. Livingston, 907 S.W.2d 392,
398(Tenn. 1995). Thus, there was no error in the admission of the testimony.
This issue is without merit.

                                         JURY INSTRUCTIONS
         At trial, the defendant requested that the jury be instructed that it must first consider whether
the defendant acted in self-defense before considering whether he was guilty of the charged offense.
Instead, the trial court instructed the jury concerning self-defense according to T.P.I. --Crim. 40.06.
The instruction was given before the court instructed the jury about the substantive charges, but after
the court instructed the jury about circumstantial evidence, the burden of proof, and the credibility
of the witnesses. Here, the appellant claims that the order and the content of the instructions given
by the trial court were erroneous.
         When the trial judge gives instructions that correctly, fully, and fairly set forth the applicable
law, it is not error to refuse to give a special requested instruction. State v. Forbes, 918 S.W.2d 431,
447 (Tenn. Crim. App. 1995). We must review the entire charge and invalidate it only if, when read
as a whole, it fails to fairly submit the legal issues or misleads the jury as to the applicable law. State
v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). T.P.I. --Crim. 40.06 is an accurate
statement of the law regarding self-defense. See Tenn. Code Ann § 39-11-611. Thus, the trial court
did not err in its self-defense instruction. This issue has no merit.

                                            SENTENCING
        In the appellant's last issue, he contends that the trial court erred in its imposition of a twelve
(12) year sentence. 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). This presumption only applies, however, if the record demonstrates that the
trial court properly considered all 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, -103(5), -210(b). However, the burden
is on the appellant to show that the sentence imposed was improper. Sentencing Commission
Comments, Tenn. Code Ann. § 40-35-401(d).
        First, the defendant claims that the trial court erred by rejecting several mitigating factors
offered by the defendant. The defendant sought mitigation based on the following five (5) factors:
                 That the defendant acted under strong provocation. Tenn. Code Ann.
                 § 40-35-113(2);

                That substantial grounds existed tending to excuse or justify the
                defendant’s criminal conduct, though failing to establish a defense.
                Tenn. Code Ann. § 40-35-113(3);

                That because of the defendant’s youth, he lacked substantial judgment
                in committing the offense. Tenn. Code Ann. § 40-35-113(6);


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                  That the defendant, although guilty of the crime, committed the
                  offense under such unusual circumstances that it is unlikely that a
                  sustained intent to violate the law motivated the criminal conduct.
                  Tenn. Code Ann. § 40-35-113(11); and

                  That the defendant acted under duress or under the domination of
                  another person, even though the duress or domination of another
                  person is not sufficient to constitute a defense to the crime. Tenn.
                  Code. Ann. § 40-35-113(12).

The court found that the defendant’s youth was mitigating but rejected the other four proposed
factors because Mr. Bain’s and Mr. Sullivan’s testimony convinced the court that the defendant was
not provoked or acting under duress at the time of the offense. The defendant now claims that the
court’s rejection of these factors was impermissibly based on the testimony of Mr. Bain and Mr.
Sullivan. As stated above, however, Mr. Bain’s and Mr Sullivan’s testimony was properly admitted.
Thus, the trial court’s reliance on that testimony was proper.
        The defendant also claims that the sentence was excessive. The court properly found the
existence of four (4) enhancement factors3 and one mitigating factor. The court further found that
the effect of the enhancement factors “substantially outweighed” the mitigating circumstances and
sentenced the defendant to twelve (12) years in the Department of Corrections, the maximum within
the sentencing range. Finally, after noting the cavalier attitude of the defendant and the other
witnesses regarding violence, the court found that the sentence was necessary to avoid depreciating
the seriousness of the offense and to deter others. See Tenn. Code Ann. § 40-35-102(3)(A). The
defendant has not overcome the presumption of correctness applicable the trial court’s sentence in
this case. This issue is without merit.
        Accordingly, the judgment of the trial court is AFFIRMED.


                                                               ___________________________________
                                                               JERRY SMITH, JUDGE




       3
           Tenn. Code An n. §§ 40-35-114(1), -114 (6), -114(9), -114(17).

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