         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  December 12, 2006 Session

           STATE OF TENNESSEE v. SHERRY FLOYD McALISTER

                   Direct Appeal from the Criminal Court for Perry County
                             No. 897 Donald P. Harris, Judge



                    No. M2006-01690-CCA-R3-CD - Filed January 29, 2007


The defendant, Sherry Floyd McAlister, was convicted of attempted first degree murder, a Class A
felony, and sentenced as a Range I, standard offender to twenty-five years in the Department of
Correction. On appeal, she argues that the trial court erred by imposing an excessive sentence.
Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and D. KELLY
THOMAS, JR., JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee (on appeal); L. L. Harrell, Jr., Trenton, Tennessee (at
trial), for the appellant, Sherry Floyd McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Jeffrey L. Long and Stacey B. Edmonson, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        The defendant’s thirty-one-year-old stepdaughter, Emily Ann Coffman, was stabbed multiple
times on August 19, 2004, near the Buffalo River in Perry County. A grand jury indicted the
defendant on January 25, 2005, for the attempted first degree murder of Coffman. As the issues
raised on appeal only concern sentencing, it is not necessary to set out the evidence presented at trial
in great detail.

      Coffman testified that, on the day of the offense, she had just finished serving a sentence
imposed for violating her probation, and the defendant picked her up “around lunch[time]” at the
Wayne County Jail. Coffman stated that the defendant said she wanted to look at the river before
going home and drove to a boat launch area that “had woods around it” where they got out of the car
and walked a short distance. Coffman said that she sat down on the trunk of a fallen tree and that
the defendant stood behind her, asked her to smell some flowers, and then “stabbed [her] in the
back.” Coffman then described defending herself against the defendant and said that other people
came to her aid before an ambulance transported her to the Linden Hospital where she was then
airlifted to Vanderbilt Hospital in Nashville.

        Dr. Andrew Averett testified that he treated Coffman at the Linden Hospital emergency
room. He said that she had stab wounds to her “left fifth finger,” left knee, and “right posterior
shoulder area.” He said that her hand injury appeared to be “a defensive wound” and that one of her
lungs had been punctured as a result of the stab wound in her back. Dr. Averett opined that it was
“real unlikely” that the stab wound to the victim’s back was self-inflicted because of “the position
that your arm would already be in.”

         Investigator Barry Carroll of the Twenty-First Judicial District Attorney General’s Office
testified that he found a knife and a loaded .25 caliber pistol in the defendant’s car. John O. Marshall
testified that, on the day of the incident, he and David Stranghoener were “walking around” near the
river when they saw the defendant “dragging [the victim] down the path with the knife in her hand.”
He said that Stranghoener provided first-aid to the victim while the defendant stood by.

        Tyler Kolwyck testified that on the day of the offense he was camping at the Buffalo River
with his fiancée. He said that while they were walking near the river, they heard the victim scream
“Help me! Help me! She’s trying to kill me.” He confirmed that at that time, the victim was
“sitting on her bottom up against the brush” and that the defendant was standing over her with a
knife. They then saw the defendant “dragging [the victim] our way, saying that she’s trying to kill
herself and all that.” After another man “broke them up and stuff,” Kolwyck and his fiancée called
9-1-1.

        The defendant testified that she had not attempted to kill the victim. She said that she had
wanted to go “down [to] the Buffalo River to see what was down there.” The defendant stated that
she was walking around picking flowers, listening to the victim talk, and when she “turned back
around [the victim] was laying [sic] in this clump of trees.” She said that they struggled with the
knife, which was when Coffman must have sustained the wound in her back “unless she had already
stabbed herself.”

        The trial court held a sentencing hearing on November 18, 2005, at which William Sanders,
the Chief of Police for Trenton, Tennessee, testified about the defendant’s 1985 conviction for
voluntary manslaughter. Over defense counsel’s objections, Chief Sanders said that the victim in
that case, the defendant’s “lover,” had been found dead in a motel room with a shotgun wound to
the back of the head.

        In sentencing the defendant to twenty-five years, the trial court applied three enhancement
factors: (1) a previous history of criminal convictions in addition to those necessary to establish the


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appropriate range; (6) the personal injuries inflicted upon the victim were particularly great; and (11)
the felony resulted in serious bodily injury to another person, and the defendant had previously been
convicted of a felony that resulted in death. See Tenn. Code Ann. § 40-35-114(1), (6), (11) (2005).

                                             ANALYSIS

         On appeal, the defendant argues that the trial court erred by imposing an excessive sentence.
Specifically, she argues that each of the three enhancement factors was erroneously applied and that
the testimony of Chief Sanders should not have been admitted.

        Initially, she asserts that “the trial court erred by imposing an excessive sentence upon [the
defendant], by allowing into evidence at sentencing hearing [sic] a prior crime in violation of
Tennessee Rule of Evidence 404(b).” As Rule 404(b) only precludes evidence of the commission
of a prior crime when it is offered “to prove the character of a person in order to show action in
conformity with the character trait,” Tenn. R. Evid. 404(b) (2005), and it was not offered for this
purpose at the defendant’s sentencing hearing, this argument is without merit.

       Next, the defendant argues “that one previous conviction and no evidence of criminal
behavior since 1985 does not make out a ‘history,’ which is impliedly required to lawfully consider
Tennessee Code Annotated [section] 40-35-114(1) as an enhancing factor for sentencing.” On the
contrary, it was within the trial court’s discretion to consider the defendant’s prior conviction for
manslaughter as an enhancement factor. See State v. Souder, 105 S.W.3d 602, 606 (Tenn. Crim.
App. 2002) (finding that the trial court did not abuse its discretion by enhancing the defendant’s
sentence, in part, because of a single, thirty-five-year-old misdemeanor conviction).

        The defendant further contends that the trial court erred by enhancing her sentence through
application of Tennessee Code Annotated section 40-35-114(6), by finding that the victim’s injuries
were particularly great. The defendant argues that under the United States Supreme Court’s decision
in Blakely v. Washington, the fact that the victim’s injuries were particularly great must be found
by a jury before it can be used to enhance her sentence. See Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004). However, the Tennessee Supreme Court has ruled that application of the
enhancement factors as codified in the Tennessee Criminal Sentencing Reform Act of 1989 does not
violate Blakely. State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005). Accordingly, the defendant’s
argument is without merit.

        The defendant also argues that “enhancement factor (11) was improperly applied by the trial
court in that it is, in itself, an essential element of a charged offense inconsistent with the
requirements of Tennessee Code Annotated [section] 40-35-114.” As this court has previously held
that enhancement factor (11) can be properly applied in sentencing a defendant for attempted first
degree murder, this argument is also without merit. See State v. Nix, 922 S.W.2d 894, 903 (Tenn.
Crim. App. 1995).




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        In addition, the defendant asserts that allowing Chief Sanders to testify at the sentencing
hearing violated Rule 403 of the Tennessee Rules of Evidence because his testimony “served only
to unnecessarily prejudice the judge at sentencing when the fact that she had been convicted
previously was stipulated by the defense.” The State responds that the testimony was relevant both
to establish the fact of her prior conviction, as well as with regard to enhancement factor (11), to
show, as found by the trial court, that the defendant had “very little regard for human life” and “her
incarceration [was] absolutely necessary to protect society from this kind of thing occurring again.”

       We note that the facts of the defendant's 1985 homicide are set out in the direct appeal of her
conviction, State v. McAlister, 751 S.W.2d 436 (Tenn. Crim. App. 1987), the main difference
between the reported facts and the testimony of Chief Sanders being that the victim was shot in the
back of the head with a rifle rather than a shotgun, as Sanders testified at the sentencing hearing.
Given that the trial court determined that the facts of the 1985 offense were relevant to the
sentencing of the defendant, especially as to her having little regard for human life, we conclude that
the court did not abuse its discretion in allowing this testimony. See State v. Rice, 184 S.W.3d 646,
682 (appx.) (Tenn.), cert. denied, __ U.S. __, 127 S. Ct. 68 (2006).

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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