         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON             FILED
                         JANUARY 1999 SESSION         February 3, 1999

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 02C01-9710-CR-00389
      Appellee,                    )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. ARTHUR T. BENNETT,
MARCUS POLK,                       )    JUDGE
                                   )
      Appellant.                   )    (Attempted First Degree Murder,
                                   )     Aggravated Assault, Reckless
                                   )     Aggravated Assault)



FOR THE APPELLANT:                      FOR THE APPELLEE:

COLEMAN W. GARRETT                      PAUL G. SUMMERS
200 Jefferson Ave, Suite 850            Attorney General and Reporter
Memphis, TN 38103-2328
                                        PETER M. COUGHLAN
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        PAUL F. GOODMAN
                                        Assistant District Attorney General
                                        201 Poplar Ave, Suite 301
                                        Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, Marcus Polk, appeals as of right his convictions by a

Shelby County jury of two counts of attempted first degree murder, one count of

aggravated assault, and one count of reckless aggravated assault. The

defendant was sentenced to terms of twenty-five (25) and fifteen (15) years for

the attempted murder convictions, and six (6) years for aggravated assault, all

consecutive. The trial court also ordered a three (3) year sentence for reckless

aggravated assault served concurrently to the aggravated assault conviction, for

an effective sentence of forty-six (46) years. On appeal, the defendant contends

the evidence adduced at trial was insufficient to support the guilty verdicts, and

the trial court abused its discretion in ordering consecutive sentences. The

judgment of the trial court is AFFIRMED.



                                         I.



       Tamera Townsend and Kenneth Matthews lived together in an apartment

with Townsend’s children. Matthews had fathered Townsend’s two youngest

children. Townsend and Matthews subsequently ended their relationship, and

Matthews moved out of the apartment. The defendant and Tamera Townsend

then began a relationship, and the defendant moved into Townsend’s apartment.



       Townsend ended her relationship with the defendant after several

months. Two nights after the defendant moved out of Townsend’s apartment,

Matthews spent the night there. The defendant arrived at the apartment the

following morning and knocked on the door. Townsend refused to answer the

door, fearing a confrontation between Matthews and the defendant. Townsend

testified that the defendant remained outside her apartment for several hours,

leaving sometime in the afternoon.




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       Townsend’s mother arrived after the defendant left the apartment.

Townsend, Matthews, her mother and her children then left the apartment for

several hours. When they returned that night, Townsend discovered her

apartment had been vandalized. Television screens were shattered, dresser

drawers were emptied, a leather couch was slashed, and a VCR was missing.

Townsend called police from a neighbor’s apartment, and officers responded to

make a report. Townsend informed the officers she suspected the defendant of

causing the damage.



       The police left at approximately 7:30 p.m. on February 16, 1996. Shortly

thereafter, Townsend, Matthews and two neighbors, Wayne Rooks and Latrina

Askew, gathered in Townsend’s apartment. Standing at her front door,

Townsend observed the defendant standing at the entrance to her apartment

complex. She exclaimed, “[t]here go Mark,” and Matthews rushed to the door.

When Matthews appeared at the door, the defendant began to fire shots into the

apartment. Everyone in the apartment dropped to the floor. When the shots

stopped, Wayne Rooks stood to leave and was shot in the head. Rooks

permanently lost his vision and sense of smell as a result of the injury.



       Latrina Askew testified that when Townsend shouted, “[t]here go Mark,”

Askew turned and recognized the defendant standing in a dimly lit area of the

apartment complex. Although she could not see him clearly, she did recognize

the defendant, and identified him as the person who fired the shots into

Townsend’s apartment. Kenneth Matthew’s testimony was essentially the same

as Townsend’s and Askew’s. Wayne Rooks testified that he did not see who

shot him.



       The defendant’s mother, Dorothy Polk Davenport, testified for the defense

as an alibi witness. She testified that the defendant was at home with a




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female friend from approximately 6:30 p.m. to 8:00 or 8:30 p.m. on the evening

of the shooting.



       The defendant testified that he was not the person who fired the shots

and stated he was at home with his girlfriend at the time of the shooting.



                                           II.



       The defendant first contends that the evidence is insufficient to support

his convictions. Specifically, he argues that the eyewitness testimony offered by

Askew and Matthews was unduly influenced by Townsend’s statement, and no

rational trier of fact could have convicted him based upon the eyewitness

testimony. The defendant further contends that the jury failed to give proper

weight to his alibi evidence.



          In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978). To the contrary, this Court is required to afford the state the

strongest legitimate view of the evidence contained in the record as well as all

reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).



       Questions concerning the credibility of the witnesses, the weight and

value to be given the evidence as well as all factual issues raised by the

evidence are resolved by the trier of fact, not this Court. Id. In State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court stated, "[a]

guilty verdict by the jury, approved by the trial judge, accredits the testimony of

the witnesses for the State and resolves all conflicts in favor of the theory of the

State."




                                           4
       Like any other fact at trial, an alibi defense presents an issue of fact

determinable by the jury. Cole v. State, 187 Tenn. 459, 215 S.W.2d 824 (Tenn.

1948); Smith v. State, 566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). Likewise,

the credibility of eyewitness testimony identifying the accused as the perpetrator

of the criminal offense for which he stands trial is a question of fact for the

determination of the jury upon consideration of all competent proof. State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).



       The jury heard the testimony of three witnesses who identified the

defendant as the person who fired shots into Townsend’s apartment. They also

heard the defendant’s alibi testimony. The jury chose to believe the State’s

witnesses, as was its prerogative.



       This issue is without merit.



                                          III.



       The defendant next contends the trial court abused its discretion in

ordering consecutive sentences. The defendant argues that since the offenses

arose out of a single act, consecutive sentencing was not warranted.



       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).




                                           5
       Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115.

The trial court may order consecutive sentencing if it finds that one or more of

the required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn.

Crim. App. 1995). Further, the court is required to determine whether the

consecutive sentences (1) are reasonably related to the severity of the offenses

committed; (2) serve to protect the public from further criminal conduct by the

offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



       We reject defendant’s argument that all offenses arising out of a single

act of shooting mandate concurrent sentences. See Gray v. State, 538 S.W.2d

391, 393 (Tenn. 1976). As previously stated, consecutive sentencing is now

governed by Tenn. Code Ann. § 40-35-115.



       The trial court found the defendant to be “a dangerous [offender] ... you

are a danger to society in regard to human life.” See Tenn. Code Ann. § 40-35-

115 (b)(4). Shooting into an occupied apartment, the defendant endangered the

lives of at least four (4) people. Further, after a brief respite from the initial shots,

the defendant shot Wayne Rooks as he attempted to flee. The trial court was

justified in its determination that the defendant is a dangerous offender within the

meaning of Tenn. Code Ann. § 40-35-115.



       The trial court failed to explicitly mention the Wilkerson factors in finding

consecutive sentences appropriate. However, under our power of de novo

review, we find the consecutive sentences are necessary to protect the public

from further criminal conduct by the defendant, are reasonably related to the

severity of the offenses, and are congruent with general sentencing principles.

In short, we find the defendant was properly sentenced to consecutive terms.



       This issue is without merit.



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     Accordingly, the judgment of the trial court is AFFIRMED.




                                             _________________________
                                             JOE G. RILEY, JUDGE


CONCUR:




______________________________
DAVID G. HAYES, JUDGE




______________________________
JOHN EVERETT WILLIAMS, JUDGE




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