        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               On Brief November 2, 2010

               STATE OF TENNESSEE v. JONATHAN EVERETT

                    Appeal from the Criminal Court for Shelby County
                          No. 06-06767 Lee V. Coffee, Judge



                   No. W2008-01578-CCA-R3-CD - Filed April 4, 2011


Appellant, Jonathan Everett, was indicted by the Shelby County Grand Jury for one count of
first degree murder and two counts of attempted first degree murder. After a lengthy jury
trial, Appellant was convicted of one count of second degree murder, one count of attempted
voluntary manslaughter, and one count of reckless endangerment. As a result, Appellant was
sentenced to an effective sentence of twenty-nine years, eleven months, and twenty-nine
days. Appellant presents the following issues for our review on direct appeal: (1) whether
the trial court properly denied the motion to dismiss and remand for a preliminary hearing;
(2) whether the trial court properly denied the motion to suppress Appellant’s statement; (3)
whether the trial court erred by denying Appellant’s request to cross-examine Jamarcus
Palmer about specific instances of conduct; (4) whether the evidence was sufficient to
support the convictions; and (5) whether the trial court properly sentenced Appellant. After
a thorough review of the record, we conclude that the trial court properly denied the motion
to dismiss; the trial court properly denied the motion to suppress when Appellant’s statement
was made knowingly and voluntarily; the trial court properly denied Appellant’s request to
cross-examine Jamarcus Palmer; the evidence was sufficient to support the convictions; and
the trial court properly sentenced Appellant. Therefore, the judgments of the trial court are
affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J OHN E VERETT W ILLIAMS, J., Joined.

Phyllis Aluko, Assistant Public Defender, for the appellant, Jonathan Everett.
Robert E. Cooper, Jr., Attorney General and Reporter, Benjamin A. Ball, Assistant Attorney
General; William L. Gibbons, District Attorney General, and Ray Lapone and David
Pritchard, Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                   Factual Background

      On March 10, 2006, Trezevant High School in Memphis, Tennessee, held a Jamboree.
The Jamboree was a band competition. Appellant attended the Jamboree with Fadarreyall
Crumb and a few other friends. Mr. Crumb had a handgun on his person when he got to the
Jamboree. He stashed it in the shrubbery outside the school prior to entering the Jamboree.

       Rodney Thomas, otherwise known as “Big Rodney,” also attended the Jamboree. He
graduated from Trezevant High School in 2005. Mr. Thomas drove his car to the event and
was accompanied by Terrance Wilson and Jamarcus Palmer. Mr. Thomas parked his car at
the Buena Vista apartments across the street from the school. None of the young men were
armed.

       When the Jamboree was over, there were a lot of people milling around outside the
school. A crowd gathered in the parking lot. There was a “commotion” and people were
“throwing gang signs” and shouting out things about their neighborhoods. At least one gun
shot rang out.

      When they heard the gunshot, Mr. Wilson and Mr. Palmer ran immediately toward
Mr. Thomas’s car. They got inside the car. Mr. Thomas, on the other hand, waited for a few
minutes for the crowd to thin out before he walked backed to his car.

       When Mr. Crumb heard the first gunshot, he retrieved his gun from the bushes. He
reunited with Appellant and several other friends. At least two other young men in this group
were armed. They walked toward the Buena Vista apartments where they saw Mr. Thomas
getting into his car. Mr. Crumb saw Mr. Thomas and commented, “This them [people].” Mr.
Thomas yelled out, “No brother, this Big Rodney.” Mr. Crumb lowered his gun. At that
time, Appellant snatched the gun from Mr. Crumb’s hand and stated, “No, that’s them
[people].” Appellant shot the weapon four times in the direction of Mr. Thomas and the car.

       Mr. Wilson grabbed his neck and collapsed. He died at the scene from two gunshot
wounds, one to the right shoulder and one to the right side of his head. The two wounds
could have possibly come from the same bullet. Mr. Thomas was shot in the hand and the

                                             -2-
chest. He almost immediately lost consciousness. When he regained consciousness, he saw
Appellant and his friends running away from the scene. Mr. Thomas was hospitalized and
underwent surgery as a result of his injuries. Mr. Palmer escaped the melee unscathed after
diving onto the floorboard of the car.

      While Appellant was running away from the scene, Appellant returned the gun to Mr.
Crumb. Mr. Crumb discarded the weapon in a wooded area. The weapon was later
recovered.

       Mr. Thomas spent about a week and a half in the hospital, undergoing several
surgeries. He could not initially identify Appellant as the perpetrator but was being prepped
for surgery at the time that he was questioned by police. He later identified Appellant as the
shooter.

       Appellant was a juvenile at the time of the offense. He gave a statement to police on
March 11, 2006. Appellant’s mother was present during the interview. During the interview,
Appellant confessed that he took the gun from Mr. Crumb and shot at Mr. Thomas.
Appellant admitted that he ran from the scene. Appellant insisted that Mr. Thomas had
threatened him over “some gang related stuff.” Appellant did not claim in his statement that
Mr. Thomas was armed. Appellant was transferred from juvenile court for trial as an adult.

        Appellant was indicted for his role in the incident and charged with one count of first
degree murder and two counts of attempted first degree murder by the Shelby County Grand
Jury. At trial, Appellant testified. Appellant claimed that he and Mr. Thomas had a long
history of conflict. Appellant testified that earlier on the night of the Jamboree, Mr. Thomas
“bumped” Appellant and told him that someone was “gonna get killed tonight.” Appellant
also insisted at trial that Mr. Thomas was armed during the confrontation. Appellant stated
that it was his belief that Mr. Thomas would kill him.

       Appellant’s mother also testified in his behalf. Mrs. Everett testified that Appellant
was of below-average intelligence and often got into fights at school. Mrs. Everett even sent
Appellant to his grandmother’s house to live for two years in order to remove him from the
area. Mrs. Everett thought that Appellant could stay out of trouble if he were at a different
school.

       A family friend, Christy Campbell, testified that she witnessed a confrontation
between Appellant and a group of young men who appeared to be “after” Appellant. Ms.
Campbell saw Appellant walking with a group of friends and saw another group of young
men approaching Appellant and his friends. Ms. Campbell thought that the approaching
group appeared to be armed based on their demeanor and walk. This confrontation occurred

                                              -3-
sometime prior to the incident at issue but Ms. Campbell could not remember whether it
occurred in 2005 or 2006. Ms. Campbell could not positively identify any of these people
that were “after” Appellant but testified that she gave Appellant a ride home that day so that
he could avoid the group.

        At the conclusion of the proof, the jury convicted Appellant of the lesser included
offenses of second degree murder, attempted voluntary manslaughter, and reckless
endangerment. The trial court held a separate sentencing hearing during which Appellant
was sentenced to twenty-five years for second degree murder, four years for attempted
voluntary manslaughter, and eleven months and twenty-nine days for reckless endangerment.
The trial court determined that consecutive sentences were warranted based upon Appellant’s
classification as a dangerous offender. As a result, Appellant’s effective sentence for the
convictions was twenty-nine years, eleven months, and twenty-nine days.

       Appellant filed a motion for new trial. At the hearing, Appellant alleged and
presented at least sixteen grounds for relief. The trial court denied the motion and this appeal
followed.

       On appeal, Appellant argues: (1) the trial court improperly denied the motion to
dismiss; (2) the trial court improperly denied the motion to suppress; (3) the trial court erred
by denying Appellant’s request to cross-examine Jamarcus Palmer about specific instances
of conduct; (4) the evidence was insufficient to support the convictions; and (5) the trial court
improperly sentenced Appellant.

                                            Analysis

                                      Motion to Dismiss

       First, Appellant argues that the trial court erred by denying his motion to dismiss and
remand for a new preliminary hearing. In his argument, Appellant compares the right of a
juvenile to a full and fair transfer hearing to the right of an adult to a preliminary hearing.
Appellant urges this Court to hold that State v. Graves, 126 S.W.3d 873 (Tenn. 2003),
provides guidance that the proper remedy would be dismissal of the indictment and remand
of the matter to the lower court. The State disagrees, stating that the trial court properly
denied the motion to dismiss.

      As part of his argument, Appellant acknowledged that he received a transfer hearing
on March 29, 2006. He explained that he requested a copy of the hearing prior to trial.
Appellant was informed that the audio transcript had been destroyed as the result of a
computer malfunction. In response to this discovery, Appellant filed a motion to dismiss.

                                               -4-
Appellant also requested a new preliminary hearing. The trial court held a hearing on the
motion. At the hearing, Appellant argued that he was entitled to a preliminary hearing under
Rule 5.1 of the Tennessee Rules of Criminal Procedure because the transcript of the transfer
hearing had been destroyed.


      Prior to indictment, the juvenile court held a juvenile transfer hearing in order to
determine whether Appellant was to be tried as an adult. According to Tennessee Code
Annotated section 37-1-134(f)(2):

       In any county in which, on July 1, 1996, the general sessions court or juvenile
       court makes audio recordings, the court shall make or cause to be made an
       audio recording of each transfer hearing conducted pursuant to this section.
       Such recording shall include all proceedings in open court and such other
       proceedings as the judge may direct and shall be preserved as a part of the
       record of the hearing. The juvenile who is the subject of the hearing may, at
       the juvenile’s own expense, transcribe the recording of the hearing and a
       transcript so prepared may be used for the purpose of an appeal as provided by
       law. In all other counties, transfer hearings shall be recorded using the
       procedure provided in title 40, chapter 14, part 3.

(emphasis added).

       The record provided herein, including a letter from juvenile court, indicates that the
hearing was recorded in accordance with the statute. However, due to a computer system
crash in juvenile court, the recording of Appellant’s hearing was lost. The trial court denied
the motion to dismiss the indictment on the basis that probable cause was established at the
transfer hearing and that Appellant was not entitled to a preliminary hearing.

        On appeal, Appellant argues that the application of Graves mandates a dismissal of
the indictment in this case due to the State’s failure to comply with the recording
requirement. First, Appellant likens a juvenile transfer hearing to a preliminary hearing.
This is accurate at least with regard to the issue of probable cause. See State v. Womack, 591
S.W.2d 437, 443 (Tenn. Crim. App. 1979). In Graves, the case relied upon by Appellant, the
preliminary hearing rather than a juvenile transfer hearing, was not recorded as required by
Tennessee Rule of Criminal Procedure 5.1(a). 126 S.W.3d at 875. The trial court denied the
defendant’s motion to dismiss the indictment. Id. On appeal, this Court determined that the
failure to produce a recording of the preliminary hearing was error, but that the error was
harmless. Id. at 876. On appeal to the supreme court, the court determined that “automatic



                                             -5-
dismissal of the indictment is not required” in cases where the recording requirements of
Rule 5.1(a) are unobserved. Id. at 877. However, our supreme court stated:

         [T]he failure to preserve an electronic recording or its equivalent of a
         preliminary hearing under Rule 5.1(a) requires the dismissal of the indictment
         and a remand for a new preliminary hearing unless the State establishes (1)
         that all material and substantial evidence that was introduced at the preliminary
         hearing was made available to the defendant and (2) that the testimony made
         available to the defendant was subject to cross-examination.

Id. at 877-88 (citing State v. Bolden, 979 S.W.2d 587, 590 (Tenn. 1998) (footnote omitted))
(emphasis in original).

        Applying the standard in Graves to the case herein, the testimony from the hearing on
the motion to dismiss establishes that the same information presented at the juvenile transfer
hearing was made available to Appellant prior to trial. Counsel for Appellant stated at the
hearing on the motion that Appellant did not know if he had been prejudiced by the failure
of the recording because counsel “didn’t know what happened at those proceedings” but had
“been advised as to who testified there.” Appellant was represented at the hearing by a
lawyer with the juvenile defender’s office. The evidence introduced at the hearing was
available to Appellant through discovery and because Appellant was represented by counsel,
there was no testimony provided at the juvenile transfer hearing that was not subject to cross-
examination by Appellant. Therefore, the trial court properly denied the motion to dismiss
the indictment despite the State’s inadvertent failure to preserve a recording of the juvenile
transfer hearing. See State v. Deangelo Sevier, No. W2009-00172-CCA-R3-CD, 2010 WL
796948, at *6-7 (Tenn. Crim. App., at Jackson, Mar. 9, 2010), perm. app. denied, (Tenn.
Aug. 24, 2010)1 .

                                               Motion to Suppress

       Next, Appellant argues that the trial court erred in denying the motion to suppress his
statement. Appellant alleges that his statement should have been suppressed because he is
“mildly mentally retarded with a likely IQ in the 60s; illiterate; and . . . has difficulty
understanding Miranda warnings and percentages.” In other words, Appellant did not
knowingly and intelligently waive his rights prior to making the statement in which he
admitted shooting the gun. The State, on the other hand, insists that the trial court did not


         1
         This case also involved an inadvertently lost juvenile transfer transcript due to a computer malfunction in the
Shelby Juvenile Court. Presumably these glitches have been remedied.



                                                          -6-
abuse its discretion after determining that Appellant’s claims regarding his statement were
“incredible or lacking belief.”

        Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 775, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999).

        The Fifth Amendment to the United States Constitution provides in pertinent part that
“no person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that “in
all criminal prosecutions, the accused shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. However, an accused may waive this right against
self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the United States
Supreme Court held that a suspect “must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.” Id. at 479. The Supreme
Court held that a suspect may knowingly and intelligently waive the right against
self-incrimination only after being apprised of these rights. Id. Accordingly, for a waiver
of the right against self-incrimination to be constitutionally valid, the accused must make an
intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at 444. In
considering the totality of the circumstances a court should consider:

       [T]he age of the accused; his lack of education or his intelligence level; the
       extent of his previous experience with the police; the repeated and prolonged
       nature of the questioning; the length of the detention of the accused before he
       gave the statement in question; the lack of any advice to the accused of his
       constitutional rights; whether there was an unnecessary delay in bringing him
       before a magistrate before he gave the confession; whether the accused was
       injured intoxicated or drugged, or in ill health when he gave the statement;
       whether the accused was deprived of food, sleep or medical attention; whether



                                              -7-
       the accused was physically abused; and whether the suspect was threatened
       with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (citing State v. Readus, 764 S.W.2d
770, 774 (Tenn. Crim. App. 1988)). However, no single factor is necessarily determinative.
State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (citing Fairchild v. Lockhart, 744
F.Supp. 1429, 1453 (E.D. Ark. 1989)). Further, “[a] trial court’s determination that a
confession was given knowingly and voluntarily is binding on the appellate courts unless the
defendant can show that the evidence preponderates against the trial court’s ruling.” State
v. Keen, 926 S.W.2d 727, 741 (Tenn. 1994).

        A court may conclude that a defendant voluntarily waived his rights if, under the
totality of the circumstances, the court determines that the waiver was uncoerced and that the
defendant understood the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545
(Tenn. 1994). In order to be considered voluntary, the statement “must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises, however
slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532,
542-43 (1897); see also State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). However, “[a]
defendant’s subjective perception alone is not sufficient to justify a conclusion of
involuntariness in the constitutional sense.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996). Instead, “‘coercive police activity is a necessary predicate to finding that a confession
is not voluntary . . . .’” Id. (quoting State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)).

        In the case herein, we determine that Appellant has failed to establish that the
evidence preponderates against the trial court’s determination that the statement was freely
and voluntarily given. Officer Kevin Lundy testified that Appellant was accompanied by his
mother to the police station. Further, Appellant executed a waiver of his rights prior to
making a statement to authorities. In fact, Officer Lundy obtained written waivers on two
different occasions. Officer Lundy testified that Appellant was attentive and appeared to
understand his rights. Appellant’s mother was present the entire time that Appellant was
being questioned. At the hearing on the motion to suppress, Appellant and his mother both
denied signing the waiver. The trial court found their testimony lacking in credibility, stating
“[T]hey have not been truthful with the Court, and their testimon[ies] even between
themselves [have] been inconsistent and [have] been untruthful.” After hearing the evidence,
the trial court determined that Officer Lundy was a credible witness; that he advised
Appellant of his rights; that there was no evidence that Appellant was coerced, threatened,
intimidated; or that the police in any other way violated Appellant’s constitutional rights
against self-incrimination. Further, the trial court noted that Appellant had extensive
experience with the judicial system, even a prior encounter with police questioning in which
he did not confess to involvement in a crime. Despite Appellant’s “minimal ability to read

                                              -8-
and write” and self-proclaimed low intelligence, the trial court determined that Appellant,
who managed to attend regular classes at a twelfth-grade-level, could understand the rights
explained to him.

        This Court has previously upheld the denial of a motion to suppress a statement given
to police by a juvenile when the evidence does not preponderate against the trial court’s
finding that the statement was knowingly, voluntarily, and intelligently made. See State v.
Rodney Southers, No. E2004-01136-CCA-R3-CD, 2005 WL 780174, at *6 (Tenn. Crim.
App., at Knoxville, Apr. 7, 2005), perm. app. denied, (Tenn. Oct. 24, 2005). In the case
herein, the evidence does not preponderate against the judgment of the trial court. The trial
court was the party responsible for assessing the credibility of the witnesses as well as
resolution of conflicts in the evidence. Odom, 928 S.W.2d at 23. Appellant is not entitled
to relief on this issue.

                           Cross-Examination of Jamarcus Palmer

        Appellant contends that the trial court erred by refusing to allow trial counsel to cross-
examine witness Jamarcus Palmer about specific instances of conduct. Appellant referred
specifically to Mr. Palmer’s pending charges that “involved Mr. Palmer possessing a gun .
. . and firing a gun.” Appellant argues on appeal that the pending charges “would be
probative of the truthfulness of the defendant’s prior statements.” Appellant did not utilize
this argument in the trial court. The State contends that the trial court properly limited cross-
examination.

        We observe that “[t]rial judges are empowered with great discretion regarding the trial
process, including the scope of cross-examination,” and that such “discretion will not be
disturbed unless an abuse” thereof is found. State v. Williams, 929 S.W.2d 385, 389 (Tenn.
Crim. App. 1996) (citing State v. David A. Scott, III, No. 01C01-9202-CR-00053, 1993 WL
31990, at *5 (Tenn. Crim. App., at Nashville, Feb. 11, 1993), perm. app. denied (Tenn. June
1, 1993)). Additionally, Tennessee Rule of Evidence 608(b) allows a party to ask a witness
about specific instances of conduct that are probative of the witness’s untruthfulness in order
to attack the credibility of the witness. The trial court must first determine that the alleged
conduct has probative value and that there is a reasonable factual basis for the inquiry. See
Tenn. R. Evid. 608(b)(1). The trial court must also determine that “the probative value of
the evidence, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect.” Tenn. R. Evid. 608(b)(2). The trial court’s ruling will only be disturbed
upon a finding of an abuse of discretion. See State v. Roberts, 943 S.W.2d 403, 408 (Tenn.
Crim. App. 1996), overruled on other grounds by State v. Ralph, 6 S.W.3d 251, 257
(Tenn.1999).



                                               -9-
        In the case herein, counsel for Appellant failed to specify the exact charges Mr.
Palmer faced. Additionally, Appellant did not argue at trial that the pending charges had any
effect on the witness’s credibility. Counsel for Appellant sought impeachment of the witness
with the pending charges in the event that the witness claimed he was unfamiliar with guns
or that he never possessed a firearm. However, during trial, Mr. Palmer testified that he had
some knowledge of guns and could recognize the difference between a revolver and a semi-
automatic. Further, during cross-examination, Mr. Palmer was not even questioned about
his knowledge of or experience with guns. Additionally, Appellant’s counsel did not make
an offer of proof to show how Mr. Palmer would have testified on cross-examination had he
been asked about the pending charges. Thus, it is unclear what value the introduction of the
pending charges would have had on the witness’s testimony. The trial court did not abuse
its discretion. Appellant is not entitled to relief on this issue.

                                 Sufficiency of the Evidence

        Appellant argues on appeal that the evidence is insufficient to sustain the convictions.
Specifically, Appellant argues that “the State failed to prove beyond a reasonable doubt that
the appellant did not act in self-defense.” Appellant argues that a review of the evidence
shows that “Big Rodney instigated the hostilities by aggressively approaching [Appellant]
at the Jamboree and threatening him.” The State, on the other hand, alleges that the evidence
does not demonstrate self-defense and is sufficient to support the convictions.

        In order to convict Appellant of second degree murder, the State was required to prove
that Appellant unlawfully and knowingly killed another. T.C.A. §§ 39-13-201, -210(a). A
person acts knowingly with respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result. T.C.A. § 39-11-302(b).
        Voluntary manslaughter is the “intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” T.C.A. § 39-13-211(a).

      A person commits a criminal attempt when, “acting with the kind of culpability
otherwise required for the offense,” he acts in one of the following ways:

       (1) Intentionally engages in action or causes a result that would constitute an
       offense if the circumstances surrounding the conduct were as the person
       believed them to be;

       (2) Acts with intent to cause a result that is an element of the offense if the
       circumstances surrounding the conduct were as the person believed them to be;
       or

                                              -10-
       (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, 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.

T.C.A. § 39-12-101(a). In order to commit attempted voluntary manslaughter, therefore, a
defendant must either: (1) intentionally engage in conduct that would cause the victim’s
death if the circumstances surrounding the conduct were as the person believed them to be;
(2) act with intent to cause the victim’s death if the circumstances surrounding the conduct
were as the person believed them to be; or (3) act with intent to cause the victim’s death,
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. T.C.A. §
39-13-211(a); T.C.A. § 39-12-101(a). A person acts intentionally when he has the
“conscious objective or desire to engage in the conduct or cause the result.” T.C.A. §
39-11-302(a).

        Finally, under Tennessee’s reckless endangerment statute, “[a] person commits an
offense who recklessly engages in conduct which places or may place another person in
imminent danger of death or serious bodily injury.” T.C.A. § 39-13-103(a). A person acts
recklessly “when the person is aware of but consciously disregards a substantial and
unjustifiable risk.” T.C.A. § 39-11-302(c). That “risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the accused person’s
standpoint.” Id.

       The jury was presented with the theory of self-defense.            Tennessee defines
self-defense as follows:

       A person is justified in threatening or using force against another person when,
       and to the degree, the person reasonably believes the force is immediately
       necessary to protect against the other’s use or attempted use of unlawful force.
       The person must have a reasonable belief that there is an imminent danger of
       death or serious bodily injury. The danger creating the belief of imminent
       death or serious bodily injury must be real, or honestly believed to be real at
       the time, and must be founded upon reasonable grounds. There is no duty to
       retreat before a person threatens or uses force.

T.C.A. § 39-11-611(a). Self-defense requires a reasonable belief that “force is immediately
necessary to protect against the other’s use or attempted use of unlawful force” and that there
is an “imminent danger of death or serious bodily injury” to the defendant. T.C.A. §

                                             -11-
39-11-611(a). When a defendant relies upon a theory of self-defense, the State bears the
burden of proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1,
10 (Tenn. 2001). Further, it is well-settled that whether an individual acted in self-defense
is a factual determination to be made by the jury as the sole trier of fact. See State v. Goode,
956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn.
Crim. App. 1993). “Encompassed within that determination is whether the defendant’s belief
in imminent danger was reasonable, whether the force used was reasonable, and whether the
defendant was without fault.” State v. Thomas Eugene Lester, No. 03C01-9702-CR-00069,
1998 WL 334394, at *2 (Tenn. Crim. App., at Knoxville, June 25, 1998), perm. app. denied,
(Tenn. Feb. 1, 1999) (citing State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995)). It is within
the prerogative of the jury to reject a claim of self-defense. See Goode, 956 S.W.2d at 527.
Upon our review of a jury’s rejection of a claim of self-defense, “in order to prevail, the
[Appellant] must show that the evidence relative to justification, such as self-defense, raises,
as a matter of law, a reasonable doubt as to his conduct being criminal.” State v. Clifton, 880
S.W.2d 737, 743 (Tenn. Crim. App. 1994).

        In this case, the jury clearly rejected Appellant’s claim of self-defense by finding him
guilty of second degree murder, attempted voluntary manslaughter, and reckless
endangerment. Therefore, as stated above, Appellant must show this Court that the evidence
raises a reasonable doubt as to his conduct being criminal. Appellant has not met this
burden. The proof at trial, when taken in a light most favorable to the State, indicated that
the victims were unarmed at the time they were shot at multiple times by Appellant. During
trial, Appellant testified that he thought Mr. Thomas was armed by the way that he was
holding his arm; Appellant admitted that he never actually saw Mr. Thomas with a gun
before he snatched the weapon from Mr. Crumb and fired it at least four times at Mr.
Thomas, Mr. Wilson, and Mr. Palmer. In addition, the proof showed that Appellant fired the
first shots even after Mr. Thomas identified himself to Appellant. Further, Appellant fired
the shots at the people and the car with little disregard for the large number of people around
him both outside and inside the surrounding apartments. Therefore, there is no evidence
other than Appellant’s own testimony to prove that he acted in self-defense and that his
behavior did not constitute second degree murder, attempted voluntary manslaughter, and
reckless endangerment. The jury obviously rejected Appellant’s account of events. We have
stated above that the jury is the arbiter of the credibility of witnesses at trial. Clearly, the jury
found that Appellant was not credible. We conclude that the evidence was sufficient to
support Appellant’s convictions and reject the theory of self-defense. Therefore, this issue
is without merit.




                                                -12-
                                          Sentencing

        Lastly, Appellant argues that the trial court imposed an excessive sentence.
Specifically, Appellant contends that he should have received the minimum sentence in the
range for second degree murder and that the trial court should not have ordered the sentences
to be served consecutively. Appellant contends that two of the enhancement factors applied
are not supported by the evidence and that one of the factors is “inherent within the offense
of murder second degree.” The State disagrees, noting that the trial court followed the
sentencing principles and considered all relevant facts and circumstances.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

        In making its sentencing determination, a trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the
sentence within the appropriate sentencing range for the defendant:


       [T]he court shall consider, but is not bound by, the following advisory
       sentencing guidelines:



                                              -13-
       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and
       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2006).

        At the outset we note that Appellant committed the criminal offenses at issue in March
of 2006, therefore, the 2005 amendments to the sentencing act apply to our review of his
sentencing. The 2005 amendments to the sentencing act made the application of the
enhancement factors advisory in nature. See T.C.A. § 40-35-114; State v. Jackie Lynn Gray,
No. M2007-02360-CCA-R3-CD, 2008 WL 2579175, at *5 (Tenn. Crim. App., at Nashville,
June 28, 2008), perm. app. denied, (Tenn. Dec. 29, 2008); State v. Troy Sollis, No. W2007-
00688-CCA-R3-CD, 2008 WL 1931688, at *3 (Tenn. Crim. App., at Jackson, May, 2, 2008).
In fact, “[t]he 2005 amendments [to the sentencing act] deleted as grounds for appeal a claim
that the trial court did not weigh properly the enhancement and mitigating factors.” State v.
Carter, 254 S.W.3d 335, 344 (Tenn. 2008). After a review of the transcript from the
sentencing hearing, it is clear that the trial court considered the nature and characteristics of
the criminal conduct involved, Appellant’s history and background, the mitigating and
enhancement factors, and the principles of sentencing. See id. at 345-46.

       The trial court applied enhancement factor (2), “[t]he defendant was a leader in the
commission of an offense involving two (2) or more criminal actors.” T.C.A. § 40-35-
114(2). Appellant argues this enhancement factor is not supported by the record. To the
contrary, during his own statement, Appellant admitted that he snatched the gun from the
hands of Mr. Crumb and fired it at the victims. Further, the trial court noted Appellant did
not have to be “the” leader, merely “a” leader in the commission of the offense and that
Appellant and his cohorts “were all involved in a chase, a pursuit, looking for someone that
they thought had fired shots . . . earlier.”

       The trial court also applied enhancement factor (9), that Appellant “possessed or
employed a firearm, explosive devise, or other deadly weapon during the commission of the
offense.” T.C.A. § 40-35-114 (9). Appellant does not challenge the application of this
enhancement factor.

       The trial court also applied enhancement factor (16), “[t]he defendant was adjudicated
to have committed a delinquent act or acts as a juvenile that would constitute a felony if

                                              -14-
committed by an adult.” T.C.A. § 40-35-114(16). The record establishes that Appellant has
a lengthy juvenile record, and that at least one of those adjudications, robbery, would have
been a felony had it been committed by an adult.

        Finally, the trial court applied enhancement factor (10), “[t]he defendant had no
hesitation about committing a crime when the risk to human life was high.” T.C.A. § 40-35-
114 (10). Appellant argues that this enhancement factor is “inherent” within the offense of
second degree murder but provides no citation to authority to support this assertion. Despite
the failure of Appellant to support this argument with authority, it has no merit. This
enhancement factor may be applied in a second degree murder case “where the defendant
creates a high risk to the life of a person other than the victim.” State v. Bingham, 910
S.W.2d 448, 452 (Tenn. Crim. App. 1995), overruled in part on other grounds by State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). The record herein indicated that Appellant fired
a weapon in a crowded area outside a high school where there were numerous other people
in the parking lot of an apartment complex.

        After a review of the evidence, we determine that the record supports the existence
of each applied enhancement factor and reflects that the trial court considered all the proper
criteria in sentencing, as well as stating the reasons for the sentence on the record. The trial
court’s imposition of a twenty-five year sentence is affirmed. Appellant is not entitled to
relief on this issue.

        Appellant also argues that the trial court improperly ordered consecutive sentencing.
Appellant’s argument with regard to this issue consists merely of the following statement
without any argument or citation to authority: “[f]urthermore, the trial judge erred by
ordering the defendant’s sentences to be served consecutively.” Tennessee Rule of Appellate
Procedure 27(a)(7) provides that a brief shall contain “[an] argument . . . setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record . . . relied on.” Tennessee Court of
Criminal Appeals Rule 10(b) states that “[i]ssues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.” See also State v. Sanders, 842 S.W.2d 257 (Tenn. Crim. App. 1992) (determining
that issue was waived where defendant cited no authority to support his complaint).
Appellant fails to cite any authority to support his argument. Therefore this issue is waived.




                                              -15-
                                 Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

                                   ___________________________________
                                   JERRY L. SMITH, JUDGE




                                     -16-
