          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                              JULY 1996 SESSION                 FILED
                                                                March 26, 2008

                                                                Cecil Crowson, Jr.
                                                                 Appellate Court Clerk


STATE OF TENNESSEE,                  )      C.C.A. No. 02C01-9512-CC-00376
                                     )
             Appellee,               )      WEAKLEY COUNTY
                                     )
VS.                                  )      Hon. William B. Acree, Jr., Judge
                                     )
TIMOTHY ADAMS,                       )      (Attempt to Commit First Degree
a/k/a SKINNY ROCK,                   )      Murder/Aggravated Assault)
                                     )
             Appellant.              )      No. 2569 BELOW




FOR THE APPELLANT:                          FOR THE APPELLEE:

JOHN E. HERBISON                            CHARLES W. BURSON
2016 Eighth Avenue South                    Attorney General and Reporter
Nashville, TN 37204
                                            KIMBERLY A. CHANCE
JOSEPH P. ATNIP                                   Assistant Attorney General
District Public Defender                    450 James Robertson Parkway
                                            Nashville, TN 37243-0493
J. D. KENDALL
Assistant District Public Defender          THOMAS A. THOMAS
Post Office Box 734                         District Attorney General
Dresden, TN 38225                           Post Office Box 218
                                            Union City, TN 38261




OPINION FILED:__________________



AFFIRMED IN PART; REVERSED IN PART



CORNELIA A. CLARK,
Special Judge


                                         OPINION

                                            1
       The Defendant appeals to this court as of right from a judgment entered on

a Weakley County jury verdict convicting him of attempt to commit first degree

murder and aggravated assault. The defendant presents four issues for review: (1)

that the evidence was insufficient to support a guilty verdict for attempt to commit

first degree murder; (2) that principles of double jeopardy prohibit his conviction for

both attempt to commit first degree murder and aggravated assault; (3) that the

twenty-five year sentence for attempt to commit first degree murder is excessive;

and (4) that the court erred in ordering the sentences to be served consecutively to

four prior sentences of incarceration.



       After review of the record, we affirm in part and reverse in part the trial court’s

decision.



       Timothy “Skinny Rock” Adams, the defendant, and Tammy Chambers had

been dating for about six months when she terminated their relationship on New

Year’s Day, 1995. She moved in with another man, Worick “Tank” Davis, and

began residing at the Martin Plaza Motel, in Martin, Tennessee. Defendant, upset

by this rejection, visited the motel several times and wrote Chambers a letter

promising her all the drugs she wanted if she would return to him. He claims that

she continued to ask him for money and that she had sexual relations with him

three days before the shooting. Based on these mixed signals, defendant was very

frustrated about the relationship.



       On January 25, 1995, defendant spoke to Chambers several times by phone.

He told her he loved her and wanted her back. When he asked if she would be at

the motel later in the day, she lied, stating that she and Davis were leaving town.

Defendant immediately drove from Union City, Tennessee, to the Martin Plaza

Hotel. He traveled with A. J. Jones and another individual. Upon arrival at the hotel

he asked Jones to knock on a particular door and ask for a particular man.

       At approximately 2:00 P.M., while Chambers was napping, Jones knocked

on her motel room door, asking about an individual named Marvin Kirk. The


                                            2
persons actually in the room were Tammy Chambers, her friend Gloria Taylor, and

Ms. Taylor’s two young daughters. The four-year old daughter answered the door.

Chambers told Jones that Kirk was not in the room, and Jones began to leave.



      As Jones left, the defendant came into the room and began to curse at

Chambers. According to her he was extremely angry. He asked Chambers to meet

privately with him in the bathroom but she declined. Within minutes he pulled out

a gun, stating “I come to kill y’all” and “If I can’t have you, can’t nobody else”.

Defendant took some bullets out of the gun, stating that he was saving them for

Tank. He first stated that he “ought to wait for Tank” but then apparently decided

not to. He shot Chambers as she was reclining on the bed. She was hit once. The

bullet went through her body from the right side of her left breast and exited under

her left armpit. Defendant, who was standing near the motel door, fled quickly.



      Gloria Taylor summoned a police officer, who encountered Tammy

Chambers in the parking lot. She was clutching her chest and screaming that she

had been shot. Her clothes were soaked with blood, and blood was running through

her fingers as she clutched her wound. The officer eventually took Ms. Chambers

into the room and administered first aid. She identified the defendant as her

assailant. At the time of the shooting she was pregnant. Ms. Chambers believed

defendant was the father.



      Ms. Chambers was taken by ambulance to a hospital in Martin, and then was

taken by helicopter to Memphis. She underwent surgery there and remained in the

hospital for about one week.



      After defendant was taken into custody and advised of his rights, he gave a

statement to Martin Police investigator J. D. Sanders. Defendant stated that he had

gone to the motel with the intention of killing both Ms. Chambers and Tank.

                                         I.



                                         3
       Defendant first contends the evidence presented by the state is not sufficient

to sustain his conviction for attempt to commit first degree murder. When an

accused challenges the sufficiency of the convicting evidence, the standard is

whether, 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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. State v. Pappas, 754 S.W.2d 620, 623 (Tenn.

Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       A jury verdict approved by the trial judge accredits the state’s witnesses and

resolves all conflicts in favor of the state. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). On appeal, the state is entitled to the strongest legitimate view of the

evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835. Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



       The offense of attempt to commit first degree murder as charged in this case

is defined by reference to two statutes. T.C.A. §39-12-101(a)(2) provides in

pertinent part:

              (a)    A person commits criminal attempt who, acting with the
       kind of culpability otherwise required for the offense: . . .

                     (2)    Acts with intent to cause a result that is an
              element of the offense, and believes the conduct will cause the
              result without further conduct on the person’s part.




T.C.A. §39-13-202(a)(1) provides:



                                          4
              (a)    First degree murder is:

                     (1)    An intentional, premeditated and deliberate killing
              of another.


       Defendant’s only allegation about the insufficiency of the evidence is that the

state did not prove that defendant had a subjective belief that his conduct, without

more, would cause Tammy Chambers’ death.               This assertion is incorrect.

Defendant carried a loaded gun into a room occupied by Ms. Chambers. He stated

“I come to kill y’all”. He further stated “If I can’t have you, can’t nobody else”. He

then took some bullets out of the gun, stating that he was saving those for Tank.

He told Chambers that he “ought to wait for Tank” but then went ahead and shot

Chambers in the chest at close range as she was lying on the bed in the small motel

room. After the shooting, defendant immediately fled the scene. A short time later

defendant advised A. J. Jones that he had shot Chambers. After he was arrested,

he also told authorities that he had shot Chambers, and that he had traveled to the

motel with the intention of killing both Chambers and Tank.



       When an individual shoots a gun point blank at another individual, obviously

hitting the other individual, there is no conduct left to cause the result (death)

intended. A rational trier of fact reasonably could conclude that the defendant

believed that the result he intended would be caused without further conduct on his

part. This issue has no merit.



                                          II.

       Defendant does not contest the sufficiency of the evidence to convict him of

aggravated assault. He asserts, however, that he cannot be convicted of both

attempted first degree murder and aggravated assault based on principles of double

jeopardy.   We agree, although we also base our finding on due process

considerations.




                                          5
       Several previous cases have addressed similar issues on different bases.

In State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), the Tennessee Supreme Court

held that aggravated assault is neither a lesser grade nor class of the offense of

attempt to commit first degree murder. The court clarified the differences between

lesser grades/classes of offenses and lesser included offenses. The Trusty court

determined that aggravated assault is not a lesser grade or class of first-degree

murder. 919 S.W.2d at 311. Thus, the court held that a defendant indicted for

attempted first degree murder could not be convicted of the uncharged offense of

aggravated assault.



       In Tennessee, whether two offenses are the “same” for double jeopardy

purposes may depend upon (1) whether the event is a violation of two distinct

statutory provisions, (2) whether either offense is necessarily included in the other,

(3) whether the offenses require proof of different elements, (4) whether each

offense requires proof of additional facts not required by the other, and (5) whether

the legislative intent suggests that one or several offenses were intended. See

State v. Black, 524 S.W.2d 913, 918-20 (Tenn. 1975). In Black, the Supreme Court

expressly approved the test for double jeopardy that it had announced in Dowdy v.

State, 158 Tenn. 364, 13 S.W.2d 794 (Tenn. 1928) and Duchac v. State, 505

S.W.2d 237 (Tenn. 1973) -- whether the same evidence is necessary to prove both

offenses.



       The analysis is also guided in part by the application of the test announced

in Blockberger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306

(1932):

       [W]here the same act or transaction constitutes a violation of two
       distinct statutory provisions, the test to be applied to determine
       whether there are two offenses or only one is whether each provision
       requires proof of an additional fact which the other does not.




       The offense of aggravated assault, as charged here, requires proof that


                                          6
defendant intentionally, knowingly, or recklessly causes bodily injury to the victim

by use of a deadly weapon. Tenn. Code Ann. §39-13-102(a)(1). The offense of

attempt to commit first degree murder requires proof that defendant unlawfully

attempted to kill the victim and that the attempt to kill was intentional, premeditated

and deliberate.1   Aggravated assault requires proof that defendant caused bodily

injury; whereas, attempted first degree murder does not. Attempted first degree

murder requires proof that defendant intended to kill his victim; whereas, aggravated

assault does not. Application of the Blockberger test indicates that the legislature

intended to allow separate punishment for each of these offenses. See State v.

Denton, _____ S.W.2d _____ (Tenn. 1996). However, our analysis does not end

here.



        In State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), the Supreme Court

suggested that convicting a defendant of two crimes, one of which was incidental

to the other, would violate the defendant’s due process rights. The analysis in

Anthony did not turn on an examination of the statutory elements of the two

offenses at issue, but rather on whether the facts on which one charge was based

were an integral part or essential element of the other charge. 817 S.W.2d at

303-304. If one offense is “essentially incidental” to the other, it is not significant

enough to warrant a separate prosecution or conviction under the due process

clause of the Tennessee Constitution.



        While the decision in Anthony addressed the particularly anomalous nature

of the kidnapping statute, the Supreme Court has recently held that the principles

of Anthony can apply to circumstances involving offenses other than kidnapping.

State v. Denton, _____ S.W.2d _____, slip op. at 9 (Tenn. 1996).               Denton

addresses more specifically the due process issues inherent in a double jeopardy



        1
      Tenn. Code Ann. §§39-12-101 (attempts); 39-13-211(a) (first degree
murder).

                                          7
analysis.



      Just as in Denton, the evidence in this case consisted of a single attack by

defendant on the victim. The state necessarily relied on the same evidence to

establish both the aggravated assault and the attempted first degree murder. Thus,

application of Denton indicates the two offenses are “the same” for double jeopardy

purposes. There is one discreet act and one victim. The evil at which the offenses

are directed is the same. Both are intended to deter assaultive conduct.



      We therefore conclude that the particular facts of this case and the common

purpose served by the two statutes prevent the imposition of multiple convictions

on this defendant. Accordingly, we affirm the conviction for attempt to commit first

degree murder. We reverse the conviction for aggravated assault, vacate the

sentence imposed, and dismiss the indictment.



                                        III.

      Defendant next challenges the sentences imposed upon him. The trial court

imposed concurrent sentences of twenty-five years for attempt to commit first-

degree murder and six years for aggravated assault.2         Each represents the

maximum Range I sentence for the particular offense.



      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 the

presumption that the determinations made by the trial court are correct. 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). In conducting a de novo review of a sentence, the court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

      2
       Based on our holding above, we will not address the sentence for
aggravated assault.

                                         8
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 that the

defendant made on his own behalf; and (g) the potential or lack of potential for

rehabilitation or treatment. Tenn. Code Ann. §§40-35-102, -103, and -210. See

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



       The trial court found as enhancement factors the following as set forth at

Tenn. Code Ann. §40-35-114:



       (1)    The defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the appropriate range.

This factor is clearly established by the evidence. The defendant had four adult

convictions for sale of cocaine3 and one conviction for aggravated burglary. He also

had a lengthy juvenile record4 and a lengthy misdemeanor record.



       (2)    The defendant has a previous history of unwillingness to comply with

the conditions of a sentence involving release in the community. This factor is

clearly established by the evidence. Defendant’s parole on the aggravated burglary

conviction was revoked in 1993. He also violated juvenile probation on several

occasions.




       3
      After this offense was committed, but before sentencing occurred, defendant
committed and was convicted and sentenced for these four offenses.
       4
        A recent amendment to Tenn. Code Ann. §40-35-114 requires that only
those delinquent acts by a juvenile that would constitute a felony if committed by an
adult be considered to enhance a sentence. That provision of the act took effect
on July 1, 1995, and applies to sentencing of any defendant committing an offense
on or after that date. In this case the offenses were committed January 26, 1995.
The defendant was tried June 29, 1995, and sentenced August 18, 1995. However,
the fact that the sentencing judge also considered unruly or other delinquent acts
by the defendant is not error since the offense in this case occurred prior to the
amendment which restricts the enhancement factor to felony acts.

                                          9
       The trial court found no mitigating factors. We also agree that the record

does not support the findings of any specific mitigating factors as set forth in the

statute. The trial judge found that defendant had no work history other than selling

drugs and committing other criminal offenses. He also found that defendant’s

testimony at the sentencing hearing that he did not commit the offense was

“incredible” and contrary to the testimony of several witnesses. He therefore took

defendant’s veracity into account. A defendant’s untruthfulness is a factor which

may be considered in the sentencing process. See U.S. v. Grayson, 438 U.S. 41,

98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); State v. Dowdy, 894 S.W.2d 301, 306

(Tenn. Crim. App. 1994).



       The sentencing range for attempt to commit first-degree murder is from

fifteen to twenty-five years. In calculating a sentence for a felony conviction, the

presumptive sentence is the minimum sentence in the range if there are no

enhancement or mitigating factors. Tenn. Code Ann. §40-35-210. But see 1995

Tenn. Pub. Acts ch. 493 (amending the statute for offenses occurring on or after

July 1, 1995, to make the presumptive sentence for a Class A felony the mid-point

in the range). Where there are enhancement factors but no mitigating factors, the

court may set the sentence above the minimum in that range but still within the

range. The weight to be given each factor is left to the discretion of the trial judge.

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The existence of

applicable enhancement factors and lack of any mitigating factors support the

maximum sentence in this case. This issue is without merit.



                                          IV.

       Defendant next challenges the trial court’s decision to run this sentence

consecutively to four unexpired prior sentences. The offenses in question were

committed after the offenses that are the subject of this appeal, but the sentences

were imposed prior to sentencing in this case.




                                          10
       Under Tennessee Rule of Criminal Procedure 32(c)(2), if a defendant has

additional sentences not yet fully served and if this fact is made known to the court

prior to sentencing, the court shall recite this in the judgment setting sentence, and

the sentence imposed shall be deemed to be concurrent with the prior sentences,

unless it affirmatively appears that the new sentence being imposed is to be served

consecutively. Whether sentences are to be served concurrently or consecutively

is a matter addressed to the sound discretion of the trial court. State v. James, 688

S.W.2d 463 (Tenn. Crim. App. 1984). Tenn. Code Ann. §40-35-115(b) authorizes

the imposition of consecutive sentences if the court finds by a preponderance of the

evidence that the defendant is (1) a professional criminal who has knowingly

devoted himself to criminal acts as a major source of livelihood, or (2) an offender

whose record of criminal activities is extensive. The trial court found both of these

factors to be present in this case. We do not disagree.



       Defendant in this case had no work history other than selling drugs and

committing other criminal offenses. Defendant himself stated “that he had never

acquired employment during his adult life . . . [and] obtained money by various

means other than employment”. Defendant had an extensive history of juvenile

problems, an extensive history of misdemeanor convictions, a conviction for

aggravated burglary, and four Class B felony convictions for sale of cocaine.

Defendant argues that his juvenile record should not be considered in support of

this factor.   However, a juvenile record of criminal conduct may properly be

considered in assessing a suitable sentence after a felony conviction by an adult.

State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986).



       Extensive criminal history alone will support consecutive sentencing. See,

e.g., State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994).

Additionally, the record supports the trial court’s determination that the defendant

devoted himself to criminal acts as a major source of his income. The trial judge did

not abuse his discretion in ordering the sentences to be served consecutively to



                                         11
prior unexpired sentences. This issue is without merit.



       For the reasons set forth above, we affirm the judgment of the trial court in

part and reverse in part.



                                          __________________________________
                                          CORNELIA A. CLARK
                                          SPECIAL JUDGE




CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
DAVID H. WELLES
JUDGE




                                        12
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                               JULY 1996 SESSION




STATE OF TENNESSEE,                 )      C.C.A. No. 02C01-9512-CC-00376
                                    )
              Appellee,             )      No. 2569 BELOW
                                    )
VS.                                 )      WEAKLEY COUNTY
                                    )
TIMOTHY ADAMS,                      )      (Attempted Murder/Aggravated Assault)
a/k/a SKINNY ROCK,                  )
                                    )      AFFIRMED
              Appellant.            )




                                    JUDGMENT



       Came the appellant, Timothy Adams a/k/a Skinny Rock, by counsel and also
came the attorney general on behalf of the state, and this case was heard on the
record on appeal from the Criminal Court of Weakley County; and upon
consideration thereof, this court is of the opinion that there is reversible error in a
portion of the judgment of the trial court.


        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is affirmed in part and reversed in part, and the case is remanded to the
Criminal Court of Weakley County for execution of the judgment of this court and
for collection of costs accrued below.


       Costs of the appeal will be paid into this Court one-half by each party, for
which let execution issue.


                                           Per Curiam
                                           Peay, Welles, Clark
