         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 27, 2001 Session

         STATE OF TENNESSEE v. JARRETT SHERRARD SIBERT

                      Appeal from the Circuit Court for Warren County
                          No. 253320    Charles D. Haston, Judge



                    No. M2000-02807-CCA-R3-CD - Filed January 8, 2002


The Defendant, Jarrett Sherrard Sibert, was convicted of attempted first degree murder by a Warren
County jury. After a sentencing hearing on January 14, 2000, the trial court sentenced the Defendant
as a Range I standard offender to 24 years in the Department of Correction. On appeal, the
Defendant argues that (1) the evidence was insufficient to support the jury’s verdict of guilty beyond
a reasonable doubt and (2) the trial court improperly sentenced the Defendant. We affirm the
judgment of the trial court.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Dan Bryant, Public Defender, for the appellant, Jarrett Sherrard Sibert.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
and Dale Potter, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The Defendant and Angie Sibert, the victim in this case, were married. The two had a
historically stormy relationship which included the Defendant being charged with assault and an
Order of Protection being issued to insure the victim’s safety. The victim testified to several
instances of domestic violence in addition to the instance from which the assault charge arose. One
such instance included the Defendant firing a gun at the victim and damaging the wall of the
apartment the two shared. Despite their troubled past, the victim testified that, prior the events of
May 2, 1999, she loved the Defendant and wanted to make their marriage work.
        On May 2, the victim was at home with the Defendant and his two small children. The
Defendant’s children were crying, and the Defendant was in the bathroom braiding his hair. The
victim decided to leave the house and visit her sister in order to give the Defendant time with his
children. The victim entered the bedroom adjacent to the bathroom where the Defendant was
braiding his hair to retrieve her keys and her ATM card. The Defendant became angry that the
victim was leaving and an argument ensued. The victim testified that the Defendant put a gun to her
head and pulled the trigger. Initially, the gun did not fire, so the Defendant shook the gun, cocked
it, and again aimed it at the victim’s head. The Defendant fired the gun and the victim was struck
in the neck.

        After being shot, the victim stumbled through the house, attempted to call 911, and
eventually crawled out to the front porch where she saw two children and asked them for help. The
victim lay on the porch until Sandra Roberts, a neighbor, came to her aid. Ms. Roberts stated that
the victim told her that she had been shot. Ms. Roberts also testified that the Defendant did not offer
to render aid to the victim.

        When the police arrived at the scene the Defendant gave two statements. The first stated that
the Defendant was in the bedroom when he heard a gunshot. He then ran into the living room to find
his wife lying on the front porch bleeding. The second statement was identical to the first except that
the Defendant claimed to have seen a black male running beside the apartment building after the
shooting. Based on the information provided by the Defendant, the police conducted a three hour
search of the area. During this search, the police recovered a black pistol containing one spent
cartridge and four unfired cartridges.

       After being taken to the police station for questioning, the Defendant made yet another
statement in which he claimed ownership of the gun found by police and stated that he had been
cleaning the gun when it discharged and struck the victim. He explained that he hid the gun because
he was afraid the police would assume that he shot the victim intentionally because of the prior
domestic assault.

        As a result of the shooting, the victim spent five days in the hospital and incurred extensive
medical expenses. The bullet remains lodged in the victim’s neck near her spine. Attempting
removal would risk paralysis and possibly death. The victim has also suffered permanent damage
to her vocal cords and extensive scarring.

         The Defendant testified at trial that he was cleaning his gun when it accidently discharged
and struck the victim. The Defendant denied previously firing the gun at the victim and striking the
apartment wall, as well as placing the gun to the victim’s head on May 2. The Defendant also
testified that after the shooting, he held and comforted the victim.




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                                          SUFFICIENCY

        First, the Defendant argues that the evidence produced at trial is insufficient to support the
jury’s verdict of guilty beyond a reasonable doubt. Specifically, the Defendant contends that no
evidence of premeditation exists and his conviction should thus be reduced to attempted second
degree murder. We disagree.

         Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, 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. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of
guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

       One commits attempted first degree murder when he or she attempts an “intentional and
premeditated killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). “Intentional” is defined as
the “conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-302.
Premeditation requires “the exercise of reflection and judgment.” Id. § 39-13-202(d). Furthermore,
the element of premeditation is a question for the jury which may be established by proof of the
circumstances surrounding the killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).
Several factors may be considered to support the existence of these elements, including the use of
a deadly weapon upon an unarmed victim, the defendant’s conduct or demeanor before and after the
incident, and the defendant’s failure to render aid to the victim. See id.; State v. Anderson, 835
S.W.2d 600, 605 (Tenn. Crim. App. 1992); State v. Fugate, 776 S.W.2d 541, 545 (Tenn. Crim. App.
1988).



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         Again, we must view the evidence in the light most favorable to the State. The victim
testified that the Defendant placed the pistol to her head and pulled the trigger. After the gun did not
fire, the Defendant shook the gun, cocked it, and aimed it at her head again. The Defendant then
fired a second time hitting the victim in the neck. Additionally, Sandra Roberts testified that the
Defendant did not attempt to aid the victim while she lay bleeding on the front porch. The victim’s
testimony concerning the circumstances of the shooting, the use of the deadly weapon, the
Defendant’s conduct and demeanor before and after the shooting, and his failure to aid the victim
all provide support for a finding of premeditation.

        While the Defendant testified at trial that the shooting was an accident, it is clear that the jury
credited the testimony of the State’s witnesses. Accordingly, we find sufficient evidence to establish
premeditation and support the jury’s verdict of guilty of attempted first degree murder beyond a
reasonable doubt. This issue is without merit.

                                                     SENTENCING

        Finally, the Defendant contends that the trial court erroneously applied several enhancement
factors in sentencing him to twenty-four years.1 While we agree, and the State concedes, that the
trial court erred in finding that the Defendant was on probation at the time of the offense, the four
remaining enhancement factors support and justify the Defendant’s sentence.2

        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 a 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the 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
made by the defendant regarding sentencing; and (g) the potential or lack of potential for

         1
           The Defendant also contends that the trial court applied the enhancement factors set forth in Tennessee Code
Annotated section 40-35-114 (10) and (16). How ever, it is clear from the record that the trial court found those factors
to be part of the offense charged and, therefore, inapplicable.
         2
          At the sentencing hearing, the court stated that the Defendant would be sentenced as a violent offender and
serve 100 percent of his sen tence . Sub sequ ently, the trial co urt ap parently d iscov ered that the violent offend er statute
does not apply to attem pt. See Ten n. Co de A nn. § 40-35-501 (h)(2 )(i)(2). We me ntion this sim ply to no te that neither
attempted offenses nor assaultive offenses are included under the violent offend er statute. Thu s, in a case like the one
before us where a Defendant shoots his victim in the neck with a .22 caliber pistol, causing substantial injury, the
Defend ant is nevertheless not eligible to be sentenced as a violent offender.

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rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
        Attempted first degree murder is a Class A felony. See Tenn. Code Ann. § 39-11-117(a)(2).
The sentencing range applicable to the Defendant was fifteen to twenty-five years. See id. § 40-35-
112 (a)(1). The presumptive sentence for a Class A felony is twenty years if there are no
enhancement or mitigating factors. See id. § 40-35-210 (c).

       The presentence report reflects that at the time of sentencing the Defendant was twenty-six
years old and a high school graduate. He reported that he started using marijuana when he was
eighteen years old. Prior to his arrest for this offense, he had been employed as a factory worker.

        The trial court applied the following enhancement factors under Tennessee Code Annotated
section 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;
        (6) The personal injuries inflicted upon .... the victim [were] particularly great;
        (8) The defendant has a previous history of unwillingness to comply with the
        conditions of a sentence involving release in the community;
        (9) The defendant possessed or employed a firearm.... during the commission of the
        offense; and
        (13) The felony was committed while [the defendant was on probation] from a prior
        felony conviction.

Id. § 40-35-114(1),(6),(8),(9),(13).

The State concedes that the Defendant was not on probation at the time of the shooting in this case,
and, therefore, the trial court erred in applying that enhancement factor. However, based upon the
four remaining enhancement factors, which the Defendant apparently does not contest, we cannot
say that the Defendant’s sentence is inappropriate.

        The Defendant was previously convicted of assault and facilitation of the sale of less that 0.5
grams of cocaine. He was placed on probation for the facilitation charge and his probation was
revoked twice. The evidence clearly established that the Defendant used a firearm in the commission
of the crime, and that the injuries to the victim were particularly great. The trial court found no
applicable mitigating factors.

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        Therefore, we conclude that, even without the application of enhancement factor (13), the
Defendant’s sentence is appropriate. We therefore affirm the sentence of the trial court. This issue
is without merit.


                                           CONCLUSION

        Accordingly, we conclude that the evidence is sufficient to support the jury’s verdict of guilty
beyond a reasonable doubt and the Defendant was properly sentenced. For the foregoing reasons,
the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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