         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 10, 2002 Session

                 STATE OF TENNESSEE v. ANTONIUS HARRIS

                   Direct Appeal from the Circuit Court for Gibson County
                              No. 6962    L.T. Lafferty, Judge



                   No. W2001-02617-CCA-R3-CD - Filed November 7, 2002


A Gibson County jury convicted the defendant of two counts of especially aggravated kidnapping,
one count of attempted second degree murder, two counts of aggravated assault, and one count of
felony reckless endangerment. The trial court ordered him to serve an effective sentence of thirty-
one years. On appeal, the defendant argues: (1) the trial court should have dismissed the superseding
indictment; (2) there was insufficient evidence to support all of his convictions except for one
aggravated assault conviction; (3) the trial court should have instructed the jury on self-defense; (4)
the trial court should have instructed the jury on facilitation on all charged offenses and attempted
voluntary manslaughter as a lesser-included offense of attempted first degree murder; and (5) his
sentences were excessive. We set aside one sentence for aggravated assault because it was merged
into the conviction for attempted second degree murder, but otherwise affirm the judgments of the
trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES, J., joined. JOSEPH
M. TIPTON, J., filed a concurring opinion.

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Antonius Harris.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                       OPINION

        Angela Barnett, her boyfriend Derrick Harris,1 a friend Darnell Thomas, her eight-year-old
daughter Essence Harris, and her four-year-old son Isaiah Harris lived in a mobile home park in
Humboldt, Tennessee. Angela Barnett testified that she was home alone with her son on January
7, 2000, when the defendant, Essence Harris' father, arrived at approximately 10:00 a.m. with
presents for their daughter. The presents were in Wal-Mart sacks. Barnett and Thomas testified they
later found a receipt in the Wal-Mart sacks for rope and duct tape purchased at 9:32 that morning.

        Barnett stated the defendant went out to his car and later returned. She said that after a few
seconds, defendant's wife, co-defendant Claudia Harris, who was waiting in the car, also came
inside. Barnett testified the defendant then pulled out a revolver. According to Barnett, the
defendant indicated someone had stolen $48,000 from him, and that he heard Derrick Harris was
involved in the theft. Barnett stated the defendant questioned her about Mark Cunningham, an
alleged acquaintance of Barnett and Derrick Harris, whom the defendant believed was also involved
in the alleged theft. Barnett said the defendant asked about Derrick Harris, and she replied he was
in Trenton. Barnett testified she complied with the defendant’s command that she page Derrick
Harris, but that he did not return the phone call.

         According to Barnett, the defendant instructed her to change clothes because she was “fixing
to take [him] to Trenton.” Barnett stated the defendant asked her if she knew someone who could
watch her son; when she replied that she did not, he and the co-defendant decided they would take
the child to the defendant’s mother. Barnett said the defendant followed her outside. Co-defendant
Claudia Harris carried the child and put him in the back seat of the car next to the defendant, who
was seated behind Barnett. Barnett testified she could not see if the defendant was still holding the
gun, but she heard her son ask the defendant, “What is that?” Derrick Harris and Darnell Thomas
testified they returned home with Essence Harris at about 10:00 a.m. and found the house empty.
         Barnett stated they drove to the home of the defendant’s mother in Trenton, where the co-
defendant took the child inside while the defendant and Barnett remained in the car. Barnett said
the defendant still had the gun drawn and kept saying he had to find the stolen money. Barnett
testified that after the co-defendant returned to the car, they drove around Trenton looking for
Derrick Harris, but were unable to find him. Barnett stated the co-defendant told her they would not
hurt her if she would help them. They then returned to Barnett’s home in Humboldt, where they
found Derrick Harris.

        Angela Barnett said the co-defendant stated, “Well, we’re just gonna have to pull up there
and do this” when Barnett advised them that Essence Harris was also in the house. Barnett testified
she approached the house with the defendant walking behind her holding the gun; she said he
threatened her if she tried anything.



       1
           There is no indication that D errick H arris and defendant Anto nius H arris are related .

                                                            -2-
        Derrick Harris and Angela Barnett testified Derrick Harris opened the door after Barnett
knocked; they said Barnett immediately grabbed her daughter and ran to her daughter’s room.
Essence Harris testified she was standing near Derrick Harris as he opened the door, and the
defendant, who had a gun, grabbed Derrick Harris and pushed him against the wall. Derrick Harris
stated the defendant followed Barnett into the house and sprayed him with mace. Angela Barnett
said the defendant grabbed Derrick Harris and she heard them scuffling. Darnell Thomas testified
he was in his room and heard tussling after Derrick Harris answered the door.

       According to Derrick Harris, he fell into the bathroom and tried to shut the door, but the
defendant stuck the gun barrel into the door to prevent it from closing. Darnell Thomas testified he
looked out of his room and saw the defendant trying to force his way into the bathroom by banging
the door with his shoulder while “aiming his gun around.” Thomas stated he retreated into his room
and jumped out of the window. Derrick Harris said he opened the bathroom door because the
defendant threatened to shoot everybody and was “waving the gun around.”

        Derrick Harris testified the defendant then grabbed him by the neck, pointed the gun to his
head, and threw him against the wall. Essence Harris also testified she observed the defendant grab
Derrick Harris and push him against the wall. Derrick Harris stated the defendant questioned him
about Mark Cunningham and said Cunningham had taken $50,000 relating to drugs. He said the
defendant threatened him if he did not take the defendant to Cunningham. Derrick Harris further
testified the co-defendant threatened they would shoot everyone in the house unless he complied,
and they “weren’t gonna leave no witnesses.” He stated he initially resisted their efforts to take him
out of the house, but he agreed to go outside because he feared for the safety of Barnett and her
daughter if the defendant were to shoot him in the house. Barnett and Essence Harris stated the
defendant escorted Derrick Harris outside at gunpoint.

         Darnell Thomas testified he went to the nearby home of William Gaines to seek help. Gaines
testified he went to assist Derrick Harris and saw the defendant walk down the steps behind Derrick
Harris with his arm around Derrick Harris’ neck and a gun pointed to his head. Derrick Harris said
the defendant and co-defendant attempted to force him into their car, and he resisted their efforts.
Darnell Thomas testified he saw the defendant with a revolver trying to force Derrick Harris into the
car.

        Gaines testified he was speaking with the co-defendant, two feet away from her, in an effort
to assess the situation when the defendant told Gaines to keep his hands off of her; Gaines said he
remained where he was. Derrick Harris stated he told Gaines to grab her and “break her neck,” but
before Gaines could move towards her, the defendant pointed the gun at Gaines and told Gaines to
step back. Derrick Harris said Gaines complied. Gaines confirmed he made no effort to grab the
co-defendant.

        Barnett said she took her gun, a nine millimeter, from her bedroom; went to the door; said,
“Let him go;” fired her gun once; and shot the defendant. Gaines stated the shot struck the defendant
in the back. Then, according to the witnesses, the defendant turned and pointed his gun at Barnett,


                                                 -3-
who quickly ducked inside the house. Essence Harris testified she was standing near her mother
when her mother shot the defendant.

       Derrick Harris and William Gaines stated the co-defendant ran away after Barnett shot the
defendant. Derrick Harris said the defendant shot him as he tried to run. Essence Harris, Angela
Barnett, and Darnell Thomas also testified they saw the defendant shoot Derrick Harris.

        William Gaines testified the defendant fired four shots at him, and one of the shots passed
through the sweater he was wearing. Derrick Harris testified he heard the defendant fire the four
shots at Gaines. Barnett and Thomas also stated they saw the defendant firing shots toward Gaines
before getting in his car.

       Detective Dennis Wright of the Humboldt Police Department testified the defendant was
apprehended two months later in California; the defendant’s mother had previously told Detective
Wright the defendant was dead.

        The jury convicted the defendant of two counts of especially aggravated kidnapping for
victims Angela Barnett and Derrick Harris, attempted second degree murder of Derrick Harris as a
lesser-included offense of attempted first degree murder, two counts of aggravated assault for
shooting Derrick Harris and for firing at William Gaines, and felony reckless endangerment of
Essence Harris. The co-defendant was tried separately.


                                        I. INDICTMENTS

        Although the first indictment is not a part of the record, we glean the following from the
hearing on the defendant’s motion to dismiss. The defendant was first indicted June 15, 2000. That
indictment charged the defendant with three counts of aggravated kidnapping, attempted first degree
murder, and aggravated assault. A second indictment was returned January 22, 2001, which charged
the defendant and the co-defendant with two counts of especially aggravated kidnapping, attempted
first degree murder, two counts of aggravated assault, reckless endangerment, and filing a false
report. Both indictments stemmed from the events of January 7, 2000.

        The defendant filed a motion to dismiss both indictments. At the motion hearing, the state
announced it intended to try the defendant on only the second indictment, and the first indictment
would be dismissed following trial on the second indictment. The trial court denied the defendant’s
motion and instructed the state to dismiss the first indictment at the conclusion of proceedings on
the second indictment.

       Whether to dismiss an indictment lies within the discretion of the trial court. State v. Benn,
713 S.W.2d 308, 311 (Tenn. 1986). This court may not interfere with such a ruling absent clear
abuse of that discretion. State v. Harris, 33 S.W.3d 767, 769-70 (Tenn. 2000).



                                                -4-
        The power to seek a superseding indictment lies within the broad discretion granted to the
state by the United States Constitution and the law of our state. Id. at 771. If jeopardy has not
attached on a pending indictment, a grand jury may return a subsequent indictment against a criminal
defendant. Id. As long as the state is not bringing a superseding indictment to harass or intimidate
the accused, it may obtain a superseding indictment at any time prior to trial without dismissing a
pending indictment and may select the indictment upon which it wishes to proceed to trial. Id. We
discern no abuse of discretion by the trial court in denying the motion to dismiss.

A. Speedy Trial/ Due Process

        On appeal, the defendant argues the superseding indictment violated his right to a speedy
trial. However, during the motion hearing in the trial court, defense counsel stated:

                I am saying that one of these Indictments has got to be dismissed. I
                think we agree on that. I think that the one that I would like the Court
                to dismiss is the last one. Depending on what the court’s gonna do
                — if the old Indictment remains, then I think there has been a speedy
                trial violation.

        The defendant’s argument to the trial court that a trial on the first indictment would violate
his right to a speedy trial is inconsistent with his argument on appeal. In the trial court, the defendant
did not argue that the second indictment deprived him of a right to a speedy trial. Since an appellant
cannot change theories from the trial court to the appellate court, this issue is waived. State v.
Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000).

        Even if the issue were not waived, we find the defendant’s argument to be without merit.
Without question, criminal defendants are constitutionally and statutorily entitled to a speedy trial.
U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9; Tenn. Code Ann. § 40-14-101. There is no set
time limit within which the trial must commence; rather, consideration must be given to each case
on an ad hoc basis. State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001). The Tennessee Supreme
Court has adopted the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33
L. Ed. 2d 101 (1972), as the method for determining whether a defendant's right to a speedy trial has
been violated. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 S.W.2d 352,
353 (Tenn. 1981). If, after conducting this balancing test, it is concluded that the defendant was in
fact denied a speedy trial, constitutional principles require that the conviction be reversed and the
criminal charges dismissed. State v. Bishop, 493 S.W.2d 81, 83 (Tenn. 1973).

        In conducting this balancing test, we are required to examine the conduct of both the
prosecution and the appellant, focusing primarily on: (1) the length of the delay; (2) the reason for
the delay; (3) whether appellant asserted his right to a speedy trial; and (4) whether appellant was
prejudiced by the delay. Wood, 924 S.W. 2d at 346; Bishop, 493 S.W.2d at 84; State v. Jefferson,
938 S.W.2d 1, 12-13 (Tenn. Crim. App. 1996). The most important factor is whether the defendant
was prejudiced by the delay. Simmons, 54 S.W.3d at 760; State v. Vance, 888 S.W.2d 776, 778


                                                   -5-
(Tenn. Crim. App. 1994). The most important inquiry with regard to prejudice is whether the delay
impaired the defendant's ability to prepare a defense, and a delay of as long as two years standing
alone will not support a finding of a speedy trial violation. Vance, 888 S.W.2d at 778.

       The triggering factor is the length of the delay. "Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the
balance." Barker, 407 U.S. at 530, 92 S. Ct. at 2192. A delay of one year is sufficient to trigger the
Barker inquiry. State v. Vickers, 985 S.W. 2d 1, 5 (Tenn. Crim. App. 1997).

        In the instant case, the offenses were committed on January 7, 2000. The defendant fled and
was apprehended in California two months later. He was returned to Tennessee in April 2000. He
was initially indicted in June 2000. The record is silent concerning any further activity on the
charges against the defendant until the superseding indictment in January 2001. There is an
indication the district public defender was allowed to withdraw as counsel for the defendant in
January 2001, and substitute counsel was appointed. At the motion hearing, the prosecutor stated
the co-defendant was first indicted separately because of her extradition from Arizona after the
defendant was indicted in June 2000. The superseding indictment jointly indicted the defendant and
the co-defendant. The defendant’s trial began July 24, 2001.

        There was a delay of thirteen months between the defendant’s first indictment and trial and
a delay of approximately fifteen months from the time the defendant was brought into the state’s
custody and the time of trial. There is nothing further in the record to establish the cause for the
delay between the first and second indictments, and there is no indication that the defendant asserted
his right to a speedy trial prior to filing his motion to dismiss. Additionally, there is nothing in the
record to establish that the defendant was prejudiced in any way by the delay. We conclude the
defendant was not denied his right to a speedy trial.

         Even if a delay between the arrest or indictment and trial does not violate a defendant’s
speedy trial right, it may still raise due process concerns. State v. Utley, 956 S.W.2d 489, 495 (Tenn.
1997). Accordingly, this court is required to examine the delay between the time of the offense and
initiation of adversarial proceedings to determine if a pre-indictment delay caused substantial
prejudice to the defendant’s rights and whether the delay was the result of an intentional effort to
gain a tactical advantage over the defendant. See id. However, as we have previously discussed,
there is no showing that the delay caused the defendant any prejudice, nor is there proof the state was
attempting to gain a tactical advantage. Further, it appears that part of the delay between the offense
and the initiation of adversarial proceedings was caused by the defendant’s efforts to avoid arrest.
We conclude the defendant was not denied due process.

        Given the facts before us in the record, we conclude there was no violation of the defendant’s
right to a speedy trial nor a violation of due process. Therefore, the trial court did not abuse its
discretion in denying the defendant’s motion to dismiss.




                                                  -6-
B. Mandatory Joinder/ Tennessee Rule of Criminal Procedure Rule 8(a)

         The defendant further argues the superseding indictment violated Rule 8(a) of the Tennessee
Rules of Criminal Procedure, which mandates that offenses be joined in the same indictment if they
are based upon the same conduct or arise from the same criminal episode, are known to the
prosecuting official at the time the indictment is returned, and are within a single court’s jurisdiction.
Tenn. R. Crim. P. 8(a). However, Rule 8(a) does not bar a superseding indictment before the trial
of the prior indictment. See Marise E. Smith v. State of Tennessee, C.C.A. No. 01CO1-9708-CR-
00342, 1999 Tenn. Crim. App. LEXIS 906, at *36 (Tenn. Crim. App. Sept. 2, 1999, at Nashville),
perm to app. denied (Tenn. Jan. 31, 2000); see also State v. Carruthers, 35 S.W.3d 516, 573 (Tenn.
2000) (Appendix); State v. King, 717 S.W.2d 306, 308 (Tenn. Crim. App. 1986) (noting no evil
results from a subsequent indictment charging additional offenses when the defendant has not been
tried on any offenses at the time the subsequent indictment was returned); State v. Frank Michael
Vukelich, No. M1999-00618-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 734, at *33 (Tenn. Crim.
App. Sept. 11, 2001, at Nashville), perm. to app. denied (Tenn. Apr. 1, 2002) (following King and
Carruthers); but see State v. Leon Hurd, No. E1999-01341-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 262, at **51-59 (Tenn. Crim. App. Apr. 10, 2001, at Knoxville) (Tipton, J., dissenting).
Were this not true, superseding indictments would almost always violate Rule 8(a). Such a result
runs contrary to the long-established, recognized validity of superseding indictments. See generally
Harris, 33 S.W.3d at 771.

        In the instant case, it is clear the trial court ruled the defendant would be tried only on the
superseding indictment, and that the first indictment was to be dismissed upon the conclusion of the
trial on the superseding indictment. The defendant’s argument is without merit.


                            II. SUFFICIENCY OF THE EVIDENCE

        The defendant maintains the proof at trial was insufficient to support all of his convictions
except the aggravated assault of Derrick Harris. We do not agree.

        In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury
verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of
innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier


                                                   -7-
of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

A. Especially Aggravated Kidnapping

        The first two counts of the indictment charged the defendant with the especially aggravated
kidnappings of Angela Barnett and Derrick Harris. For purposes relevant to this case, a defendant
commits especially aggravated kidnapping if: (1) he knowingly removes or confines the victim
unlawfully so as to interfere substantially with the victim’s liberty; and (2) the defendant
accomplishes the act with a deadly weapon. Tenn. Code Ann. §§ 39-13-302(a), -305(a)(1). The
defendant argues the proof, at most, supports convictions for simple kidnapping, which only requires
the victims be exposed to a substantial risk of bodily injury. See id. § 39-13-303(a)(1).

                                       (1) Angela Barnett

       The proof at trial established the defendant forced Angela Barnett at gunpoint to leave her
home and enter his vehicle, where he continued to hold her at gunpoint and forced her to accompany
him while they searched for Derrick Harris. He then returned her to her home at gunpoint. We
conclude this proof was sufficient for the jury to find, beyond a reasonable doubt, that the
defendant’s acts toward Angela Barnett constituted especially aggravated kidnapping.

                                        (2) Derrick Harris

       The proof showed the defendant used a handgun to threaten Derrick Harris in order to force
him from the home. The defendant continued to hold Derrick Harris at gunpoint as he tried to force
him into his vehicle. This proof was more than adequate to support a finding that the defendant
committed especially aggravated kidnapping against Derrick Harris.

B. Attempted Second Degree Murder

       The third count of the indictment alleged the defendant committed attempted first degree
murder when he shot Derrick Harris. The jury found the defendant guilty of the lesser-included
offense of attempted second degree murder. The trial testimony showed the defendant entered the
victim’s home, attacked him, pointed a gun to his head, and made threats to shoot him. The
defendant continued to hold Derrick Harris at gunpoint as he attempted to force him into the car.
Finally, witnesses testified that after the defendant was shot, the defendant aimed the gun first at
Angela Barnett and then turned and shot Derrick Harris. This was sufficient proof to support a
finding that the defendant acted knowingly and with the requisite intent to commit second degree
murder when he shot the victim. See Tenn. Code Ann. §§ 39-12-101, -13-210(a)(1).


                                                -8-
C. Aggravated Assault

        Counts four and five of the indictment alleged the defendant committed aggravated assaults
against Derrick Harris and William Gaines, respectively. The defendant concedes the evidence
supported the jury’s finding that he was guilty of the aggravated assault of Derrick Harris.2 He
argues his conviction for the aggravated assault of William Gaines is not supported by the evidence
because the defendant was acting in the defense of his wife, and the state’s witnesses were
impeached and/or contradicted each other. These arguments are without merit.

       An intentional or knowing act committed with a deadly weapon which causes another to
reasonably fear imminent bodily injury is an aggravated assault. Tenn. Code Ann. §§ 39-13-
101(a)(2), -102(a)(1)(B). The testimony of the eyewitnesses at trial established the defendant
repeatedly fired his gun at William Gaines. Gaines testified a bullet passed through his clothing. Sgt.
Robert Ellis of the Humboldt Police Department testified he found a bullet hole which contained a
small piece of fabric from the clothes worn by Gaines and what appeared to be a bullet hole in the
ground. This evidence was sufficient to support the jury’s finding that the defendant committed
aggravated assault against Gaines.

        We will address the defendant’s argument that he was acting in defense of his wife later in
this opinion, but we do not find that it impacts the sufficiency of the evidence. Further, his argument
that the state’s witnesses were impeached and their testimony was inconsistent goes to the weight
and credibility of the evidence offered by the state rather than its sufficiency. This issue was
resolved by the jury. Therefore, the defendant’s arguments are without merit.

D. Reckless Endangerment

         The sixth count of the indictment charged the defendant with felony reckless endangerment
of his eight-year old daughter, Essence Harris, by placing her in imminent danger of death or serious
bodily injury with a handgun. See Tenn. Code Ann. § 39-13-103. Witnesses testified the defendant
pointed his gun at Angela Barnett immediately after she shot him. Essence Harris testified she was
standing near Barnett when Barnett fired the shot. This proof was sufficient to support the
conviction.

E. Merger



         2
            Instead of complaining about the sufficiency of the evidence supporting this aggravated assault conviction,
the defendant contends his convictions for both aggravated assault of Derrick Harris and attempted second degree murder
of Derrick Harris arising from the same shooting violate double jeopardy. At sentencing, the trial court stated, and we
agree, the convictions should be merged. Although the trial court noted this merger in the judgment of conviction for
aggravated assault, the judgment sentences the defendant to three years for the offense. Due to the merger, this sentence
will be set aside.

                                                          -9-
        As part of his argument on the sufficiency of the evidence, the defendant contends that dual
convictions for attempted second degree murder and aggravated assault arising from the shooting
of Derrick Harris were improper. We agree dual convictions for these offenses violate double
jeopardy. See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). The trial court ruled that the
aggravated assault conviction should merge with the attempted second degree murder conviction,
and the defendant would not be sentenced for aggravated assault. Nevertheless, the trial court
entered a judgment of conviction with a three-year sentence for this aggravated assault, although
there is a notation on that judgment that it merged with the attempted second degree murder
conviction. Although it has no effect upon the effective sentence, we set aside this sentence of three
years; the aggravated assault conviction was merged with attempted second degree murder, and a
separate sentence for this aggravated assault would not be proper. We remand for entry of an order
setting aside this sentence.


                                  III. JURY INSTRUCTIONS

        The defendant maintains the trial court’s jury charge was improper because it did not include
instructions on self-defense in regard to the aggravated assault of William Gaines and the reckless
endangerment of defendant’s daughter. He also argues the trial court should have instructed the jury
regarding facilitation as a lesser-included charge of the indicted offenses and attempted voluntary
manslaughter as a lesser-included charge of attempted first degree murder. We conclude the trial
court properly instructed the jury.

A. Self-Defense


       Tennessee Code Annotated section 39-11-611(a) provides:

                       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.


However, if the person provokes the use or attempted use of force and does not abandon the
encounter, he is not justified in threatening or using force. Tenn. Code Ann. § 39-11-611(d).




                                                -10-
        A defendant is justified in threatening or using force to act in defense of a third person if,
under the circumstances as the defendant reasonably believes them to be, the third person would be
justified in acting in his or her own defense. Tenn. Code Ann. § 39-11-612(1). Further, the
defendant must reasonably believe the intervention is immediately necessary to protect the third
person. Tenn. Code Ann. § 39-11-612(2). A criminal defendant’s conduct and mental state must
meet an objective standard of reasonableness in order for the conduct to be justified under Tennessee
Code Annotated sections 39-11-611 and 39-11-612. State v. Bult, 989 S.W.2d 730, 732 (Tenn.
Crim. App. 1998). In acting to protect the third person, the defendant “steps into the [third person’s]
shoes” and “may lawfully do [in the third person’s] defense only what that person could have done,
and no more.” State v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990) (quoting State v.
Barnes, 675 S.W.2d 195, 196 (Tenn. Crim. App. 1984)).

        Before the existence of a defense is submitted to the jury, it must be fairly raised by the proof.
See Tenn. Code Ann. § 39-11-203(c). In determining whether the proof fairly raises a defense, “the
court must examine the evidence in the light most favorable to the defendant to determine whether
there is evidence that reasonable minds could accept as to that defense.” State v. Sims, 45 S.W.3d
1, 9 (Tenn. 2001).

                            (1) Aggravated Assault of William Gaines

        The defendant contends he was entitled to a jury instruction on the defense of a third person
because there was proof he was acting in defense of his wife and co-defendant, Claudia Harris, when
he fired shots at William Gaines. We disagree.

        Although there was proof that Derrick Harris urged William Gaines to grab Claudia Harris
and “break her neck,” there is no proof Gaines acted upon this instruction. Instead, both Gaines and
Derrick Harris testified Gaines made no effort to harm the co-defendant. They also stated the co-
defendant fled after Angela Barnett shot the defendant; therefore, according to the evidence, Gaines
was not near the co-defendant when the defendant fired the shots. In short, the co-defendant was not
in imminent danger of death or serious bodily injury at the time the defendant shot at Gaines. There
was no evidence to the contrary. Therefore, the proof did not fairly raise the defense of a third
person.

         Further, the proof established that both the defendant and the co-defendant threatened the use
of violence, thus provoking a potential use of force or threat of force against them. Derrick Harris
testified Claudia Harris stated that if he did not tell them how to locate Mark Cunningham, she and
the defendant were going to shoot everyone in the house. According to Derrick Harris, she also said
they “weren’t gonna leave no [sic] witnesses.” Thus, according to the undisputed proof, the co-
defendant was acting in full concert with the defendant. See Tenn. Code Ann. § 39-11-402(2). The
defendant and the co-defendant jointly instigated this entire criminal episode, which the defendant
at no time abandoned prior to shooting at Gaines. The defendant is in no position to benefit from
his criminal undertaking and assert he was properly defending his co-perpetrator.
                           (2) Reckless Endangerment of Essence Harris


                                                  -11-
        The defendant also argues he was acting in self-defense, after he was shot, when he pointed
his gun at Angela Barnett with his daughter nearby; therefore, he was entitled to a jury instruction
on self-defense on the charge of reckless endangerment. The proof clearly established Barnett shot
the defendant after he attacked Derrick Harris, led him out of the home at gunpoint, and was
attempting to force him into a vehicle. There is no doubt that by these actions, the defendant
provoked the use of force by Angela Barnett. Her use of force was not unlawful; accordingly, the
defendant was not justified in pointing his weapon toward her. See Tenn. Code Ann. § 39-11-
611(d). The defendant’s argument is without merit.

B. Lesser-Included Offenses

         It is the defendant’s position that the trial court erred in failing to charge the jury on
facilitation as a lesser-included offense of all the offenses and on attempted voluntary manslaughter
as a lesser-included offense of attempted first degree murder. We do not agree.

        The trial court has a duty to instruct the jury on any lesser-included offenses of the charged
offense when such instruction is supported by the evidence, regardless of whether the defendant has
requested such an instruction. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 464 (Tenn. 1999). The standard for an appellate court’s review of the trial court’s
charge to the jury regarding lesser-included offenses is de novo with no presumption of correctness.
Bowles, 52 S.W.3d at 74.

        If an offense is found to be a lesser-included offense, the court must next ascertain whether
the evidence justifies a jury instruction on the lesser-included offense. Id. at 75. To do so, the court
must first determine whether there is evidence that “reasonable minds” could accept to establish the
lesser-included offense. Burns, 6 S.W.3d at 469. The court must view the evidence liberally in a
light most favorable to the existence of the lesser-included offense without judging its credibility.
State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001); Burns, 6 S.W.3d at 469. Finally, the court must
determine if the evidence is “legally sufficient” to support a conviction for the lesser-included
offense. Burns, 6 S.W.3d at 469.

        The evidence, not the theories of the parties, determines whether an instruction on a lesser-
included offense should be given. State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). Furthermore,
the decision to convict on a lesser-included offense should not be taken from the jury simply because
the element distinguishing the greater offense from the lesser offense is “uncontroverted.” Id. at 189.
If the evidence justifies an instruction, the failure to charge the offense is error even though the
evidence was also sufficient to support the greater offense. Burns, 6 S.W.3d at 472.

                                     (1) Motion for New Trial

        We would first note that while the defendant’s motion for new trial stated the trial court
failed “to charge the jury with self [-] defense and to properly charge less [sic] included offenses,”
it did not specify which lesser-included offenses he contended the trial court should have charged.


                                                 -12-
Further, the defendant failed to present his arguments regarding the need for a jury instruction on
facilitation and attempted voluntary manslaughter to the trial court during the hearing on the motion
for new trial. In fact, during that hearing, the trial court asked defense counsel to specify which
lesser-included offenses he claimed should have been charged. Defense counsel replied, “I don’t
know, but I don’t have the record in front of me.... It might be simple assault.”

         A defendant seeking appellate review of the trial court’s instructions to the jury on an appeal
as of right must specifically state the issue presented for review in a motion for a new trial; otherwise
the issue is waived. Tenn. R. App. P. 3(e) (emphasis added); see State v. Gauldin, 737 S.W.2d 795,
798 (Tenn. Crim. App. 1987). Furthermore, Tennessee Rule of Criminal Procedure 47 requires that
all motions “state with particularity the grounds upon which [they] are made and shall set forth the
relief or order sought.” Despite this shortcoming, we elect to address the issue on the merits.

                                            (2) Facilitation

       The defendant claims he was entitled to a jury charge on facilitation on each offense because
the co-defendant, Claudia Harris, was actively involved in the criminal conduct and the proof
showed she directed at least part of the acts. This argument is without merit.

        A person is criminally responsible for the facilitation of a felony if, knowing that another
intends to commit a specific felony, he knowingly furnishes substantial assistance in the commission
of the specific felony, but acts without the intent to promote or assist the commission of the offense,
or benefit in the proceeds or results of the offense. Tenn. Code Ann. §§ 39-11-402(2), -403(a).
Facilitation of a charged offense is a lesser-included offense. Burns, 6 S.W.3d at 466-67. However,
there was no evidence presented at trial which justified a jury charge on facilitation regarding any
of the charged offenses. All the offenses were based strictly upon the defendant’s criminal conduct
in using a pistol; he was unquestionably the principal actor. No reasonable juror could have
concluded that the defendant knew the unarmed co-defendant intended to commit these offenses and
that he acted without the intent to promote her commission of these offenses. This issue is without
merit.

                             (3) Attempted Voluntary Manslaughter

       The defendant also maintains the trial court erred in not instructing the jury on attempted
voluntary manslaughter as a lesser-included offense of attempted first degree murder.

       Voluntary manslaughter is a lesser-included offense of first degree murder. State v. Rush,
50 S.W.3d 424, 430 n.7 (Tenn. 2001); State v Dominy, 6 S.W.3d 472, 477 n.9 (Tenn. 1999).
Therefore, it stands to reason that attempt to commit voluntary manslaughter is a lesser-included
offense of attempt to commit first degree murder. Thus, we must determine whether there is any
evidence in the record that reasonable minds could accept as to attempted voluntary manslaughter,
while viewing the evidence liberally in a light most favorable to the existence of the lesser-included
offense without judging its credibility. Ely, 48 S.W.3d at 722; Burns, 6 S.W.3d at 469.


                                                  -13-
        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.” Tenn. Code Ann. § 39-13-211(a). A person commits criminal attempt who, acting with
the kind of culpability otherwise required for the offense, 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. Tenn. Code Ann. § 39-12-101(a)(3).

        The crucial question in the instant case is whether there was evidence the defendant, when
he shot Derrick Harris, acted in a state of passion produced by adequate provocation sufficient to
lead a reasonable person to act in an irrational manner. The defendant contends there was sufficient
evidence that he was adequately provoked into such a state of passion because the evidence showed
he was shot by Angela Barnett just before he shot Derrick Harris.

       “In order to reduce a homicide to manslaughter, the provocation must have come from the
person who was killed ....” 40 C.J.S. Homicide § 81(c) (1991). Our state supreme court has held
voluntary manslaughter did not apply where a defendant kills an unarmed bystander because the
bystander was “on the side” of the one provoking the fight. State v. Tilson, 503 S.W.2d 921, 924
(Tenn. 1974). Likewise, we conclude the evidence in the instant case did not support a charge of
attempted voluntary manslaughter. The defendant, in the midst of committing an especially
aggravated kidnapping, shot his unarmed victim whom he had been holding at gunpoint and who had
done nothing to provoke the defendant.

        Further, the fact that the defendant was shot by Angela Barnett did not provide “adequate
provocation” for the defendant to shoot Derrick Harris. Where a difficulty is provoked by the
accused, the accused may not claim the benefit of sudden passion aroused by another. 40 C.J.S.
Homicide §81(b) (1991). The defendant was the gun-wielding instigator of the criminal episode.
It was his criminal acts that led to his being lawfully shot by one of the victims. As the author of his
own predicament, he cannot claim he was adequately provoked into shooting Derrick Harris. The
trial court did not commit error in failing to charge the jury on attempted voluntary manslaughter.


                                         IV. SENTENCING

        At sentencing, the trial court found the defendant to be a Range I standard offender. It
applied enhancement factor (1), the defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range, to all the
convictions and enhancement factor (12), the defendant’s actions resulted in serious bodily injury,
to the convictions for especially aggravated kidnapping and attempted second degree murder of
Derrick Harris. See Tenn. Code Ann. § 40-35-114 (1), (12). It further found the defendant’s service
in the Army and his honorable discharge should be considered as a mitigating factor. See Tenn.
Code Ann. § 40-35-113(13). The defendant requested the trial court also apply mitigating factors
(2), the defendant acted under strong provocation, and (11), the defendant committed the offense


                                                 -14-
under such unusual circumstances that it was unlikely a sustained intent to violate the law motivated
his conduct. The trial court stated it would give these factors little or no weight. See Tenn. Code
Ann. § 40-35-113(2), (11).
       The trial court sentenced the defendant to twenty years for each especially aggravated
kidnapping, eight years for attempted second degree murder, three years for aggravated assault, and
eighteen months for reckless endangerment. It further found the defendant to be a dangerous
offender for the purposes of consecutive sentencing. See Tenn. Code Ann. § 40-35-115(b)(4). It
ordered the eight-year sentence for attempted second degree murder and the three-year sentence for
aggravated assault served consecutively to the concurrent twenty-year sentences for especially
aggravated kidnapping with the remaining sentence for reckless endangerment to be served
concurrently, for a total effective sentence of thirty-one years.

       The defendant argues his sentences are excessive, and consecutive sentencing was not
appropriate. An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
Sentencing Commission Comments to this section of the statute indicate the defendant bears the
burden of establishing that the sentence is improper. When the trial court follows the statutory
sentencing procedure and gives due consideration and proper weight to the factors and principles
relevant to sentencing, this court may not disturb the sentence. State v. Hooper, 29 S.W.3d 1, 5
(Tenn. 2000). If the trial court does not comply with the statutory provisions, this court’s review is
de novo with no presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

A. Length of Sentences

        The defendant argues his sentences are excessive, but he does not argue either of the
enhancement factors was misapplied. Instead, he contends the trial court should have given greater
weight to the mitigating factors. The weight to be applied to enhancement and mitigating factors is
within the discretion of the trial court. State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App.
2000). The twenty-year sentences imposed by the court for the Class A felony especially aggravated
kidnapping convictions were the presumptive sentences in the midpoint of the range. See Tenn.
Code Ann. §§ 40-35-112(a)(1), -210(c). Further, the eight-year sentence for attempted second degree
murder and the three-year sentence for aggravated assault were the minimum sentences. See Tenn.
Code Ann. § 40-35-112(a)(2), (3). Therefore, it appears that although the trial court stated it applied
two enhancement factors, it did not enhance any of the defendant’s sentences above the presumptive
sentence except for the eighteen-month sentence for felony reckless endangerment. Based on our
review of the record, we do not find the trial court erred in imposing the presumptive sentence for
the offenses nor in imposing an eighteen-month sentence for reckless endangerment.
B. Consecutive Sentencing

       Generally, it is within the discretion of the trial court to impose consecutive sentences if it
finds by a preponderance of the evidence that “[t]he defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a crime in
which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). In the instant case, the


                                                 -15-
trial court concluded consecutive sentencing was appropriate because the defendant was a dangerous
offender. The defendant argues the trial court erred in making this determination.

        If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying
general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an extended sentence is necessary to protect the public from further criminal conduct by the
defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity
of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

       The trial court failed to make findings that consecutive sentencing was necessary to protect
the public from further criminal conduct by the defendant and that the consecutive sentences were
reasonably related to the offenses. However, this court may make these determinations based upon
our de novo review. State v. Alexander, 957 S.W.2d 1, 8 (Tenn. Crim. App. 1997).

        After a thorough examination of the record, we agree with the trial court that the defendant
is a dangerous offender for the purposes of consecutive sentencing. The evidence before this court
establishes the defendant forced Angela Barnett and her young son, Isaiah Harris, into a car at
gunpoint. He returned to the mobile home, which he knew was occupied by his eight-year-old
daughter, where he physically attacked Derrick Harris, waved the gun around, and threatened to
shoot all of the occupants of the mobile home.

         He then forced Derrick Harris outside while holding the gun to his head and attempted to
force Derrick Harris into a car. When Angela Barnett interceded by shooting the defendant, the
defendant responded by aiming his gun at Barnett with his daughter nearby, by shooting Derrick
Harris, and by firing repeatedly at William Gaines. The defendant acted viciously to achieve his
purposes, heedless of the risk to the lives of two young children and four adults innocently involved
in this criminal episode. It is clear from the defendant’s continuous course of conduct that he had
little or no regard for human life, and no hesitation about committing a crime in which the risk to
human life is high.

       Further, we find consecutive sentencing is necessary to protect the public from further
criminal conduct by the defendant, and the effective thirty-one-year sentence is reasonably related
to the severity of the offenses. We conclude the sentences imposed by the trial court were
appropriate and decline to alter them.


                                         CONCLUSION

        The judgments of the trial court are affirmed with the exception of the three-year sentence
for the aggravated assault of Derrick Harris, which should be set aside because this conviction
merged with the attempted second degree murder conviction.



                                                -16-
       ___________________________________
       JOE G. RILEY, JUDGE




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