         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 13, 2009

            STATE OF TENNESSEE v. TIWON ANTON HARVELL

                    Appeal from the Criminal Court for Davidson County
                       No. 2006-B-1726 Mark J. Fishburn, Judge



                  No. M2007-02687-CCA-R3-CD - Filed February 23, 2009


The Defendant, Tiwon Anton Harvell, was convicted of one count of attempted second degree
murder and one count of unlawful possession of a weapon. He was sentenced as a Range I, Standard
offender to fourteen years in the Department of Correction. In this direct appeal, he contends that
(1) the State produced evidence insufficient to convict him of either charge beyond a reasonable
doubt; and (2) the trial court erred in sentencing him. After our review, we affirm the judgments of
the trial court.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Michael Colavecchio, Nashville, Tennessee, for the appellant, Tiwon Anton Harvell.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                        Factual Background
        The events underlying this case began on February 11, 2006. Mapco Express (“Mapco”)
District Manager Paul Klinger, whose duties included oversight of ten to fifteen different Mapco
stores, arrived between 11:15 and 11:30 that evening at the 3043 Nolensville Road Mapco store in
Nashville. He testified that he planned to help store manager Carolyn Jackson and third-shift clerk
David Browning prepare the store for a visit from some of the company’s “top dogs” scheduled for
the next day. Shortly after he arrived, he began to break down cardboard boxes and help Jackson
clean the store’s cooler and stock it for the next day.
        At that time, Klinger heard a young female customer talking to Browning at the store’s cash
register. He walked closer to observe. The customer left after buying a bottle of beer. She came
back in shortly thereafter, however, claiming that she had broken the bottle of beer and asking for
a free replacement. Browning declined to give her one. Klinger then noticed the customer
repeatedly glancing at a car outside as if communicating with someone therein. She then left the
register area and began wandering around the store.

         Klinger decided to take some broken-down boxes outside to the dumpster. As he walked out
of the store, he looked toward the car at which the female customer had glanced. Klinger noticed
a man sitting on the passenger seat with the door open. He did not get a good look at the man’s face
at that time. The man threw some items of trash on the ground next to the car. As Klinger passed
the car, he politely asked the man to use a nearby trash can. The man yelled at him in response,
calling him a “white honkey” and a “cracker.”

         Klinger was about fifteen feet from the car when this name-calling started. He turned around
and said, “All I was trying to get you to do was get you to put trash in the trash can.” The man then
got out of the car, put his hand in his pocket, pulled out a pistol, and fired a shot at Klinger. The
bullet missed. Klinger froze, still carrying a number of broken-down boxes in his arms, and got his
first clear look at the man, who he identified as the Defendant at trial with “no doubt in [his] mind.”
He had never seen the Defendant before. The Defendant wore a white “Kangaroo” hat with a narrow
bill all the way around it. The State showed Klinger a picture of a white hat recovered later by
police; Klinger confirmed that the picture showed a hat identical to the one the Defendant had worn.

        The Defendant fired again. This bullet hit Klinger in the lower right portion of his abdomen.
Klinger fell to the ground, feeling “like it was something in [his] hip or [his] leg was broken.” The
Defendant then walked over to Klinger and started beating him on the head with the pistol. Klinger
heard clicking sounds that he believed came from the pistol, but he did not hear any additional
accompanying shots, and could not say whether the pistol had misfired or run out of ammunition.
Klinger also could not say whether the Defendant was pointing the pistol at him when he heard the
clicking sounds. Klinger tried to block further blows to his face; the Defendant then stood up and
kicked him on his neck and the back of his head.

        After that, Klinger remembered very little. He heard someone yell, “Call 911!” He also
remembered paramedics placing him into an ambulance and taking him to the hospital. Klinger
identified a number of photographs of the crime scene. He also described his injuries and noted the
continuing physical and emotional difficulties he experienced as a result.

         Carolyn Jackson, the manager of the Mapco store in question, also testified. She began her
shift at 7:00 or 8:00 p.m. on February 11, 2006. She had asked Klinger to come by that evening and
help in the store. Jackson confirmed that Browning was also present, working as a clerk. Jackson
saw a “white female” customer come into the store and buy beer and cigarettes from Browning.
Jackson then went to do some work at Jackson’s desk in the back of the store. A few minutes later
she heard “loud noises” from outside the store. Browning ran to her desk, told her that Klinger had


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been shot, and asked her to “come help.” Jackson and Browning ran back to the front of the store.
Browning left the store through the front door; Jackson hit the store’s silent alarm, locking herself
and the female customer inside.

       Shortly thereafter a “gunman,” who Jackson identified as the Defendant at trial, came to the
door, pointed the gun at Jackson, and told her to “let [the female customer] out.” The Defendant
wore a “white, fuzzy-looking hat.” Jackson also identified this hat using the same picture the State
had showed Klinger.

        Jackson, wanting to prevent further violence, opened the door. The Defendant and the female
customer left together in a car. The female customer drove and the Defendant rode in the passenger
seat. Jackson called 911 on her cell phone. She then went outside into the Mapco parking lot. She
saw a lot of blood coming from Klinger’s head and retrieved some towels from inside.

        David Browning also testified. His February 11, 2006 shift began at 11:00 p.m. Klinger and
Jackson were in the store with him that evening. After a woman bought beer from him, he went
outside to have a cigarette. Afterwards, he returned to the cash register. A few minutes later he
heard what he believed to be a gunshot; he heard the sound again immediately thereafter. He
grabbed “a stick” and ran outside, where he saw Klinger laying on the ground. He ran back inside
toward Jackson’s desk. On the way, he saw that the woman to whom he had sold beer was still in
the store. Browning gave the stick to Jackson and told her to lock the doors and call the police. He
then ran back outside.

        Browning saw a man hunched over Klinger and heard Klinger saying, “Please don’t, I’m
sorry,” as the man hit him. Browning, who identified the man as the Defendant at trial, said he had
seen the Defendant and the female customer sitting in a car in the Mapco parking lot on a few
previous occasions. He had become suspicious of them as a result.

        Browning put his hand on the Defendant and pushed him off of Klinger. The Defendant
returned to his car without saying anything. Browning tried to move Klinger, but Klinger objected.
Jackson then let Browning back into the store, at which point the Defendant approached the door and
ordered that the woman inside be released. Browning opened the door and let her out. He also
confirmed that the Defendant wore a white, fuzzy hat like the one in the State’s picture. Finally,
Browning testified that he gave a description of the Defendant’s vehicle, as well as its tag number,
to the police when they arrived.

         Detective Brian Murphy of the Metro Nashville Police Department also testified. He heard
a “shooting call” go out while driving through his area on the night of February 11, 2006. The call
included a description of a vehicle, as well as its tag number. Detective Murphy ran the tag number;
it was registered to a “female subject” at an address approximately one mile from the Mapco store
where the shooting had taken place. Detective Murphy immediately drove to the apartment complex
at that address. As he pulled into the complex parking lot, he saw a vehicle matching the description
he had heard over the radio. Detective Murphy parked his vehicle. He then saw a white female and


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a black male in a “big white fuzzy hat” walking between two cars on the opposite side of the parking
lot.

        Detective Murphy exited his vehicle. The black male ducked down between the two cars and
“seemed to vanish.” Detective Murphy then requested, over the radio, a description of the suspect.
It matched the man he had seen. Detective Murphy then ran to where he had seen the man and tried
to guess where the man might have gone. Detective Murphy ran to the end of the nearby apartment
building. He then turned right and ran back into the center of the complex. Someone then told him
that an individual had been seen running away “on the other side of the playground by the A and B
buildings.” Detective Murphy recalled that the apartment number returned on the vehicle’s tag was
located in the complex’s A building; he went to that apartment and waited for other law enforcement
units to arrive.

        Detective Murphy and other law enforcement personnel entered the apartment about fifteen
to thirty minutes after Det. Murphy saw the man and woman in the parking lot. He found the
Defendant, who had apparently changed clothes. Detective Murphy found a white, fuzzy hat in the
hall closet. He also found, in the master bedroom closet, a pair of bloody shoes matching a
previously obtained description of Klinger’s assailant’s shoes. Finally, he found a bloody t-shirt in
the kitchen trash can.

        Detective Mark Anderson of the Metro Nashville Police Department also testified. He
arrived at the apartment after running the tag number reported over the radio. A white female gave
him permission to enter. Based on a conversation with this white female, he searched the apartment
complex’s playground for the gun used in the Mapco shooting. He was unable to find a gun.
Detective Anderson arrested the Defendant, noting some spots of blood on the Defendant’s pants.


        As its last witness, the State presented Doctor Jose Diaz, a trauma surgeon at Vanderbilt
University Medical Center. He testified that he was working in the Vanderbilt Emergency Room
on the evening of February 11 to 12, 2006. He examined Klinger upon his arrival at the hospital,
noting a ballistic injury to Klinger’s abdominal cavity and blunt trauma to his face. He immediately
performed an operation on Klinger, who had “potentially significantly life-threatening” wounds. Dr.
Diaz said that he performed a second surgery on Klinger at a later time to repair an abdominal hernia.
Klinger remains at an elevated risk for further hernias, and he may not regain feeling in a substantial
portion of his right leg.

        The State then rested its case. The Defendant moved for acquittal on the charge of attempted
first degree murder, arguing that the State had presented no evidence of premeditation. The trial
court denied this motion.

       The Defendant then chose to testify. He said that he started drinking when he woke up
“sometime in the afternoon” on February 11, 2006. He drank all day and took some Lortab pills
because he “wanted to be high” to escape the pain of his mother’s September 1, 2005 death. He


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remembered pulling the trigger on his gun on the evening of February 11. Because he was high,
however, he could not remember anything else that happened at the Mapco. He remembered being
arrested and remembered waking up in jail the following day. He was not out to hurt anyone that
evening and carried his gun “for protection.”

        He admitted that his girlfriend, the white female with him at the Mapco, later told him that
he had “ditched” his gun on the playground in her apartment complex. He agreed that would be a
smart thing to do after a shooting.

       The jury convicted the Defendant of one count of attempted second degree murder and one
count of illegal possession of a weapon. He now appeals.


                                               Analysis
I. Sufficiency of the Evidence
        The Defendant first challenges the sufficiency of the evidence used to convict him.
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.” A convicted criminal defendant who
challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that 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.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

       A person commits criminal attempt when, acting with the culpability otherwise required for
an offense, he “[a]cts 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.” Tenn. Code Ann. § 39-


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12-101(a)(2). Second degree murder is “a knowing killing of another.” Tenn. Code Ann. § 39-13-
210(a)(2). Further, it is an offense for a person who has been convicted of a felony drug offense to
possess a handgun. Tenn. Code Ann. §39-17-1307(b)(1)(B).

       The Defendant’s sole argument is that no witness identified him as Paul Klinger’s assailant.
He supports this argument by correctly noting that neither Jackson or Browning saw him shoot
Klinger. He also claims that Klinger did not identify him at trial.

        In identifying the Defendant as the person they had seen in the Mapco parking lot on
February 11, 2006, both Jackson and Browning pointed out the person in the courtroom wearing a
blue shirt and a yellow tie. In both instances, the State asked that the record reflect that Jackson and
Browning had identified the Defendant. Klinger also identified as his assailant the person in the
courtroom wearing a blue shirt and a yellow tie. The State neglected, however, to request that the
record reflect that Klinger had identified the Defendant.

         The Defendant apparently argues that Klinger therefore failed to identify him. We disagree.
It is quite clear from the record that Klinger identified the Defendant as his assailant, rather than
some other person in the courtroom wearing a blue shirt and a yellow tie. This issue is without
merit.

II. Sentencing
        The Defendant was sentenced as a Range I, standard offender to the maximum sentence on
both counts—twelve years for attempted second degree murder and two years for unlawful
possession of a weapon. The trial court ordered him to serve his sentences consecutively, for a total
effective sentence of fourteen years in the Department of Correction.

        On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges
the length, range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo
review on the record with a presumption that the determinations made by the court from which the
appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the
trial court failed to consider the sentencing principles and all relevant facts and circumstances, then
review of the challenged sentence is purely de novo without the presumption of correctness. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the evidence
adduced at the trial and the 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) evidence and information offered by the parties on the enhancement


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and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;
(f) any statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254
S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        The Defendant’s conduct occurred subsequent to the enactment of the 2005 amendments to
the Sentencing Act, which became effective June 7, 2005. The amended statute no longer imposes
a presumptive sentence. Carter, 254 S.W.3d at 343. As further explained by our supreme court in
Carter,

        the trial court is free to select any sentence within the applicable range so long as the
        length of the sentence is “consistent with the purposes and principles of [the
        Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes and
        principles include “the imposition of a sentence justly deserved in relation to the
        seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a punishment
        sufficient “to prevent crime and promote respect for the law,” [Tenn. Code Ann.] §
        40-35-102(3), and consideration of a defendant’s “potential or lack of potential for
        . . . rehabilitation,” [Tenn. Code Ann.] § 40-35-103(5).

Id. (footnote omitted).

        The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing of the
enhancement and mitigating factors, as it rendered these factors merely advisory, as opposed to
binding, upon the trial court’s sentencing decision. Id. Under current sentencing law, the trial court
is nonetheless required to “consider” an advisory sentencing guideline that is relevant to the
sentencing determination, including the application of enhancing and mitigating factors. Id. at 344.
The trial court’s weighing of various mitigating and enhancing factors is now left to the trial court’s
sound discretion. Id. Thus, the 2005 revision to Tennessee Code Annotated section 40-35-210
increases the amount of discretion a trial court exercises when imposing a sentencing term. Id. at
344.

        To facilitate appellate review, the trial court is required to place on the record its reasons for
imposing the specific sentence, including the identification of the mitigating and enhancement
factors found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). If our review reflects
that the trial court applied inappropriate mitigating and/or enhancement factors or otherwise failed
to follow the Sentencing Act, the presumption of correctness fails and our review is de novo. Carter,
254 S.W.3d at 345.

         The presentence report reflects that the Defendant was twenty-six years old and unmarried
at the time of his September 7, 2007 sentencing hearing. It also shows seven previous misdemeanor


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convictions, and one previous felony conviction. The Defendant reported that he had completed the
eleventh grade but had not received a high school diploma or a GED. He reported no employment
history. The Defendant had a history of abusing drugs and alcohol, but he was otherwise in good
physical and mental health.

        In considering whether to enhance Defendant’s sentence, the trial court found that no
mitigating factors were applicable under Tennessee Code Annotated section 40-35-113. It found a
number of enhancement factors applicable, however, including Tennessee Code Annotated sections
40-35-114(1), (3), (5), (6), and (9). The Defendant challenges only the applicability of section
40-35-114(3), which authorizes enhancement upon a finding that a defendant’s “offense involved
more than one (1) victim.” The State contended at sentencing, and the trial court agreed, that the
Defendant’s conduct involved more than one victim because he pointed his gun at Jackson and
Browning when he demanded that his girlfriend be released from the Mapco.

       We need not decide whether the trial court incorrectly applied this enhancement factor. The
remaining enhancement factors it found were more than sufficient to support the Defendant's
sentence. This issue is without merit.

                                           Conclusion
       Based on the foregoing authorities and reasoning, we affirm the Defendant’s convictions and
sentence.



                                                     ______________________________
                                                     DAVID H. WELLES, JUDGE




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