          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                       AUGUST SESSION, 1996         FILED
                                                      April 24, 1997

                                                Cecil Crowson, Jr.
STATE OF TENNESSEE,        )                        Appellate C ourt Clerk
                           )    No. 03C01-9502-CR-00039
      Appellee             )
                           )    BLOUNT COUNTY
vs.                        )
                           )    Hon. D. Kelly Thomas, Jr., Judge
CECIL SKIDMORE,            )
                           )    (Attempted First Degree Murder)
      Appellant            )



For the Appellant:              For the Appellee:

Mack Garner                     John Knox Walkup
District Public Defender        Attorney General and Reporter
318 Court Street
Maryville, TN 37804             Eugene J. Honea
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                Mike Flynn
                                District Attorney General
                                363 Court Street
                                Maryville, TN 37804-5906



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                  OPINION



         The appellant, Cecil D. Skidmore, was convicted by a Blount County jury

of attempted first degree murder, a class A felony. The trial court sentenced the

appellant as a standard, range I offender to twenty-three years imprisonment in

the Tennessee Department of Correction. In this appeal, the appellant

challenges the trial court’s refusal to instruct the jury concerning the offense of

attempted voluntary manslaughter, the sufficiency of the evidence supporting the

jury’s verdict, and the trial court’s imposition of a sentence of twenty-three years.



         Following a thorough review of the record, we affirm the judgment of the

trial court.



                                       I. Factual Background

         This case arose from a shooting on December 17, 1992, at the

Nippondenso Meter Plant, located in Maryville, Tennessee. In December, 1992,

the appellant was a temporary employee of the Nippondenso Plant. The

appellant worked for the Logistics Department, collecting discarded packing

foam from the different assembly lines. The victim, Jim Baskin, had worked in

the Subassembly Department at the Nippondenso Plant for several years,

delivering parts to the assembly lines.1 The victim testified that his relationship

with the appellant was solely work-related, but friendly. Indeed, the victim stated

that, prior to the morning of December 17, 1992, he had never engaged in an

extended conversation with the appellant, much less any altercation.2

Employees of the plant generally described the appellant as “nice” and were


        1
          Arch ie Be nne tt, a su perv isor a t the N ippon den so P lant, d esc ribed the vic tim, J imm y
Baskin: “Top-notch. G ood worker, very solid, got a good head on his shou lders. Very fair.”
Before working at the Nippondenso Plant, from 1963 until 1990, Baskin served in the United
States A rmy.

         2
         On cross-examination, Baskin testified that he once accompanied the appellant to look at
a car that the appellant was selling. Baskin did not purchase the car, and he and the appellant
parted a mica bly.

                                                        2
unaware of any ongoing conflict between the appellant and other Nippondenso

employees, including the victim.



        However, Tony Mowdy, a “tool and die maker” at the Nippondenso Plant,

testified that, approximately two weeks before the shooting, the appellant had

remarked to him in an angry tone of voice, “I’m thinking about killing me a

goddam buck.”3 Mowdy stated that the appellant also “had a[n] . . . angered look

on his face.” Richard Marsh, another employee of the plant, testified that, a few

days before the shooting, he and the appellant had been involved in an

argument, during which the appellant threatened to assault Marsh, stating, “I’m

tired of this shit. . . . I’ve took it too long. I’ve been taking it for two months now

and . . . . I can’t take it anymore.” During the week prior to the shooting, the

appellant mentioned to Marsh several times that other employees at the plant

were harassing him. Linda Johnson, a Nippondenso employee, testified that, on

the afternoon of December 16, 1992, she, the appellant, and another co-worker

were leaving the plant following their shift. When Johnson told the appellant that

she would see him the next day, he replied, “[Y]ou may and you may not see me

. . . . [Y]ou may have someone new picking up your garbage.” According to

Johnson, the appellant was visibly upset.



        On the morning of December 17, 1992, just before 5:00 a.m., employees

began to arrive at the parking lot of the Nippondenso plant. At this time, several

employees observed the appellant shoot repeatedly at the victim’s truck. The

appellant continued to fire his weapon as the truck fled the parking lot.

Thereafter, the appellant walked back to his own truck and, “[v]ery nonchalantly

and not in any hurry,” placed his weapon on the seat of the truck and lit a

cigarette. The appellant then apparently awaited the arrival of the police. At the



        3
         The State argued at trial that the appellant was referring, in a derogatory manner, to the
victim, Baskin, who is African-American.

                                                 3
time of his arrest, the appellant was “passive” and “quiet.” Following the

appellant’s arrest, testing of the appellant’s blood for alcohol and drugs produced

negative results.



       The victim, Baskin, additionally testified that he always drove an orange

pick-up truck to work and parked in the same location. On the morning of the

offense, he was scheduled to arrive at work at 5:00 a.m. The appellant’s shift

began at 7:00 a.m. As the victim backed into his parking space at approximately

4:45 a.m., he heard a “thump” on the window of his truck. Baskin looked through

his window and observed the appellant. The appellant was speaking, and

Baskin opened his door in order to hear the appellant. At this point, the

appellant raised a weapon and shot Baskin twice in the chest. Baskin

immediately got back into his truck and began to drive away. The appellant

continued to fire his weapon, striking Baskin four more times.



       Upon their arrival at the scene, the police searched the appellant’s truck,

recovering the following items: a .30 caliber rifle containing 18 rounds of

ammunition, a .25 caliber semi-automatic pistol containing seven rounds of

ammunition, and a “long-blade” knife. The rifle was capable of holding 31

rounds of ammunition: 30 rounds in the magazine and one round in the

chamber. The pistol was capable of holding seven rounds: six in the magazine

and one in the chamber. The safety mechanism had been deactivated on both

weapons. The police found thirteen .30 caliber spent casings in the general

vicinity of the shooting.



       Dr. Melissa Trekell, the physician who treated the victim, also testified at

trial. She stated that Baskin suffered six gunshot wounds in the chest. She

further described Baskin’s condition and treatment:

       Mr. Baskin came in and he had sucking chest wounds. And when
       you breathe and you have holes in your chest, air travels in and

                                         4
        out. And we put chest tubes in, which are drainage tubes, to both
        sides of his chest when he arrived in the emergency room. His
        blood pressure was stabilized and subsequently dropped again,
        and he continued bleeding. And so we took him to surgery to do
        what we call an exploratory thoracotomy, where we actually open
        his chest, his right chest, and take a look and see what’s bleeding. .
        . . He had a laceration in his lung, he had a tear in his lung. And
        also at his exit wounds here in his anterior chest, he had bleeding
        intercostal vessels, which are blood vessels that lie right under your
        ribs.

According to Dr. Trekell, Baskin almost died.



        The appellant did not testify, but introduced the testimony of various

family members. The appellant’s brother, Richard Skidmore, testified that the

appellant had always possessed a “suspicious nature” and did not respond well

to teasing. Skidmore further indicated that his brother had a history of alcohol

abuse, but had stopped drinking in 1987 or 1988.4 Moreover, according to the

appellant’s brother, after resigning from his job at Pathway Bellows, a company

in Oak Ridge, Tennessee, in 1989, and following his divorce in 1991, the

appellant “began to just act bizarre.” The appellant was “withdrawn and

paranoid.” Additionally, despite financial difficulties, the appellant began to give

away valuable personal belongings. Skidmore conceded during cross-

examination that, although his brother sometimes carried a rifle in his vehicle,

Skidmore never believed that his brother was dangerous.



        Henry Shuler, the appellant’s brother-in-law, testified that, prior to his

divorce in 1991, the appellant was a “jolly good fellow.” Following his divorce,

the appellant began to behave oddly, isolating himself from family and friends.

On one occasion, approximately one year prior to the shooting, the appellant

arrived at Shuler’s home at 12:00 a.m. or 1:00 a.m., claiming that he was being

pursued by the police. Shuler could find no evidence of any pursuit.




        4
        The appellant indicated to Dr. Eric Engum, a clinical psychologist who evaluated the
appellant following the shooting, that he resumed drinking heavily after his divorce in 1991.

                                                5
       Carl McGill, a trusty at the Blount County Jail, testified that, when the

appellant was first admitted to the jail, he sat in a corner and ate a pencil.

Richard Skidmore and Henry Shuler visited the appellant at the jail following the

appellant’s arrest. The appellant appeared disoriented and depressed. He

whispered throughout their conversation, because he believed that his

conversations were being monitored by personnel at the jail. He also stated that

his life was in danger at the jail. Finally, he asked his brother and brother-in-law

to remove their jackets, because they were the color of the walls at the jail and

indicated that Skidmore and Shuler were a part of “the system.” W hile

incarcerated in the jail, the appellant attempted suicide.



       Dr. Eric Engum, a clinical psychologist, testified on behalf of the appellant.

He testified that the appellant had informed him that the appellant’s co-workers

at the Nippondenso Plant had harassed and intimidated him. Specifically,

according to the appellant, the victim, Baskin, drove a cart with which he would

frequently attempt to block the appellant’s path. His co-workers also signaled to

one another for the purpose of harassing the appellant. The appellant believed

that, if he did not act, someone would harm him. The appellant particularly felt

threatened by the various military jackets worn by the victim. Accordingly, he

decided to confront Baskin on the morning of December 17, 1992. Baskin

arrived at the Nippondenso plant and parked his truck. At this point, the

appellant believed that the victim was reaching for a weapon, and he began firing

his rifle at the victim.



       Dr. Engum diagnosed the appellant as suffering from alcohol abuse,

depression, and a mixed personality disorder. The mixed personality disorder

comprised components of three different disorders, including paranoid,

antisocial, and narcissistic disorders. Dr. Engum characterized the appellant’s

mental state as a “siege mentality.” He further explained:


                                          6
        I think it is very evident from all of the facts that in no way could
        [the appellant] realistically or objectively appraise the nature and
        aspects of his interactions with Baskin. He was misinterpreting and
        distorting anything that Baskin did in a very paranoid, suspicious,
        delusional fashion.

Nevertheless, Dr. Engum concluded that the appellant was mentally competent

to stand trial. He also concluded that the appellant was not insane, as the

appellant understood the wrongfulness of his conduct and was capable of

conforming his conduct to the requirements of the law.



        Dr. Ahmed Farooque, a psychiatrist who examined the appellant at the

Middle Tennessee Mental Health Institute, testified on behalf of the State. He

also diagnosed the appellant as suffering from alcohol dependence, dysthymia,

which is “a low-grade, chronic depression,” and a non-specific personality

disorder, including components of antisocial, narcissistic, histrionic, and

borderline personality disorders. He too determined that the appellant was

mentally competent to stand trial and that his mental condition could not support

a defense of insanity. Dr. Farooque opined that, while the appellant’s disorder

might significantly impair his ability to function socially or occupationally, the

disorder would not necessarily impair his “thinking capacity.”5



        At the conclusion of the trial, the jury found the appellant guilty of

attempted first degree murder. On October 5, 1995, the trial court conducted a

sentencing hearing. At the hearing, the State relied upon the pre-sentence

report and the evidence adduced at trial. The appellant testified on his own

behalf. The appellant recounted that, following his resignation from Pathway

Bellows and his divorce, he began to believe that he was being followed. At the


        5
         Dr. Engum’s report, which was admitted at trial, indicates that the appellant possesses a
Full Scale I.Q. of 108, “which place[s] him in the high average range of intellectual functioning.”
Howe ver, Dr. En gum also state d in his repo rt:
        Though clearly not indicative of underlying organic brain damage, one should be
        aware that . . . deficits in problem-solving, flexibility, responsivity to feedback and
        ability to consider multiple aspects of a problem . . . suggest underlying distortions
        in cognition which may enhance underlying hypersensitivity and feelings of
        vulne rability.

                                                 7
sentencing hearing, he could not recall why he believed he was being followed or

by whom, although he did recall believing that the F.B.I. was monitoring his

movements. In any case, he began to keep his window blinds closed and his

doors locked at all times. He also propped chairs underneath his door handles

in order to barricade the doors. At work, he believed that the victim, Baskin, was

harassing him, including placing two garottes6 on the appellant’s cart and

threatening the appellant. The appellant believed that the colors of Baskin’s

military jacket signified death. Ultimately, he decided to confront the appellant.

The Sunday prior to the shooting, he purchased the .30 caliber rifle. However,

the appellant testified that he only shot Baskin on the morning of December 17,

1992, because he believed that the victim was reaching for a weapon. The

appellant stated at the sentencing hearing:

        Anyway, I don’t know -- I don’t know exactly -- that’s the straight of
        it. The man [Baskin] sat here and lied. I know it’s a mess. You
        know, anytime you shed someone’s blood, that’s wrong. But what
        happened, to me, was self-defense. You all call it how you see it.

The appellant claimed that he was sorry for what had transpired.



        In sentencing the appellant to twenty-three years incarceration in the

Tennessee Department of Correction, the trial court found several mitigating

factors, including:

        (8) The appellant was suffering from a mental condition that
        significantly reduced his culpability for the offense;
        (10) The appellant assisted the authorities in locating or recovering
        any property or person involved in the crime;
        (13) The appellant has no significant criminal record.

Tenn. Code Ann. § 40-35-113 (1990). The court then found the following

enhancement factors:

        (6) The personal injuries inflicted upon the victim were particularly
        great;
        (9) The appellant employed or possessed a firearm during the
        commission of the offense; and



        6
         A garotte is an imp leme nt or wea pon us ed to stran gle a victim . Webster’s Ninth New
Collegiate Dictionary 506 (1987).

                                                 8
         (16) The crime was committed under circumstances under which
         the potential for bodily injury to a victim was great.

Tenn. Code Ann. § 40-35-114 (1995 Supp.).



                                               II. Analysis

a.       Proposed Jury Instruction Concerning Attempted Voluntary
         Manslaughter7


         The appellant contends that the trial court erred in refusing to instruct the

jury concerning the offense of attempted voluntary manslaughter. A trial judge

must give a correct and complete charge of the law applicable to the facts of the

case. State v. Ruane, 912 S.W.2d 766, 782 (Tenn. Crim. App. 1995); State v.

Phipps, 883 S.W.2d 138, 139 (Tenn. Crim. App. 1994). Accordingly, defendants

are entitled to jury instructions on all offenses which are a lesser grade or class

of the charged offense, if the evidence would support a conviction for the

offense. State v. Trusty, 919 S.W.2d 305, 311 (Tenn. 1996); Tenn. Code Ann. §

40-18-110(a) (1990). Conversely, "the giving of instructions on offenses for

which there is no evidence in the record is to be avoided." State v. Davis, 751

S.W.2d 167, 170 (Tenn. Crim. App. 1988).



         Attempted voluntary manslaughter is a lesser grade of attempted first

degree murder. See Trusty, 919 S.W.2d at 311. Voluntary manslaughter “is the


         7
           We note that, in State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996), the Supreme
Cou rt held that th e off ens e of a ttem pted felon y-m urde r doe s not exist in Te nne sse e, as “it is
logically and legally impossible to attempt to perpetrate an unintentional killing.” The Supreme
Court observed that, because the intent required for an attempt is an intent to commit the
contem plated crim e, attem pt to com mit m urder re quires a s pecific inten t to kill. Id. at 891. Thus,
the c ourt s ugg este d tha t the s tatuto ry prov ision o n crim inal at tem pt is ina pplica ble to any cr ime
requiring les s than a s pecific inten t.
         Voluntary manslaughter requires only knowledge. Tenn. Code Ann. § 39-13-211 (a)
(1991). Prior to Kimbrough, this c ourt h eld th at atte mp ted vo lunta ry ma nsla ugh ter is a n off ens e in
Tenn essee . State v. Adams , No. 03C01-9403-C R-00123 (Te nn. Crim. App. at Knoxville, January
11, 1995). However, the language in Kimbrough seem ingly ca sts d oub t upo n our conc lusion in
A da m s. But see State v. Jenkins, No. 01C01-9508-CC-00269 (Tenn. Crim. App. at Nashville,
November 15, 1996)(citing Kimbrough, 924 S.W.2d at 890)(one who intends to commit an act that
would constitute second degree murder but fails to complete the act commits attempted second
degree murder). Of course, if attempted voluntary manslaughter is not a crime in Tennessee,
then the tria l court com mitted n o error in re fusing to ins truct the jur y on that offe nse. See, e.g.,
State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995) (trial court properly denied the
appellant’s special request for a jury instruction, as the instruction was an incorrect statement of
the law).

                                                       9
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) (1991) (emphasis added). Moreover,

“[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) (emphasis added).8 Arguably, the evidence

adduced at trial does not support a finding that the appellant was in a state of

passion at the time of the offense. Clearly, the record does not support a finding

of adequate provocation. The appellant disputes the lack of evidence

concerning passion, but concedes that any provocation was the product of the

appellant’s delusional mental state. Nevertheless, he contends that, for the

purpose of determining whether there existed provocation adequate to support a

conviction for voluntary manslaughter, the applicable standard is a subjective

standard, i.e., whether a reasonable person, suffering the appellant’s delusions,

would have been provoked. The State contends that this standard is

“oxymoronic,” as a reasonable person would not have suffered the appellant’s

delusions.



         In support of his proposition, the appellant cites Davis v. State, 28 S.W.2d

993 (Tenn. 1930). In Davis, 28 S.W.2d at 993-994, the appellant had been

convicted of second degree murder. At the time of the offense, the appellant

was “laboring under an insane delusion” that his wife and the victim were

conducting an affair. Id. There was no basis whatever for this belief. Id. The

appellant encountered the victim at a service station and began to curse the

         8
           The attempt statute refers to the “circumstances surrounding the conduct as the person
believes them to be.” Id. However, this reference does not alter our subsequent conclusion that
prov oca tion is to be ass ess ed ac cord ing to an ob jectiv e sta nda rd, in lig ht of th e atte mp t statu te’s
requirement that a person ac t “with the kind of culpability otherwise required for the offense.” Id.

                                                        10
victim “with the utmost violence.” Id. Witnesses testified that the victim in no

way threatened the appellant, although the appellant claimed that the victim

appeared to reach for a weapon. Id. The appellant shot the victim several

times, returned to the garage, sat down, and awaited the arrival of the police. Id.

The Supreme Court reversed the appellant’s conviction for second degree

murder. Citing the McNaughten standard, the court specifically rejected the

application of the insanity defense. Id. at 995-996. Nevertheless, the court

concluded that the appellant’s delusions precluded a finding of malice. Id. at

996-997. Moreover, the court observed:

       We are of the opinion that, if, as a matter of fact, the deceased had
       debauched the wife of the plaintiff in error, and the plaintiff in error
       had been apprised of that fact and had become convinced of its
       truth on the day of the wedding or thereafter, and, with reasonable
       expedition, while under the influence of passion and agitation
       produced by such information, had killed [the victim], he would only
       have been guilty of voluntary manslaughter.

       [According to] McNaughten’s Case . . . and those following it a
       homicide committed under an insane delusion is excusable, if the
       notion embodied in the delusion and believed to be a fact, if a fact
       indeed, would have excused the defendant.

       “Manslaughter is the unlawful killing of another without malice,
       either express or implied, which may be either voluntary upon a
       sudden heat, or involuntary . . . “

       Such being the law, it ensues that plaintiff in error would have been
       guilty of manslaughter only, if, when he was first obsessed by this
       insane conceit, acting under the passion and agitation thereby
       produced, he had killed [the victim].

Id. at 996.



       In State v. Shelton, 854 S.W.2d 116, 122 (Tenn. Crim. App. 1992), this

court, noting the continuing vitality of Davis, suggested that “the holding in Davis

indicated an acceptance of the proposition that an abnormal mental condition

short of insanity, as then defined, could be used to negate the state of mind

elements, including malice, required for first or second degree murder.” The

court then noted the change in the insanity standard mandated by Graham v.

State, 547 S.W.2d 531, 543 (Tenn. 1977). See also Tenn. Code Ann. § 39-11-


                                         11
501 (a) (1991) (codifying the criteria of criminal insanity which have been

followed in Tennessee since the Graham decision). The court stated:

       Under the Graham test, the cornerstone of a defense to homicide
       under Davis must be that the defendant’s state of mind at the time
       of the offense had to be the product of a mental disease or defect,
       not just any mental condition. If the mental disease or defect
       produced a delusion and the notion embodied in the delusion and
       believed to be a fact would have excused the defendant’s conduct
       if the notion were indeed a fact, then the conduct committed under
       such a delusion is, likewise, excusable.

Shelton, 854 S.W.2d at 122.



       In Phipps, 883 S.W.2d at 148, this court observed that the “entire line of

cases from Davis to Shelton, though frequently not using the term ‘diminished

capacity,’ supports the conclusion that evidence of an accused’s state of mind at

the time of the offense is admissible in Tennessee to negate the existence of the

requisite element of intent.” However, the court emphasized that “diminished

capacity is not a defense that absolves the accused from culpability; rather, it is a

rule of evidence which allows the introduction of evidence to negate the

existence of specific intent when a defendant is charged with a specific intent

crime.” Id. at 143 (emphasis added).



       In Phipps, 883 S.W.2d at 144, we additionally cited MODEL PENAL CODE §

4.02 Proposed Official Draft 1962), which provides:

       Evidence that the defendant suffered from a mental disease or
       defect is admissible whenever it is relevant to prove that the
       defendant did or did not have a state of mind that is an element of
       the offense.

The court noted that the legislature, in revising the criminal code in 1989, failed

to include a similar provision among the general and affirmative defenses set

forth in the statute. Phipps, 883 S.W.2d at 148. However, the court again

emphasized that the theory of “diminished capacity” applicable in Tennessee is

purely evidentiary and not a means to excuse or justify a criminal offense and




                                         12
observed that “[t]he criminal code does not purport to establish rules of

relevance.” Id. at 149.



       This court specifically distinguished “diminished capacity” from

“diminished responsibility,” rejecting the latter. Id. at 143-144. Similarly, the

drafters of the Model Penal Code, in rejecting diminished responsibility as an

alternative ground for reducing murder to manslaughter, explained that cases

may arise where evidence of a mental disorder disproves intent to kill, i.e., cases

of diminished capacity, but the reduction of murder to manslaughter may be

accomplished only through a rule of provocation. The drafters explained the

concept of diminished responsibility:

       Unlike provocation, diminished responsibility is entirely subjective in
       character. It looks into the actors mind to see whether he should
       be judged by a lesser standard than that applicable to ordinary
       men. It recognizes the defendant’s own mental disorder or
       emotional instability as a basis for partially excusing his conduct.

Comment, MODEL PENAL CODE § 210.3. The theory of diminished responsibility,

unlike the theory of diminished capacity described in Phipps, is a defense.

Therefore, we conclude, in contrast to the Phipps case, that the legislature’s

omission of this defense from the 1989 Criminal Code reflects its rejection of this

theory.



       Although under the Model Penal Code provocation is not entirely

subjective, the Model Penal Code does place far more emphasis than does the

common law on the actor’s subjective mental state. MODEL PENAL CODE §

210.3(1)(b) (emphasis added) provides:

       Criminal homicide constitutes manslaughter when . . . a homicide
       which would otherwise be murder is committed under the influence
       of extreme mental or emotional disturbance for which there is
       reasonable explanation or excuse. The reasonableness of such
       explanation or excuse shall be determined from the viewpoint of a
       person in the actor’s situation under the circumstances as he
       believes them to be.




                                         13
The drafters noted:

       [T]he Model Code qualifies the rigorous objectivity with which the
       common law determined adequacy of provocation. . . . The critical
       element in the Model Code formulation is the clause requiring that
       reasonableness be assessed “from the viewpoint of a person in the
       actor’s situation.” The word “situation” is designedly ambiguous.
       On the one hand, it is clear that personal handicaps and some
       external circumstances must be taken into account. . . . On the
       other hand, it is equally plain that idiosyncratic moral values are not
       part of an actor’s situation. . . . In between these two extremes, . . .
       abnormally fearful temperament may . . . serve to differentiate an
       individual actor from the hypothetical reasonable man, yet none of
       these factors is wholly irrelevant to the ultimate issue of credibility. .
       . . The Model Code endorses a formulation that affords sufficient
       flexibility to differentiate in particular cases between those special
       aspects of the actor’s situation that should be deemed material for
       purpose of grading and those that should be ignored.

Comment, MODEL PENAL CODE § 210.3. Our legislature declined in 1989 to

adopt the Model Penal Code’s approach to provocation, signaling its intention to

adhere to the common law objective standard. Applying an objective standard,

the record contains no evidence of provocation, and this issue is without merit.



b.     Sufficiency of the Evidence

       The appellant next challenges the sufficiency of the evidence supporting

his conviction. A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on

appeal a convicted defendant has the burden of demonstrating that the evidence

is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The

defendant must establish that the evidence presented at trial was so deficient

that no "reasonable trier of fact" could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);

Tenn. R. App. P. 13(e).



       Moreover, an appellate court may neither reweigh nor reevaluate the

evidence when determining its sufficiency. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Questions concerning the credibility of witnesses and the

                                          14
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, and not the appellate courts. State

v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "A jury verdict approved by the

trial judge accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the State's theory." State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). The State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. Id. See

also State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).



         The State may prove a criminal offense by direct evidence, circumstantial

evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-

900 (Tenn. 1987). See also State v. Brown, 836 S.W.2d 530, 541 (Tenn.

1992)(“the cases have long recognized that the necessary elements of first-

degree murder may be shown by circumstantial evidence”). Before a jury may

convict a defendant of a criminal offense based upon circumstantial evidence

alone, the facts and circumstances "must be so strong and cogent as to exclude

every other reasonable hypothesis save the guilt of the defendant, and that

beyond a reasonable doubt." State v. Crawford, 470 S.W.2d 610, 612 (Tenn.

1971).     See also State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App.

1993). As in the case of direct evidence, the weight to be given circumstantial

evidence and “‘[t]he inferences to be drawn from such evidence, and the extent

to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.’” Marable v. State, 313 S.W.2d

451, 457 (Tenn. 1958)(citation omitted).



         At the time of this offense, the relevant statute defined first degree murder

as "[a]n intentional, premeditated and deliberate killing of another." Tenn. Code

Ann. § 39-13-202(a)(1). Again, “[a] person commits criminal attempt who, acting

with the kind of culpability otherwise required for the offense: . . . Acts with intent


                                          15
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). As to the

requisite culpability, a person acts intentionally “with respect to the nature of the

conduct or to a result of the conduct when it is the person’s conscious objective

or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-

11-106(a)(18) (1991). Additionally, premeditation necessitates "a previously

formed design or intent to kill," State v. West, 844 S.W.2d 144, 147 (Tenn.

1992), and "the exercise of reflection and judgment," Tenn. Code Ann. § 39-13-

201(b)(2) (1991). Deliberation requires a "cool purpose" and the absence of

"passion or provocation." Tenn. Code Ann. § 39-13-201(b)(1) and Sentencing

Commission Comments. 9



        Generally, the State has the burden of establishing premeditation and

deliberation. Brown, 836 S.W.2d at 543. Again, although the jury may not

engage in speculation, State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1995), the jury may infer premeditation and

deliberation from the circumstances surrounding the killing. Gentry, 881 S.W.2d

at 3. Our supreme court has delineated several circumstances which may be

indicative of premeditation and deliberation, including the use of a deadly

weapon upon an unarmed victim, the fact that the killing was particularly cruel,

declarations by the defendant of his intent to kill the victim, and the making of

preparations before the killing for the purpose of concealing the crime. Brown,

836 S.W.2d at 541-542. This court has also recently noted several factors from

which the jury may infer the two elements, including planning activity by the

defendant before the killing, evidence concerning the defendant’s motive, and

        9
         However, with respect to deliberation, we note that, in State v. Gentry, 881 S.W .2d 1, 5
(Tenn. Crim. App. 1993), this court stated, “The [mere] presence of agitation or even anger, in our
view, doe s not nec essarily m ean that th e mu rder cou ld not have occurre d with the re quisite
degree of delibera tion.”

                                                16
the nature of the killing. Bordis, 905 S.W.2d at 222 (quoting 2 W. LaFave and

A. Scott, Jr., Substantive Criminal Law § 7.7 (1986)).



        We conclude that the evidence is sufficient to support a conviction for

attempted first degree murder. In summary, approximately two weeks prior to

the offense, the appellant stated to a co-worker that he was thinking about “killing

me a goddam buck.” The State argued at trial that the appellant was referring to

the victim, who is African-American. Moreover, several days prior to the

shooting, the appellant stated to a co-worker that he would no longer tolerate

harassment by fellow employees. The afternoon before the shooting, the

appellant indicated that he might no longer be working at the plant. On the

morning of the shooting, the appellant arrived at the plant two hours early, at the

time Baskin was scheduled to arrive. He waited in the area of the parking lot

where Baskin always parked his truck, armed with a fully loaded .30 caliber rifle,

a fully loaded .25 caliber semi-automatic pistol, and a knife. The appellant shot

Baskin, who was unarmed, six times in the chest. The appellant then sat in his

truck and smoked a cigarette.10



        The appellant’s contention that his mental condition precluded

premeditation and deliberation was submitted to the jury. The trial court

instructed the jury:

        Evidence has been submitted in this case by the defense and the
        state concerning the defendant’s mental condition. This evidence
        should be considered by you, specifically in reference to whether or
        not the defendant possessed the necessary deliberation or
        premeditation which are elements of murder in the first degree, or
        knowledge which is an element of murder in the second degree.

        While this evidence may not establish a defense wherein the
        defendant would be found not guilty of any offense, it may be
        considered by you in deliberating upon the necessary elements of
        murder in the first degree or murder in the second degree. As I


        10
          "Calmness immediately after a killing may be evidence of a cool, dispassionate,
prem editated m urder." West , 844 S.W.2d at 148 (citing State v. Browning, 666 S.W.2d 80, 84
(Tenn. Crim. App. 1983), and Sneed v. State, 546 S.W .2d 254, 258 (Tenn. Crim . App. 1976)).

                                               17
        instructed you earlier, should you find that the necessary elements
        of any of the grades of homicide are not present, the defendant
        must be acquitted as to that charge. You may consider evidence of
        the defendant’s mental condition along with other relevant evidence
        in arriving at your verdict.



        Again, the evidence adduced at trial indicates that the appellant

possesses, at least, average intelligence. Additionally, Dr. Farooque testified

that the appellant’s personality disorder does not impair his “thinking capacity.”

Indeed, while incarcerated at the Department of Correction Special Needs

Facility, the appellant informed Dr. Farooque that he was not suffering any mood

or thought disorder, other than depression as a result of his divorce in 1991.

However, he admitted experiencing some difficulty controlling his temper and

also conceded that, at times, he overreacted to minor incidents. Dr. Farooque

further testified that, while incarcerated at the Blount County Jail, the appellant

had been prescribed medication normally prescribed to “a person who is acutely

psychotic or has a history of seizures.” Dr. Farooque stated that, when he

discontinued the appellant’s medication, the appellant “did a lot better.” Finally,

in a staff conference report, Dr. Farooque recorded the following observations:

        At the time of admission . . ., and throughout his stay at this facility,
        [the appellant again was lucid and coherent and gave no
        indications of a severe mental illness. He was alert, well oriented
        and cooperative throughout his stay. His behavior on the
        residential unit was suggestive of a mild level of depression,
        however he did not experience difficulties eating or sleeping and he
        interacted with his peers and the staff.11 Skidmore’s responses to
        questions were not suggestive of one with a severe thought
        disorder or an inability to accurately perceive reality. There was no
        suggestion of him hallucinating, and he did not claim to have been
        hearing voices or having unusual visual experiences. Skidmore’s
        comments raised the question of paranoid thinking and a general
        mistrust of others. His vocabulary was representative of someone
        with a high school education, and his reasoning and judgement did
        not appear impaired.

        . . . [The appellant’s] perceptions of the victim are not accurate and
        may be the product of his alcohol dependence. . . . [The appellant]
        reports that he shot at [the victim] because he thought Baskin was

        11
         In fact, the re cords o f the Spe cial Need s Facility indicate that the ap pellant did
occasionally complain of an inability to sleep. Otherwise, the records indicate that, as stated by
Dr. Farooque, the appellant was “quiet and cooperative,” interacted well with other patients and
staff mem bers, and, generally, exhibited no unusual behavior.

                                                 18
       going for a weapon, and he believed it was appropriate to respond
       in self-defense.

(Footnote added). Certainly, the record contains sufficient evidence to support a

finding by the jury, beyond a reasonable doubt, that the appellant’s mental

condition did not preclude premeditation and deliberation. With respect to the

testimony of the defense expert, Dr. Engum, the evaluation of expert testimony is

the province of the jury. State v. Coleman, No. 02C01-9503-CC-00083 (Tenn.

Crim. App. at Jackson), perm. to appeal denied, (Tenn. 1996). Accordingly, the

jury was free to disregard the testimony of Dr. Engum in light of other evidence

adduced at trial.



c.     Sentencing

       Finally, the appellant contends that his offense does not warrant a

sentence of twenty-three years incarceration in the Department of Correction.

Review, by this court, of the length of a sentence is de novo with a presumption

that the determination made by the trial court is correct. Tenn. Code Ann. § 40-

35-401(d) (1990). This presumption only applies, however, if the record

demonstrates that the trial court properly considered sentencing principles and

all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). If the trial court applies inappropriate factors or otherwise fails to

comply with the 1989 Sentencing Act, the presumption of correctness falls.

Shelton, 854 S.W.2d at 123. In the instant case, we afford the trial court’s

determination the presumption of correctness.



       In any event, the appellant bears the burden of establishing that the

sentence imposed by the trial court is erroneous. State v. Lee, No. 03C01-9308-

CR-00275 (Tenn. Crim. App. at Knoxville, April 4, 1995). In determining whether

the appellant has met this burden, this court must consider the factors listed in

Tenn. Code Ann. § 40-35-210(b)(1995 Supp.) and the sentencing principles



                                         19
described in Tenn. Code Ann. § 40-35-102 (1995 Supp.) and § 40-35-103

(1990).



       Moreover, with respect to the length of a sentence, Tenn. Code Ann. § 40-

35-210 (1990) provides that the minimum sentence within the appropriate range

is the presumptive sentence. If there are enhancing and mitigating factors, the

court must start at the minimum sentence in the range and enhance the

sentence as appropriate for the enhancement factors and then reduce the

sentence within the range as appropriate for the mitigating factors. Id. If there

are no mitigating factors, the court may set the sentence above the minimum in

that range, but still within the range. Id. See also State v. Dies, 829 S.W.2d

706, 710 (Tenn. Crim. App. 1991). "[T]here is no particular value assigned by

the 1989 Sentencing Act to the various factors and the 'weight afforded

mitigating or enhancement factors derives from balancing relative degrees of

culpability within the totality of the circumstances of the case involved.'" State v.

Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993)(citation omitted). The

weight assigned to any existing factor is generally left to the trial judge's

discretion. Id.



       Initially, the appellant concedes that the victim’s injuries were particularly

great. Tenn. Code Ann. § 40-35-114(6). However, he argues that the “real

reason” for his sentence of twenty-three years is that “the crime was committed

under circumstances under which the potential for bodily injury to a victim was

great.” Tenn. Code Ann. § 40-35-114(16). He contends that enhancement

factor (16) is inapplicable to convictions for attempted first degree murder, as the

factor is inherent in the offense. Similarly, he argues that the appellant’s use of a

firearm during the commission of the offense should be afforded little if any

weight in sentencing a defendant for the offense of attempted first degree

murder. The appellant asserts that the rationale underlying the application of


                                          20
this factor is the greater danger associated with the use of a firearm. He states

in his brief, “There is no way that attempted murder can be anymore dangerous

than it already is.”



        With respect to the application of enhancement factor (9), this court has

previously held that a sentencing court may consider the use of a firearm in

enhancing a sentence for attempted first degree murder. See, e.g., State v.

Gibson, No. 01C01-9503-CC-00099 (Tenn. Crim. App. at Nashville, January 26,

1996)(the defendant shot the victim four times). With respect to the application

of enhancement factor (16), the appellant correctly observes that great potential

for bodily injury always exists with an attempted first degree murder. See State

v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995), perm. to appeal denied,

(Tenn. 1996). However, the State correctly notes that this factor may

nevertheless enhance a sentence for attempted first degree murder if the proof

establishes a potential for bodily injury to persons other than the victim. State v.

Parker, No. 03C01-9307-CR-00214 (Tenn. Crim. App. at Knoxville, November

22, 1994), perm. to appeal denied, (Tenn. 1995)(citing State v. Hicks, 868

S.W.2d 729, 732 (Tenn. Crim. App. 1993)). The record establishes that

numerous employees, in addition to the victim, were present in the parking lot of

the Nippondenso plant as the appellant fired his rifle at the victim’s truck thirteen

times.12 Accordingly, in this case, consideration of factor (16) is appropriate.13



        With respect to mitigating factors, the appellant argues that, in addition to

the three mitigating factors applied by the sentencing court, the record supports



        12
          We also agree with the State that the substantial risk to the lives of persons other than
the victim suppo rts the app lication of en hance men t factor (10 ). Tenn . Code A nn. § 40- 35-114 .
See, e.g., State v. Makoka, 885 S.W .2d 366, 3 73 (Te nn. Crim . App.), perm. to appeal denied,
(Tenn. 1994)(other persons were present when the defendant began to fire his weapon at the
intended victim).

        13
          It is not entirely clear from the record of the sentencing proc eeding that the trial court
applied this factor for the reason set forth above. Nevertheless, pursuant to our de novo review,
we conclude that this factor should enhance the appellant’s sentence.

                                                  21
the application of mitigating factor (2), that the appellant acted under strong

provocation. Tenn. Code Ann. § 40-35-113. We have already concluded that

the record does not support a finding of provocation.



        The State contests the application of mitigating factor (10), that the

appellant assisted the authorities in locating or recovering any property or person

involved in the crime. Tenn. Code Ann. § 40-35-113. Presumably, the trial court

was referring to the appellant’s voluntary surrender to the police. We will

assume, for the purpose of this opinion, that the appellant’s voluntary surrender

to the police qualifies as assistance to the police within the meaning of mitigating

factor (10). See, e.g., State v. Phillips, No. 03C01-9502-CR-00047 (Tenn. Crim.

App. at Knoxville, March 25, 1996); State v. Farmer, No. 03C01-9206-CR-00196

(Tenn. Crim. App. at Knoxville, July 8, 1993).



        The State also challenges the trial court’s consideration of the appellant’s

lack of a significant criminal history as a mitigating factor. The State cites, in

support of its argument, State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1994). In Keel, this court refused to consider the

appellant’s lack of prior felony convictions as a mitigating factor in light of the

appellant’s extensive history of misdemeanor convictions and criminal behavior. 14

Similarly, the court declined to consider the appellant’s stable employment

history. The court stated:

        The vast majority of citizens residing in this state do not have a
        prior felony conviction. If this court permitted an accused’s
        sentence to be mitigated for this reason, it would be inviting the
        criminal element of our society to engage in criminal conduct
        punishable as a misdemeanor. . . .

        The fact that the appellant had a ‘fairly stable employment history’.
        . . does not entitle him to a reduction in his sentence. . . . Every
        citizen in this state is expected to have a stable work history if the



        14
          In the instant case, the pre-sentence report reflects that the appellant’s criminal history
consists of two prior misdemeanor convictions for public intoxication.

                                                  22
       economy permits the citizen to work, the citizen is not disabled, or
       the citizen is not independently wealthy.

See also State v. Yankee, No. 03C01-9507-CC-00200 (Tenn. Crim. App. at

Knoxville, August 6, 1996), perm. to appeal denied, (Tenn. 1997) (“the lack of a

felony conviction and a stable work history do not entitle an accused to a

reduction in the sentence imposed by the trial court”). Moreover, this court has

stated more broadly that the lack of any criminal record will not mitigate a

sentence. See State v. Garrison, No. 01C01-9407-CC-00236 (Tenn. Crim. App.

at Nashville, September 20, 1995), perm. to appeal denied, (Tenn. 1996)(“the

legislature did not intend the absence of a prior criminal record to be a mitigating

factor because citizens are not expected to have a criminal record”); State v.

Derrick, No. 181 (Tenn. Crim. App. at Knoxville, December 6, 1990)(“[o]bviously

the legislature chose not to include [the absence of a criminal record] as a

[mitigating] factor because citizens are not expected to have criminal records”).

Yet, this court has also observed that, while a court is not required to do so,

Tenn. Code Ann. § 40-35-113 (13) allows a court to consider the absence of a

criminal record as a mitigating factor. State v. Williams, 920 S.W.2d 247, 261

(Tenn. Crim. App. 1995), perm. to appeal denied, (Tenn. 1996). Similarly, this

court has observed that consideration of the absence of a criminal history is

consistent with the purposes and principles of the sentencing act. State v.

Bingham, 910 S.W.2d 448, 457 n.2 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1995).



       In any event, while we agree with the trial court that the appellant is not

“the worst possible person under our law that could commit this offense,” the

applicable enhancement factors amply justify a sentence of twenty-three years.

We reach this conclusion even in light of the trial court’s further determination




                                         23
that the appellant was suffering from a mental condition that significantly reduced

his culpability for the offense.15



         For the foregoing reasons, we affirm the judgment of the trial court.




                                               ____________________________________
                                               DAVID G. HAYES, Judge


CONCUR:


______________________________
JOSEPH B. JONES, Presiding Judge


_______________________________
PAUL G. SUMMERS, Judge




         15
           Parenthetically, we reject the State’s contention that the jury’s verdict, finding the
appellant guilty of attempted first degree murder, precluded the application of this mitigating
factor. Based upon the record, the trial court was certainly capable of concluding that, while the
appellant’s mental condition did not prevent him from forming the requisite mental state of
premeditation and deliberation, it nevertheless reduced his culpability for the purpose of
senten cing. No r do we a gree with th e State tha t “to find this fac tor applica ble but to re fuse to
charge voluntary manslaughter as a lesser-included offense is logically inconsistent.” As we
note d ear lier, the prov oca tion n ece ssa ry to es tablis h volu ntary m ans laugh ter is d eterm ined s olely
by an objective “reasonable person” standard a nd is not related to the mental condition of a
particular d efenda nt.

                                                       24
