         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 December 11, 2001 Session

           STATE OF TENNESSEE v. HORACE DEMON PULLIAM

                Direct Appeal from the Criminal Court for Davidson County
                        No. 98-D-2554    Cheryl Blackburn, Judge



                   No. M2001-00417-CCA-R3-CD - Filed January 23, 2002


The defendant was indicted by a Davidson County Grand Jury on one count of premeditated first
degree murder and two counts of attempted first degree murder. Following a jury trial, the defendant
was convicted of the indicted premeditated first degree murder count and two counts of the lesser-
included offense of attempted second degree murder. The defendant was sentenced to life
imprisonment for premeditated first degree murder and two 11-year terms for the two counts of
attempted second degree murder, with all sentences to run consecutively, for a total effective
sentence of life plus 22 years. In this appeal, the defendant contends (1) the evidence was
insufficient to sustain the convictions; (2) the trial court erroneously refused to charge reckless
endangerment as a lesser-included offense of attempted first degree murder; and (3) the trial court
erroneously sentenced the defendant to consecutive sentences. After a thorough review of the
record, we conclude the trial court erroneously failed to charge reckless endangerment as a lesser-
included offense of attempted first degree murder and remand for a new trial on these two counts.
We affirm the conviction and life sentence for premeditated first degree murder.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and JOHN
EVERETT WILLIAMS, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Horace Demon Pulliam.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret T. Gunn and Kimberly F. Cooper,
Assistant District Attorneys General, for the appellee, State of Tennessee.




                                            OPINION
                                             FACTS

         Serena Stark testified that on July 5, 1998, she, Corey Manning, and Anthony Middlebrooks,
the deceased victim, were driving back to Stark's residence when Middlebrooks requested they stop
at an apartment on Clifton Avenue. They stopped, and Middlebrooks went inside while Stark and
Manning remained in the vehicle. Middlebrooks returned very shortly and stated they had to leave
quickly because he “had a bad go-around with some guy that was inside, and that we needed to get
out of there.” As they drove away, Stark saw an African-American male hurriedly get in an early
1990's maroon Chevrolet Caprice Classic. Within approximately one minute, they stopped at a red
traffic light. The Caprice pulled behind them, its door opened, and shots were fired. Stark and
Middlebrooks were hit by bullets, and the Caprice fled the scene. They drove towards the hospital
but stopped to seek help from two police officers parked at a car wash. Stark further stated no one
in their vehicle had a weapon.

        Corey Manning corroborated Stark’s testimony and additionally stated Middlebrooks, upon
his return from the apartment, stated “he ran into a guy that he robbed not too long ago,” and he
wished he had a gun.

        Officer Ryan Garland testified he and Officer Shannon Beck were in their cruisers at a car
wash parking lot on July 5th at approximately 10:30 p.m. Garland saw Stark’s car speed toward
them, and a maroon Chevy Caprice Classic hurriedly turn onto another street. Stark and Manning
exited their car, informed the officers of the shooting, and described the vehicle which the shooter
drove. Officer Beck unsuccessfully attempted to chase the maroon Caprice while Officer Garland
tended to Stark and Middlebrooks. Although Middlebrooks initially had a pulse, he died before
arrival of the ambulance.

        Alfonzo Gregory testified he was smoking marijuana in the Clifton Avenue apartment on the
evening of July 5th. Middlebrooks entered, purchased cocaine, and exited within two minutes.
Although Middlebrooks and defendant saw each other, they did not speak. He testified his brother,
Jerome, gave the defendant his .44 revolver after Middlebrooks’ departure. The defendant then left,
and his vehicle “spit gravel [going] out of the driveway . . . .”

       Jerome Gregory was smoking marijuana and ingesting Valium in the Clifton Avenue
apartment on the evening of July 5th. He stated Middlebrooks entered the apartment, purchased
cocaine, and exited. He explained Middlebrooks had previously robbed the defendant, and when
Middlebrooks left, the defendant requested the witness’ .44 revolver. Gregory complied with the
request, and the defendant “jumped in his car” and left.

        Antwan Nesby was also smoking marijuana in the Clifton Avenue apartment. Nesby stated
that Middlebrooks came into the apartment, and when Middlebrooks left, the defendant requested
to see Jerome Gregory’s .44 revolver. Jerome Gregory gave the defendant the revolver, and the
defendant left.

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        Detective E.J. Bernard responded to the shooting. Bernard went to the Clifton Avenue
apartment and recovered a partial box of .44 ammunition, which was sent to the crime laboratory for
analysis. He interviewed the persons in the apartment, and they picked the defendant from a photo
lineup. Officers had prior information concerning the defendant, and they searched for him at
several locations. At one of the locations, they saw a 1991 maroon Caprice “backed into the back
yard beside the house.” The owner consented to a search of the residence, but nothing relevant was
recovered. Officers then towed the Caprice. The defendant was located and arrested on July 7th.
Officers obtained a search warrant for the Caprice, which the defendant said was “his car, but it was
in his mother’s name so it wouldn’t be confiscated.” Nothing relevant was discovered in the vehicle
search.

       Terrie Arnie, a firearms identification expert, examined the bullet recovered from
Middlebrooks and opined he was killed with a .44 revolver. Arnie additionally stated that she tested
a box of .44 cartridges she received from Det. Bernard. She stated the cartridges were consistent
with the bullet recovered from Middlebrooks.

       Patricia Drew, the defendant’s aunt, testified her residence is located approximately 20
minutes from the crime scene. She stated that on July 5th, the defendant came by and used her
phone at 9:45 p.m. or 10:45 p.m. She said he stayed at her house for approximately 15 minutes.

         The defendant testified he was “in and out” of the Clifton Avenue apartment several times
on July 5th because he was trying to sell a shotgun. He further stated he often sold Middlebrooks
cocaine. Although he said Middlebrooks robbed him approximately four months prior, he said he
“wasn’t even thinking about it” anymore. He testified that when Middlebrooks entered the
apartment, he exited and went to his car to play music. The defendant said that after Middlebrooks
left, he went back into the apartment and placed marijuana in his hollowed out cigar. Then, he said
his beeper activated indicating a customer required a meeting, and he left approximately three
minutes after Middlebrooks. The defendant conceded he was driving the 1991 Caprice that evening
but denied any involvement in the shooting as well as taking a gun from Jerome Gregory.

       As stated, the jury convicted the defendant of the premeditated first degree murder of
Middlebrooks and two counts of the lesser-included offense of attempted second degree murder of
Stark and Manning.


                           I. SUFFICIENCY OF THE EVIDENCE

       The defendant contends the evidence was insufficient to sustain his convictions. We
disagree.

A. Standard of Review

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the findings

                                                -3-
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App. 1996).

           This court is required to afford the state the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be drawn from
the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by
the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856,
859 (1956). "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State." State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973).

        Although the evidence of defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However, for this
to occur, the circumstantial evidence must be consistent with guilt of the accused, inconsistent with
innocence, and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900. While following the above guidelines, this court must remember that
the jury decides the weight to be given to circumstantial evidence. “The inferences to be drawn from
such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent
with innocence are questions . . . for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958)(citation omitted); see also State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993).


B. Analysis

        The defendant’s sufficiency claim is predicated on the issue of identity; namely, he contends
the state failed to adequately prove he was the shooter. We disagree.

         The defendant was convicted of premeditated first degree murder and attempted second
degree murder. Tenn. Code Ann. § 39-13-202(a)(1) defines first degree murder as “[a] premeditated
and intentional killing of another.” Premeditation necessitates “a previously formed design or intent
to kill,” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992)(citations omitted), and “an act done after
the exercise of reflection and judgment . . . [meaning] that the intent to kill must have been formed
prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also requires that the accused be
“sufficiently free from excitement and passion as to be capable of premeditation.” Id.

        The element of premeditation is a question of fact to be determined by the jury. State v.
Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Although the jury may not engage in speculation, it may
infer premeditation from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d


                                                  -4-
651, 660 (Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our
supreme court delineated several circumstances that may be indicative of premeditation, including
the use of a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel,
declarations of the intent to kill the victim by the defendant, the making of preparations before the
killing for the purpose of concealing the crime, and calmness immediately after the killing. See
Bland, 958 S.W.2d at 660.

       Tenn. Code Ann. § 39-13-210(a)(1) defines second degree murder as “[a] knowing killing
of another.” Furthermore, the Tennessee Code provides in pertinent part as follows:

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

                  ....

                 (3) 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).1

        There was evidence that Middlebrooks had previously robbed the defendant, giving the
defendant a motive for revenge. Middlebrooks, upon exiting the apartment, told Serena Stark and
Corey Manning that he saw “a guy that he robbed not too long ago . . . .” Middlebrooks, perceiving
a threat from the defendant, stated he wished he had a gun with him, and they needed to leave
quickly. Meanwhile, the defendant, upon Middlebrooks’ departure, requested to borrow a .44
revolver from Jerome Gregory. Gregory tendered the weapon, and the defendant exited the
apartment and hastily left in his car.

       Stark testified that while they were leaving, she saw a man, who matched the defendant’s
general description, hurriedly exit the apartment and get in a 1990's maroon Caprice. They drove
approximately one minute and stopped at a red traffic light. The same Caprice she saw at the
apartment stopped directly behind her, and its driver fired numerous shots into her vehicle, striking
Stark and Middlebrooks. The defendant admitted he drove a 1991 maroon Caprice.

        Allowing the state the strongest legitimate view of the evidence and all reasonable inferences
therefrom, the jury could rationally conclude beyond a reasonable doubt that the defendant was the

         1
           The trial court did not charge that portion of the statute providing that a person commits criminal attempt who
“[a]c ts with intent to cause a result that is an element of the offense, and believes the conduct w ill cause the result
without further conduct on the pe rson’s part.” T enn . Cod e Ann § 39-12-101 (a)(2). Had this portion of the statute been
charged, the evidence wo uld also have been sufficient to support attempted second degree murder under this theory of
liability.

                                                           -5-
person who shot into the vehicle. The jury could further conclude the killing was intentional and
premeditated. A deadly weapon was used upon an unarmed victim; the weapon was procured to use
against the victim; the defendant had a motive to shoot the victim; and the defendant followed the
victim until he had an opportunity to shoot him. The defendant was properly convicted of the
premeditated first degree murder of Middlebrooks.

        The jury could further conclude the defendant attempted to commit the second degree
murders of Stark and Manning. Viewing the evidence in a light most favorable to the state, the jury
could reasonably infer the defendant saw there were three persons in the car and fired numerous
shots into the car. The defendant had followed them and pulled up directly behind them at the stop
light. Thus, the jury could reasonably infer the defendant attempted to murder not only
Middlebrooks, but also the other two occupants in the car.

        As to the attempted second degree murder of Stark, the jury had yet another theory of
criminal liability upon which it could rely. Where a defendant premeditatedly and intentionally tries
to kill one person and an unintended victim is killed, a defendant is criminally liable for the
premeditated first degree murder of the unintended victim. Millen v. State, 988 S.W.2d 164, 168
(Tenn. 1999). We believe this same theory of criminal liability can apply to attempted murder where
an unintended victim is shot but not killed. There was ample evidence for a jury to conclude that
the defendant was attempting to murder Middlebrooks when Stark was shot. This attempted second
degree murder of Stark is clearly justified under the Millen theory of criminal liability.

       Accordingly, this issue lacks merit.


                             II. LESSER-INCLUDED OFFENSES

        The defendant requested an instruction on reckless endangerment as a lesser-included offense
of attempted first degree murder, which the trial court denied. The defendant contends this was
reversible error, and we agree.

A. Burns Requirements

        Misdemeanor reckless endangerment is committed when a defendant “recklessly engages in
conduct which places or may place another person in imminent danger of death or serious bodily
injury.” Tenn. Code Ann. § 39-13-103(a). Our supreme court has recently determined that
misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder.
State v. Rush, 50 S.W.3d 424, 431 (Tenn. 2001). Accordingly, we conclude it is also a lesser-
included offense of attempted first degree murder. However, our analysis does not conclude there.
As stated by the Tennessee Supreme Court in State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001), we
must also determine whether the charge is justified by the evidence. See State v. Burns, 6 S.W.3d
453, 469 (Tenn. 1999). This requires that we determine (1) whether there is evidence that
“reasonable minds” could accept to establish the lesser-included offense, and (2) whether the
evidence is “legally sufficient” to support a conviction for the lesser-included offense. Id. The

                                                -6-
evidence must be viewed liberally in a light favoring the existence of the lesser-included offense
without making any judgments as to credibility of the evidence. Id.

B. Basis for Charge

         The state contends the charge of misdemeanor reckless endangerment was properly rejected
because the only factual dispute was that of the perpetrator’s identity. In support of its position, the
state cites State v. Doney D. Miles, No. W2000-02587-CCA-R3-CD, 2001 WL 1078281 (Tenn.
Crim. App. Sept. 14, 2001, at Jackson), perm. to app. pending. As in the instant case, the
Miles defense was that of mistaken identity; namely, Miles did not deny a crime had occurred, but
alleged he was not the perpetrator. Id. at *5. Additionally, it was undisputed that the crime of
aggravated robbery was committed. Id. It was undisputed the perpetrator displayed a weapon and
struck the victim in the head with it before taking the money. Id. Accordingly, we concluded the
trial court properly rejected charges on the lesser-included offenses of simple robbery and theft. Id.

        Contrary to the state’s position, a defendant’s claim of mistaken identity of the perpetrator
does not necessarily eliminate the need to charge lesser-included offenses. In Miles, we held that
“reasonable minds could not accept the evidence as establishing [the lesser-included offenses].” Id.
Such is not the situation in the instant case. The evidence established that Middlebrooks had
previously robbed the defendant, and shortly after the defendant saw Middlebrooks, he obtained a
weapon and fired several shots into the vehicle in which Middlebrooks was traveling. Viewing the
evidence in a light most favorable to the state, the jury reasonably concluded the defendant was
guilty of the attempted second degree murders of Stark and Manning as we have previously
discussed. However, viewing the evidence in a light favoring the existence of the lesser-included
offense, as required by Burns, reasonable minds could conclude the defendant’s shooting at
Middlebrooks placed unintended victims Stark and Manning in imminent danger of death or bodily
injury. This is reckless endangerment. See Tenn. Code Ann. § 39-13-103(a). However, the jury was
not given the chance to consider this offense. Furthermore, the evidence is legally sufficient to
support such convictions.2

        We further conclude this error was not harmless under State v. Williams, 977 S.W.2d 101
(Tenn. 1998). According to Williams, any error associated with the trial court's failure to instruct
on a lesser-included offense is harmless when the jury finds the defendant guilty of the greatest
charged offense and declines to convict the defendant on the immediately lesser-included offense.
Id. at 106. In the instant case, the jury convicted the defendant of the only lesser-included offense
charged, attempted second degree murder, and no other lesser-included offenses were charged.
Williams does not apply.


         2
           W e recognize that if the defendant were convicted of reckless endangerment on both counts, the convictions
wo uld likely b e m erged into one conviction . See State v. Ramsey, 903 S.W.2d 709, 71 3 (T enn . Crim. App. 1995)
(finding only o ne reck less endangerment offense where the defendant’s reckless conduct endangered passengers in two
vehicles); State v. Christopher Bengtson, No. E1999-01190-CCA-R3-CD, 2000 WL 1456926, at *4 (Tenn. Crim. App.
Oct. 2, 2000, at Knoxville) (merging three felony reckless endangerment convictions into one conviction where the
defendant po inted a loaded shotgun at three victims).

                                                         -7-
        Accordingly, we reverse the convictions for attempted second degree murder and remand for
a new trial on the two counts of attempted second degree murder. The defendant may not be retried
for attempted first degree murder since he was acquitted on that offense. See Rush, 50 S.W.3d at
432.


                                        III. SENTENCING

        The defendant contends his consecutive sentences, comprising an effective sentence of life
imprisonment plus 22 years, are improper. Although our reversal of the defendant’s two convictions
for attempted second degree murder renders this issue moot, we shall address this issue in the event
of further appellate review.

       This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result.
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        A court may order sentences to run consecutively if the court 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). Furthermore, in the event the trial court finds defendant is a
“dangerous offender,” it must also determine whether the consecutive sentences (1) are reasonably
related to the severity of the offenses committed, and (2) serve to protect the public from further
criminal conduct by the offender. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        At the sentencing hearing the state presented testimony of a corrections officer of the
Criminal Justice Center where the defendant was housed pending his trial. She testified that a week
before the defendant’s trial, the defendant, without provocation, brutally attacked a fellow inmate
and “banged his head up against the wall.” She stated the inmate’s “head was flat” when they got
to him. The inmate has since suffered seizures and had two strokes. There was no further testimony
concerning the incident.

        The defendant contends the testimony of his alleged assault upon a fellow inmate shortly
before trial was “irrelevant” to the consecutive sentencing issue. He contends the trial court erred
in relying upon it since the defendant had not yet pled guilty or been found guilty relating to this
incident. We reject this argument. Consecutive sentencing is authorized if the court finds “by a
preponderance of the evidence” that the defendant is a dangerous offender. Tenn. Code Ann. § 40-

                                                  -8-
35-115(b)(4) (emphasis added). A trial court is not prohibited from considering prior criminal
behavior for sentencing purposes even though there has been no conviction. See State v. Carico, 968
S.W.2d 280, 287-88 (Tenn. 1998) (holding prior sexual misconduct, for which there has been no
prior conviction, was properly considered as an enhancement factor under Tenn. Code Ann. § 40-35-
114(1)); see also State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (holding the court may apply
an enhancement factor based upon facts underlying an incident for which the defendant was
acquitted; provided, it is shown by a preponderance of the evidence). We see no impediment to the
trial court’s relying upon this brutal assault in considering whether the defendant is a dangerous
offender for purposes of consecutive sentencing. See State v. Palmer, 10 S.W.3d 638, 648-49 (Tenn.
Crim. App. 1999) (noting the trial court is not limited to the instant offenses, but may consider the
defendant’s prior criminal record, in determining whether the defendant qualifies for consecutive
sentencing based upon the extensive record of criminal activity and dangerous offender categories).

         The trial court concluded the defendant was a dangerous offender whose behavior indicates
little or no regard for human life, and he had no hesitation about committing a crime in which the
risk to human life was high. The trial court specifically noted (1) he shot at the vehicle at an
intersection near other individuals; (2) he had prior drug and weapons convictions; and (3) he
brutally beat an inmate to the point he “flatten[ed]” his head. Furthermore, the trial court expressly
found the aggregate term of the sentences reasonably related to the seriousness of the offenses, and
consecutive sentencing was necessary to protect the public. The trial court followed the statutory
requirements, gave proper consideration to the principles of sentencing, and its findings are clearly
supported by the record. Accordingly, we are not at liberty to disturb the trial court’s ruling. See
Hooper, 29 S.W.3d at 5.

       This issue is without merit.


                                          CONCLUSION

       We affirm the conviction and life sentence for premeditated first degree murder and reverse
the convictions for attempted second degree murder. This case is remanded for a new trial on the
two charges of attempted second degree murder.


                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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