         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 4, 2003

                 STATE OF TENNESSEE v. DAVID L. JOHNSON

                   Direct Appeal from the Circuit Court for Obion County
                          No. 1-285    William B. Acree, Jr., Judge



                 No. W2002-00935-CCA-R3-CD - Filed September 25, 2003


A jury convicted the appellant of two counts of attempted first degree murder. The trial court
imposed concurrent twenty-five-year sentences on each count. On appeal, the appellant argues (1)
the evidence was insufficient to support his convictions, and (2) his sentences are excessive. We
affirm the judgments of the trial court.

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

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

Joseph P. Atnip, District Public Defender; William K. Randolph, Assistant District Public Defender
(at trial and on appeal); and Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), for the
appellant, David L. Johnson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin D. McAlpin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       On August 6, 2001, the victims, Robbie Upchurch and Reggie Jordan, were shot on the front
porch of Mr. Upchurch’s home in Union City, Tennessee. Mr. Upchurch was wounded in the leg.
Mr. Jordan was shot in the back and is paralyzed below the waist.

         Mr. Upchurch and Mr. Jordan testified that at about 10:00 p.m., just prior to the shooting,
they drove to Mr. Upchurch’s house in a Camaro. They stated that as they approached Mr.
Upchurch’s house, they saw the appellant in a vehicle with Josh McElrath, Jeffrey Shields, Willie
Vaughn, and Mario McElrath. The victims said they first saw the other vehicle at an intersection
near Mr. Upchurch’s home. According to Mr. Upchurch, the occupants of the other vehicle stared
as he turned left toward his home. The victims testified they saw the other car a second time when
it traveled past Mr. Upchurch’s house on Home Street.
        The victims testified they pulled into Mr. Upchurch’s driveway, exited the Camaro, and
walked onto the porch. Mr. Upchurch stated he then heard three gunshots, the first striking him in
the leg. Mr. Jordan said he heard five or six shots, one of which struck him in the back. Neither
victim saw the shooter. Mr. Upchurch said he did not know why the appellant would shoot him, but
speculated it was because he was “from out of town” and the appellant’s girlfriend liked him.

         Mario McElrath and Jeffrey Shields testified that on the night of the shooting, they were in
the car with the appellant, Willie Vaughn, and Josh McElrath, who was driving. Mario McElrath
stated that when they drove past a Camaro, the appellant commented, “There goes [Upchurch].”
Both Mr. Shields and Mario McElrath said that when they saw the Camaro traveling on Home
Street, the appellant told Josh McElrath to pull over. Both testified Josh McElrath turned left on
College Street and stopped near Counce’s Grocery Store. They testified everyone exited the car
except Josh McElrath, but only the appellant went behind the store.

        Mr. Shields stated he saw the appellant jump a fence, and Mario McElrath indicated he heard
the appellant scale the fence. Both witnesses said they heard gunshots seconds later. Mario
McElrath testified the appellant returned carrying a black automatic pistol that was “[a]bout like a
nine millimeter,” and said, “I shot one of ‘em.” Mr. Shields confirmed the appellant was carrying
a black pistol and stated the appellant said, “Two for one ain't bad.”

        Sonya Polk and Latasha Buchanan testified they shared a home with Mr. Upchurch. The
women stated that at the time of the shooting, they were in the house with six children between the
ages of four and ten. According to Ms. Polk, she heard more than four gunshots as she was reading
to three of the children in the front bedroom at about 10:00 p.m. Ms. Buchanan indicated she heard
more than four shots in rapid succession. Both women confirmed Mr. Upchurch and Mr. Jordan
were wounded, but neither of them saw who fired the shots.

        Lt. Rick Kelly of the Union City Police Department testified he investigated the crime scene
and found evidence indicating at least five rounds were fired. In addition to two nine millimeter
shell casings found nineteen feet from the house, he found bullet holes in the window air
conditioner, the rail of the front porch, and the foundation of the house. Lt. Kelly further testified
that Mr. Upchurch’s house was located next to Counce’s Grocery, and there was a fence between
the house and the store. According to Lt. Kelly, the appellant gave a statement in which he said that
on the night of the offense, he was at home until approximately 10:15 p.m., when he went to a
friend’s house where “Jeff Shields,” “Josh,” and another person were watching television. The
appellant indicated he heard gunshots in the alley and saw a Camero driving away.

       TBI forensic scientist Terri Arnie testified the two shell casings found by Lt. Kelly at the
crime scene came from the same nine millimeter weapon. She also stated that a bullet recovered
from the crime scene was a nine millimeter caliber bullet.

        The jury convicted the appellant of two counts of attempted first degree murder. The trial
court sentenced the appellant to the maximum sentence of twenty-five years for each conviction and
ordered the sentences to run concurrently.


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                            I. SUFFICIENCY OF THE EVIDENCE

        The appellant argues the evidence was insufficient to support his convictions because there
was no direct evidence he fired the shots, and the firearm used to commit the offenses was not
recovered. We do not agree.

         This court does not reweigh or reevaluate the evidence in determining sufficiency. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict, once approved by the trial judge,
accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994). Accordingly, the state is entitled to the strongest legitimate view
of the evidence and all legitimate and reasonable inferences which may be drawn therefrom. Id.
It is our duty to affirm the conviction if the evidence, viewed under the appropriate standards, was
sufficient for any rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

        Although the evidence of the appellant’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. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The circumstantial
evidence, however, must exclude every other reasonable theory or hypothesis other than guilt.
Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a certainty of guilt of the accused
as to convince the mind beyond a reasonable doubt that [the appellant] is the one who committed
the crime.” Id. (Citations omitted).

        The victims testified that just prior to the shooting, they observed the appellant in a car near
Mr. Upchurch’s house in the company of state witnesses Jeffrey Shields and Mario McElrath. Mr.
Shields and Mr. McElrath testified they were in the car with the appellant when the appellant told
the driver to stop the car near Counce’s Grocery, next door to Mr. Upchurch’s home. Both stated
they observed the appellant go behind the grocery, where he climbed the fence between the store
and the house. Seconds later, they heard gunshots. Both witnesses testified the appellant returned
carrying a gun and made statements to the effect that he had shot one or both of the victims. Mario
McElrath further indicated the appellant’s gun appeared to be a nine millimeter. The state’s proof
established the shots were fired from a nine millimeter weapon. The fact that the weapon was never
found does not render the evidence insufficient. See State v. Joseph William Wilson, No. W2001-
03007-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 91, at *15 (Tenn. Crim. App. Feb. 3, 2003, at
Jackson) (holding physical evidence is not a prerequisite to a conviction), perm. to app. denied
(Tenn. 2003). We conclude the proof, although circumstantial, was ample to support the jury’s
verdicts.

                                         II. SENTENCING

       The appellant also contends the twenty-five-year sentences imposed by the trial court were
excessive. He makes two arguments in support of his position: (1) the trial court improperly
imposed the maximum sentences because it was disappointed that a jury in a prior case found the
appellant guilty of reckless endangerment rather than aggravated assault; and (2) the trial court erred

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in not considering as a mitigating circumstance that the appellant’s actions were “impulsive rather
than premeditated.” These arguments are patently without merit.

        An appellant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a
de novo review of the record with a presumption the trial court’s determinations are correct when
an appellant appeals the length, range, or manner of service of his or her sentence. Tenn. Code Ann.
§ 40-35-401(d). The presumption of correctness 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). The presumptive sentence
for attempted first degree murder, a Class A felony, see Tenn. Code Ann. § 39-11-117(a)(2), is the
midpoint of the range, twenty years. See id. § 40-35-210(c).

         At sentencing, the trial court applied the following enhancement factors: enhancement factor
(1), the defendant has a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range; enhancement factor (3), the offense involved
more than one victim; enhancement factor (6), the personal injuries inflicted upon the victim were
particularly great; enhancement factor (8), the defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community; enhancement factor
(9), the defendant employed a firearm during the commission of the offense; enhancement factor
(10), the defendant had no hesitation about committing a crime when the risk to human life was
high; enhancement factor (12), during the commission of a felony, the actions of the defendant
resulted in the serious bodily injury to a victim or a person other than the intended victim;
enhancement factor (13), the felony was committed while the defendant was on bail for a felony for
which he was later convicted; enhancement factor (16), the crime was committed under
circumstances under which the potential for bodily injury to the victim was great; enhancement
factor (18), a victim, under § 39-15-402, suffered permanent impairment of physical functions; and
enhancement factor (20), the defendant was adjudicated to have committed a delinquent act or acts
as a juvenile that would constitute a felony if committed by an adult. See id. § 40-35-114(1), (3),
(6), (8), (9), (10), (12), (13)(A), (16), (18), (20) (1997).1 The trial court further found no mitigating
factors applied. See id. § 40-35-113 (1997). It imposed the maximum sentence of twenty-five years
for each conviction, and ordered the sentences to be served concurrently with each other but
consecutively to a prior sentence.

        As to the appellant’s contention that the trial court imposed the maximum sentence because
of its disappointment with a jury verdict in an unrelated case involving the appellant, the record
simply does not support this contention. Further, the jury’s finding of attempted premeditated first
degree murder negates the appellant’s argument that his actions were “impulsive rather than
premeditated.”


         1
           Effective July 2002, the legislature amended Tennessee Code Annotated section 40-35-114 and renumbered
the enhan cement facto rs. 200 2 T enn. P ub. Acts, ch. 849, § 2(c). Our opinion refers to the enhancement factors as they
existed at the time of sentencing as specified in Tennessee Cod e Annotated section 40-35-114 (199 7).

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        The appellant does not contest any of the enhancement factors applied by the trial court.
However, we question the trial court’s application of enhancement factors (3), (10), (12), (16), and
(18) to both convictions and enhancement factor (6) to the conviction in which Mr. Upchurch was
shot in the leg. Nevertheless, we conclude the remaining enhancement factors applied by the trial
court are supported by the record and amply justify the twenty-five-year sentences.

                                          CONCLUSION

        We conclude there was sufficient evidence to support the appellant’s convictions for attempted
first degree murder, and the trial court properly imposed twenty-five-year sentences. Accordingly,
we affirm the judgments of the trial court.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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