              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           DECEMBER 1996 SESSION
                                                         FILED
                                                           April 20, 1999

STATE OF TENNESSEE,            )                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
                               )
             Appellee,         )    No. 02C01-9507-CR-00189
                               )
                               )    Shelby County
v.                             )
                               )    Honorable Chris Craft, Judge
                               )
ROSCOE L. GRAHAM and           )    (Graham--Attempt to commit voluntary
KENDRICK L. CAVIL,             )    manslaughter; Cavil--attempt to commit
                               )    second degree murder)
             Appellants.       )




For Appellant Graham:               For the Appellee:

Leslie I. Ballin                    Charles W. Burson
200 Jefferson Avenue                Attorney General of Tennessee
Suite 1250                                 and
Memphis, TN 38103                   Clinton J. Morgan
                                    Assistant Attorney General of Tennessee
For Appellant Cavil:                425 Fifth Avenue North
                                    Nashville, TN 37243-0493
A.C. Wharton, Jr.
District Public Defender            John W. Pierotti
201 Poplar Avenue                   District Attorney General
Memphis, TN 38103                           and
(AT TRIAL)                          Kevin Rardin
                                    Assistant District Attorney General
Randall B. Tolley                   201 Poplar Avenue
242 Poplar Avenue                   Memphis, TN 38103-1947
Memphis, TN 38103
(ON APPEAL)




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION


             The defendants, Roscoe L. Graham and Kendrick Cavil, appeal as of right

from their convictions in a jury trial in the Shelby County Criminal Court. Cavil was

convicted of attempt to commit second degree murder, a Class B felony, and sentenced

as a Range I, standard offender to nine years in the custody of the Department of

Correction and fined one thousand five hundred dollars. Graham was convicted of

attempt to commit voluntary manslaughter, a Class D felony, and sentenced as a

Range I, standard offender to three years in the workhouse and fined one thousand

dollars. Graham was placed on immediate probation for three years. The following

issues, applicable to both defendants, were presented for our review:

              (1) whether the evidence is insufficient to support the
              defendants' convictions;

              (2) whether the trial court erred in allowing the victim's mother
              to testify regarding the victim's condition;

              (3) whether the trial court erred in allowing the state to
              introduce mug-shot photographs that were used to identify the
              defendants;

              (4) whether the trial court erred in limiting the cross-
              examination of a witness, George Petties;

              (5) whether the trial court erred in excluding impeachment
              evidence of a prior conviction for attempt to commit a
              misdemeanor;

              (6) whether the trial court properly charged the jury on the
              burden of proof;

              (7) whether the trial court erred in not charging the jury
              regarding assault and aggravated assault as lesser included
              offenses; and

              (8) whether the trial court erred in not charging the jury with
              regard to the ranges of punishment applicable to all the
              offenses charged.


              Defendant Cavil presents the additional issue of whether the trial court

imposed an excessive sentence by improperly balancing the enhancement and




                                             2
mitigating factors. We affirm the trial court’s judgments of conviction for both

defendants.



              The defendants were tried for the attempt to commit first degree murder of

Darrel Wayne Franklin on April 14, 1994. George Petties testified that he and K.C.

Parks were with the victim in the front yard of Arthur Graham's house. Arthur Graham

is the uncle of the defendant, Roscoe Graham. Petties testified that he knew Graham.

He stated that he did not know Cavil by name, but only as Cap.



              Petties testified that he saw the defendants come out of the house. He

said Cavil walked down the steps, and Graham walked down the handicapped access

ramp in front of the house. Petties said Cavil walked up to Franklin and chopped

Franklin in the neck with his hand. Petties testified that after the first blow, which

stunned Franklin, Graham started beating Franklin. He said both Cavil and Graham hit

Franklin with their fists until Franklin collapsed to the ground, apparently unconscious

and bleeding. Petties stated that Graham kicked Franklin in the head and side a few

times and then Cavil started stomping Franklin. He said that Cavil grabbed the railing

of the handicapped access ramp, jumped on Franklin as he was lying on the ramp, and

landed on Franklin's head with both feet. Petties testified that he saw Cavil do this

about ten times.



              Petties testified that while Cavil was stomping Franklin's head, he saw

Graham standing next to Parks with his hand on the grip of a pistol that he was wearing

at his waist. Petties said that Cavil and Graham then got into their car and drove away,

leaving Franklin lying on the ground, bleeding and unconscious.



              K.C. Parks testified that he was visiting Petties and Franklin when Cavil

and Graham came out of the house. He testified that he knew Graham and that he



                                              3
knew Cavil only as Cap. Parks stated that Cavil hit and stunned Franklin, Graham

punched Franklin, and then Cavil hit Franklin again before Franklin fell to the ground.

Parks testified that Graham then kicked Franklin with the side of his foot, and Cavil

jumped on Franklin's face while he was on the ground. Parks testified that he told Cavil

to leave Franklin alone. He said that the defendants then left.



              The victim testified that he was talking to Petties and Parks when the

defendants walked out of the house. He stated that Cavil walked up to him and hit him

in the neck. He said that Graham hit him, and then Cavil hit him again. He

remembered that after he fell to the ground, Graham kicked him several times. He did

not remember anything else until he awoke in the hospital. He testified that he was in

the hospital for thirty-five days, but he did not know what the doctors did to him while he

was there. He stated that he has trouble remembering things.



              The victim's mother, Kay Monger, testified that after she was notified that

her son was injured, she went to Arthur Graham's house and saw her son being treated

by paramedics. She said that she went to the hospital with him. She stated that he

was in a coma for sixteen days and that when he first came out of the coma, he could

only babble. She testified that her son received occupational, physical, and speech

therapy. She testified that before the beating, Franklin was enrolled in a community

college. She said that after he was released from the hospital, he did not walk or talk

the same, and he was no longer able to work as a car mechanic.



              Defendant Graham testified that he and Cavil went to his uncle's house.

Graham said that after they arrived, he went inside to use the bathroom. Graham

stated that as he was leaving the house, he saw Cavil being attacked by Petties and

Franklin. Graham said he went to Cavil’s defense and tried to break up the fight.




                                            4
Graham testified that he and Cavil made their way to the car and left. Graham testified

that he owns a gun but that he did not have it with him that day.



              Defendant Cavil testified that he worked for Graham's security company

and had to fill in for another employee. He said that Graham was driving him to his

sister's house in order for him to get a uniform. Cavil said that when Graham stopped

at his uncle's house to use the bathroom, Cavil stayed outside. He testified that Petties

and Franklin approached him. He said that Petties was behind him and Franklin was in

front of him. He said that Franklin grabbed the front of his shirt, and Petties hit him

from behind. Cavil testified that he was fighting back when Graham came out of the

house and came to his aid.



                         I. SUFFICIENCY OF THE EVIDENCE

              Defendant Cavil contends that the evidence is not sufficient to support his

conviction for attempt to commit second degree murder. He asserts that the

defendants' testimony shows that he was provoked into a state of passion sufficient to

show an attempt to commit voluntary manslaughter and that Graham's conviction of

attempt to commit voluntary manslaughter shows that Cavil could not be convicted of a

greater offense. The state responds that the evidence is sufficient. We agree.



              Defendant Graham contends that the evidence is not sufficient to support

his conviction for attempt to commit voluntary manslaughter. He asserts that the

evidence does not show that he was provoked or in a state of passion or that he had

the intent to kill. Graham argues that the state's evidence indicates that he was not

provoked and that he was "plain and cool." He also argues that he did not have the

requisite intent because the state's evidence indicates that he told Cavil to stop jumping

on Franklin's head and because his conduct, while sufficient to show assault, was not

sufficient to show an intent to kill. The state responds that mutual combat may be



                                             5
sufficient provocation to support a voluntary manslaughter conviction, and the

defendant's testimony indicates both provocation and passion. Additionally, the state

asserts that the evidence is sufficient to support a conviction for attempt to commit

either first or second degree murder, thus the lesser included offense of attempt to

commit voluntary manslaughter should stand.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Under this standard, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn from it. Cabbage, 571

S.W.2d at 835. That is, the testimony favoring the state is accredited, and all conflicts

are resolved in favor of the state's theory. See State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).



                                   A. Defendant Cavil

              Defendant Cavil was found guilty of attempt to commit second degree

murder. To be guilty of criminal attempt, the defendant must have acted with the kind

of culpability necessary for second degree murder. See T.C.A. § 39-12-101. Second

degree murder is defined as the "knowing killing of another." T.C.A. § 39-13-210. A

knowing act requires one to be "aware of the nature of the conduct" and "aware that the

conduct is reasonably certain to cause the result." T.C.A. § 39-11-302(b).




                                             6
              In addition to the requisite mental state for second degree murder, the

defendant must also act “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 must constitute a substantial step

toward the commission of the offense. T.C.A. § 39-12-101(a)(3).



              A rational trier of fact could reasonably conclude that Cavil knowingly

attempted to kill the victim and acted with the intent to complete the killing. The

evidence shows that after Cavil beat the victim until he fell to the ground, apparently

rendering the victim unconscious, Cavil repeatedly jumped on the victim's head.

Further proof shows that after the beating, the victim was in a coma for sixteen days.

The trial court noted that the victim suffered extremely great personal injury.



              Defendant Cavil argues that he could not be convicted of a greater

offense than Graham, who was convicted of attempt to commit voluntary manslaughter.

The evidence shows that Cavil's attack on the victim was more intense than Graham's

attack. The evidence shows that although Graham kicked the victim after he fell to the

ground, Cavil repeatedly jumped on the victim's head. A rational trier of fact could

reasonably conclude that Cavil acted with greater culpability than Graham and that

Cavil’s actions warranted a conviction for attempt to commit second degree murder.



              Verdicts need not be consistent between codefendants as long as the

evidence sufficiently supports the verdicts. In State v. Gennoe, 851 S.W.2d 833 (Tenn.

Crim. App. 1992), the defendants picked up a college student as she was walking along

the road, drove her to a deserted area, and attempted to have sex with her. Id. at 833-

35. One defendant in Gennoe contended that his conviction for facilitation of sexual

battery was inconsistent with his codefendant's conviction. Id. at 835. This court held

that "[i]nconsistent jury verdicts are not fatal to a conviction." Id.; see also, State v.



                                               7
Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App. 1995) (holding that a codefendant’s

acquittal did not result in fundamental unfairness); State v. Stapleton, 638 S.W.2d 850,

856 (Tenn. Crim. App. 1982) (holding that a conviction for aiding and abetting will stand

regardless of whether the principal has been convicted). We conclude that the

evidence is sufficient.



                                 B. Defendant Graham

              Defendant Graham was convicted of attempt to commit voluntary

manslaughter. To be guilty of criminal attempt, a person must act with the kind of

culpability necessary for voluntary manslaughter. See T.C.A. § 39-12-101. Voluntary

manslaughter is defined as "the intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act

in an irrational manner." T.C.A. § 39-13-211(a). One acts intentionally “when it is the

person's conscious objective or desire to engage in the conduct or cause the result."

T.C.A. § 39-11-302(a). A knowing act requires one to be "aware of the nature of the

conduct" and "aware that the conduct is reasonably certain to cause the result." T.C.A.

§ 39-11-302(b).



              In addition to the requisite mens rea, the defendant must also act in a

manner outlined in our criminal attempt statute. See T.C.A. § 39-12-101(a)(1)-(3). One

means by which an attempt to commit voluntary manslaughter may occur is if a person

"[a]cts 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." T.C.A. § 39-12-101(a)(3).



              A rational trier of fact could reasonably conclude that Graham intentionally

or knowingly attempted to kill the victim. The evidence shows that the defendant struck



                                             8
the victim after Cavil struck the victim. Graham first hit the victim with his fists, and then

kicked him while he was on the ground.



              Also, a rational trier of fact could reasonably conclude that Graham

attempted to kill the victim in a "state of passion produced by adequate provocation

sufficient to lead a reasonable person to act in an irrational manner." T.C.A. § 39-13-

211(a). The evidence shows that of the two defendants, Cavil was the first to strike the

victim. Graham testified that he believed that the victim started the fight and that he

voluntarily joined in the fray.



              In viewing the testimony in the light most favorable to the state, we believe

that the jury could reasonably conclude that Graham, seeing his companion engaged in

a fight, was sufficiently provoked and acted in an irrational manner. We conclude that

the evidence supports the jury's finding that the defendant was guilty of attempt to

commit voluntary manslaughter beyond a reasonable doubt. See, e.g., Hunt v. State,

303 S.W.2d 740, 742 (Tenn. 1957) (holding that the evidence supported a voluntary

manslaughter conviction when death resulted from mutual combat).



                          II. VICTIM’S MOTHER’S TESTIMONY

              Both defendants contend that the testimony of the victim's mother

regarding her son's condition was inadmissible. They argue that the mother was not an

expert qualified to testify about her son's medical condition, the testimony was not

relevant, and the testimony was unduly prejudicial. The state responds that the

mother's testimony was admissible because she testified only to what she observed

about her son's condition, that the testimony was relevant to show intent, and that the

testimony was not unfairly prejudicial. We agree.




                                              9
              Before trial, the defendants sought to prevent the victim's mother from

testifying about the victim's medical condition. The defendants contended that it would

be impermissible to allow testimony of the victim's condition before and after the

beating without also having expert testimony showing a causal connection between the

change in the victim's condition and the beating. The defendants argued that without

this causal link, a leap of faith is required to attribute changes in the victim's condition to

the beating. Additionally, the defendants argued that the victim's condition was not

relevant to the offenses and was highly prejudicial.



              The trial court ruled that testimony about the victim's condition was

relevant to prove that the defendants attempted an intentional, premeditated, and

deliberate killing. The trial court found that a savage beating, as shown by the victim's

condition, would be relevant to show intent. With respect to causation, the trial court

found that it was within the jury's province to determine if the victim's condition was

caused by the beating. The trial court ruled that the victim's mother could not make a

medical diagnosis or give speculative testimony, but she could testify to what she

observed.



              During the direct examination of the victim's mother, the following

occurred:

                   [PROSECUTOR]: Have you noticed any physical
              changes in your son since he was released from the hospital?

                      [WITNESS]: Yes, sir.

                    [PROSECUTOR]: All right. Could you describe those
              physical changes.

                      [WITNESS]: His physical changes, he doesn't walk or
              talk the way he did before.

                    [PROSECUTOR]: All right. Did your son have a speech
              impairment before April 14, 1994?

                      [WITNESS]: No, sir.



                                              10
                    [PROSECUTOR]: Did he walk abnormally before April
              14, 1994?

                     [WITNESS]: No, sir.

                    [PROSECUTOR]: Have you noticed any changes in
              your son's personality since April 14, 1994?

                     [DEFENSE COUNSEL]: Object again, Judge.

                     THE COURT: All right. Well, I'm going to allow it if she
              can tell what she observed.

                     [PROSECUTOR]: Yes.

                     [DEFENSE COUNSEL]: All right, sir.

                     THE COURT: Not what his thoughts are or what he
              says, but any changes that you saw, please.

                    [PROSECUTOR]: I can rephrase the question, Your
              Honor.

                    [PROSECUTOR]: Have you observed any changes in
              your son's behavior since April 14, 1994?

                     [WITNESS]: Yes, sir.

                    [PROSECUTOR]: Could you tell us what you have
              observed.

                     [WITNESS]: I've observed him--his mental capabilities
              are not the same, and his physical attributes are not the same;
              and he's restless a lot and sleep impairments like walking all
              the time.

                   [PROSECUTOR]: All right.         Is your son able to do
              mechanic work on cars now?

                     [WITNESS]: No, sir.

                     [PROSECUTOR]: Does he try to do mechanic work?

                     [WITNESS]: Sometimes he tries.

                    [PROSECUTOR]: And what happens when he tries, if
              you know?

                     [WITNESS]: He mess up [sic].


              The defendants contend that the victim's mother gave opinions as to her

son's condition that she was not qualified to give. Initially, we note that the opinion




                                            11
testimony of lay witnesses is governed by Tenn. R. Evid. 701, which states the

following:

                    (a) Generally. If a witness is not testifying as an expert,
             the witness's testimony in the form of opinions or inferences is
             limited to those opinions or inferences which are

                     (1) rationally based on the perception of the witness and

                     (2) helpful to a clear understanding of the witness's
              testimony or the determination of a fact in issue.


              In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), a police officer

testified that a bloody T-shirt found around the victim's neck had been used as a gag.

Our supreme court held that the testimony was an inadmissible lay opinion and stated:

                    A non-expert must ordinarily confine his testimony to a
             narration of facts based on first-hand knowledge and avoid
             stating mere personal opinions. Blackburn v. Murphy, 737
             S.W.2d 529, 531 (Tenn. 1987). The purpose of this rule is "to
             preserve the primary fact-finding role of the jury, since '[i]t is
             the function of the witness to state evidentiary facts and the
             function of the jury to draw such conclusions as the facts
             warrant.' " Id. (quoting Wilson v. Nashville, Chattanooga & St.
             Louis Ry., 16 Tenn. App. 695, 705, 65 S.W.2d 637, 643
             (1933)).

                    Nevertheless, there are exceptions to the general rule.
             "Non-expert opinion testimony can be admissible when 'such
             testimony describes observed facts in the only way in which
             they can be clearly described.' " Id., 737 S.W.2d at 532
             (quoting National Life & Accident Ins. Co. v. Follett, 168 Tenn.
             647, 662, 80 S.W.2d 92, 98 (1935)). Therefore, admissible lay
             opinion testimony is limited to those circumstances

                       [w]here facts perceived by the senses are
                     numerous, and it is difficult to describe them
                     adequately to the jury, and the conclusion or
                     inference to be drawn from such facts is simple
                     and within the range of common experience, and
                     the witness can relate what he has seen more
                     accurately and more easily by stating his
                     conclusion than by attempting to detail the
                     [evidentiary] facts.

Id. at 330-31. Although the court stated that the question of admissibility of the

testimony was close, it concluded that it would be harmless error even if it were

inadmissible. The court explained that because the defendant had admitted to gagging

the victim, the officer's testimony was harmless. Id. at 331.


                                            12
               We view the opinion testimony in the present case to be the type

permitted by Tenn. R. Evid. 701 as described in Middlebrooks. The victim's mother

testified that her son's mental capabilities and physical abilities had changed and that

her son could no longer work on cars. These opinions were based on extensive close

contact with her son. Her conclusions were within the range of common experience

and could best be expressed as an opinion rather than recounting the myriad details on

which they were based.



               As for causation, we acknowledge that experts are often needed to

explain how the injuries they treat are caused by the event in question. This is not

necessarily so, though, when the evidence otherwise shows a sufficient connection.

See, e.g., McCord v. State, 198 Tenn. 226, 230-31, 278 S.W.2d 689, 691 (1955)

(holding that the cause of death need not be proven by expert testimony when

defendant’s act is proven, the wounds are apparent, and there is no suggestion of

another cause); Bryant v. State, 503 S.W.2d 955, 958 (Tenn. Crim. App. 1973). We

believe that there was sufficient evidence presented from which the jury could rationally

conclude that the victim’s mental and physical problems that existed after the beating

resulted from that beating.



               In this case, the state had to prove that the defendants attempted an

intentional or knowing killing. The severity of the beating was relevant to show that they

attempted to kill the victim, either intentionally or knowingly. Just as the state could

introduce evidence showing that the defendants beat the victim in a violent manner by

stomping on his head, it could also introduce evidence showing that the results of the

beating were severe. The testimony of the victim’s condition was not unfairly

prejudicial.



                        III. ADMISSIBILITY OF PHOTOGRAPHS



                                             13
                The defendants contend that the trial court erred by admitting into

evidence the photographs used to identify the defendants because the photographs

were unfairly prejudicial with little probative value. They argue that the photographs

were inherently prejudicial because they were mug shots taken when the defendants

were arrested. The state responds that the photographs were relevant to prove the

identity of the defendants, and the photographs' potential prejudicial effect did not

substantially outweigh their probative value. We agree.



                The defendants’ photographs were included in a photographic array of

five pictures. Each photograph consisted of an individual's front view and profile and

included a placard showing that the photograph was taken for the Shelby County

Justice Complex. The placard identified the individual by a booking number and date.

After the defendants’ objection, the state blackened the booking numbers and dates on

each picture.



                The admissibility of photographs is a matter left to the sound discretion of

the trial court, whose ruling will not be disturbed on appeal absent a clear abuse of

discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); see also State v.

Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); State v. Evans, 838 S.W.2d 185, 193

(Tenn. 1992); State v. Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995).

Nevertheless, the photographs must be relevant to an issue at trial, and the danger of

unfair prejudice must not substantially outweigh their probative value. Tenn. R. Evid.

403; see Banks, 564 S.W.2d at 951.



                The state must prove beyond a reasonable doubt that the accused is the

person who committed the offense. See White v. State, 533 S.W.2d 735, 744 (Tenn.

Crim. App. 1975). The identity of the accused, as with any other element of a crime, is

a question of fact for the determination of the jury after consideration of all competent



                                              14
evidence. See Biggers v. State, 411 S.W.2d 696, 697 (Tenn. 1967), cert. granted, 390

U.S. 404, 88 S. Ct. 979 (1968) (affirmed on other grounds); State v. Crawford, 635

S.W.2d 704, 705 (Tenn. Crim. App. 1982). Because the state's witnesses, Petties and

Parks, knew Cavil only as Cap, the photographs were relevant to the witnesses' pretrial

identification of Cavil.



               The photographs used for the pretrial identification were poorly masked

and did not conceal from the jury that the photographs were police mug shots. In State

v. Washington, 658 S.W.2d 144 (Tenn. Crim. App. 1983), the state introduced as

evidence a mug shot of the defendant showing a booking date. Id. at 146. The court

determined that a photograph showing that the defendant had been arrested, by itself,

was not sufficient to lead to an inference of previous criminal activity by the accused.

Id. Because the photographs in Washington bore the date of the offense on trial, the

possibility of inferring prior criminal activity from the photographs did not exist. Id.



               However, in this case, the defendants requested that the dates and

booking numbers on the photographs be blackened. If the dates had remained on the

photographs, they would be no more prejudicial than the photographs found admissible

in Washington. Even with the dates blackened, we conclude the trial court did not

abuse its discretion in finding that the photographs were relevant to the issue of

identification and that the probative value of the photographs outweighed any

prejudicial effect.




                                              15
                  IV. CROSS-EXAMINATION OF GEORGE PETTIES

              The defendants contend that the trial court erred by refusing to allow them

to cross-examine George Petties. The defendants argue that they should have been

permitted to question Petties about where he sat in the police car when he was picked

up for questioning. The state responds that where Petties sat in the police car was not

relevant.



              During cross-examination by Graham's attorney, Petties testified that

Sergeant Thweat came to his house and took him to the police station for questioning.

Petties said that he rode in the police car. When asked if he sat in the front seat, the

state objected on relevancy grounds. In a bench conference, Graham's attorney stated

that he was attempting to show that the witness was a suspect in this case because the

witness did not sit in the front seat of the police car and therefore, had a motive to

accuse Graham. The trial court considered the inference sought by Graham from

Petties’ position in the police car to be “kind of reaching” and sustained the state’s

objection.



              The cross-examination of Petties resumed and the following transpired:

                     [DEFENSE COUNSEL]: Without telling me where in the
              car that you were seated, tell us how long it took you to have
              the police drive you from your house to the police station.

                     [PROSECUTOR]: I'm going to object, Your Honor. The
              objection is the same. The relevancy of these car trips -- it's
              irrelevant.

                    THE COURT: All right. I don't think it's relevant,
              [defense counsel]. I'm not going to allow that.


              The admissibility of evidence is a matter within the trial court's discretion

and will not be reversed on appeal absent an abuse of discretion. State v. Harris, 839

S.W.2d 54, 66 (Tenn. 1992). In order to be admissible, evidence must first be relevant.

Tenn. R. Evid. 402. Evidence is relevant if it has "any tendency to make the existence



                                             16
of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence." Tenn. R. Evid. 401. In other

words, evidence is relevant if it helps the jury resolve a factual issue.



               The defendants sought to impeach the witness's credibility by raising an

inference that the witness was a suspect and had a motive for accusing the defendants.

However, in this case, the defendants had no knowledge or proof that the witness was

a suspect in the case and only hoped to raise the inference by showing that the witness

rode in the backseat of the police car when taken to the police station for questioning.

We conclude that this testimony would have little or no probative value in establishing

improper motive and that the trial court did not abuse its discretion by limiting the

questioning.



                            V. PARKS’ PRIOR CONVICTION

               The defendants contend that the trial court erred by refusing to allow them

to cross-examine K.C. Parks about a prior misdemeanor conviction for criminal attempt.

First, they argue that the witness committed a crime that involved moral turpitude,

allowing for impeachment. Second, they argue that the Confrontation Clause of the

Sixth Amendment to the United States Constitution guarantees them the right to cross-

examine witnesses against them. The defendants assert that without complete cross-

examination, the jury could not properly assess the witness's credibility. The state

responds that evidence of Parks' prior conviction was barred by Tenn. R. Evid.

609(a)(2), because the defendant did not show that the conviction involved dishonesty

or false statement.



               After Parks testified on direct examination, counsel for Graham attempted

to impeach Parks with evidence of a prior conviction. Before starting his cross-

examination of Parks, defense counsel showed the trial court a printout indicating that



                                             17
Parks had pled guilty to an "attempt misdemeanor." Defense counsel stated that the

crime attempted was the felony of altering and falsifying license plates, a Class E

felony. See T.C.A. § 55-5-116. The trial court noted that the documents did not

indicate what crime Parks attempted and that without proof that the misdemeanor

involved moral turpitude, the conviction could not be used for impeachment.



              While Graham's attorney continued cross-examination, additional

information on the conviction was retrieved from the courthouse. The new information

only showed that the conviction was for an "attempt misdemeanor." The trial court

stated that a "criminal attempt misdemeanor is not criminal attempt altering or forging a

plate" because that crime is "criminal attempt felony." The trial court ruled that the prior

conviction could not be used because the trial court could not determine to which

misdemeanor Parks pled.



              Initially, we note that defense counsel requested that the trial court mark

the documents retrieved for identification purposes. The record for review does not

contain this exhibit, even though it is listed in the index as being part of the record. The

state’s brief notes that the exhibit is missing from the record. It is the defendants’ duty

"to have prepared a transcript of such part of the evidence or proceedings as is

necessary to convey a fair, accurate and complete account of what transpired with

respect to the issues that are the bases of appeal." T.R.A.P. 24(b). When necessary

parts of the record are not included on appeal, this court must presume that the trial

court's ruling was correct. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.

1991). Such is the case before us. However, we will review the merits of the

defendants' issue upon the record before us.



              The credibility of a witness may be attacked by presenting evidence of a

prior conviction for either a felony or a misdemeanor involving dishonesty or false



                                             18
statement. Tenn. R. Evid. 609(a)(2). The issue before us also involves the core

interest secured by the defendants’ constitutional right to confront the witnesses against

them, i.e., cross-examination.

              Cross-examination is the principal means by which the
              believability of a witness and the truth of his testimony are
              tested. Subject always to the broad discretion of a trial judge
              to preclude repetitive and unduly harassing interrogation, the
              cross-examiner is not only permitted to delve into the witness'
              story to test the witness' perceptions and memory, but the
              cross-examiner has traditionally been allowed to impeach, i.e.,
              discredit, the witness. One way of discrediting the witness is
              to introduce evidence of a prior criminal conviction of that
              witness. By so doing the cross-examiner intends to afford the
              jury a basis to infer that the witness' character is such that he
              would be less likely than the average trustworthy citizen to be
              truthful in his testimony. The introduction of evidence of a prior
              crime is thus a general attack on the credibility of the witness.


Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, (1974). However, “a

defendant’s right to confrontation does not preclude a trial court from imposing limits

upon cross-examination which take into account such factors as harassment, prejudice,

issue confusion, witness safety, or merely repetitive or marginally relevant

interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994).



              The trial court found that the witness had pled guilty to an “attempt

misdemeanor" and that the defendants offered no proof of the underlying crime which

the witness attempted. The trial court noted that if the underlying crime had been

altering or falsifying license plates, a Class E felony, attempt would be one classification

lower, a Class A misdemeanor, and properly called an attempted felony. See T.C.A. §§

55-5-116, 39-12-107. The trial court ruled that the conviction was inadmissible because

it could not determine the offense the witness had committed. The evidence only

showed that the witness was convicted of a misdemeanor without any indication that it

involved dishonesty or false statement. Without such a showing, evidence of the

conviction was not admissible under Rule 609. Considering the circumstances of this




                                             19
case, we conclude that under Tenn. R. Evid. 609, the trial court did not err in ruling that

the evidence of the conviction was not admissible.



                  VI. JURY INSTRUCTION ON REASONABLE DOUBT

              Both defendants contend that the trial court improperly instructed the jury

on the burden of proof because it did not instruct the jury that the state had the burden

of proving the defendants’ guilt to a moral certainty. The trial court gave the following

reasonable doubt instruction:

                     A reasonable doubt is a doubt based upon reason and
              common sense after careful and impartial consideration of all
              the evidence in this case.

                    It is not necessary that the defendant's guilt be proved
               beyond all possible doubt, as absolute certainty of guilt is not
               demanded by the law to convict of any criminal charge.

                     A reasonable doubt is just that -- a doubt that is
               reasonable after an examination of all the facts of this case.

                     If you find the state has not proven every element of the
               offense beyond a reasonable doubt, then you should find the
               defendant not guilty.

See T.P.I.-Crim. 2.03(a) (4th ed.). The defendants did not submit a requested

instruction or object to this instruction at trial, although they did raise the issue in their

motion for new trial. The state contends that this issue requires a plain error review

because the defendants did not request a different instruction or object to the

instruction at trial. The state also contends that there is precedent for allowing

reasonable doubt instructions such as the one at issue here.



              Pursuant to Rule 30(b), Tenn. R. Crim. P., the failure to object to the

content of an instruction given at trial does not bar raising the issue as error in support

of a motion for new trial. Because the defendants raised the issue during their motion

for a new trial, the issue is properly before us.




                                               20
              This court has previously examined nearly identical instructions

concerning reasonable doubt. See State v. Henning, No. 02C01-9703-CC-00126,

Madison County (Tenn. Crim. App. Oct. 24, 1997) (holding that the pattern jury

instruction was not constitutionally deficient and that it sufficiently instructed the jury);

State v. Derek Denton, No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim. App.

Aug. 2, 1996) (concluding that the jury instruction concerning reasonable doubt did not

constitute reversible error). The instruction given in the present case was, likewise,

adequate.



        VII. FAILURE TO CHARGE ASSAULT AND AGGRAVATED ASSAULT

              The defendants contend that the jury should have been charged with the

offenses of assault and aggravated assault. They argue that assault and aggravated

assault are lesser included offenses of attempted first degree murder. In his reply brief,

Cavil asserts that the state overcharged him and violated due process. The state

responds that assault and aggravated assault are not lesser included offenses of

attempted first degree murder. We agree.



              In State v. Trusty, 919 S.W.2d 395 (Tenn. 1996), the defendant was

convicted of aggravated assault on an indictment for attempt to commit first degree

murder. Id. at 307. In reversing the conviction, our supreme court held that defendants

are entitled to jury instructions on all lesser included offenses and on all lesser grades

or classes of the offense charged if the evidence would support a conviction for the

offense. Id. at 311. The Trusty court held that aggravated assault was neither a lesser

included offense nor a lesser grade of the offense of attempt to commit first degree

murder. Id. at 312. For similar reasons, we conclude that assault is not a lesser

included offense or lesser grade of attempted murder.




                                              21
              Defendant Cavil contends that he was charged with a greater offense than

he committed in violation of his due process rights. He argues that if this were not a

case of self-defense, it would only be one of assault or aggravated assault. As

previously discussed, the evidence was sufficient to convict Cavil of attempt to commit

second degree murder. We conclude that his due process rights were not violated.



           VIII. JURY CHARGE REGARDING RANGES OF PUNISHMENT

              Both defendants contend that the trial court erred by not charging the jury

with the total range of punishment for the charged offenses. The defendants argue that

the Range II penalties should have been charged along with the Range I penalties.

The state responds that the trial court properly charged the jury as to the sentencing

ranges for the charged offenses. The state asserts that there was no error because the

trial court charged on the sentences of Range I, and the defendants were sentenced in

Range I. We agree.



              In State v. Lawson, 695 S.W.2d 202 (Tenn. Crim. App. 1985), this court

held that the trial court did not commit reversible error when it instructed the jury on the

complete range of punishment available upon conviction. Id. at 204. The defendant

argued that only the Range II punishment should have been charged because he was a

Range II offender. Id. The Lawson court stated that T.C.A. § 40-35-201(b) requires the

trial court to "charge the possible penalties for the offense charged and all lesser

included offenses." Id.



              In State v. Robinson, 930 S.W.2d 78 (Tenn. Crim. App. 1995), the

defendant was convicted of first degree murder and arson. The trial court charged the

jury with only the Range I punishment. Even though the state had not filed a notice of

its intention to seek enhanced punishment, the defendant contended that the trial court

erred by failing to charge the complete range of punishment. This court held that it was



                                             22
not prejudicial error to limit the instructions to the range of punishment that actually

could be imposed because juries would be properly apprised of the actual punishment

that would result from a guilty verdict. Id. at 84.



              In the present case, the trial court noted that the state had not filed any

notice for enhanced range punishment. Absent such a notice from the state, the trial

court is limited to Range I sentencing. See T.C.A. § 40-35-210. The trial court

instructed the jury on the proper Range I sentences for the offenses charged. We

conclude under Robinson that instructing the jury on the sentences available to a

Range I offender was not prejudicial error.



                                IX. CAVIL'S SENTENCING

              Defendant Cavil contends that the sentence imposed was excessive and

that the trial court did not properly consider the enhancement and mitigating factors.

He claims that the trial court should not have applied enhancement factor (2), that he

was the leader in the commission of the offense, because there was no factual basis to

support a finding that he was the leader. He claims that enhancement factor (6), that

the personal injuries of the victim were particularly great, should not have been applied

because the hospital discharged the victim in excellent condition. He also claims that

the court should have applied mitigating factor (2), that he acted under strong

provocation, because the evidence showed that he was provoked. The state responds

that the trial court properly applied the enhancement and mitigating factors. We agree.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section note, the burden is now on the

defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately



                                              23
supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, "the presumption of correctness which accompanies the trial

court's action 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).



              The sentence to be imposed by the trial court is presumptively the

minimum in the range unless there are enhancement factors present. T.C.A. § 40-35-

210(c). Procedurally, the trial court is to increase the sentence within the range based

upon the existence of enhancement factors and, then, reduce the sentence as



                                             24
appropriate for any mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be

afforded an existing factor is left to the trial court's discretion so long as it complies with

the purposes and principles of the 1989 Sentencing Act and its findings are adequately

supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments;

Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.



                At the sentencing hearing, Graham testified about starting his security

service and described Cavil as being instrumental in helping him get the business

started. Graham testified that Cavil was in charge of the private detective division of his

security service.



                Victor Thayer, the chief investigator for the Kroger Company in Memphis,

testified that he had a good working relationship with both defendants. He said that his

company employed Graham's company and that he often met with both defendants

throughout his almost two-year relationship with them. Mr. Thayer described both

defendants as gentlemen.



                Defendant Cavil testified that while in the Army, he received a fifteen-day

restriction for being absent without leave. He testified that he had been charged three

times for contempt of Juvenile Court because he had failed to pay child support. He

admitted that he had filed for Chapter 13 bankruptcy and was having financial

difficulties.



                Ben Hale of Promus Companies testified that his company employed

Cavil for almost four years as a security officer. Mr. Hale stated that he was very

impressed with Cavil and found him to be an exemplary employee. Patrolman Boldt of

the Memphis Police Department testified that he had a professional relationship with

Cavil for the past two years. He stated that as a patrol officer, he had contact with Cavil



                                              25
while he was working as a security officer. He said that he always found Cavil to be

very civil and professional.



              At the conclusion of the sentencing hearing, the trial court found that

Graham had one prior conviction. The trial court found two enhancement factors and

no mitigating factors. Graham was sentenced as a Range I, standard offender to three

years in the local workhouse. The trial court noted that Graham had excellent

character, was a college graduate and had his own business, employing thirty people.

The trial court fined him one thousand dollars and placed him on immediate probation

for three years.



              The trial court sentenced Cavil as a Range I, standard offender to nine

years in the custody of the Department of Correction and fined him one thousand five

hundred dollars. The trial court applied the following enhancement factors as listed in

T.C.A. § 40-35-114:

              (2) the defendant was a leader in the commission of an
              offense involving two (2) or more criminal actors;

              (6) The personal injuries inflicted upon or the amount of
              damage to property sustained by or taken from the victim was
              particularly great.


              With respect to enhancement factor (2), the trial court found that Cavil,

even though an employee of Graham, had a greater role in the offense and acted as a

leader in the offense. With respect to enhancement factor (6), the trial court found that

the victim suffered particularly great personal injuries and noted that the injuries

included the permanent loss of the victim's lifestyle, and a loss of cognitive, motor and

speech skills. The trial court noted that the injuries that it considered were not the

same injuries that the jury heard and considered in determining guilt.




                                             26
               The trial court stated that no mitigating factors applied. The trial court

found that Cavil was not a suitable candidate for probation. The trial court noted that

unlike Graham, Cavil had problems in the military and had trouble meeting his

obligations as shown by his arrests for failure to pay child support and his filing for

bankruptcy.



               Defendant Cavil contends that there was no factual basis for the

application of enhancement factor (2), that he was a leader in the commission of the

offense. On the contrary, the evidence at trial shows that Cavil instigated the fight and

continued to beat the victim after he had fallen to the ground. The evidence also shows

that Graham participated, but to a lesser degree. Graham struck the victim and kicked

him with the side of his foot, whereas Cavil jumped on the victim's head until blood

flowed from his mouth. We conclude that Cavil acted as a leader in the commission of

the offense.



               Defendant Cavil also contends that enhancement factor (6), that the

victim suffered particularly great injuries, does not apply because the victim was

released from the hospital in excellent condition. The evidence at trial shows that the

victim continued to suffer speech impairment and walking difficulties. The trial court

found that the victim suffered permanent disabilities. The evidence sufficiently supports

the application of this enhancement factor.



               As for Cavil's argument with respect to the trial court's decision that no

mitigating factors applied, we believe that the evidence supports the trial court's

decision. He argues that he acted under strong provocation and that this factor should

have mitigated his sentence. Credible testimony reflects that Cavil was the first to strike

without provocation. The only testimony to the contrary was his. He also argues that

he provided ample evidence of his good character. However, the trial court noted that



                                              27
aside from the character witnesses' testimony, Cavil had trouble with the military, his

marriages, and meeting his financial and legal obligations.



                The weight to be given to enhancement and mitigating factors is left to the

trial court's discretion. State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.

1994). We conclude that the trial court properly sentenced Cavil.



                Finally, Cavil claims that his sentence was unfair in light of that received

by Graham. The jury convicted Cavil of attempt to commit second degree murder and

Graham of attempt to commit voluntary manslaughter. The Sentencing Reform Act of

1989 mandates sentencing guidelines for the various classifications of offenses. See

T.C.A. § 40-35-111. This claim is without merit because the defendants were convicted

of different offenses, and each defendant's case requires individual consideration.



                In consideration of the foregoing and the record as a whole, the trial

court's judgment of conviction is affirmed.



                                                          ______________________________
                                                          Joseph M. Tipton, Judge


CONCUR:



__________________________
Joe B. Jones, Presiding Judge 1



__________________________
Jerry L. Smith, Judge




                1
                 Judge Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e
acknowledge his faithful service to this court, both as a member of the court and as its Presiding Judge.

                                                    28
