State of Tennessee v. Dontae Lamont Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 10, 2007

STATE OF TENNESSEE v. DONTAE LAMONT BROWN

Direct Appeal from the Circuit Court for Lauderdale County

No. 7923 Joseph H. Walker, III, Judge

No. W2006-01800-CCA-R3-CD - Filed October 2, 2007

A Lauderdale County Circuit Court jury convicted the appellant, Dontae Lamont Brown, of

attempted first degree murder and aggravated assault. The trial court sentenced him to thirty-two

years and eight years, respectively, and merged the convictions. On appeal, the appellant contends

that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by giving the

jury a flight instruction, and (3) the trial court improperly enhanced his sentences. Based upon the

record and the parties’ briefs, we affirm the jury’s guilty verdicts and the appellant’s thirty-two-year

sentence for attempted murder. However, given that the trial court merged the aggravated assault

conviction into the attempted murder conviction, the court should have entered only one judgment

of conviction. Therefore, we remand the case for the trial court to enter a single judgment reflecting

the merger of the convictions.

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

Modified and Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS

T. WOODALL, JJ., joined.

Kari I. Weber and Julie K. Pillow, Jackson, Tennessee, for the appellant, Dontae Lamont Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

D. Michael Dunavant, District Attorney General; and Tracey Anne Brewer, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

Barbara Jean Brooks testified that in May 2005, she lived in an apartment on Gay Street in

Ripley, Tennessee and was the appellant’s next door neighbor. On May 25, Brooks looked out of

her apartment and saw the appellant running back to his apartment. She did not see anything in his

hands. Later, Brooks saw some people in the apartment complex parking lot and saw the appellant

standing in the doorway of his apartment. A woman in the parking lot hit the appellant’s girlfriend’s

car with an object several times. Each time, the appellant asked the woman to stop hitting the car

and moved closer to her. The appellant then shot the woman. The woman fell to the ground, and

Brooks saw the appellant running on the street. She stated that the appellant did not go to the victim

after the shooting and that she did not see anyone else with a gun that day.

On cross-examination, Brooks testified that when she first looked out of her apartment, she

saw the appellant running to his apartment and saw fifteen to twenty people running behind him.

Brooks did not see the appellant arguing with another man. She stated that the appellant was ten to

fifteen feet away from the victim at the time of the shooting and that the appellant fired more than

one shot. She stated that she could not say with certainty that the appellant was the only person with

a gun that day.

Lashona Johnson testified that she had gone to school with the appellant and was at the Gay

Street apartment complex on May 25. She saw the appellant shoot the victim, Stacy Campbell, with

a handgun. On cross-examination, Johnson testified that she had been told about an earlier fight on

another part of Gay Street. However, she was not involved in it. Johnson and some other people

went to the apartment complex to find out about that fight, but the fight was already over. Johnson

saw the victim standing in front of the appellant’s girlfriend’s car and saw about fifteen other people

in the parking lot. A woman named Stephanie Barbee hit the car with a car jack, went onto the

appellant’s porch, and exchanged words with the appellant. A group of people, including a man

named Tony Barbee, was standing on the sidewalk and was telling the appellant to come off the

porch. However, the appellant refused and was still standing on his porch when he shot the victim.

The victim fell down, and Johnson telephoned the police. Johnson did not see the appellant run from

the scene but was told he ran though his apartment and out the back door.

The victim testified that the appellant and her aunt, Stephanie Barbee, had a son together.

On May 25, the victim was with Stephanie Barbee and the victim’s cousins, Tony Barbee and

Teneka Barbee. Before the shooting, Teneka and Tony had been fighting on Gay Street with a man

named Sammy.1 During that fight, the appellant was present, hit Tony in the face with a pistol, and

drove away. After the fight, the victim, Tony, and Teneka went to Teneka’s apartment for a

barbecue. Teneka lived next door to the appellant’s girlfriend, Trina Pearson. When they arrived

at Teneka’s apartment, the appellant was standing in the doorway to Pearson’s apartment and was

holding a pistol. The victim acknowledged that the group “got into it” with the appellant again, and

she said Tony pushed the appellant in the face. The victim tried to stop the appellant and Tony from

arguing, but the appellant shot the victim. The victim fell onto the ground and asked the appellant

for help. However, he stood over her, told her that he could not help her, and ran into Pearson’s

1

Given that some of the witnesses in this case have the same last name, we will use their first names. W e mean

no disrespect to these individuals.

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apartment. The victim was taken to a Lauderdale County hospital and flown by helicopter to Jackson

Trauma Center. The victim’s right ovary was removed, her intestines were “patched,” and she

received six units of blood. The victim said that the doctors left the bullet in her pelvis and that she

could not find a job because the bullet hurt her hip when she stood up. She stated that she continues

to have pain and that she cannot have any more children. The victim said that the appellant had

enough time to think about who he was shooting and that he ran out the back door of Pearson’s

apartment after the shooting.

On cross-examination, the victim testified that before the shooting, the appellant moved away

from the apartment door and stood in the grass. The victim knew the appellant had just been

released from prison and told him not to mess up his life. The victim was not arguing with the

appellant but was standing in the parking lot near Pearson’s car with Tony, Stephanie, and Teneka

at the time of the shooting. The victim did not hit Pearson’s car and did not see anyone else hit it.

The victim said she had never had any previous problems with the appellant, and she denied having

a prior conviction for misdemeanor theft.

Renata Gause, the appellant’s cousin, testified for the appellant that she lived on Gay Street

in May 2005. On May 25, Teneka Barbee fought with a girl named Andrea Smith. Someone named

Sammy fired a gun during the fight, but no one was injured. The appellant was present but left the

scene, and Gause did not see the appellant fight with Tony Barbee. On cross-examination, Gause

testified that she was only present during the first fight and was not present during the second

altercation when the victim was shot.

Anetta Shanks testified that she lived on Gay Street and that a fight occurred on May 25,

2005. Before the fight, Shanks, the appellant, and some other people were sitting in the yard and

were waiting for a basketball game to start on television. Shanks heard someone say, “Let them

whores fight,” and a fight broke out between Teneka Barbee and Andrea Smith. The appellant had

already left when the fight started. The victim and Tony Barbee were present during the fight.

Shanks said that the victim was holding a bed rail and that “Little Tony,” also known as “Fitty,” was

holding a tire jack. Shots were fired, and everyone scattered. About five minutes later, a second

fight erupted on another section of Gay Street, and Shanks heard more gunshots. However, she was

not present at the scene of the second fight and did not see the victim get shot. Shanks walked over

to the scene of the shooting and saw the victim lying on the ground and asking for help. Shanks did

not see the appellant.

Lakisha Smith testified that she lived on Gay Street. On May 25, 2005, Smith’s sister,

Andrea, got into a fight with Teneka Barbee. Later, Teneka, her cousin, and her brother drove to

265A Gay Street, which was Andrea’s apartment. The group, which included the victim, jumped

out of the car. They were carrying sticks and rails and ran toward Andrea, and Andrea fought with

Teneka. The appellant had been present before the fight but left before the fight started. Shots were

fired during the fight, but Lakisha did not see who fired them. After the fight, the group got back

into the car and left. Lakisha said that a second fight later occurred on the “B side” of Gay Street

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and that she heard gunshots. However, she was not present during that fight and did not know what

happened to the victim.

Tony Barbee testified that on May 25, his sister, Teneka Barbee, had been fighting with

another girl on Gay Street. Tony, Stephanie Barbee, and the victim went to the scene of the fight,

and Tony “got into a little scuffle” with Sammy and Cedric Smith. Tony did not see the victim fight

anyone. The appellant was present during the scuffle, but Tony did not fight with him. Although

someone hit Tony in the head with a pistol, Tony did not see the appellant hit him. Sammy Smith

fired a gun during the fight, but no one was injured. After the fight, Tony went to Teneka’s

apartment, which was two doors down from Trina Pearson’s apartment. The appellant was standing

on Pearson’s porch, and Tony never walked up to the appellant. Stephanie, Teneka, and the victim

were standing in the parking lot, and Tony did not see anything in their hands and did not see anyone

hit Pearson’s car. Tony saw the appellant point a gun at the victim and fire five or six shots. The

victim fell to the ground, and Tony did not see the appellant walk over to her. Tony acknowledged

that he had prior convictions for felony failure to appear, two counts of delivering less than one-half

gram of cocaine, and possession of contraband in a penal institution. He later testified that he saw

the appellant point a handgun at the victim but that he ducked away before the shooting and did not

see the appellant shoot the victim. On cross-examination, Tony testified that he never had a weapon

on May 25.

Billy Dan Huggins, an investigator with the public defender’s office, testified that he and the

appellant’s attorney interviewed Tony Barbee on May 18, 2006. During the interview, Tony stated

that he was only a witness to the first fight on Gay Street and was not involved in the fight. Tony

also said the appellant was not involved in the first fight. Regarding the second fight in front of

Pearson’s apartment, Tony said that he was in someone’s apartment when the victim was shot.

Huggins did not remember if Tony claimed to have witnessed the shooting, and Tony did not tell

Huggins anything about fighting with the appellant on May 25. On cross-examination, Huggins

acknowledged that trial witnesses were not always forthcoming during interviews.

Burdeen Haley testified that on May 25, she heard that her grandchildren were fighting on

Gay Street. Haley and her daughters drove to an area of the apartment complex on Gay Street and

parked in the parking lot. Haley heard “someone hitting like some tin like they was chunking or

hitting something.” Haley also heard a woman say, “Come out . . . you M-F. You was bad around

the other corner. Why don’t you come out now?” Haley said she thought the victim made that

statement but could not be sure. Haley heard three gunshots, and everyone started running. The

victim fell down and said she had been shot. Haley saw a man sitting in the backseat of a car and

saw that he had a small gun. Haley’s daughter told her that the man’s name was “Fitty.” Fitty said,

“Damn” and did not move or leave. On cross-examination, Haley stated that she did not see who

shot the victim.

The appellant testified that on May 25, 2005, he lived at 264B Gay Street with his girlfriend,

Trina Pearson. The appellant went “around the corner” of the apartment complex to watch a

basketball game and was sitting outside with some friends when the victim, Tony, Stephanie, and

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Teneka Barbee arrived. The appellant saw that Teneka had a pipe or stick in her hand and saw

Teneka run up to Andrea Smith. Teneka started hitting Andrea on the top of her head, and Tony

began fighting with some men. The victim was also present and was holding a long rail. The

appellant did not fight anyone, drove back to his apartment, and parked Pearson’s car in the parking

lot. As he walked toward his apartment, Teneka, Stephanie, and the victim ran toward him. The

victim was carrying a car jack, Teneka had a small pipe, and Stephanie had a jack handle. Stephanie

asked the appellant why he had hit Tony with a pistol, and the victim ran to Pearson’s car and hit the

car twice with the jack. The appellant saw Tony sitting in the victim’s car and saw Tony bend down.

Pearson pulled the appellant into their apartment, the appellant heard gunshots, and he closed the

door. When he opened the door, he saw the victim lying next to Pearson’s car. The victim asked

the appellant for help, but he did not help her because he thought someone was shooting at him. The

appellant fled the scene because he had a parole violation and did not want to be present when the

police arrived. He stated that he did not have a gun that day, had no reason to shoot the victim, and

did not shoot the victim. He stated that he had never argued with the victim previously and that he

did not know who shot her.

On cross-examination, the appellant testified that he did not recall Pearson’s telling him on

May 25, “Don’t get into trouble. Don’t do this.” The appellant said that after the shooting, he ran

out the back door and hid in a wooded area. He stated that he fractured his knee and stayed in the

woods for about three hours until his brother came and “toted” him out. He was not arrested until

August 31 and said he did not learn he had been charged with attempted first degree murder until

an investigator told him the next day. He said he was shocked to learn about the charges. When

asked why he did not turn himself in to police, he said that he did not go to the police because he had

a parole violation. He stated that in a crime scene photograph introduced into evidence, the car jack

that the victim was holding could be seen laying in the parking lot next to Pearson’s car.

Trina Pearson testified on rebuttal for the State that the appellant was not living with her at

264B Gay Street at the time of the shooting but was visiting her apartment. Pearson heard her car

pull up outside, and the appellant got out. The appellant walked toward Pearson’s apartment, and

another car pulled up behind him. Three females got out of the car and came at the appellant with

sticks, bats, and jacks. They claimed the appellant had hit their cousin. Pearson telephoned 911,

heard gunshots, and ducked down. When she looked out the window, she saw the victim lying in

the parking lot. She stated that a lot of people had been in the parking lot before the shooting and

that she did not know if any of them had guns. She said she saw the appellant with a gun that day

but did not see him fire it.

On cross-examination, Pearson testified that a lot of people outside her apartment had guns

and that she telephoned 911 because the three females were going to attack the appellant. On

redirect examination, Pearson acknowledged that in her statement to police, she said the appellant

fired the gun. However, she noted that she did not tell the police the appellant shot at anyone. The

jury convicted the appellant of attempted first degree murder and aggravated assault against the

victim.

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II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions.

Specifically, he argues that the witnesses’ testimony was “so divergent that the State did not present

a clear case of the facts of that day to arise to evidence of attempted first degree murder or

aggravated assault” and that the only fact that can be established is that someone shot the victim.

Regarding the attempted first degree murder, the appellant also contends that the evidence is

insufficient to show that he intended to kill the victim or premeditated any killing because there was

no evidence of a prior troubled relationship between the appellant and the victim, no evidence of a

plan or motive, no evidence that the appellant made any statement of intent to kill, and the appellant

did not act calmly after the shooting. The State contends that the evidence is sufficient. We agree

with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard for

review by an appellate court 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); Tenn. R.

App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value

to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the

trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or

reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial

evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal

with one of guilt, a convicted defendant has the burden of demonstrating to this court that the

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

First degree murder is the premeditated and intentional killing of another person. Tenn. Code

Ann. § 39-13-202(a)(1).2 A premeditated killing is one “done after the exercise of reflection and

judgment.” Tenn. Code Ann. § 39-13-202(d). Criminal attempt requires that a person act “with the

kind of culpability otherwise required for the offense . . . [and] with intent to cause a result that is

an element of the offense, and believes the conduct will cause the result without further conduct on

the person’s part.” Tenn. Code Ann. § 39-12-101(a)(2). The element of premeditation is a question

of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Although the jury may

not engage in speculation, it may infer premeditation from the manner and circumstances

surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Our supreme court has

2

W e note that in his brief, the appellant contends that all homicides are presumed to be second degree murder.

However, in State v. Jackson, 173 S.W .3d 401, 403 (Tenn. 2005), our supreme court held that “the second degree murder

presumption is now obsolete.”

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delineated several circumstances from which a jury may infer premeditation, including, but not

limited to, declarations of the intent to kill, evidence of the procurement of a weapon, the use of a

deadly weapon upon an unarmed victim, the particular cruelty of the killing, preparations before the

killing for the purpose of concealing the crime, and calmness immediately after the killing. Id. As

charged in the indictment, aggravated assault occurs when a person uses a deadly weapon to

intentionally or knowingly cause bodily injury to another person. Tenn. Code Ann. § 39-13-

102(a)(1)(B), -101(a)(1).

We agree with the appellant that many of the witnesses gave conflicting testimony, and we

note that many were elusive in their answers to the State’s and the defense’s questions. However,

the evidence still establishes that the appellant was present during a fight that occurred near Andrea

Smith’s apartment on May 25, 2005. During that fight, Andrea Smith fought with Teneka Barbee,

and Tony Barbee fought with some men. Tony Barbee was struck in the head with a pistol, and the

victim, Stephanie Barbee, Tony Barbee, and Teneka Barbee believed the appellant was responsible.

The appellant left the scene of the first fight and returned to Trina Pearson’s apartment, and the

group followed him there. They confronted the appellant, who was holding a pistol, and demanded

that he come off Pearson’s porch. The victim then struck Pearson’s car with the car jack. The

appellant told the victim to stop several times, but she refused. Several eyewitnesses testified that

they saw the appellant point the pistol at the victim and fire several shots, striking her once in the

abdomen. Despite the appellant’s claim to the contrary, his confrontation with the victim and her

hitting Pearson’s car were motives for the shooting. Moreover, the appellant possessed a handgun,

pointed the gun specifically at the victim, and fired several shots at her. Taken in the light most

favorable to the State, this evidence is sufficient to show that the appellant shot the victim and that

he acted intentionally and with premeditation. Thus, the evidence is sufficient to support the

convictions.

B. Flight Instruction

The appellant contends that the trial court erred by giving the jury an instruction on flight

because the appellant fled from the scene due to his parole violation, not because he was trying to

evade arrest for shooting the victim. The State argues that the appellant’s fleeing the scene and

hiding out supported the instruction. We conclude that the trial court did not err by giving the

instruction.

Following the conclusion of the proof, the trial court announced that it would be instructing

the jury on flight. The appellant objected, arguing that the proof did not show the appellant fled for

the purpose of evading arrest on the charges in this case. The trial court overruled the objection and

used Tennessee Pattern Jury Instruction 42.18, the instruction on flight, specifically charging the jury

as follows:

The flight of a person accused of a crime [is] a circumstance

which, when considered together with all the facts of the case, may

justify an inference of guilt. Flight is the voluntary withdrawal of

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oneself for the purpose of evading arrest or prosecution for the crime

charged. Whether the evidence presented proves beyond a reasonable

doubt that the defendant fled is a question for your determination. . .

. If flight is proved, the fact of flight alone does not allow you to find

that the defendant is guilty of a crime alleged. However, since flight

by a defendant may be caused by a consciousness of guilt, you may

consider the fact of flight, if flight is so proven, together with all of

the other evidence when you decide the guilt or innocence of the

defendant. On the other hand, an entirely innocent person may take

flight, and such flight may be explained by proof offered or by the

facts and circumstances of the case. Whether there was flight by the

defendant, the reasons for it, and the weight to be given to it are all

questions for you to determine.

In order to instruct the jury on flight, sufficient evidence must exist to support the

instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn. 2004). Sufficient evidence requires “a

leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the

community.” State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989). “A flight instruction

is not prohibited when there are multiple motives for flight,” and “[a] defendant’s specific intent for

fleeing a scene is a jury question.” Berry, 141 S.W.3d at 589; see State v. Smith, 893 S.W.2d 908,

918 (Tenn. 1994) (concluding that the meaning and weight of such evidence is a jury question).

Moreover, this court has stated that

the flight instruction pointed out to the jury that innocent persons may

take flight, and it was up to the jury to determine whether there was

flight, the reasons for the flight, and the weight to be given to it. Just

as the instruction allowed an inference of guilt from flight, it also

instructed that the evidence, facts, and circumstances may show that

an innocent person may take flight.

State v. Richardson, 995 S.W.2d 119, 129 (Tenn. Crim. App. 1998).

In the instant case, the appellant admitted that he ran through the apartment and out the back

door immediately after the shooting and hid in the woods for several hours. He remained at large

for three months. We conclude that this evidence established both a “leaving the scene” and a

“hiding out” and warranted an instruction on flight. The appellant’s reason for fleeing the scene was

resolved by the jury. The trial court did not err by providing the instruction.

C. Excessive Sentence

The appellant contends that the trial court erred by not considering his age as a mitigating

factor and that his midrange sentence is excessive in light of the circumstances of the case. The State

argues that the trial court properly sentenced the appellant. We agree with the State.

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At the appellant’s sentencing hearing, the victim acknowledged that she still experienced

physical pain as a result of the shooting and that she was going to have to decide whether to have

surgery on her hip. She stated that she was often depressed and that the trial court should give the

appellant the “best” sentence possible.

Darrell Smothers from the Tennessee Board of Probation and Parole testified that he prepared

the appellant’s presentence report. The appellant failed to give his version of the May 25 events for

the report and declined to submit a written statement for the report. Smothers stated that the

appellant has prior convictions for two counts of felony cocaine delivery, two counts of driving

without a license, driving on a suspended license, misdemeanor assault, and disorderly conduct. The

appellant also has had his probation revoked twice previously, and he was on parole when he

committed the offenses in question.

The appellant testified that he was currently in prison and taking classes to obtain his GED.

He also was planning to take anger management and drug abuse classes, which he believed would

aid in his rehabilitation. He stated that he had five children and was supporting those children before

he was incarcerated. However, he had been unable to support them while in prison. He said that

when he was released from confinement, he planned to get his family back, gain employment, better

himself, and take care of his children. On cross-examination, he stated that the did not shoot the

victim.

Trina Pearson testified that she and the appellant had several children together. Prior to the

appellant’s incarceration, he supported his children. Pearson stated that she believed the appellant

was trying to rehabilitate himself while in prison. She said that prior to the shooting, the appellant

tried to stay out of trouble but that trouble “ran his way.”

According to the appellant’s presentence report, the then twenty-five-year-old appellant was

single and dropped out of high school during the twelfth grade. The appellant reported that his

physical and emotional health were good but that a problem with his right knee prevented him from

standing for long periods of time on his right leg. He described his mental health as excellent but

said he was mentally disabled. According to the report, the appellant stated during an interview that

he had used marijuana twice previously, but he stated on his presentence report questionnaire that

he had never used illegal drugs. The report shows the appellant tested negative for drugs in

September 2004 and January 2005 but field-tested positive for marijuana in June 2006. The

appellant reported that he did not drink alcohol and that he received some counseling at the William

F. Walker Counseling Center about five years previously. The reports shows that the appellant has

worked as a janitor for Slimfast/Diversco, a press operator for Edwards Gin Company, a car detailer

for Custom Wheels and Dealers, a cook for McDonald’s, and a third-shift remodeler for Wal-Mart.

According to the report, the appellant has prior convictions for evading arrest, failure to

appear, driving with a suspended license, and misdemeanor assault. The report also shows that the

appellant has two prior felony drug convictions, that he has violated probation previously, and that

he was on parole when he committed the offenses in this case. As a juvenile, the appellant was

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adjudicated delinquent of truancy, theft, unruly behavior, violation of probation, and violation of the

city curfew law.

The trial court stated that it had considered the presentence report, the principles of

sentencing, the testimony at trial and the sentencing hearing, and an impact statement submitted by

the victim. The court found the appellant to be a Range II, multiple offender and applied

enhancement factor (1), that the appellant “has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range,” and factor (13), that the

appellant had been released on parole when he committed the felonies in question. See Tenn. Code

Ann. § 40-35-114(1), (13) (2006). The trial court applied no mitigating factors. It noted that for the

Class A felony attempted murder conviction, the presumptive sentence was the midpoint in the

range, which was twenty-five to forty years, and sentenced the appellant to thirty-two years in

confinement. See Tenn. Code Ann. § 40-35-112(b)(1). For the Class C aggravated assault

conviction, the trial court enhanced the appellant’s minimum presumptive sentence from six to eight

years. See Tenn. Code Ann. § 40-35-112(b)(3). The trial court merged the aggravated assault

conviction into the attempted murder conviction and ordered that he serve his thirty-two-year

sentence consecutively to a previous sentence.

Appellate review of the length, range or manner of service of a sentence is de novo. See

Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the

following factors: (1) the evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statement by the appellant in his own

behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102,

-103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the

appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,

Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately

considered sentencing principles and all relevant facts and circumstances, this court will accord the

trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

The appellant first contends, without any explanation, that the trial court should have

mitigated his sentence because he was only twenty-four years old when he committed the offenses.

See Tenn. Code Ann. § 40-35-113(6) (2006) (providing as a mitigating factor that the defendant

“because of youth or old age, lacked the substantial judgment in committing the offense”). However,

the defense presented no evidence that the appellant lacked substantial judgment because of his “age,

education, maturity, experience, mental capacity or development, and any other pertinent

circumstance tending to demonstrate the defendant’s ability or inability to appreciate the nature of

his conduct.” State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995) (quoting State v.

Adams, 864 S.W.2d 31, 33 (Tenn. 1993)). Therefore, the trial court did not err by failing to apply

this factor.

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The appellant also contends that his automatically receiving the midpoint punishment in the

range, thirty-two years, for the attempted murder conviction was unduly harsh. In support of his

argument, he notes that effective June 7, 2005, only days after he committed these offenses, our

legislature amended several provisions of the Criminal Sentencing Reform Act of 1989. One of

those amendments eliminated presumptive sentences and instructed trial courts to sentence

defendants to the minimum in the range and then adjust the sentence based upon mitigating and

enhancing factors. Compare Tenn. Code Ann. § 40-35-210(c) (2003) with Tenn. Code Ann. § 40-

35-210(c) (2006). However, because the appellant committed the crimes in this case before June 7,

2005, and did not “elect to be sentenced under the provisions of the act by executing a waiver of his

ex post facto protections,” the trial court did not err by not sentencing him under the old provisions.

Tenn. Code Ann. § 40-35-114 (2006), Compiler’s Notes. The trial court properly sentenced the

appellant to the midpoint in the range for the attempted murder conviction, and he is not entitled to

relief.

We note that given that the trial court merged the aggravated assault conviction into the

attempted murder conviction, the court should have entered only one judgment of conviction for that

offense. See State v. Howard, 30 S.W.3d 271, 275 (Tenn. 2000). Therefore, we remand the case

for the trial court to enter a single judgment reflecting the merger of the convictions.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the jury’s guilty verdicts and the

appellant’s thirty-two-year sentence. However, the case is remanded to the trial court for further

proceedings consistent with this opinion.

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NORMA McGEE OGLE, JUDGE

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