State of Tennessee v. Kevin Anthony Dickson, Jr.

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 29, 2013 Session Heard at Cookeville1

STATE OF TENNESSEE v. KEVIN ANTHONY DICKSON, JR.

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Sevier County

No. 13010II Richard R. Vance, Judge

No. E2010-01781-SC-R11-CD - Filed October 8, 2013

The defendant, angry about the quality of the cocaine that he had purchased, procured

weapons and ammunition and enlisted the assistance of two other men to help him confront

the drug dealers and obtain a refund. After forcing his way into a cabin where the drug

dealers were located, one of his compatriots¯whom the defendant had armed with a .45

pistol¯shot and seriously wounded two unarmed victims. Following a bench trial, the trial

judge ruled that the defendant was criminally responsible for the actions of the shooter and

found the defendant guilty of two counts of attempted first degree murder, and one count

each of especially aggravated burglary, attempted aggravated robbery, and aggravated

assault. The trial judge sentenced the defendant on these convictions, including consecutive

twenty-five year sentences for each attempted first degree murder conviction. The Court of

Criminal Appeals reduced one count of attempted first degree murder to attempted second

degree murder, finding insufficient evidence of premeditation with respect to the shooting

of one of the unarmed victims, and modified the conviction of especially aggravated burglary

to aggravated burglary. The court affirmed the other convictions and remanded the case to

the trial court for re-sentencing on attempted second degree murder and aggravated

burglary. We accepted this case to review the sufficiency of the evidence supporting the

convictions of attempted first degree murder and the propriety of the consecutive sentences

for the attempted first degree murder convictions. We affirm both convictions for attempted

first degree murder and the consecutive sentences.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed in Part and Reversed in Part

1

Oral argument was presented at Derryberry Hall on the campus of Tennessee Technological

University in Cookeville, Putnam County, Tennessee, as a part of the Boys State Supreme Court Advancing

Legal Education for Students (S.C.A.L.E.S.) project.

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and

J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Renee W. Turner and John H. Bledsoe, Senior Counsel; James Dunn, District Attorney

General; and Emilee Abbott, Assistant District Attorney General, for the appellant, State of

Tennessee.

Rolfe A. Straussfogel, Sevierville, Tennessee, for the appellee, Kevin Anthony Dickson, Jr.

OPINION

This case presents an all-too-familiar tale of drug-related violence. While at a bar in

Gatlinburg on January 5, 2008, the Defendant asked Anthony Lyons if he could buy some

ecstasy pills. Anthony Lyons agreed, so the Defendant followed Anthony Lyons to a cabin

near Sevierville, close to where Anthony Lyons lived with his twin brother, Christopher

Lyons, and their friend Christopher Gossett. After buying the ecstasy, the Defendant wanted

to buy some cocaine. In the early morning hours of January 6, 2008, Gossett sold the

Defendant the cocaine.

After snorting the cocaine with friends, the Defendant believed it was either not

cocaine or of very poor quality. The Defendant became angry and made plans to confront

Anthony Lyons and Gossett. The Defendant borrowed a .45 caliber handgun from a

friend. He traveled to a local Wal-Mart store and purchased ammunition for the firearm. He

then enlisted two men, Jessie James Davis2 and Johnny Ramirez, to help him.

On the night of January 6, 2008, the three men, armed with weapons, went to the

Lyons brothers’ cabin. The Defendant carried a set of brass knuckles in one hand and a

metal baton in the other. Ramirez was armed with the loaded .45 pistol procured by the

Defendant. Davis wielded an air pistol. When the Defendant knocked on the door, Rodney

Hardin, who had no connection to the drugs, moved to open the door. When the Defendant

kicked open the door, Hardin immediately grabbed the Defendant and scuffled with

him. Ramirez then shot Hardin. The Defendant continued into the cabin, shouting for his

money and looking for Anthony Lyons and Gossett.

2

The record is not consistent in the spelling of Davis’ first name. It appears as both “Jessie” and

“Jesse.”

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There were ten people in the cabin when the Defendant and his two compatriots

arrived. After shooting Hardin, Ramirez next shot Christopher Lyons, who had fled from the

front door to the cabin’s interior stairs. As Anthony Lyons tried to escape into a bathroom,

the Defendant caught up with him and beat him several times with the metal baton. The

Defendant then raced upstairs looking for Gossett, but did not find him.3 The armed trio fled

the scene in a vehicle that the Defendant had parked near the cabin. Both of the shooting

victims survived, but Hardin suffered debilitating injuries that left him partially paralyzed

and Christopher Lyons suffered a serious leg injury.

Detective Matthew Cubberley of the Sevier County Sheriff’s Department arrived at

the cabin and interviewed Anthony Lyons and Gossett. Both men identified the Defendant

as one of the perpetrators. Officers arrested the Defendant on January 7, 2008, and took him

to the Sevier County Sheriff’s Office where he gave a detailed statement about the home

invasion and shooting. In his statement, the Defendant admitted that he and two other men

went to the cabin to confront the drug dealers. The Defendant, explaining how mad he was

when he found out that the cocaine was fake or of very poor quality, said: “I really felt like

I really got played.” He admitted that he “beat the shit out” of Anthony Lyons. He said that

two people got shot “because of their two friends being shysters.”

In March 2008, the Sevier County grand jury indicted the Defendant on two counts

of attempted first degree murder, two counts of aggravated assault, one count of especially

aggravated burglary, and one count of attempted especially aggravated robbery.4 He waived

his right to a jury trial and was tried on March 18, 2009.

At trial, the State presented the testimony of eight witnesses: Rodney Hardin,

Christopher Lyons, Anthony Lyons, Matthew Cubberley, Jeff McCarter, Leslie Franklin,

Laura Patrick, and Levi Morton. Hardin testified that he went to the cabin to place a bet on

a football game with Christopher Lyons. He heard someone knocking on the door and went

to open it. As he twisted the doorknob, someone kicked in the door. Hardin instinctively

grabbed the Defendant, and they scuffled briefly before one of the intruders shot

Hardin. Hardin said the intruders were asking, “where’s the money, where’s the drugs?” He

also recalled that one of the intruders stood over him with a gun and “told me he was going

to fill me full of holes.” Hardin sustained injuries to his spleen, kidneys, and spinal cord.

3

Christopher Lyons testified that Gossett hid upstairs under some clothes.

4

The State later filed a motion asking the trial court to change the count of attempted especially

aggravated robbery to attempted aggravated robbery.

-3-

Christopher Lyons testified that he partied with the Defendant on New Year’s Eve

2007, recalling “we had a great night.” Both he and the Defendant consumed cocaine and

ecstasy at the New Year’s Eve party. Ramirez also attended the party. The next time

Christopher Lyons saw the Defendant was on the evening of January 6, 2008, when the

Defendant came “busting” in the cabin door swinging at Hardin with a police baton and brass

knuckles. Christopher Lyons heard two shots and saw Hardin go down. The Defendant and

Davis demanded to know where the money and drugs were located and said they were going

to “start executing people.” Christopher Lyons saw the Defendant chase after his brother,

Anthony Lyons, swinging a police baton. Christopher Lyons ran away from the cabin door

to try to run up the stairs. He saw Ramirez staring at him, aiming the gun at his chest and

face area. Ramirez then shot him in the right inner thigh area. As a result of the shooting,

Christopher Lyons has a steel rod from his hip to his knee, two screws in his knee, and a

screw in his hip.

Anthony Lyons testified that on the night before the shooting, he met the Defendant

at a Gatlinburg bar where the Defendant asked about buying ecstasy pills. Anthony Lyons

agreed to sell him the drugs, so the Defendant followed him to a cabin near the Lyons’

cabin. The Defendant purchased some ecstasy pills from Anthony Lyons and Gossett. After

the Defendant bought the ecstasy, he wanted to buy some cocaine. Gossett agreed to sell him

some, but the Defendant and Gossett argued over the quantity and price of the cocaine. After

some haggling, Gossett and the Defendant agreed on a price of $300 for the cocaine. The

drug transaction occurred around 2:30 a.m. or 3:00 a.m. on January 6, 2008.

Anthony Lyons then testified that later in the evening, he heard a knock at the door,

and then “somebody c[ame] busting in the door.” He saw Hardin grab the Defendant, and

they struggled with each other. Anthony Lyons then testified that he heard a “pop, pop, pop”

sound and noticed that Hardin “went down to the ground.” The Defendant then entered the

cabin armed with a baton and brass knuckles and demanded money and drugs. To avoid the

gunfire, Anthony Lyons fled to a bathroom, where two other individuals were hiding. The

Defendant chased after him, at which point Anthony Lyons heard the Defendant say: “[I]f

they don’t come out they’re dead.” The Defendant then swung at Anthony Lyons with the

baton and hit him “probably about fifteen times.” The Defendant also hit him five times with

the brass knuckles. Shortly thereafter, Anthony Lyons and his female companion escaped

through the bathroom window.

Detective Cubberley testified that he arrived on the scene with Captain McCarter and

interviewed Anthony Lyons and Gossett, who identified the Defendant as the

perpetrator. Detective Cubberley processed the crime scene and collected several .45 caliber

shell casings.

-4-

Captain McCarter testified that he and another detective interviewed the Defendant

after he was taken to the jail. The Defendant gave a lengthy statement, an audio recording

of which was played at the trial. In his statement, the Defendant said that he had no

intentions of hurting anyone but just wanted to “scaree [sic] that dude.” The Defendant said

he became extremely upset after he and his friends realized, after trying the cocaine, that the

substance was not really cocaine. He immediately thought of going to the cabin, stating, “I

was actually going to go over there by myself, but if I would have went over there by myself,

I’ll be honest with you all, wouldn’t nobody have been alive in that house.” The Defendant

parked a vehicle at the bottom of the hill, and he, Davis, and Ramirez made their way up the

hill to the Lyons’ cabin. The Defendant told Ramirez to simply shoot the gun in the air to

let the people in the cabin know they meant business. Later he said: “I may sound bold but

I’m glad . . . that they got shot, they wasn’t supposed to be, got shot, but that’s the only thing

that helps me move on today because I didn’t get my money back.” The Defendant believed

that he was the victim in the chain of events, because Anthony Lyons and Gossett had

wronged him. The Defendant acknowledged he knew that his compatriots—he would not

name them to his questioners—were armed. He later said that if the two people had not

come with him, “I’m telling you I would have shot everybody in that house.” He admitted

that he bought ammunition for the gun from Wal-Mart.

Officer Franklin, who works patrol with the Sevier County Sheriff’s Department,

testified she was called to the scene after the shooting. Upon her arrival, she observed the

“hectic scene,” saw victims with serious injuries, and someone, later identified as Anthony

Lyons, lying on the ground outside the cabin.

Ms. Patrick, an asset protection coordinator with Wal-Mart, testified that on January

6, 2008, a person with a birth date of November 9, 1981, purchased .45 caliber ammunition

with cash at 8:08:55 p.m. Other evidence indicated that the Defendant’s date of birth was

November 9, 1981.

Mr. Morton, who worked in the Sevier County Jail, testified that while being booked,

the Defendant said that “he wasn’t a snitch and that the guy got what he deserved for selling

him bad drugs and he didn’t care if he was paralyzed or what happened to him.”

At the close of the State’s proof, the trial judge denied the Defendant’s motion for

acquittal on the charges of attempted murder and attempted aggravated robbery.

The Defendant testified on his own behalf. He claimed there was “no plan” to shoot

anyone. “I mean, there was no plan, I was just going to confront him about the fake dope he

sold me and see if I could get my money back,” he testified. He contended he did not

threaten to kill anyone, but asked for his money, saying, “I want my F-ing money back.” He

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claimed that he asked some friends to go with him so he would not get “jumped” when he

went to a home containing drug dealers. He said there were no discussions about killing or

shooting. Ramirez had the .45 caliber pistol and Davis had an air pistol. He said the guns

were there simply “for protection.” During direct examination, the Defendant’s attorney

asked him about his inflammatory statement: “If I was going over there by myself I’ll be

honest with you all, wouldn’t nobody be alive in that house.” The Defendant testified that

this was “just exaggeration.” He also admitted hitting Anthony Lyons with the baton, but

denied hitting him with the brass knuckles. He admitted handing the pistol to Ramirez,

telling him “to hold it for me.” He also acknowledged purchasing ammunition for the pistol

from Wal-Mart.

After hearing the evidence, the trial judge found that the Defendant “had planned the

event, that he was acting out of revenge and anger.” He also determined that the Defendant

was “criminally responsible for the conduct of Ramirez, as it was [the Defendant] who had

solicited, directed, and aided Ramirez in committing these offenses with the firearm.” He

ruled that the proof showed beyond a reasonable doubt that the Defendant had the “requisite

intent to kill” based on the “preparations, his conduct, the providing of the weapons,

purchasing ammunition, the statements and expressions to kill and execute the victims made

during the commission of the offense.” The trial judge convicted the Defendant of two

counts of attempted first degree murder, one count of aggravated assault,5 one count of

especially aggravated burglary, and one count of attempted aggravated robbery.

The Defendant’s sentencing hearing was held on June 29, 2009. The State presented

the testimony of Hardin, Christopher Lyons, and Anthony Lyons. The wheelchair-bound

Hardin explained that he had worked as an electrician before the shooting, but that the

shooting had radically changed his life. He testified that, as a result of the injuries suffered

from the shooting, he cannot work and support his family. He fell into deep depression and

testified that he did not know if he will ever be able to walk again. He lamented that he was

not able to do the things he formerly was able to do to care for his family, including his three

children. Christopher Lyons also testified that the shooting changed his life dramatically:

“My whole life, I’ll never do some things that I’d done before that day. You know, I’ll have

pain my whole life that I would never have experienced if it wasn’t for that day.” He

explained that before the shooting he had worked as a waiter, but he can no longer wait

tables. He testified that after the shooting, it was more difficult for him to pay child

5

The Defendant was convicted of two counts of aggravated assault, but the trial court merged the

aggravated assault conviction with the attempted murder charge for the Defendant’s conduct against Hardin.

-6-

support.6 He also said that he continues to suffer “agonizing pain” in his leg. Anthony Lyons

testified that the Defendant’s violent attack on him has caused him to suffer post-traumatic

stress disorder, stating: “That was the most traumatic event . . . of my life by far.” He also

testified that he continues to suffer from sleeplessness, anxiety, and depression since the

violent attack.

The defense presented the testimony of Laurisa Dugger-Barnette, Susan Dugger-

McCarrge, and the Defendant. Laurisa Dugger-Barnette, the Defendant’s fiancée, testified

that she and the Defendant have a young child together who was born while the Defendant

was in jail for these offenses. She explained that without the Defendant’s financial support,

it was much more difficult for her to provide support for their child. According to her, the

Defendant was not a violent person. Susan Dugger-McCarrge, the aunt of Laurisa Dugger-

Barnette, testified that the Defendant was “[t]ruly a phenomenal person” who “made a

mistake.” The Defendant testified that he never intended for anyone to get hurt, and that if

he could change things, “I just wouldn’t never been doing no drugs.” The Defendant

expressed remorse at the sentencing hearing, apologizing to the victims and asking for their

forgiveness.

The trial court found the State had proven four enhancement factors under Tenn. Code

Ann. § 40-35-114 (2010 & Supp. 2012): that the Defendant had a previous criminal history,

Tenn. Code Ann. § 40-35-114(1); that the Defendant was the leader in the commission of the

offense with two or more criminal actors, Tenn. Code Ann. § 40-35-114(2); that the personal

injuries inflicted on the victims were severe, Tenn. Code Ann. § 40-35-114(6); and that the

Defendant possessed deadly weapons during the commission of an offense, Tenn. Code Ann.

§ 40-35-114(9). The judge also found one mitigating factor under Tenn. Code Ann. § 40-35-

113 (2010), because the Defendant was “genuinely remorseful and apologetic.”

The judge imposed a twenty-five-year sentence for each attempted first degree murder

conviction. He also determined under Tenn. Code Ann. § 40-35-115 (2010) that the

sentences for attempted first degree murder should run consecutively rather than

concurrently, because the Defendant had an extensive criminal record under Tenn. Code

Ann. § 40-35-115(b)(2) and was a dangerous offender who showed little regard for human

life under Tenn. Code Ann. § 40-35-115(b)(4). The judge then imposed a six-year sentence

for the remaining aggravated assault conviction, a twelve-year sentence for the especially

aggravated burglary conviction, and a six-year sentence for the attempted aggravated robbery

conviction, all to be served concurrently with the two twenty-five-year sentences, for a total

effective sentence of fifty years.

6

At the time of the sentencing, Christopher Lyons testified he was in jail for failure to pay child

support.

-7-

The Defendant appealed to the Court of Criminal Appeals, which affirmed the

attempted first degree murder conviction as to the shooting of Christopher Lyons, but

reduced the attempted first degree murder conviction as to the shooting of Hardin to

attempted second degree murder. State v. Dickson, No. E2010-01781-CCA-R3-CD, 2012

WL 2152078, at *10 (Tenn. Crim. App. June 14, 2012). The Court of Criminal Appeals

found that there was insufficient evidence that Ramirez, the shooter, acted with premeditation

in firing upon Hardin, noting that Ramirez “immediately shot Mr. Hardin.” Id. Judge John

Everett Williams dissented in part, noting that “a rational juror could have inferred that Mr.

Ramirez formed the intent to shoot and kill Mr. Hardin in furtherance of their plan to seek

retribution against Mr. Lyons.” Id. at *17 (Williams, J., concurring in part and dissenting in

part). The appeals court also modified the conviction of especially aggravated burglary to

aggravated burglary. Id. at *11 (majority opinion). The Court of Criminal Appeals affirmed

the trial court’s finding of consecutive sentencing based on the Defendant’s “extensive

record of criminal activity.” Id. at *15.

Both the Defendant and the State appealed to this Court.7 We granted review to

examine whether there is sufficient evidence to support the Defendant’s convictions for

attempted first degree murder, and if so, whether consecutive sentencing for the attempted

first degree murder convictions was proper.

II.

When reviewing a challenge to a conviction based on the sufficiency of the evidence,

a court “must determine whether ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” State v. Parker, 350 S.W.3d 883, 903

(Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making this

determination, the prosecution receives “the strongest legitimate view of the evidence . . . as

well as all reasonable and legitimate inferences that may be drawn from that evidence.” State

v. Davis, 354 S.W.3d 718, 726 (Tenn. 2011) (quoting State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996)). A verdict of guilt removes the presumption of innocence and creates a

presumption of guilt. The Defendant bears the burden of showing the evidence was

insufficient to sustain the guilty verdict. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). “This Court does not

reweigh or reevaluate the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)

(citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)).

7

The Defendant challenged the attempted first degree murder conviction for the shooting of

Christopher Lyons and the imposition of consecutive sentencing. The State challenged the reduction of the

attempted first degree murder conviction for the shooting of Hardin to attempted second degree murder.

-8-

Our review of the Defendant’s convictions for attempted first degree murder is three-

fold: (1) whether the Defendant was criminally responsible for the acts of Ramirez because

the Defendant promoted or assisted in the commission of the offense, or benefitted in the

proceeds or results of the offense under Tenn. Code Ann. § 39-11-402(2); (2) whether

Ramirez intended to kill Hardin and Christopher Lyons and took a “substantial step” toward

the offense for purposes of the criminal attempt statute, Tenn. Code Ann. § 39-12-101(a)(3)

(2010); and, if so, (3) whether Ramirez acted with sufficient premeditation in his attempts

to kill Hardin and Christopher Lyons within the meaning of Tenn. Code Ann. § 39-13-

202(a)(1) (2010).

The Defendant can be criminally responsible for the offenses committed by Ramirez

if, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in

the proceeds or results of the offense, the [Defendant] solicit[ed], direct[ed], aid[ed], or

attempt[ed] to aid [Ramirez] to commit the offense.” Tenn. Code Ann. § 39-11-

402(2). Criminal responsibility is not a separate crime, but “a theory by which the State may

prove the defendant’s guilt of the alleged offense . . . based upon the conduct of another

person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Criminal responsibility

represents a legislative codification of the common law theories of aiding and abetting and

accessories before the fact. Id. at 171 (citing State v. Carson, 950 S.W.2d 951, 955 (Tenn.

1997)). “No particular act need be shown, and the defendant need not have taken a physical

part in the crime in order to be held criminally responsible.” State v. Caldwell, 80 S.W.3d

31, 38 (Tenn. Crim. App. 2002). Criminal responsibility “requires that a defendant act with

a culpable mental state, [i.e.], the ‘intent to promote or assist the commission of the offense

or to benefit in the proceeds or results of the offense.’” Carson, 950 S.W.2d at 954 (quoting

Tenn. Code Ann. § 39-11-402(2) (1991)). “A person acts with intent as to the nature or

result of conduct when it is that person’s conscious objective or desire to engage in the

conduct or cause the result.” Id.

The Defendant and Ramirez set out to commit an armed intrusion into the Lyons’

cabin to obtain money and drugs. The Defendant was angry about the cocaine he purchased

and he wanted his money back. He planned to go to the cabin and confront the drug dealers

whom he thought had cheated him. He solicited the help of Davis and Ramirez to

accompany him because he did not want to go alone. The Defendant borrowed a .45 caliber

pistol from a friend, purchased ammunition for the gun two hours before the shootings, and

then armed Ramirez with it. The Defendant armed himself with a baton and brass

knuckles. Davis was armed with an air pistol. The Defendant then drove the vehicle,

carrying Ramirez and Davis, to confront Anthony Lyons and Gossett. He parked at the

bottom of a hill, and they walked up to the cabin where Gossett and Anthony Lyons

resided. After the Defendant forced his way into the cabin, Ramirez shot two unarmed

victims. The Defendant solicited Ramirez’s aid in the home invasion to confront the drug

-9-

dealers and obtain money and drugs, and the Defendant benefitted from Ramirez’s

assistance. A natural and probable consequence of this attempt to obtain money and drugs

by force was the shooting of two unarmed victims.8 Thus, there was sufficient evidence to

support a finding that the Defendant was criminally responsible for the acts of Ramirez based

on Tenn. Code Ann. § 39-11-402(2).

The next issue is whether Ramirez intended to kill Hardin and Christopher Lyons, and

whether Ramirez took a “substantial step” toward such criminal action within the meaning

of the criminal attempt statute. Criminal attempt occurs when a person acts with the kind of

culpability otherwise required for the attempted offense and:

(1) Intentionally engages in action or causes a result that would constitute an

offense, if the circumstances surrounding the conduct were as the person

believes them to be;

(2) Acts 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; or

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3).

This case concerns subsection (a)(3): whether Ramirez acted with the intent to

complete a course of action that would constitute the criminal offense, and whether his

conduct constituted a “substantial step toward the commission of the offense.” Ramirez

accepted a loaded pistol from the Defendant before he went to the Lyons’ cabin to confront

the drug dealers. Ramirez also shot two unarmed victims after the Defendant “busted”

through the front door. The record reflects that Ramirez shot Christopher Lyons after staring

8

The “natural and probable consequences” rule is a common law concept that is frequently asserted

in criminal responsibility cases tried before a jury. The rule “extends the scope of criminal liability to the

target crime intended by a defendant as well as to other crimes committed by a confederate that were the

natural and probable consequences of the commission of the original crime.” State v. Howard, 30 S.W.3d

271, 276 (Tenn. 2000). The attempted first degree murder offenses were natural and probable consequences

of the target crimes of aggravated burglary and attempted robbery.

-10-

directly at his face and chest area. Ramirez also took a “substantial step” toward the offense

of attempted first degree murder. We have explained:

We hold that when an actor possesses materials to be used in the commission

of a crime, at or near the scene of the crime, and where the possession of

those materials can serve no lawful purpose of the actor under the

circumstances, the jury is entitled, but not required, to find that the actor has

taken a “substantial step” toward the commission of the crime if such action

is strongly corroborative of the actor’s overall criminal purpose.

State v. Reeves, 916 S.W.2d 909, 914 (Tenn. 1996). “[T]he question of whether a defendant

has taken a substantial step toward the commission of a crime sufficient to support a

conviction for criminal attempt is necessarily a heavily fact-intensive inquiry determined by

the specific circumstances shown in each individual case.” Davis, 354 S.W.3d at 733. The

facts show that Ramirez came to the cabin late at night with a loaded handgun intent on an

armed invasion. He then shot two unarmed victims shortly after the Defendant burst through

the front door of the cabin. Because Ramirez’s action in carrying a loaded handgun and

twice firing it at two unarmed victims was “corroborative of [his] overall criminal purpose,”

the trial judge was entitled to find, considering all the circumstantial evidence, that Ramirez

took a “substantial step” toward committing the crime of attempted first degree murder.

The next issue is whether there is sufficient evidence that Ramirez acted with

premeditation when he fired upon the two victims. Because Ramirez was the shooter, we

focus on Ramirez’s conduct to determine whether there is sufficient evidence of

premeditation to support the Defendant’s conviction for attempted first degree murder.9 See

Howard, 30 S.W.3d at 275-76 (recognizing that in a first degree murder case, because the

defendant was not accused of firing the weapon that killed the victim, the State had to prove

that the defendant was criminally responsible for premeditated murder based upon the

conduct of the shooter).

First degree murder includes the “premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1) (2010). Premeditation is “an act done after

the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). The intent to

kill must be formed before the perpetrator commits the act, but “[i]t is not necessary that the

9

In considering premeditation, the trial court erred by focusing on the conduct of the Defendant

rather than Ramirez. The trial judge, however, reached the correct result, because there was sufficient

evidence to show that Ramirez acted with premeditation. In reviewing a conviction based on the sufficiency

of the evidence, we do not focus on the trial judge’s conclusions, but on whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

-11-

purpose to kill pre-exist in the mind of the accused for any definite period of

time.” Id. Premeditation is a question of fact for the rational fact-finder to determine after

considering all the evidence. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.

2003). Premeditation may also be inferred from circumstantial evidence surrounding the

crime. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). Circumstances that may support

a finding of premeditation include: “the use of a deadly weapon upon an unarmed victim; the

particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence

of procurement of a weapon; preparations before the killing for concealment of the crime;

and calmness immediately after the killing.” Bland, 958 S.W.2d at 660 (citing Brown, 836

S.W.2d at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).

After taking the strongest legitimate view of the evidence in favor of the State, we

hold that sufficient evidence existed that Ramirez acted with premeditation in shooting

Hardin. First, Ramirez accepted a loaded pistol from the Defendant before going to the

cabin. A reasonable fact-finder could determine that this showed planning on the part of the

shooter to use the weapon against the cabin occupants. Second, Ramirez used a deadly

weapon on the unarmed Hardin. Premeditation can be inferred from both of these

circumstances. Bland, 958 S.W.2d at 660.

Sufficient evidence also existed to support a finding that Ramirez acted with

premeditation in shooting Christopher Lyons. First, Ramirez went to the cabin with a loaded

gun. Second, Christopher Lyons was an unarmed victim. Third, Ramirez shot Christopher

Lyons as he was attempting to flee, after pausing to look directly at him while pointing the

pistol at him. Under Bland, shooting a retreating victim alone provides circumstantial

evidence of premeditation. Id.

In reducing the attempted first degree murder conviction for the shooting of Hardin

to attempted second degree murder, but affirming the attempted first degree murder

conviction for the shooting of Christopher Lyons, the Court of Criminal Appeals identified

a key difference between the two shootings: that Ramirez shot Hardin almost immediately,

but shot Christopher Lyons as he was fleeing. See Dickson, 2012 WL 2152078, at

*10. However, we agree with the dissenting judge that a rational fact-finder could have

inferred from the evidence that Ramirez had formed the intent to shoot and kill Hardin to

further the Defendant’s plan of seeking retribution against Anthony Lyons. The fact-finder

could infer that “premeditation could have existed in Ramirez’s mind prior to their arrival

at the home.” Id. at *17 (Williams, J., concurring in part and dissenting in part). Ramirez

shot Hardin after seeing Hardin grab the Defendant. A rational fact-finder could infer from

these circumstances that Ramirez intentionally fired the gun at Hardin to help the Defendant

carry out his plan. Although the Defendant testified that it was not his idea to bring the gun,

the Defendant readily admitted that he acquired the gun and ammunition and that he provided

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the loaded weapon to Ramirez.10 Arming oneself before proceeding to someone’s home is

evidence of planning. Ramirez willingly accepted a loaded pistol from the Defendant and

then used deadly force against two unarmed victims.

The Defendant argues that the application of the criminal responsibility theory in an

attempted first degree murder case conflicts with Tennessee law prohibiting the offense of

“attempted felony-murder.” See State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996)

(holding that “the offense of attempted felony murder does not exist in Tennessee”). The

Defendant contends that “[t]here would seem to be little distinction between hypothetical

criminal liability for attempted felony murder and being criminally responsible for attempted

first degree murder under the natural and probable consequences doctrine.” However, in the

wake of Kimbrough, Tennessee courts have distinguished between the crime of attempted

felony murder and the crime of attempted first degree murder, which requires

premeditation. See Oliver v. Mills, No. W2007-00518-CCA-R3-HC, 2007 WL 2471478, at

*2 (Tenn. Crim. App. Aug. 30, 2007) (“While State v. Kimbrough nullified the offense of

criminal attempt to commit first degree felony [murder], the offense of criminal attempt to

commit first degree murder (premeditated) remains a valid offense in Tennessee.” (citation

omitted)); Twitty v. Carlton, No. 03C01-9707-CR-00310, 1999 WL 2832, at *2 (Tenn. Crim.

App. Jan. 6, 1999) (“Petitioner’s reliance on State v. Kimbrough to attack his indictment for

attempted first degree murder is misplaced. The Kimbrough case dealt with a conviction for

attempt to commit felony murder, not an attempt to commit premeditated first degree

murder.” (citation omitted)); State v. Fernandez, No. 01C0l-9609-CR-00394, 1998 WL

10879, at *8 (Tenn. Crim. App. Jan. 14, 1998) (“The supreme court in Kimbrough held that

there is not an offense of attempted felony murder as one cannot intend to accomplish the

unintended. Kimbrough is distinguished from this case as Defendant was convicted of

attempted premeditated first degree murder. . . .” (second emphasis added)). Attempted

felony murder is not a recognizable criminal offense, but attempted premeditated first degree

murder is a cognizable offense. There is nothing inherently suspect about an attempted first

degree murder conviction based upon the theory of criminal responsibility.

III.

The next issue is whether the trial court erred in imposing consecutive – rather than

concurrent – sentences for the attempted first degree murder convictions. When reviewing

sentences, an appellate court must “conduct a de novo review on the record of the

issues.” Tenn. Code Ann. § 40-35-401(d) (2010). The statute also provides that the

appellate court’s review “shall be conducted with a presumption that the determinations

10

The Defendant testified: “It wasn’t my idea to get like a real gun and it wasn’t my idea to get a fake

gun. It was suggestions that was made to me and I felt like well, okay.”

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made by the court from which the appeal is taken are correct.” Id. In State v. Bise, 380

S.W.3d 682, 708 (Tenn. 2012), this Court determined that “sentences imposed by the trial

court within the appropriate statutory range are to be reviewed under an abuse of discretion

standard with a ‘presumption of reasonableness.’” 11

The Defendant has the burden of challenging the sentencing decision by the trial

court. State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995); State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). Criminal defendants convicted of multiple offenses may be

sentenced concurrently or consecutively. Tenn. Code Ann. § 40-35-115 (2010). The statute

provides that a trial court may impose consecutive sentencing if the court finds by a

preponderance of the evidence that certain statutory factors are present. Only one factor is

necessary for consecutive sentencing. State v. Mickens, 123 S.W.3d 355, 394 (Tenn. Crim.

App. 2003).

The trial judge found that two of the statutory factors applied: that the Defendant had

an extensive record of criminal activity under Tenn. Code Ann. § 40-35-115(b)(2), and that

he was a “dangerous offender” under Tenn. Code Ann. § 40-35-115(b)(4). Because of these

two factors, the trial judge reasoned that the sentences should run consecutively “in order to

protect the community.” The Court of Criminal Appeals affirmed the trial court’s finding

of consecutive sentencing based on his extensive record of criminal activity under Tenn.

Code Ann. § 40-35-115(b)(2).

Tenn. Code Ann. § 40-35-115(b)(2) applies to the Defendant. The Defendant had

numerous prior convictions. While many of these convictions did not involve acts of

violence and most constituted driving offenses, they indicate a consistent pattern of operating

outside the confines of lawful behavior.12 Trial courts can consider prior misdemeanors in

determining whether a defendant has an extensive record of criminal activity. Tenn. Code

Ann. § 40-35-115(b)(2) does not distinguish between felonies and misdemeanors. See State

11

This Court has not yet addressed whether this deferential standard of review applies to a trial

court’s determination of consecutive or concurrent sentencing. However, the Court has granted review in

State v. Pollard, No. M2011-00332-CCA-R3-CD, 2012 WL 4142253 (Tenn. Crim. App. Sept. 17, 2012),

perm. app. granted (Tenn. Feb. 13, 2013), which presents the issue of whether the abuse of discretion

standard in Bise applies to consecutive sentencing determinations.

12

The Defendant’s Criminal History Report prepared for the trial court shows numerous arrests

dating back to 1999, when the Defendant was a juvenile living in Michigan. The report shows convictions

for driving on a suspended license, carrying a prohibited weapon (brass knuckles), uttering and publishing

(a type of forgery crime in Michigan), and manufacture of drugs. The Defendant pled guilty to

manufacturing marijuana in 1999. The Defendant faced a charge for “felony dangerous drugs” in 2005. The

report is unclear as to the disposition of the 2005 drug charge.

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v. Neu, No. W2007-02166-CCA-R3-CD, 2008 WL 2510588, at *3 (Tenn. Crim. App. June

24, 2008); State v. Arias, No. E2005-01700-CCA-R3-CD, 2006 WL 2277667, at *22 (Tenn.

Crim. App. Aug. 9, 2006). Consecutive sentencing based on an offender’s extensive record

of criminal activity is appropriate to protect society from those who “resort to criminal

activity in furtherance of their anti-societal lifestyle.” Gray v. State, 538 S.W.2d 391, 393

(Tenn. 1976). On April 21, 2007, during a search incident to a lawful arrest for driving

without a license, the officer found a pair of brass knuckles in the Defendant’s left-front

pocket. The trial judge found this to be particularly important and noted during sentencing

that this incident indicated the Defendant’s “propensity toward use of deadly weapons or

dangerous weapons.” 13

The Defendant contends that as a young man still in his twenties, he is an excellent

candidate for rehabilitation. However, he consistently acted outside the confines of the law

and engaged in a violent course of action that nearly led to the loss of two lives. While

rehabilitation is a laudable goal of the criminal justice system, violent offenders must be held

accountable for their unlawful actions. Thus, the trial court’s imposition of consecutive

sentencing was proper under either an abuse of discretion or a de novo standard of review.

We determine that there was sufficient evidence to support the conviction of the

Defendant on two counts of attempted first degree murder. We reverse the Court of Criminal

Appeals to the extent that it reduced one of the Defendant’s attempted first degree murder

convictions to attempted second degree murder. We further hold that the trial judge did not

err in imposing consecutive sentencing for those two attempted first degree murder

convictions. The judgment of the Court of Criminal Appeals is affirmed in all other

respects. Because the Defendant, Kevin Anthony Dickson, Jr., is indigent, costs of this

appeal are taxed to the State of Tennessee.

________________________________

SHARON G. LEE, JUSTICE

13

The Defendant’s Criminal History Report indicates that he pled guilty to carrying the prohibited

weapon (brass knuckles). The report further indicates that the sentence was “suspended on forfeiture of

weapon.”

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