The opinion
02/16/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 12, 2017 Session
STATE OF TENNESSEE v. MENA MEKHAEN BOUTROUS
Appeal from the Criminal Court for Davidson County
No. 2014-D-3002 Monte Watkins, Judge
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No. M2017-00835-CCA-R3-CD
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Defendant, Mena Mekhaen Boutrous, was convicted of two counts of aggravated arson
and one count of attempted first degree murder after a bench trial. The trial court merged
the two counts of aggravated arson and sentenced Defendant to twenty years for the
conviction for aggravated arson and twenty years for the conviction for attempted first
degree murder, to be served concurrently. On appeal, Defendant argues that: (1) the trial
court erred by excluding evidence of Defendant’s mental health; (2) the evidence was
insufficient to support the convictions; and (3) the sentences were excessive. After a
review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Manuel B. Russ, Nashville, Tennessee, for the appellant, Mena Mekhaen Boutrous.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In October of 2014, the Davidson County Grand Jury indicted Defendant for two
counts of aggravated arson and one count of attempted first degree murder after a fire at
Tornado Wireless in Nashville. Because of the fire, the store and its owner, Rimon
Boutrous, were burned.1 Defendant waived his right to a jury trial.
At the bench trial, the following facts were introduced. On a day prior to May 10,
2014, Defendant purchased a used cell phone from Tornado Wireless, the victim’s store.
Tornado Wireless was located in a strip mall next to a grocery store. The store
specialized in selling used cell phones and working on broken or damaged cell phones.
The building was owned by Ahmed Sankari, who also operated the grocery store. On
May 10, the victim was working at Tornado Wireless along with one of his employees,
Mohammed Salem. At some point that day, Defendant entered the store and demanded a
refund on a cell phone he had purchased at the store. According to the victim, Defendant
threatened to kill the victim if he did not get a refund. The victim informed Defendant
that he operated the store with a strict “no refunds” policy.
Defendant exited the store and retrieved a container of gasoline from the trunk of
his car. Defendant proceeded to throw gasoline at the store building and inside the store.
The victim was in the back of the store at the time Defendant returned. The victim heard
the disturbance, walked to the front of the store, and asked Defendant what he was doing.
The victim tried to push Defendant out the door. The victim testified that Defendant
doused him with gasoline. As Defendant neared the door to the parking lot, he ignited a
lighter in his opposite hand. Both the store and the victim were immediately engulfed in
flames. Mr. Sankari could see black smoke emanating from Tornado Wireless.
Officer Jiyayi Suleyman of the Metro Nashville Police Department was
responding to a “domestic call” in the area near Tornado Wireless. Officer Suleyman
“was flagged down by numerous individuals saying there was an individual on fire across
the street of Lafayette.” When he arrived, Tornado Wireless was on fire and two men
were “rustling, tussling” in a physical altercation outside the store. The men were later
identified by Officer Suleyman as Defendant and Mohammed Salem.
Soon thereafter, Officer Suleyman saw the victim exit the burning store, “yelling
and screaming.” Officer Suleyman described that the victim’s skin was “coming off his
hands and facial area” like “when you light a candle on fire and how the wax drips off.”
Officer Suleyman tried to get the victim to remain calm despite his obvious pain. The
victim, who was twenty-two years of age at the time of the incident, suffered burns on
over 60% of his body. At trial, the victim explained that he could no longer “lead his life
like a normal person” and it “would be better for [him]” to die. The victim was in the
hospital for approximately two months after the incident and still required treatment for
residual health problems.
1
The victim is not related to Defendant. In order to maintain clarity, we will not refer to either
Defendant or the victim by their surname. We mean no disrespect in doing so.
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The crowd outside the building reported to the officer that Defendant started the
fire. Officer Suleyman spoke to Defendant who was described as “calm and relaxed.”
Defendant explained to the officer that he came to the store seeking a refund for his
purchase and, when the victim refused, Defendant brought the gasoline can into the store
to “scare the victim into giving a refund for the phone.”
Mr. Sankari was working at his grocery store next door when the incident took
place. Mr. Sankari recognized Defendant as a customer of the grocery store. Mr. Sankari
stated that Defendant stood out because he had an “eye problem” where his “eyelashes
keep blinking.” Mr. Sankari asked the victim about Defendant. The victim told Mr.
Sankari that Defendant had a “medical issue” for which he was “under treatment.”
The building sustained substantial fire damage near the entrance and the
countertop inside the store. Kevin Neville, the assistant fire marshal and fire investigator,
smelled gasoline vapor “outside in the parking lot.” The presence of gasoline was
evident inside the store; there was a clear burn pattern inside the store with “heavy
charring” on the countertop. Gasoline had clearly been poured “along the counter and on
the floor.” The only clear point of origin for the fire was the victim himself. It appeared
to Mr. Neville that the fire started near the front of the store. Mr. Neville surmised from
his investigation that a “gasoline vapor explosion” occurred inside the store near the front
of the store.
Defendant’s brother, George Boutrous, testified that Defendant came to the United
States in 2006. George came to the United States in 2012. When Mr. Boutrous first
arrived, he assisted Defendant with taking care of various tickets, court costs, and fees.
George helped Defendant get a driver’s license and access to a car. Defendant eventually
moved in with George. Over objection from the State, he testified that Defendant was
prescribed medication for and suffered from mental illness, that Defendant did not “sleep
well,” and that Defendant started looking “differently” beginning in 2012. George
claimed Defendant talked to an “invisible person” and would “fight[] with that person
who was not actually there.” According to George, Defendant did not regularly take the
medication that he was prescribed. In fact, Defendant had neglected to take his
medication for approximately “forty days to two months” prior to the incident. George
also testified that Defendant smoked marijuana on a regular basis.
Defendant testified in his own defense. He claimed that the victim sold him a
stolen cell phone. Defendant testified that he took the phone to the store in order to
obtain a refund when the victim “started to pick a fight.” Defendant walked out of the
store, heading to his car to get something “from the trunk and fight.” Defendant was
going to get some type of jack rod or metal tool but found only a gasoline can. He took
the gasoline can into the store to try to “scare” the victim into giving him a refund for the
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phone. Defendant admitted that he poured gasoline on the counter in front of the victim,
covering as much space as possible with gasoline. The victim tried to wrestle the
gasoline can out of Defendant’s hands. Defendant claimed that during the struggle,
gasoline spilled onto the victim’s shirt. Defendant eventually got a few steps outside the
store before he lit a cigarette lighter at his side. Defendant then recalled the victim
running toward him just before “everything was on fire.”
Defendant noted that he took several medications, including Haloperidol,
Bentropine, and Trazodone and that he had been hospitalized for a mental condition prior
to the incident. He claimed that he was not taking his medication on the day of the
incident and, at the time, was also smoking marijuana daily. Defendant admitted that he
smoked marijuana shortly before the incident. Defendant insisted that prior to the
incident, he and the victim were friends who regularly spent time together. In fact,
Defendant testified that he merely wanted to scare the victim after the victim refused to
give him a refund but that the victim actually threatened Defendant during the incident.
Defendant admitted that he was aware of the victim’s no refund policy but thought that
their friendship may influence the victim’s decision to waive the refund policy.
Defendant also testified that he was aware the victim was leaving for Egypt the next day
and that Defendant may never receive his refund if he did not ask for it on the day of the
incident. Defendant explained that this was “the worst thing that [ever] happened to
[him].”
At the conclusion of the proof, the trial court found Defendant guilty of both
counts of aggravated arson and one count of attempted first degree murder. The trial
court merged the two counts of aggravated arson. At a subsequent sentencing hearing,
the trial court sentenced Defendant to twenty years for the conviction for aggravated
arson and twenty years for the conviction for attempted first degree murder, to be served
concurrently.
On appeal, Defendant challenges the trial court’s refusal to allow the defense to
admit mental health records, the sufficiency of the evidence, and the sentence.
Analysis
I. Admission of Medical Records
Defendant argues on appeal that the trial court improperly “prohibited the defense
from introducing evidence of [Defendant’s] mental health at the trial on the matter”
because the mental health records disputed the fact that Defendant had the necessary
mental state to commit the offenses of which he was convicted. The State, on the other
hand, submits the mental health records do nothing to negate Defendant’s mental state at
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the time of the incident and, therefore, Defendant has not shown that the evidence was
critical to the defense.
Prior to trial, Defendant filed a motion to admit medical records showing his
history of mental illness and drug use prior to and at the time of the offenses, in
accordance with Tennessee Rule of Evidence 803(4), as well as a summary of relevant
facts from those records pursuant to Tennessee Rule of Evidence 1006. Specifically,
Defendant sought to introduce records from Middle Tennessee Mental Health Institute,
Centerstone Community Mental Health Center, and Correctcare. According to
Defendant, the mental health records would indicate that Defendant was hospitalized in
October 2011 and received a diagnosis of “a substance induced psychotic disorder with
hallucinations; PTSD; cannabis abuse; and alcohol abuse.” Defendant reported to
medical personnel that he “heard voices.” A mental status examination revealed
Defendant to be “calm and cooperative” as well as “alert and oriented.” Defendant was
also found to lack “the ability to avoid danger” and possessed poor judgment. Defendant
responded well to medication but was hospitalized again about one month later. This
time, Defendant did not report hallucinations and, again, responded to the administration
of medication. Defendant was evaluated again a few years later, in January 2013, after
encouragement from his brother. This evaluation listed Defendant’s diagnosis as
schizophrenia and cannabis abuse. In January 2014, Defendant claimed he was taking his
medication, but it was reported by his brother that he was actually refusing to take the
medication. A final evaluation in April 2014, less than two weeks prior to the offense,
revealed that Defendant was not taking his medication regularly but did not report
problems with his mood or the occurrence of any outbursts. Following incarceration,
Defendant’s mental health records indicated “chronic simple schizophrenia” as one of his
problems.
After hearing argument on the motion, the trial court noted that medical records
are generally “admissible for medical diagnosis and treatment purposes, but not so much
for determining guilt or innocence or lack of capacity in a criminal case.” In other words,
“to use medical records to negate mens rea in and of themselves . . . is not adequate.”
The trial court noted that expert testimony coupled with the medical records could make a
difference as far as admissibility. The trial court ultimately denied the motion to admit
the records.
Evidence is relevant if it has “any tendency to make the existence 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. However, relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403.
Hearsay is defined as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
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Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a trial, unless
the statement falls under one of the exceptions to the rule against hearsay. See Tenn. R.
Evid. 802. In this case, the medical records are not admissible unless they qualify under
a hearsay exception. Tennessee Rule of Evidence 803(4) is a hearsay exception allowing
introduction of statements made for the purpose of medical diagnosis and treatment. The
Rule provides that “[s]tatements made for purposes of medical diagnosis and treatment
describing medical history; past or present symptoms, pain, or sensations; or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis and treatment” are admissible as an exception to the
general exclusion of hearsay testimony. Tenn. R. Evid. 803(4).
While medical records may be admissible under Rule 803(4), they may or may not
be relevant to an issue of consequence in a criminal case, such as determining guilt or
innocence or lack of capacity. Of course, diminished capacity is not a defense to a
criminal charge, but evidence of diminished capacity is admissible to negate mens rea.
See State v. Ferrell, 277 S.W.3d 372, 379 (Tenn. 2009) (citing State v. Hall, 958 S.W.2d
679, 690-91 (Tenn. 1997)). Such evidence is usually introduced through expert
testimony showing that a defendant was incapable of forming a criminal intent by virtue
of an impaired mental condition. Generally, expert testimony regarding a defendant’s
capacity or lack of capacity to form the mental state required for the commission of an
offense is admissible if it satisfies “general relevancy standards as well as the evidentiary
rules which specifically govern expert testimony.” Hall, 958 S.W.2d at 689. Under
Tennessee law, evidence of a mental disease or defect that does not rise to the level of an
insanity defense is nevertheless admissible to negate elements of specific intent. State v.
Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). In Hall, our supreme court
explained “diminished capacity” as follows:
[D]iminished capacity is not considered a justification or excuse for a
crime, but rather an attempt to prove that the defendant, incapable of the
requisite intent of the crime charged, is innocent of that crime but most
likely guilty of a lesser included offense. Thus, a defendant claiming
diminished capacity contemplates full responsibility, but only for the crime
actually committed. In other words, “diminished capacity” is actually a
defendant’s presentation of expert, psychiatric evidence aimed at negating
the requisite culpable mental state.
958 S.W.2d at 688 (citations omitted). However, the Hall court cautioned that “such
evidence should not be proffered as proof of ‘diminished capacity.’ Instead, such
evidence should be presented to the trial court as relevant to negate the existence of the
culpable mental state required to establish the criminal offense for which the defendant is
being tried.” Id. at 690. Our supreme court emphasized that “‘[i]t is the showing of [a]
lack of capacity to form the requisite culpable mental intent [due to a mental disease or
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defect] that is central to evaluating the admissibility of expert psychiatric testimony on
the issue.’” State v. Faulkner, 154 S.W.3d 48, 56-57 (Tenn. 2005) (quoting Hall, 958
S.W.2d at 690).
In State v. Ferrell, 277 S.W.3d 372, 379 (Tenn. 2009), our supreme court clarified
that the “decision in Hall established that the [mental health] testimony is properly
admissible if it satisfies the relevancy and expert testimony provisions in the Tennessee
Rules of Evidence and its content indicates that a defendant lacked the capacity to form
the required mental state for an offense. . . .” Id. at 379. Our supreme court explained
that the Hall holding “was based upon the broader legal principle that ‘expert testimony
relevant to negating intent is admissible in Tennessee even though diminished capacity is
not a defense.’” Id. (quoting Hall, 958 S.W.2d at 691). The court further explained that
“Hall recognized that a defendant may negate an element of the offense as a defense to
the prosecution.” Id. at 380. The Hall court explained that
to gain admissibility, expert testimony regarding a defendant’s incapacity to
form the required mental state must satisfy the general relevancy standards
as well as the evidentiary rules which specifically govern expert testimony.
Assuming that those standards are satisfied, psychiatric evidence that the
defendant lacks the capacity, because of mental disease or defect, to form
the requisite culpable mental state to commit the offense charged is
admissible under Tennessee law.
958 S.W.2d at 689 (emphasis added).
Rule 702 of the Tennessee Rules of Evidence addresses the admissibility of
opinion testimony of expert witnesses:
If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.
The determining factor is “whether the witness’s qualifications authorize him or her to
give an informed opinion on the subject at issue.” State v. Stevens, 78 S.W.3d 817, 834
(Tenn. 2002). Evidence constitutes “‘scientific, technical, or other specialized
knowledge,’ if it concerns a matter that ‘the average juror would not know, as a matter of
course.’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997) (quoting State v. Bolin,
922 S.W.2d 870, 874 (Tenn. 1996)). “Testimony in the form of an opinion . . . otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” Tenn. R. Evid. 704. Although the rules of evidence permit expert
witnesses to rely upon reliable hearsay in forming their opinions, the rules do not permit
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otherwise inadmissible evidence to be admitted under the guise of the expert’s opinion
unless the proponent of the evidence can show that the prejudicial effect of the evidence
is substantially outweighed by the probative value of the evidence in assisting the jury’s
understanding of the expert’s opinion. See Tenn. R. Evid. 703; State v. Debra Elaine
Moore Kirk, No. E2010-01390-CCA-R3-CD, 2011 WL 5910201, at *5 (Tenn. Crim.
App. Nov. 28, 2011), perm. app. denied (Tenn. Apr. 19, 2012).
Defendant argues on appeal that the medical records were admissible as
“[s]tatements for the purposes of medical diagnosis and treatment describing medical
history; past or present symptoms . . .” in accordance with Tennessee Rule of Evidence
803(4). Moreover, he argues that the trial court erred by determining that the evidence
was not relevant or admissible under Hall and Ferrell. However, in this case, Defendant
merely sought to introduce volumes of medical records from years of treatment, not a
specific set of medical records dealing with interpretation of Defendant’s medical
condition at the time of the incident. Moreover, Defendant did not seek to submit
testimony from a mental health expert who had diagnosed Defendant with a recognized
mental health issue that negated his mens rea or prohibited Defendant from forming the
requisite mens rea at the time of the incident. No expert was offered to interpret the
medical records. While the medical records by themselves were potentially relevant and
arguably admissible under Tennessee Rule of Evidence 803(4), Defendant never
established their relevance. Without expert testimony to explain the effect of any mental
illness, we agree with the trial court’s assessment that the medical records were not
admissible. The trial court did not abuse its discretion. Defendant is not entitled to relief
on this issue.
Defendant also argues that the exclusion of the medical records somehow
prohibited him from presenting a defense. He cites Chambers v. Mississippi, 410 U.S.
234, 302 (1973), and State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000), to support his
argument. “Exclusions of evidence may violate the Due Process Clause of the Fourteenth
Amendment of the United States Constitution even if the exclusions comply with rules of
evidence.” State v. Flood, 219 S.W.3d 307, 315-16 (Tenn. 2007). “Principles of due
process require that a defendant in a criminal trial have the right to present a defense and
to offer testimony.” Id. at 316 (citing Chambers, 410 U.S. at 294; Brown, 29 S.W.3d at
431). In order to determine whether the exclusion of this evidence rises to the level of a
constitutional violation, we consider whether: (1) the excluded evidence is critical to the
defense; (2) the evidence bears sufficient indicia of reliability; and (3) the interest
supporting exclusion of the evidence is substantially important. Brown, 29 S.W.3d at
433-34 (citing Chambers, 410 U.S. at 298-301). We must carefully consider the facts of
the case to determine whether the constitutional right to present a defense was violated by
this exclusion of evidence. See id. at 433.
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Here, as mentioned above, Defendant failed to establish the relevance of the
mental health records because he never established how or why the mental health records
were relevant to negate the mens rea. Without establishing the threshold relevance,
Defendant cannot show that the evidence was critical to the defense. Defendant was not
prevented from presenting a defense by the trial court’s exclusion of the mental health
records. In fact, both he and his brother testified, even if on a limited basis, as to
Defendant’s existing mental health issues. Defendant is not entitled to relief on this
issue.
II. Sufficiency of the Evidence
Defendant argues that the evidence is not sufficient to support the convictions.
Specifically, he argues that “the proof demonstrates clearly [Defendant] set fire to [the
victim] as the starting point of the incident” and the “structure was burned because of the
excess gasoline that was spilled and/or poured in the business.” In other words, the proof
did not demonstrate that Defendant was “knowingly setting the structure on fire.” With
respect to the attempted first degree murder conviction, Defendant argues that there was
no evidence of premeditation. The State, on the other hand, insists that the evidence is
sufficient to support the convictions.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973)). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett,
788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
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2009)). In a bench trial, the trial judge’s verdict is entitled to the same weight on appeal
as a jury verdict. State v. Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011) (citing
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999)).
A. Aggravated Arson
Arson is committed when a person “knowingly damages any structure by means of
a fire or explosion: (1) Without the consent of all persons who have a possessory,
proprietary or security interest therein; or (2) With intent to destroy or damage any
structure to collect insurance for the damage or destruction or for any unlawful purpose.”
T.C.A. § 39-14-301. Aggravated arson occurs when “a person commits arson as defined
in § 39-14-301 . . . : (1) [w]hen one (1) or more persons are present therein; or (2) [w]hen
any person . . . suffers serious bodily injury as a result of the fire or explosion.” T.C.A. §
39-14-302.
Here, in the light most favorable to the State, the proof established that Defendant
went to Tornado Wireless to obtain a refund for the purchase of a cell phone. When the
victim refused to give Defendant a refund, Defendant walked to the parking lot, opened
his trunk, retrieved a can of gasoline, and walked back into the store. Once inside the
store, Defendant poured gasoline on the counter inside the store. Defendant knew that
the gasoline was capable of catching fire. When the victim tried to get Defendant to stop
by pushing him out of the store, Defendant threw gasoline on the victim. Defendant then
pulled a lighter out of his pocket and ignited it by his side. In the process, the victim and
the store caught on fire. There was “substantial fire damage” at the entrance to the store
and the victim appeared to be the point of origin of the fire. The victim suffered
extensive burns on over 60% of his body.
Defendant claims that he only set the victim on fire, rather than the store, so he did
not knowingly cause damage to the store. In State v. Gene Shelton Rucker, Jr., No.
E2002-02101-CCA-R3-CD, 2004 WL 2827004, at *10 (Tenn. Crim. App. Dec. 9, 2004),
perm. app. denied (Tenn. Mar. 21, 2005), this Court determined that aggravated arson is
not a result-of-conduct offense. Aggravated arson does not “require that a defendant act
with an awareness that setting a fire or creating an explosion is reasonably certain to
cause damage to a structure.” Id. Rather, “the nature of the conduct—creating a fire or
explosion—that causes the damage to the structure is consequential and central to the
offense.” Id. Thus, the knowing mens rea for aggravated arson is satisfied where “the
person is aware of the nature of the conduct” or the accompanying circumstances. See
id.; T.C.A. § 39-11-302(b). The State needs only to show that Defendant knowingly
started a fire that ultimately damaged the store and that, as a result, the victim was
seriously injured. Here the proof clearly established this evidence.
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In fact, this Court has affirmed a conviction for aggravated arson based on facts
similar to those presented herein. In State v. Sharon Donella Phillips, No. E2014-00996-
CCA-F3-CD, 2015 WL 2374596, at *4 (Tenn. Crim. App. May 15, 2015), no perm. app.
filed, the defendant’s conviction for aggravated arson was upheld where the facts showed
that the defendant assaulted the victim before throwing a cup of gasoline on the victim’s
body and lighting it on fire, causing the victim and his house to catch on fire and causing
serious bodily injury to the victim. Here, like in Sharon Donella Phillips, Defendant
admits that he knowingly set the victim on fire, which in turn damaged the victim’s store.
Consequently, the nature of Defendant’s conduct sufficiently established the commission
of aggravated arson, and, as such, the evidence adduced at trial supports Defendant’s
convictions. Defendant is not entitled to relief on this issue.
B. Attempted First Degree Murder
Defendant argues that there was no proof of premeditation and, therefore, his
conviction for attempted first degree murder must be reversed. The State points to
several decisions and choices made by Defendant during the course of the events that led
up to the fire that could be easily interpreted as premeditation—Defendant’s retrieval of
the gasoline from the trunk, the pouring of the gasoline on the counter in the store and
later on the victim, and the igniting of the lighter in proximity of the gasoline—along
with Defendant’s calm demeanor after the event as supporting the conviction for
attempted first degree murder.
As relevant in this case, a person commits criminal attempt who, acting with the
kind of culpability otherwise required for the offense, “[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); see State v. Dickson, 413 S.W.3d 735, 745 (Tenn. 2013). “Conduct does not
constitute a substantial step . . . unless the person’s entire course of action is
corroborative of the intent to commit the offense.” Id. § 39-12-101(b). First degree
murder is the premeditated and intentional killing of another person. T.C.A. § 39-13-
202(a)(1). Premeditation is defined as “an act done after the exercise of reflection and
judgment.” Id. § 39-13-202(d). This section further defines premeditation as follows:
“Premeditation” means that the intent to kill must have been formed prior
to the act itself. It is not necessary that the purpose to kill pre-exist in the
mind of the accused for any definite period of time. The mental state of the
accused at the time the accused allegedly decided to kill must be carefully
considered in order to determine whether the accused was sufficiently free
from excitement and passion as to be capable of premeditation.
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Id.
The existence of premeditation is a question of fact for the trier of fact to
determine and may be inferred from the circumstances surrounding the offense. State v.
Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d 252, 261 (Tenn.
2000). Factors that may support the existence of premeditation include, but are not
limited to, the use of a deadly weapon upon an unarmed victim, the particular cruelty of
the killing, the infliction of multiple wounds, declarations by the defendant of an intent to
kill, lack of provocation by the victim, failure to aid or assist the victim, evidence of
procurement of a weapon, preparations before the killing for concealment of the crime,
destruction and secretion of evidence of the killing, and calmness immediately after the
killing. State v. Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148 S.W.3d
42, 53-54 (Tenn. 2004); State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003); Bland,
958 S.W.2d 651, 660 (Tenn. 1997). This Court has also noted that the jury, or in this
case the trial court, may infer premeditation from any planning activity by the defendant
before the killing, evidence concerning the defendant’s motive, and the nature of the
killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation omitted).
The proof in this case, in a light most favorable to the State, shows that Defendant
went to Tornado Wireless to demand a refund. When the victim refused, Defendant
admittedly wanted to “get back” at the victim. The victim testified that Defendant
threatened to kill him if he did not give him a refund. Defendant walked to his car to get
a weapon of some sort to “fight” the victim. He returned to the store with a gasoline can
and spread the gasoline all over the counter. Defendant himself admitted that he wanted
to scare the victim into giving him a refund. The victim tried to remove Defendant from
the store and Defendant threw gasoline on the victim in the process. Defendant then
reached into his pocket, took out a lighter, and ignited the lighter. At this point, the
victim was unarmed and on fire.
Defendant claims that he was “infuriated” after his “unfair treatment” by the
victim and that there is no way that his actions could be perceived as premeditated. To
the contrary, the evidence was sufficient to support a conviction for attempted first degree
murder. Defendant took a substantial step toward the commission of the offense when he
poured gasoline on the unarmed victim, lit him on fire, and then remained “calm and
relaxed” after the incident, even admitting his intent to intimidate the victim to authorities
while the victim’s skin was coming off his hands and face like candle wax. See T.C.A. §
39-12-101(a)(3); Dickson, 413 S.W.3d at 745. By its verdict, the trial court clearly
determined that Defendant’s actions were premeditated. Again, we may not substitute
our own “inferences for those drawn by the trier of fact from circumstantial evidence.”
Matthews, 805 S.W.2d at 779. The evidence is sufficient to support the conviction.
Defendant is not entitled to relief on this issue.
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III. Sentencing
Lastly, Defendant complains that his sentence is excessive. Specifically, he
complains about the weight the trial court gave to enhancement and mitigating factors,
the application of certain enhancement factors, and the failure of the trial court to
properly apply sentencing principles.
When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.
In reaching its decision, the trial court must consider 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
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the defendant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).
This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
disturb the sentence even if we had preferred a different result. See id. at 346.
At the sentencing hearing, the victim testified at length as to his continued health
issues as a result of the burns. The victim testified to over a “million dollars” in medical
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bills, horrible scarring, and constant pain.2 In his words, “everything is horrible.” The
Defendant expressed remorse but claimed that he was “not fully conscious of what [he]
was doing” at the time of the incident.
At the conclusion of the sentencing hearing, the trial court commented that
Defendant committed a “very heinous offense.” The trial court also noted from the
presentence report that Defendant had a prior criminal record, including two convictions
for possession of drugs, one conviction for criminal trespass, and one conviction for
patronizing prostitution. See T.C.A. § 40-35-114(1). The trial court also noted that
Defendant treated the victim with exceptional cruelty and had no hesitation about
committing an offense where the risk of human life was great. See T.C.A. § 40-35-
114(5), (10). In addition, the trial court determined that the injuries sustained by the
victim were particularly great and that Defendant had not complied with the conditions of
supervised relief in the past. See T.C.A. § 40-35-114(6), (8). The trial court found
Defendant’s history of mental illness mitigated his actions but that the “enhancement
factors outweigh the mitigating factors.” See T.C.A. § 40-35-113(8). The trial court
merged the two counts of aggravated arson into one count and, after fully considering the
purposes and principles of sentencing, imposed concurrent sentences of twenty years for
both aggravated arson and attempted first degree murder, which are both Class A
felonies. See T.C.A. §§ 39-14-302(b); 39-11-117(a)(2). The sentences are within the
appropriate range and are presumed reasonable. See T.C.A. § 40-35-112(a)(1) (listing
sentencing range of “not less than fifteen (15) nor more than twenty-five (25) years” for a
Class A felony). Other than complaining about the weight given to the enhancement and
mitigating factors, Defendant has not shown that the trial court abused its discretion in
sentencing him to an effective sentence of twenty years. Defendant is not entitled to
relief on this issue.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
2
The victim testified that Vanderbilt Hospital has a “lien on [him]” and has garnished his
paycheck. Counsel for Defendant suggested that victim explore bankruptcy.
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