State of Tennesse v. Ronnie Lucas Wilson

03/31/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 15, 2020 Session

STATE OF TENNESSEE v. RONNIE LUCAS WILSON

Appeal from the Criminal Court for Knox County

No. 112976 Bobby R. McGee, Judge

No. E2019-01864-CCA-R3-CD

The Defendant, Ronnie Lucas Wilson, was convicted by a Knox County Criminal Court

jury of four counts of being a felon in possession of a firearm; attempted first degree

murder; two counts of employing a firearm with the intent to go armed during the

commission of a dangerous felony; driving while the privilege to do so was canceled,

suspended, or revoked; evading arrest in a motor vehicle and creating a risk of death or

injury; two counts of initiating or making a false report to a law enforcement officer; and

employing a firearm by a convicted felon during the commission of a dangerous felony.

See T.C.A. §§ 39-17-1307(b)(1) (Supp. 2017) (subsequently amended) (firearm possession

by a convicted felon), 39-13-202 (2018) (subsequently amended) (first degree murder), 39-

12-101 (2018) (criminal attempt), 39-17-1324(b) (2018) (subsequently amended)

(employing a firearm during the commission of a dangerous felony), 55-50-504(a)(1)

(2017) driving while privilege canceled, suspended, or revoked), 39-16-603(b)(1),

(b)(3)(B) (2018) (evading arrest); 39-16-502 (2018) (a)(1), (a)(2) (false report). The jury

found that the Defendant was a member of a criminal gang, and the trial court enhanced

his sentences for being a felon in possession of a firearm and attempted first degree murder,

which qualified as Criminal Gang Offenses pursuant to Tennessee Code Annotated section

40-35-121. The court merged the convictions for being a felon in possession of a firearm

into a single count, merged the convictions for employing a firearm into a single count, and

merged the convictions for initiating or making a false report into a single count. The court

imposed an effective fifty-eight-year sentence. On appeal, the Defendant contends that (1)

the evidence is insufficient to support his conviction for attempted first degree murder and

the criminal gang enhanced verdicts, (2) the gang enhancement counts violate the

Defendant’s constitutional rights to due process and expressive association, (3) the court

erred in denying his motion to continue after severing the codefendant’s case on the

morning of the trial, and (4) he is entitled to a new trial on the basis of cumulative trial

error. We affirm the Defendant’s convictions, but we vacate the jury’s findings regarding

the Criminal Gang Offenses Statute, and we modify the Defendant’s sentences for being a

felon in possession of a firearm and remand for entry of corrected judgments for attempted

first degree murder and being a felon in possession of a firearm.

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

Affirmed in Part, Modified in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Ronnie Lucas Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant

Attorney General; Charme P. Allen, District Attorney General; Ta Kisha Fitzgerald and

Phillip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Defendant’s convictions relate to an incident in which he drove his car away

from a police officer in a high-speed chase, fired a shotgun at the police car that was

following him, and shot the officer after the Defendant lost control of his car, which left

the road. The Defendant fled in his damaged car; lost control again, causing his car to

become stuck in mud; and falsely reported that his car had been stolen. The Defendant was

accompanied by Kristin King and Graham Sharp during the relevant events. Ms. King was

indicted jointly with the Defendant for three facilitation offenses related to the Defendant’s

conduct. Mr. Sharp was not indicted with the Defendant and Ms. King. Shortly before the

trial, the defense filed a motion for severance, which the trial court granted on the morning

of the trial. Thus, the Defendant was not tried with Ms. King.

Due to the nature of the charges, the Defendant’s trial was a trifurcated proceeding.

In the first phase, Dan Ray testified that he was driving near Greenway Drive and Tazewell

Pike on January 11, 2018, when he saw a police car with activated blue lights but no siren

following a 1970s-era Chevy Nova. He said that the cars passed him and that he heard two

gunshots. He said his view of the cars was obstructed at this point. He said he returned to

the area and spoke with police officers.

Graham Sharp testified that he knew the Defendant on January 11, 2018. Mr. Sharp

said he also knew Ms. King but did not know her well. Mr. Sharp said he met the Defendant

and Ms. King, who were in the Defendant’s car, at Party City. Mr. Sharp said that the

Defendant drove, that Ms. King sat in the front passenger seat, and that Mr. Sharp got into

the back of the car, which did not have a backseat, and sat on a milk crate. Mr. Sharp said

that they had gone to purchase heroin and that he used the heroin after purchasing it.

Mr. Sharp testified that on the way back to Party City, a police car flashed blue

lights on them on Whittle Springs Road, that the Defendant did not stop, and that the

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Defendant told him to “get down in the backseat.” Mr. Sharp said that at some point, the

car stopped and that the Defendant fired a shotgun. Mr. Sharp said he “was stuck down”

and did not see if the Defendant fired the shotgun from inside or outside the car. Mr. Sharp

said that a car window shattered and that glass fell on him. He said that when he got up

and looked out, they were on Tazewell Pike, that the Defendant stopped, and that Mr. Sharp

got out of the car in front of a church. Mr. Sharp said that he walked a couple of blocks

and that his mother arrived and picked him up. Mr. Sharp identified photographs of

himself, the church, the interior of the Defendant’s car, and the car’s broken window. The

photographs were received as exhibits.

Brian Breeden testified that he lived on Tazewell Pike and that cars frequently

became stuck due to a wet area in front of his house. He said that on January 11, 2018, he

heard a car’s engine revving and that he knew a car was stuck. He said a young woman

came to his door and asked for help with the stuck car. He said he noticed the stuck car

had a side window missing. He said that he took his Jeep to the car and that he had the

Defendant hook the car to the Jeep. Mr. Breeden said that he pulled out the car and that

the driver drove away before Mr. Breeden could get out of the Jeep. Mr. Breeden described

the driver as “fidgety, wanting out,” and smelling of alcohol. Mr. Breeden said he saw two

people: the male driver and the female passenger.

Mr. Breeden testified that he went inside, saw on Facebook that a police officer had

been shot on Washington Pike, and told his son that the driver of the car that had been stuck

might have been involved in the shooting. Mr. Breeden said his son found a photograph

of “the car,” which Mr. Breeden recognized as the one that had been stuck, and that he

notified the police. He identified the Defendant as the person who had driven the car on

January 11, 2018. Mr. Breeden identified photographs of the car the Defendant had driven,

and the photographs were received as exhibits.

Mr. Breeden testified that he had been home and had seen the police retrieve a

firearm from church property near his house on “Saturday.”1 He said that on the night of

January 11, 2018, he had not seen anyone in the area where the firearm had been recovered.

Mr. Breeden said his house was about nine miles from Target on Washington Pike.

Melissa Breeden testified that she lived on Tazewell Pike next to a church. She said

that on January 11, 2018, she heard a car’s engine revving and saw a “black Nova” in a

ditch between two driveways. She said cars became stuck in this location frequently. She

said a woman came to the door and asked for help extricating the car. Ms. Breeden agreed

that the woman stated she and the car’s driver were in a hurry, that they went the wrong

direction, and that they became stuck in mud. Ms. Breeden said that she saw a man

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Other evidence showed that January 11, 2018, was Thursday.

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walking around behind the car and that no one sat inside the car. Ms. Breeden said that

while her husband prepared to go outside to help with the car, she saw the man sit on a

curb next to the church’s parking lot. She said that as soon as her husband pulled out the

car with his Jeep, the car’s driver jumped out of the car, unhooked the chain, and drove

away. She said her husband mentioned that the glass had been missing on the car’s side.

She said that her son mentioned that a police officer had been shot near Target, that her

husband had a “bad feeling,” and that she and her husband recognized the car in a

photograph their son found on the Internet as the car with which her husband had just

helped. She identified photographs of the car she saw at the bottom of the driveway, and

the photographs were received as exhibits. She said they called 9-1-1 to report that the car

had been stuck in their driveway.

Ms. Breeden testified that on the following Saturday, she saw flashing lights outside

and police officers pointing at something in the ditch. She did not see the officers pick up

anything.

Knoxville Police Department (KPD) Officer James Williams, the victim of the

shooting in this case, testified that he was on patrol on January 11, 2018, when he saw a

speeding car on Whittle Springs Road. He said he followed the car, eventually losing sight

of it. He drove onto Interstate 640 to look for the car and saw it ahead of him. He said the

car exited the interstate, that he followed, that he turned on his car’s blue lights while he

was directly behind the speeding car on the exit ramp, and that the speeding car did not

stop. Officer Williams said the speeding car went through a red light near Target, that he

continued to follow the car, and that he heard two shotgun blasts. He said that he saw

shotgun wadding fly past the driver’s side window of his car and that he notified dispatch

about the shots fired. He thought one of the rounds hit his driver’s side mirror because his

mirror was folded back and part of the spotlight housing was missing.

Officer Williams testified that as the speeding car approached Washington Pike and

Greenway, he thought the speeding car would hydroplane, and he slowed his police car.

Officer Williams said the speeding car “spun out” and stopped in a grassy area. Officer

Williams said he got out of his car, stood by his front driver’s side tire using his car as a

buffer between himself and the car he had pursued, drew his handgun with his right hand,

and held his radio in his left hand. He agreed that he pointed his handgun at the car he had

been pursuing. He said his blue lights were still activated. He said that he was twenty to

twenty-five feet from the other car and that he saw two people in the car: a man in the

driver’s seat with short, dark hair and a neck tattoo and a woman in the front passenger seat

with long hair. He said the woman screamed but that he could not understand what she

said. He said the driver “was attempting to do something with something” between the

two front seats. He said he “gave a verbal command to stop.” He said he heard a shotgun

blast and felt something hit his left arm near the shoulder joint, which he said was painful.

He said the shot came from the man in the driver’s seat. Officer Williams said the man

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fired four additional shots after hitting him. Officer Williams agreed that at least one round

hit the front of his patrol car. Officer Williams said he notified dispatch that he had been

shot and that he began to feel ill. He said a woman, who identified herself as a nurse,

approached him and applied a tourniquet from his first aid kit.

Officer Williams testified that his police car was equipped with a video recording

system, which he activated during his pursuit of the speeding car. The recording was

played for the jury and received as an exhibit. The recording was consistent with Officer

Williams’ testimony regarding the pursuit and shooting.

Officer Williams testified that he was taken to a hospital. He said the shotgun blast

penetrated his muscle and impacted his humerus bone, causing a depression fracture. He

said he saw an orthopedist and attended physical therapy for six to seven months. He said

he had been unable to lift his injured arm for two to three days and that for several months,

he had a restricted range of motion and an inability to lift anything heavier than ten pounds.

He said he was on medical leave for about one month. He said he had returned to work

but that he still did not have full recovery of strength and range of motion, which limited

his abilities.

Officer Williams identified the Defendant as the person who shot him and said he

had no question about the identification.

Officer Williams testified that the driver’s side rear quarter window was broken on

the car he had pursued. In his opinion, the initial shotgun blast fired when the car was

moving had broken the window based upon the shot’s having come “from outside next to

the body of the car . . . pointed backwards while he was shooting.”

KPD Officer Todd Childress testified that on January 12, 2018, he went to the

location where the car used in the chase and shooting had been found. He estimated the

car was found one to one and one-half miles from the location of the shooting. He

identified photographs of the car at this location, and the photographs were received as

exhibits. The photographs depicted the car under a railroad trestle.

Retired KPD Lieutenant Vincent Ayub testified that in January 2018, he was the

forensic unit supervisor. He said that on January 13, he went to a location where other

officers had found a shotgun under a sheet of ice in a ditch beside a road. He identified

photographs of the shotgun and some shell casings also found at this location, which were

received as exhibits. He said that one spent casing was inside the shotgun and that two

spent casings and one live round were outside the shotgun. He described the casings as

“double aught, Winchester 2.75” casings. He identified the shotgun as a “typical pump

shotgun,” which was received as an exhibit. He explained that it had to be loaded with

ammunition, “rack[ed] . . . back and forth,” and the safety disengaged before firing. He

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said that after the shotgun’s trigger was pulled, the user would rack the grip back and

forward to eject the spent round and chamber the next round. He said the shotgun held at

least four and possibly seven rounds.

KPD Crime Scene Investigator Jacklyn Walkup testified that she and other officers

took photographs and made measurements at the location where the victim was shot and

another location “at North Mall, Washington Pike, in front of Kohl’s,” which other

evidence showed was the area where the Defendant first lost control of the car. Ms. Walkup

identified photographs of both locations, twelve-gauge shotgun shells, shotgun wadding,

shotgun pellet damage to the victim’s patrol car, the victim’s duty belt, and bloodstains.

The photographs were received as exhibits. Ms. Walkup identified a Winchester twelve-

gauge live round and Winchester spent shell casings collected by retired Lieutenant Ayub,

and the items were received as exhibits.

Ms. Walkup testified that she went to the hospital where the victim had been taken

and photographed the victim’s injuries, collected the pellet that had penetrated his arm, and

collected his uniform and other clothing as evidence. She said she also processed the

Chevy Nova for latent fingerprints, DNA, and other evidence. She said she collected a

white blanket and a Walmart receipt.

Knox County 9-1-1 records custodian Michael Mays identified a recording of a call

received at 8:39 p.m. on January 11, 2018. The recording was received as an exhibit and

played for the jury. In the recording, a man reported that his black Chevy Nova was stolen

from a gas station near East Town Mall thirty minutes to one hour earlier. He said three

men stole the car. The man claimed to be with friends. In response to the man’s agitation,

the 9-1-1 operator asked why he was “still freaking out” if the car was stolen thirty minutes

to one hour ago. The man claimed he had not called sooner because he had not been in

possession of his cell phone. The man said he could not meet officers about the car theft

because he had outstanding warrants. The man said he could talk to detectives he knew

because he worked for the Sheriff’s Department “helping them out.” He then said he did

not work for the Sheriff’s Department. The operator asked the man whether he wanted to

report his car as stolen, and the man said he would call back and hung up.

Knox County Sheriff’s Deputy Brad Yearout testified that he was familiar with the

Defendant’s voice. After a portion of the 9-1-1 recording was played, Deputy Yearout said

he recognized the voice as the Defendant’s. Deputy Yearout testified that the Defendant

called him after the 9-1-1 call and told him that his car had been stolen. Deputy Yearout

described the Defendant as “keyed-up and amped-up.” Deputy Yearout said he had known

before the Defendant’s call that an officer had been shot. Deputy Yearout said he was able

to “put two and two together” because the car that the Defendant “had been driving”

matched the description of the vehicle the shooting suspect had driven. Deputy Yearout

acknowledged that the Defendant had not stated he had been driving the car. Deputy

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Yearout identified the Defendant in the courtroom and said the Defendant had worked as

a confidential informant about a year before the shooting.

KPD Investigator Clayton Madison testified that he responded to the scene after the

victim had been taken to the hospital. Investigator Madison said he spoke with witnesses

and observed the crime scene technicians processing the scene for evidence. He said the

officers retrieved the video from the victim’s patrol car and reviewed it as part of the

investigation. Investigator Madison said Investigator Washam had shown the victim a

photograph lineup; that the victim identified two potential suspects, one of whom was the

Defendant; and that Investigator Madison was aware of the Defendant’s calls to 9-1-1 and

Deputy Yearout. Based upon this information, Investigator Madison obtained arrest

warrants for the Defendant.

Investigator Madison testified that he attempted unsuccessfully to locate the

Defendant using a cell phone “ping” but that the cell phone was turned off. Investigator

Madison said the investigators contacted the Defendant’s family members and Kristin

King’s family members. Investigator Madison said Mr. Sharp was interviewed after the

investigators identified Mr. Sharp as a person who might have been with the Defendant

during the incident.

Investigator Madison testified that he learned around 3:30 a.m. on January 12, 2018,

that the Defendant had been arrested. Investigator Madison said that after receiving this

information, he interviewed Ms. King at the police department and obtained a search

warrant for the Defendant’s car.

Investigator Madison identified a Walmart receipt recovered in the search of the

Defendant’s car, and the receipt was received as an exhibit. He said the receipt was dated

January 11, 2018 at 18:56. He said the Walmart location identified on the receipt was

about two miles from the intersection of Washington Pike and Tazewell Pike.

The following stipulation of fact was read to the jury:

On January 11th, 2018, the [Defendant’s] privilege to drive a motor vehicle

was in a revoked status and had been revoked by the Tennessee Department

of Safety prior to January 11th, 2018.

A second stipulation of fact was read to the jury:

(1) [O]n January 11th, 2018, the [Defendant] had a prior felony conviction

involving violence.

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(2) [O]n January 11th, 2018, the [Defendant] had a prior felony conviction

involving force.

(3) [O]n January 11th, 2018, the [Defendant] had a prior felony conviction

involving the use of a deadly weapon.

(4) [O]n January 11th, 2018, the [Defendant] had a prior felony drug

conviction.

The Defendant elected not to present evidence. After receiving the proof, the jury

found the Defendant guilty of four counts of unlawful possession of a weapon, not guilty

of attempted first degree murder with serious bodily injury but guilty of the lesser included

offense of attempted first degree murder, guilty of employing a firearm during the

commission of a dangerous felony, guilty of violation of the driver’s license law, guilty of

evading arrest with a risk of death or serious bodily injury, guilty of making a false police

report, and guilty of initiating a false police report.

In the second phase of the trial, the Defendant faced two charges of employing a

firearm as a convicted felon during a dangerous felony. The State relied upon two prior

convictions: a May 16, 2011 aggravated burglary conviction and a February 1, 2017 sale

of a Schedule II controlled substance conviction.

Knox County Criminal Court Records Custodian Stephanie Ogle identified the

judgment for the Defendant’s aggravated burglary conviction, and the judgment was

received as an exhibit. The State offered a certified copy of the Defendant’s Claiborne

County information and judgment for sale of methamphetamine, and the information and

judgment were received as an exhibit.

The Defendant did not offer proof in the second phase. After receiving the evidence,

the jury found the Defendant guilty of two counts of employment of a firearm by a

convicted felon during a dangerous felony.

In the third phase of the trial, the Defendant was charged, in Counts 15 and 16,

pursuant to the Criminal Gang Offenses Statute, which enhances the sentence for certain

convictions, related to the following guilty verdicts returned in the first phase of the trial:

Count 1 – being in possession of a firearm after having been convicted of a

violent felony

Count 2 – being in possession of a firearm after having been convicted of a

felony involving the use of force

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Count 3 – being in possession of a firearm after having been convicted of a

felony involving the use of a deadly weapon

Count 4 – being in possession of a firearm after having been convicted of a

felony drug offense

Count 5- attempted first degree murder

The indictment specified that the Defendant was a member of the Aryan Nation criminal

gang. The indictment also specified a pattern of criminal gang activities committed within

five years of each other by members of the Aryan Nation. The State offered evidence of

seven prior convictions committed by four members of the Aryan Nation.

Knox County Sheriff’s Gang Intelligence Unit Detective Thomas Walker, an expert

in gang identification, gang member identification, and gang activities, testified that a gang

was defined in the State of Tennessee as three or more people who (1) are part of an

organized or unorganized group with a primary activity being the commission of criminal

acts, (2) have a name, identifying color, sign, or symbol, and (3) meet on a regular basis to

communicate. He said, “The main issue is that they commit crimes as a group.” He said

that to identify an individual as a gang member, the State definition must be met, that the

individual must meet two enhancement factors, and that they must attain a rating of ten or

more on a points system.

Detective Walker testified that the Aryan Nation was a criminal gang, and he

described its history, which he said was based on white supremacy beliefs. He said Aryan

Nation members had distinctive tattoos to mark themselves as members of the gang. He

described the hierarchy of the Aryan Nation and the expectations of its members. He said

the individuals upon whose convictions the State relied to show gang activity previously

had been confined in the Knox County Jail and had been identified by the Knox County

Sheriff’s Department as members of the Aryan Nation gang. Detective Walker said the

Defendant had been previously identified as a member of the Aryan Nation gang in

conjunction with the Defendant’s confinement in the Knox County Jail in 2014. Detective

Walker said the Defendant had acknowledged Aryan Nation membership in a classification

interview. Detective Walker said the Defendant had also been identified as an Aryan

Nation gang member by the Tennessee Department of Correction in 2013. Detective

Walker said the Defendant had an Aryan Nation patch tattooed on his abdomen, had been

arrested for a violent crime, and had a felony criminal history. Detective Walker said the

Defendant’s score was 37 on the rating system used to identify gang members. Detective

Walker identified photographs of the Defendant’s tattoos and explained their meanings in

terms of the Aryan Nation gang, and the photographs were received as exhibits. One of

the photographs was taken on the date in 2018 when the Defendant was taken into custody

in the present case, and the other was taken in 2014. Detective Walker said the Defendant

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had been involved in several physical altercations with black inmates during the

Defendant’s confinement in the Knox County Jail. Detective Walker acknowledged that

he had no direct information that the Defendant’s actions in the present case were for the

specific benefit of the Aryan Nation gang.

Detective Walker testified that criminal gangs generally, and the Aryan Nation gang

specifically, relied upon having a reputation for violence. He said that violence by

members of the Aryan Nation was a benefit to the gang overall because it enhanced the

gang’s reputation for violence. He said that within the prison system, Aryan Nation gang

members attacked inmates of ethnic minorities or correctional employees in order to

maintain a violent reputation and to intimidate correctional employees.

Detective Walker testified that in his opinion, the benefit to the Defendant in fleeing

from and shooting at the victim in this case was that the Defendant knew he was a gang

member, would return to prison because he had a prior felony record, and had a weapon in

the car he was prohibited from possessing. Detective Walker said that if the Defendant

had been successful in escaping after shooting at the victim seven times and attempting to

kill the victim, the Aryan Nation’s reputation as a violent gang would be enhanced and the

Defendant “probably [would receive] a promotion to enforcer.”

Detective Walker agreed that although most Aryan Nation gang members joined

while in prison, some joined outside of prison. He agreed that a person might join the

Aryan Nation gang for personal protection. He agreed that members who left prison were

expected to contribute financially to “prison accounts” and legal defense funds for

members. He agreed that the Aryan Nation gang had rules, that they maintained a

membership list, and that a person might be removed as a member for violating the rules.

He “assum[ed]” that a person might withdraw membership from the Aryan Nation gang

after leaving prison but said that due to the high rate of recidivism, most people returned

to prison and would be in danger if they were no longer an Aryan Nation gang member.

He said that if a person left the Aryan Nation gang, members of the gang would physically

remove the person’s gang tattoo from the person’s body. He said that the Department of

Correction offered gang membership renunciation classes and that the Defendant had not

participated in them during his prior incarceration.

Detective Walker identified a 2014 photograph from the Defendant’s Facebook

account and described it as depicting the Defendant and other Department of Correction

inmates in a prison cell displaying an Aryan Nation gang sign with their hands. The

photograph was received as an exhibit.

The Defendant testified that he was incarcerated in 2011 for an aggravated burglary

conviction, that he was released after completing a boot camp program, and that he returned

to prison for two years following a probation violation for failing a drug screen. He said

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that while he was incarcerated in 2013, he approached Aryan Nation members after seeing

“some of the things they were doing” because he thought they needed “help” and

“refining.” He said the Aryan Nation was not about hate and that he had thought he could

“bring a little bit of integrity to it.” He said the Aryan Nation was “supposed to be the

people that the white race is going to look up to.” He said the organization was founded

upon Christianity, not hate, the latter of which he ascribed to the Ku Klux Klan. He said

the organization was about separation of the races but not about a belief that one race was

better than another. He said he would not force his views on another person, including his

adolescent daughter, who might “come home with” a person of another race.

The Defendant testified that he received his Aryan Nation patch tattoo in 2014, after

being a probationary member of the group for a year. He agreed he left prison in 2015. He

said that he had “previously been” a member of the Aryan Nation but that a member could

withdraw. He said he “lived it for a few years in prison and for a period of time outside.”

He said he left the gang because he did not follow rules well. He said some other Aryan

Nation members “came home with some opinions, some views, some orders that were just

beyond [him]” and that he was not going to follow. He said he lived a productive life after

he left prison and did not want to be part of the Aryan Nation. He said the Aryan Nation’s

members permitted him to leave the organization.

The Defendant testified that a person who withdrew from the Aryan Nation might

be asked to cover the person’s Aryan Nation tattoo. He said that with regard to specific

incidents of violent tattoo removal Detective Walker had mentioned, the people referenced

“probably were individuals who were running from the Aryan Nation, who probably have

done something like rat on members or rat on another organization or something like that.”

The Defendant said that he intended to have his tattoo covered but had not yet had a chance

to do so.

The Defendant testified that his actions on January 11, 2018, had not been at the

direction of anyone in the Aryan Nation. He said no one from the Aryan Nation had

ordered or had known about his actions. He said the two individuals with him at the time

of the offenses were not members of the Aryan Nation.

The Defendant testified that he would have preferred to plead guilty to some of the

charges. He claimed his attorney had not asked him if he wanted to plead guilty to some

the offenses. The Defendant acknowledged that he had driven on a suspended license, that

he had been a felon in possession of a firearm, and that he had driven the Chevy Nova in

the video recording previously shown to the jury. He said, however, that he had not

intended to kill the victim. The Defendant acknowledged that he had gone to purchase

heroin on the day of the offenses and said he “was completely out of [his] head.” He said

he had used heroin and “crystal meth” that day. He acknowledged that he had fired the

shotgun repeatedly, pumping it between shots, while he drove “a four-speed car” during

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the pursuit. He said he had fired the gun at the victim’s car’s bumper “in an attempt to

blow the radiator.” The Defendant said he fled from the victim because the Defendant

knew he was “high” and would probably return to jail for a long time. Addressing the

victim, the Defendant apologized for his actions. The Defendant claimed he had not seen

the victim standing next to the car when the Defendant fired shots after the Defendant’s

car slid off the road. The Defendant claimed he had not heard the victim’s command to

“stop” or the victim’s saying “Aw” after being struck.

The Defendant acknowledged that he had been taken into the Knox County Jail on

February 4, 2016. He did not recall telling Brett Worley during the classification process

on that date that he was a member of the Aryan Nation and said he was “pretty sure” he

had stated he was “inactive.” The Defendant agreed that in 2018, he told classification

officers that he was inactive with the Aryan Nation. He said that inactive meant the person

was no longer a member. He said that if an inactive person wanted to became an active

member, the person would have to go through the entire membership process again.

The Defendant denied that he told another inmate he was going to have the Aryan

Nation kill the victim. He said the inmate had fabricated the story in order to seek favorable

treatment for a second degree murder charge the inmate faced. The Defendant stated that

his understanding of the inmate’s allegation was that the inmate had claimed the Defendant

wanted police officers who were also Aryan Nation members to kill the victim in order to

prevent the victim from testifying against the Defendant.

The Defendant displayed his tattoos to the jury, which included the Aryan Nation

patch, a swastika, and the words “White Pride World Wide.” He said that a portion of the

Aryan Nation patch would be covered with new tattoo ink due to his no longer being a

member of the gang. The Defendant denied that a person who attempted to kill a police

officer would receive a higher rank in the Aryan Nation gang.

After receiving the evidence, the jury found that the Defendant’s commission of

unlawful possession of a weapon and attempted first degree murder were criminal gang

offenses. The jury found that the Defendant was a criminal gang member based upon the

following two criteria:

The Defendant “[r]esides in or frequents a particular criminal gang’s area,

adopts their style or dress, their use of hand signs or their tattoos and

associates with known criminal gang members[.]”

The Defendant “[i]s identified as a criminal gang member by physical

evidence such as photographs or other documentation.”

-12-

The jury found, as well, that at the time of committing unlawful possession of a weapon

and attempted first degree murder, the Defendant was a criminal gang member based upon

the same two criteria it found relative to its finding that he committed criminal gang

offenses. Finally, the jury found that the unlawful possession of a weapon and attempted

first degree murder offenses were committed at the direction of, in association with, or for

the benefit of the Defendant’s criminal gang or a member of the Defendant’s criminal gang.

At a sentencing hearing, the trial court imposed an effective fifty-eight-year

sentence. This appeal followed.

I

Sufficiency of the Evidence

A. Attempted First Degree Murder

The Defendant contends that the evidence is insufficient to support his conviction

for attempted first degree murder because the State failed to establish he acted with

premeditation and intent to kill the victim. The State counters that the evidence is sufficient

to show the Defendant acted with premeditation and intent. We agree with the State.

In determining the sufficiency of the evidence, the standard of review 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 (1979); see State v. Vasques, 221 S.W.3d 514, 521

(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all

reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate

courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility

of witnesses [and] the weight and value to be given the evidence . . . are resolved by the

trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “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.

2009)).

First degree murder is the unlawful, intentional, and premeditated killing of another.

T.C.A. §§ 39-13-201 (2018), 39-13-202(a)(1). In the context of first degree murder, intent

is shown if the defendant has the conscious objective or desire to cause the victim’s death.

-13-

State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18)

(2019) (defining intentional as the “conscious objective or desire to engage in the conduct

or cause the result”). A premeditated act is one which is

done after the exercise of reflection and judgment. “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 preexist 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.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a

question of fact for the jury to be determined from all of the circumstances surrounding the

killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of premeditation

may be shown by direct or circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541

(Tenn. 1992). As a result, the jury “may infer premeditation from the manner and

circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see

State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim. App. 2008). Factors from which a

jury may infer premeditation include:

[D]eclarations by the defendant of an intent to kill, evidence of procurement

of a weapon, the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, infliction of multiple wounds, preparation

before the killing for concealment of the crime, destruction or secretion of

evidence of the murder, and calmness immediately after the killing.

State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

A defendant commits criminal attempt when he acts “with the kind of culpability

otherwise required for the offense . . . [and] [a]cts 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[.]” T.C.A. § 39-12-101(a)(2).

Viewed in the light most favorable to the State, the evidence shows that the

Defendant fled in his car at high speeds from the police officer victim. After the victim

displayed his patrol car’s blue lights, the Defendant fired two shots from a pump-action

shotgun, striking the victim’s patrol car. The Defendant continued his flight until his car

slid off the road, at which point the victim got out of his patrol car, saw the Defendant

“attempting to do something with something” between the two front seats, and ordered the

Defendant to stop. Instead, the Defendant fired a shotgun blast, striking the victim in the

arm, and then fired four more shots before fleeing the scene in his car. Shortly thereafter,

-14-

the Defendant’s car became stuck, and the shotgun with which he shot the victim was later

recovered in a ditch near this location. The Defendant made a false report to 9-1-1 and to

Deputy Yearout that his car had been stolen, from which a rational jury could conclude that

the Defendant had attempted to conceal his involvement in the shooting. The jury could

likewise conclude from the Defendant’s firing repeated gunshots at the victim in two

separate intervals during the incident that the Defendant had the opportunity to form the

requisite intent to kill the victim after reflection and judgment. We note, as well, that the

victim was struck during the second of these intervals and that the Defendant continued

firing after striking the victim. In addition, the evidence showed that the Defendant had to

pump the shotgun between each firing, providing him with time to reflect and form the

intent to kill by continuing to shoot at the victim. Finally, a rational jury could conclude

from the location in which the Defendant’s car was recovered that the Defendant attempted

to conceal the car after his crimes.

Upon review, we conclude that the evidence is sufficient to support the Defendant’s

attempted first degree murder conviction. He is not entitled to relief on this basis.

B. Criminal Gang Offenses Enhancement Verdicts

The Defendant contends that the evidence is insufficient to support the jury’s

verdicts relative to the Criminal Gang Offenses Statute. The State counters that the

evidence is sufficient. We conclude that the evidence viewed in the light most favorable

to the State fails to show beyond a reasonable doubt that the Defendant’s convictions for

attempted first degree murder and for being a felon in possession of a firearm were subject

to the Criminal Gang Offenses Statute.

As relevant to this appeal, the Criminal Gang Offenses Statute provides

(a) As used in this section, unless the context otherwise requires:

(1) “Criminal gang” means a formal or informal ongoing

organization, association or group consisting of three (3) or

more persons that has:

(A) As one (1) of its primary activities, the

commission of criminal gang offenses;

(B) Two (2) or more members who, individually

or collectively, engage in or have engaged in a

pattern of criminal gang activity;

-15-

(2) “Criminal gang member” is a person who is a member of a

criminal gang, as defined in subdivision (a)(1), who meets two

(2) or more of the following criteria:

....

(D) Resides in or frequents a particular criminal

gang’s area, adopts their style or dress, their use

of hand signs or their tattoos and associates with

known criminal gang members;

....

(G) Is identified as a criminal gang member by

physical evidence such as photographs or other

documentation;

(3) “Criminal gang offense” means:

....

(B) The commission or attempted commission,

facilitation of, solicitation of, or conspiracy to

commit any of the following offenses on or after

July 1, 2013:

(i) First degree murder, as defined in

§ 39-13-202;

....

(xxvi) Unlawful carrying or possession of

a weapon, as defined in § 39-17-

1307;

....

(4)(A) “Pattern of criminal gang activity” means prior

convictions for the commission or attempted commission of,

facilitation of, solicitation of, or conspiracy to commit:

(i) Two (2) or more criminal gang offenses that are

classified as felonies; or

-16-

(ii) Three (3) or more criminal gang offenses that are

classified as misdemeanors; or

(iii) One (1) or more criminal gang offenses that are

classified as felonies and two (2) or more

criminal gang offenses that are classified as

misdemeanors; and

(iv) The criminal gang offenses are committed on

separate occasions; and

(v) The criminal gang offenses are committed within

a five-year period;

(B)(i) As used in this subsection (a), “prior conviction” means

a criminal gang offense for which a criminal gang member was

convicted prior to the commission of the instant criminal gang

offense by the defendant and includes convictions occurring

prior to July 1, 1997;

(ii) Convictions for multiple criminal gang offenses

committed as part of a single course of conduct within twenty-

four (24) hours are not committed on “separate occasions.”

However, acts that constitute criminal gang offenses under

subdivision (a)(3)(A) shall not be construed to be a single

course of conduct.

(b) A criminal gang offense committed by a defendant shall be punished one

(1) classification higher than the classification established by the specific

statute creating the offense committed if:

(1) The defendant was a criminal gang member at the time of

the offense; and

(2) The criminal gang offense was committed at the direction

of, in association with, or for the benefit of the defendant’s

criminal gang or a member of the defendant’s criminal gang.

....

-17-

(d) If the criminal gang offense subject to enhancement under subsection

(b) . . . is a Class A felony, the presumptive sentence for the offense shall

be the maximum sentence within the range from which the defendant is to

be sentenced.

....

(g) If the defendant is charged with a criminal gang offense and the district

attorney general intends to seek enhancement of the punishment under

subsection (b), . . . the indictment, in a separate count, shall specify, charge

and give notice of the subsection under which enhancement is alleged

applicable and of the required prior convictions constituting the gang’s

pattern of criminal gang activity.

(h)(1) If the defendant is convicted of the underlying criminal gang offense,

the jury shall then separately consider whether the defendant was at the time

of the offense:

(A) A criminal gang member;

....

(2) If the jury convicts the defendant under subdivision (h)(1)(A), . . . the

court shall pronounce judgment and sentence the defendant as provided in

this section.

T.C.A. § 40-35-121 (2018).

The jury convicted the Defendant of one count of attempted first degree murder and

four counts of firearm possession offenses, all of which were subject to the Criminal Gang

Offenses Statute enhancement. Three of the Defendant’s four firearm offenses were Class

B felonies, and one was a Class C felony. Based upon the jury’s findings that the Defendant

was a member of a criminal gang and that the firearm offenses were criminal gang offenses,

his Class B felonies were enhanced to Class A, and his Class C felony was enhanced to

Class B. The trial court merged the four firearm offense convictions into a single judgment.

The attempted first degree murder conviction was a Class A felony. The Criminal Gang

Offenses Statute provided for a presumptive maximum-within-the-range sentences for the

Class A felonies and for other offenses subject to the criminal gang enhancement. See id.

§§ 39-11-117(a)(2) (classifying attempted first degree murder as a Class A felony); 39-17-

1307(b)(1)(A), (2) (classifying as a Class B felony the commission of an offense while

being in possession of a firearm with a prior conviction of a felony crime of violence or

-18-

felony involving a deadly weapon), 39-17-1307(b)(1)(B), (3) (classifying as a Class C

felony the commission of an offense while in possession of a firearm after being convicted

of a felony drug offense), 40-35-121(b) (increasing by one the classification for a criminal

gang offense conviction), 40-35-121(d) (providing for a presumptive sentence of the

maximum within the range if the offense is a Class A felony or is subject to enhancement

pursuant to section 40-35-121(b)), 40-35-112(b)(1) (setting the sentencing range for a

Range II offender convicted of a Class A felony at twenty-five to forty years).

At the sentencing hearing, the trial court acknowledged the jury’s findings relative

to the Criminal Gang Offenses Statute and the presumptive forty-year sentences, the

maximum sentence for a Class A felony for a Range II offender, for attempted first degree

murder and for being a felon in possession of a firearm. The court went on to consider the

enhancement and mitigating factors, finding that the Defendant was a “violent, dangerous

offender” and had an “extensive” history of criminal convictions. See id. § 40-35-114(1)

(“the defendant has a previous history of criminal convictions or criminal behavior, in

addition to those necessary to establish the appropriate range”). The court did not find the

existence of any mitigating factors. The court weighed the enhancement factor heavily and

set the sentences at forty years for the three Class A felony firearm convictions, forty years

for the attempted first degree murder conviction, and twenty years for the Class B felony

firearm convictions. As we have stated, the court merged the four firearm convictions into

a single judgment.

With this backdrop, we consider the Defendant’s issue regarding the sufficiency of

the evidence as to the enhancement of these convictions pursuant to the Criminal Gang

Offenses Statute. In that regard, he argues that the State failed to establish that the offenses

were “committed at the direction of, in association with, or for the benefit of the

defendant’s criminal gang or a member of the defendant’s criminal gang.” See id. § 40-

35-121(b)(2). The Defendant does not challenge the jury’s finding pursuant to section 40-

35-121(a)(2)(D) and (G) that he was a member of a criminal gang. The State argues that

Deputy Walker’s expert testimony sufficiently established the required nexus between the

Defendant’s crimes and the criminal gang of which the Defendant was a member at the

time of the offenses.

Viewed in the light most favorable to the State, the evidence supporting a conclusion

that the Defendant committed the crimes “at the direction of, in association with, or for the

benefit of the defendant’s criminal gang or a member of the defendant’s criminal gang”

consists of Deputy Walker’s opinion testimony regarding the Aryan Nation’s reliance on

violence as a means of enhancing its reputation as a criminal gang. See id. In Deputy

Walker’s opinion, the Defendant’s shooting at a police officer would enhance the Aryan

Nation’s reputation as a violent gang and might enhance the Defendant’s standing within

the gang. Deputy Walker acknowledged, however, that he had no specific information that

these things had occurred or that the Defendant committed the crimes for the benefit of the

-19-

Aryan Nation. The Defendant testified that he was no longer associated with the Aryan

Nation and had not committed the crimes on the orders of a member of or to benefit the

Aryan Nation and that the individuals with him had not been Aryan Nation members.

Although the verdict supports a conclusion that the jury found that the Defendant’s

testimony was not credible, a rational jury could not conclude that the remaining evidence

supports a finding beyond a reasonable doubt that the Defendant actions were directed by,

in association with, or for the benefit of the Aryan Nation. Deputy Walker’s testimony

involved generalities of the gang’s operation, but neither his testimony nor the other

evidence provided any specific factual evidence establishing a nexus between the

Defendant’s actions and the Aryan Nation. We acknowledge that circumstantial evidence

may provide sufficient evidence of guilt beyond a reasonable doubt. In the present case,

however, the circumstantial evidence fails to go beyond conjecture in establishing a nexus

between the Defendant’s actions and the Aryan Nation. We conclude, therefore, that the

evidence is insufficient to support the jury’s findings regarding the Criminal Gang Offenses

Statute, and we vacate the jury’s factual findings in Counts 15 and 16.

We turn, then, to the effect this insufficiency of evidence has on the trial court’s

sentencing determinations for the attempted first degree murder and firearm possession

convictions. With regard to attempted first degree murder, it remains a Class A felony,

notwithstanding the inapplicability of the Criminal Gang Offenses Statute. See T.C.A. §

39-11-117(a)(2). Three of the Defendant’s convictions for being a felon in possession of

a firearm were Class B felonies, enhanced to Class A, and now revert to Class B in the

absence of the gang enhancement. The remaining conviction for being a felon in

possession of a firearm was a Class C felony, enhanced to Class B, and now revert to Class

C in the absence of the gang enhancement. We will further address the Defendant’s

sentences for these offenses in section V below.

II

Constitutionality of Criminal Gang Offenses Statute

The Defendant contends that the Criminal Gang Offenses Statute violates his

constitutional rights to due process and expressive association. Because we have

determined that the State presented insufficient evidence for the statute to be applied to the

Defendant, consideration of this issue is not required for determination of the case. As a

general principle, courts will not consider a constitutional issue unless resolution of the

issue is required for determining the case and the rights of the parties. See, e.g., Watts v.

Memphis Transit Management Co., 462 S.W.3d 495, 498 (Tenn. 1971); Owens v. State,

908 S.W.2d 923, 926 (Tenn. 1995). For this reason, we decline to consider the Defendant’s

constitutional challenge.

-20-

III

Denial of Motion to Continue

The Defendant contends that the trial court abused its discretion by failing to grant

a continuance after granting his motion for a severance on the day of the trial. The State

responds that the court did not err because the Defendant’s motion requested a severance

or, in the alternative, a continuance. We conclude that the court did not abuse its discretion.

The record reflects that the Defendant was indicted jointly with codefendant Kristin

King, his female passenger, who was charged with facilitation of some of the Defendant’s

offenses. Five days before the trial, the Defendant filed a “Motion for Severance or, in the

Alternative, for Continuance of Trial Setting.” The defense alleged that, on the previous

day, it had received an expert witness report of the codefendant’s proposed domestic

violence expert witness. The report, which was attached to the motion, stated that the

expert would testify, in the context of explaining the codefendant’s actions related to the

offenses with which she was charged, about the Defendant’s verbal and physical abuse of

the codefendant, the Defendant’s drug use, and the Defendant’s membership in the Aryan

Nation. The Defendant’s motion alleged that, in light of the proposed expert testimony, a

joint trial of the Defendant and the codefendant would be unfairly prejudicial to the

Defendant and a violation of the Defendant’s rights to due process and a fair trial. The

Defendant requested a severance of his trial from the codefendant’s trial, or, alternatively,

a continuance in order to “investigate the possibility of countervailing expert proof or

otherwise prepare to defend against the antagonistic defense” of the codefendant. The trial

court heard the motion and granted the Defendant’s motion for a severance on the morning

of the trial. Defense counsel asked at the hearing for a severance and, in the alternative,

for a continuance to prepare for a trial in light of the codefendant’s proposed expert

evidence. After the court granted the severance, the State elected to proceed with the

Defendant’s trial and to schedule the codefendant’s trial at a later date. The transcript of

the hearing reflects that the defense did not request a continuance upon learning that the

Defendant’s case would proceed as scheduled for a trial that day. The defense first raised

the issue in the motion for a new trial, in which it alleged that the court erred in not granting

a continuance “after hearing and granting” the motion to sever the codefendant. The

Defendant argued at the hearing on the motion for a new trial and argues on appeal that he

did not know “until the morning of trial whether he would be defending against the State .

. . only or against his co-defendant as well, which made it impossible for him to prepare

adequately for trial, and adversely impacted his ability to receive a fair trial.”

We review a trial court’s denial of a motion to continue for abuse of discretion. See

State v. Willis, 496 S.W.3d 653, 744 (Tenn. 2016). In order to obtain relief, a Defendant

must show that he was prejudiced from the denial of a continuance. Id.

-21-

The record reflects that the trial court granted the Defendant’s requested severance

relief. The Defendant requested a continuance in the event the court did not grant the

severance. He did not request a continuance as a result of the court’s grant of a severance

and the State’s election to proceed with the trial of the Defendant and not the codefendant

on that date. See T.R.A.P. 36(a).

In any event, the Defendant has not shown that he did not receive a fair trial in the

absence of a continuance. Although he argues that he did not know until the morning of

the trial whether he would have to defend against the State or whether he would have to

defend against both the allegations made by the State and the allegations of his misconduct

toward the codefendant, the record reflects that the defense did not receive the

codefendant’s expert report until the week before the trial, and it was on the basis of this

report that he made his motion for a severance, and alternatively, for a continuance. The

court addressed the basis for his motion for a severance by granting the severance. The

Defendant has not articulated any specific basis upon which he was unable to be prepared

for the trial, in light of the severance he requested and received. He is not entitled to relief

on this basis.

VI

Cumulative Error

The Defendant contends that he is entitled to relief based upon cumulative trial

errors. The cumulative error doctrine requires relief when “multiple errors [are] committed

in the trial proceedings, each of which in isolation constitutes mere harmless error, but

which when aggregated, have a cumulative effect on the proceedings so great as to require

reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d

1, 76-77 (Tenn. 2010) (internal citations omitted); see State v. Jordan, 325 S.W.3d 1, 79

(Tenn. 2010) (“‘[T]he combination of multiple errors may necessitate . . . reversal . . . even

if individual errors do not require relief.’”) (quoting State v. Cribbs, 967 S.W.2d 773, 789

(Tenn. 1998)). The Defendant has alleged only a single instance of purported trial error –

the denial of the motion for a continuance – which, if credited, might result in the grant of

a new trial. The Defendant’s remaining allegations pertain to issues which, if credited,

would result in the dismissal of a conviction or alteration of some of his sentences. Without

multiple instances of trial error to accumulate, the cumulative error doctrine does not apply.

Thus, cumulative error relief is not appropriate.

-22-

V

Sentencing for Attempted First Degree Murder

and Being a Felon in Possession of a Firearm

As we stated in Section I.B., insufficient evidence exists for application of the

Criminal Gang Offenses Statute enhancement to the Defendant’s sentences for attempted

first degree murder and for being a felon in possession of a firearm. As such, the

Defendant’s sentences for these offenses must be revisited. The Sentencing Reform Act

provides that, upon appeal of a sentence, this court’s remedies include remanding the case

for resentencing or “affirm[ing], reduc[ing], vacat[ing] or set[ting] aside the sentence

imposed.” T.C.A. § 40-35-401(c)(2), (3).

Neither party argues that the trial court erred in its sentencing determinations, and

the only challenge is to the application of the Criminal Gang Offenses Statute’s

enhancement provisions. Further, the parties fully litigated the facts and issues relative to

sentencing at a hearing, and the record of that hearing is before this court. Thus, we will

consider the appropriate sentences based upon the record that is before this court.

At the sentencing hearing, New Tazewell Police Officer Gary Ruszkowski testified

that he investigated an April 2016 incident in which the Defendant and two other people

went to a home for a drug transaction, that a dispute arose, and that the Defendant shot a

bystander who had not been involved in the dispute. Officer Ruszkowski said the

Defendant fled in a truck, tossed a firearm out of the truck during his flight, and was later

apprehended with two more firearms in his truck. Officer Ruszkowski said the victim

suffered serious bodily injury and was taken by helicopter to UT Medical Center. Officer

Ruszkowski said the Defendant pleaded guilty to aggravated assault, attempted second

degree murder, and unspecified drug offenses as a result of this incident.

Relative to the present case, the victim testified that he had undergone extensive

medical treatment and had residual injuries from being shot by the Defendant. The victim

said that he needed additional surgery but that he might lose his career as a patrol officer if

he underwent the surgery.

Knox County Sheriff’s Deputy Debbie Cox testified that the Defendant had received

thirteen disciplinary write-ups in the Knox County Jail. She acknowledged that some of

the write-ups dated to 2009 but said he had five for the present year and two for the previous

year. She said the last major infraction occurred on a date that was about ten days before

the sentencing hearing.

The presentence report was received as an exhibit and reflected that the Defendant

had a lengthy and abysmal history of criminal convictions which exceed those necessary

-23-

to establish his classification as a Range II offender. He had numerous juvenile

adjudications dating to age twelve. He had a previous probation violation, and he had

disciplinary infractions from prior incarceration in the Department of Correction. The

Defendant reported that he had been a member of the Aryan Nation previously, that he had

left the gang, and that he would likely return to the gang once he was incarcerated. The

Defendant had received a GED and had completed vocational training. He reported poor

mental health, excellent physical health, and extensive illegal drug use. He was married

and had four children. His Strong-R Risk Assessment Tool scored him as “high for violent

[sic].”

Certified copies of three Claiborne County felony convictions reflected that the

Defendant had been on probation at the time he committed the present offenses.

A sentencing court must consider any evidence received at the trial and sentencing

hearing, the presentence report, the principles of sentencing, counsel’s arguments as to

sentencing alternatives, the nature and characteristics of the criminal conduct, any

mitigating or statutory enhancement factors, statistical information provided by the

Administrative Office of the Courts as to sentencing practices for similar offenses in

Tennessee, any statement that the defendant made on his own behalf, and the potential for

rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (citing

T.C.A. §§ 40-35-103, -210; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v.

Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2018).

Likewise, a trial court’s application of enhancement and mitigating factors is

reviewed for an abuse of discretion with “a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an

enhancement or mitigating factor does not invalidate the sentence imposed unless the trial

court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as

there are other reasons consistent with the purposes and principles of sentencing, as

provided by statute, a sentence imposed . . . within the appropriate range” will be upheld

on appeal. Id.

The abuse of discretion with a presumption of reasonableness standard also applies

to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.

2013). A trial court has broad discretion in determining whether to impose consecutive

service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance

of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-

115(b)(1)-(7) (2018). In determining whether to impose consecutive sentences, though, a

trial court must ensure the sentence is “no greater than that deserved for the offense

committed” and is “the least severe measure necessary to achieve the purposes for which

-24-

the sentence is imposed.” T.C.A. § 40-35-103(2), (4) (2018); see State v. Desirey, 909

S.W.2d 20, 33 (Tenn. Crim. App. 1995).

The State argued at the sentencing hearing that the following enhancement factors

applied:

(1) The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range;

(2) The defendant was a leader in the commission of an offense involving

two (2) or more criminal actors;

....

(8) The defendant, before trial or sentencing, failed to comply with the

conditions of a sentence involving release into the community;

....

(11) The felony resulted in death or serious bodily injury, or involved the

threat of death or serious bodily injury, to another person, and the defendant

has previously been convicted of a felony that resulted in death or serious

bodily injury;

....

(13) At the time the felony was committed, one (1) of the following

classifications was applicable to the defendant:

....

(C) Released on probation;

....

(19) If the defendant is convicted of the offense of aggravated assault

pursuant to § 39-13-102, the victim of the aggravated assault was a law

enforcement officer, firefighter, correctional officer, youth services officer,

probation and parole officer, a state registered security guard/officer, an

employee of the department of correction or the department of children’s

services, a uniformed member of the armed forces or national guard, an

emergency medical or rescue worker, emergency medical technician or

-25-

paramedic, whether compensated or acting as a volunteer; provided, that the

victim was performing an official duty and the defendant knew or should

have known that the victim was such an officer or employee[.]

T.C.A. § 40-35-114. The defense did not argue that any mitigating factors applied. See id.

§ 40-35-113.

The trial court was heavily swayed by the Defendant’s prior criminal history and by

his commission of an offense involving a threat of death or serious bodily injury while

having a prior felony conviction involving serious bodily injury. See id. § 40-35-114(1),

(11). The court did not address the remaining enhancement factors proffered by the State,

nor did it find the existence of any mitigating factors. The court found that, based upon

these enhancement factors and the weight the court placed upon them, the Defendant

should receive maximum sentences for each of his convictions, aside from the provisions

of the Criminal Gang Offenses Statute providing for a presumptive maximum sentence

within the applicable range. See id. § 40-35-121(d).

The record supports the trial court’s finding that the Defendant’s criminal history is

extensive. See id. § 40-35-114(1). In addition, the record supports the court’s

determination that his attempted first degree murder conviction involved a threat of death

or serious bodily injury, and he had a prior felony conviction involving serious bodily

injury relative to the Claiborne County incident and convictions about which Officer

Ruszkowski testified, and for which judgments were received as exhibits. See id. at (11).

Although not relied upon by the trial court, the record reflects that the Defendant

has a prior record of failing to comply with the terms of release, as shown by his prior

probation revocation. See id. at (8). In addition, the evidence reflects that the Defendant

was on probation for the Claiborne County convictions when he committed the present

offenses. See id. at (13).

For attempted first degree murder, a Class A felony, the Defendant faced a Range

II sentence of twenty-five to forty years. We conclude that the Defendant is deserving of

a maximum, forty-year sentence based upon the presence of multiple enhancement factors

and the absence of mitigating factors.

For the three Class B felony offenses for being a felon in possession of a firearm,

the Defendant faced Range II sentences of twelve to twenty years. Again, the facts show

that the appropriate sentence is a maximum, twenty-year sentence.

For the Class C felony offense for being a felon in possession of a firearm, the

Defendant faced a Range II sentence of six to ten years. We again conclude that the

maximum sentence of ten years is appropriate.

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As we have stated, the trial court merged the four convictions for being a felon in

possession of a firearm into a single judgment of conviction. The court imposed the

sentence for this merged judgment to be served concurrently with the sentence for

attempted first degree murder. Thus, this component of the Defendant’s overall sentence

remains at forty years, notwithstanding the inapplicability of the Criminal Gang Offenses

Statute enhancement.

As to the remaining convictions, the trial court imposed partially consecutive

sentencing based upon its finding that the Defendant was a dangerous offender whose

behavior indicated little or no regard for human life and no hesitation about committing a

crime in which the risk to human life is high. See id. § 40-35-115(b)(4). The record

supports the court’s determination in this regard, as the Defendant has repeatedly

committed violent offenses that involve high risk to the wellbeing of others, and he has

repeatedly shown that he will act without hesitation in the commission of dangerous

criminal offenses. See State v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995). As such,

the Defendant’s effective sentence remains at fifty-eight years based upon the court’s

partially consecutive alignment of the individual sentences.

Thus, we conclude that the trial court arrived at the appropriate Range II sentence

of forty years for Class A felony attempted first degree murder, notwithstanding our

determination that the Criminal Gang Offenses Statute does not apply to the Defendant.

We modify the Defendant’s Range II, Class B felony sentences in Counts 1, 2, and 3 for

being a felon in possession of a firearm to twenty years. We modify the Defendant’s Range

II, Class C felony sentence for being a felon in possession of a firearm in Count 4 to ten

years.

In addition, we note that the judgments for attempted first degree murder and being

a felon in possession of a firearm denote that each offense is gang related. The amended

judgments for Counts 1-4 shall not reflect the gang enhancement, and the trial court shall

also modify the judgment for Count 5 to remove this notation.

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

trial court for Counts 1-14 are affirmed. The jury’s factual findings in Counts 15 and 16

relative to the Criminal Gang Offenses Statute are vacated, and these counts are dismissed.

The Defendant’s sentences in Counts 1-4 are modified as stated in this opinion. The

judgments in Counts 1-5 are modified to remove any notation that the offense is designated

as a gang offense.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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