State of Tennessee v. Kevin Anthony Dickson, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 30, 2011 Session

STATE OF TENNESSEE v. KEVIN ANTHONY DICKSON, JR.

Direct Appeal from the Circuit Court for Sevier County
No. 13010-II Richard R. Vance, Judge

No. E2010-01781-CCA-R3-CD - Filed June 14, 2012

The Defendant, Kevin Anthony Dickson, Jr., was found guilty by the Sevier County Circuit
Court of two counts of attempted first degree murder, a Class A felony, especially aggravated
burglary, a Class B felony, two counts of aggravated assault, a Class C felony, and attempted
aggravated robbery, a Class C felony. See T.C.A. §§ 39-13-202 (2010), 39-14-404 (2010),
39-13-102 (2006) (amended 2009, 2010, 2011), 39-13-402 (2010), 39-12-101 (2010). The
trial court merged one count of aggravated assault into an attempted first degree murder
conviction. The Defendant was sentenced as a Range I, standard offender to twenty-five
years for each attempted first degree murder conviction, twelve years for especially
aggravated burglary, and six years each for the aggravated assault and attempted aggravated
robbery convictions. The trial court ordered the attempted first degree murder convictions
to be served consecutively, for an effective sentence of fifty years. On appeal, the Defendant
contends that (1) the evidence is insufficient to support his attempted first degree murder
convictions, (2) his conviction for especially aggravated burglary is barred by Tennessee
Code Annotated section 39-14-404(d), and (3) the trial court erred by applying improper
sentencing enhancement factors and ordering partially consecutive sentences. We affirm the
judgments for the attempted first degree murder of Christopher Lyons, aggravated assault,
and attempted aggravated robbery. We reverse the judgments for the attempted first degree
murder of Rodney Hardin and especially aggravated burglary and remand the case for
sentencing and entry of judgments of conviction for attempted second degree murder and
aggravated burglary.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part and Reversed in Part; Case Remanded.

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., J., joined. J OHN E VERETT W ILLIAMS, J., filed a separate opinion concurring in part and
dissenting in part.
Rolfe A. Straussfogel, Sevierville, Tennessee, for the appellant, Kevin Anthony Dickson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
James Dunn, District Attorney General; and Emilee Abbott, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

This case relates to an altercation in which the Defendant and two other men forced
their way into the home of the victims, shot two of them, and beat a third with a metal baton.
At the bench trial, Rodney Hardin testified that he had never met the Defendant before the
incident on January 6, 2008. He went to the home of Christopher Lyons that night around
10:15 p.m. to place a bet on a football game. He remained in the home for a few minutes and
heard a knock on the door as he prepared to leave. He said that a group of men kicked open
the door as he attempted to open it and that he grabbed the first man who came through the
door. He said the man was armed with a baton and either brass knuckles or a knife. Mr.
Hardin was shot as he struggled with the intruder and fell to the floor. He said that the men
yelled, “[W]here’s the money, where’s the drugs,” as he lay on the floor and that the man
with the gun said he would fill Mr. Hardin “full of holes.” He said the men were in the home
for five or ten minutes before leaving.

Mr. Hardin testified that he was paralyzed as a result of the attack and that his spine
and nerves were cut “in half.” He was in the hospital for about three months and had to have
his spleen and a kidney removed. He said he was unable to continue working and no longer
could provide for his three children.

On cross-examination, Mr. Hardin agreed that he had not met the Defendant or the
other intruders before the attack. He agreed the incident occurred in a small cabin and said
about ten people were in the cabin at the time. He said that the door was kicked in as he
turned the door knob and that he briefly struggled with the first man through the door before
he heard two gunshots and fell to the floor. He was not sure what the men did next because
he was focused on his injury. He agreed that the man who threatened to shoot him again was
African-American and that he only saw two intruders.

Christopher Lyons testified that in January 2008, he lived in a small log cabin with his
twin brother, Anthony Lyons, Joanna Harris, Christopher Gossett, Mr. Gossett’s girlfriend,
and Dustin Patterson. He said that he met the Defendant a few weeks earlier and that he
“partied” with the Defendant and others on New Year’s Eve. He said Johnny Ramirez
accompanied the Defendant to the cabin on December 31, 2007. He said that the Defendant
had between “an eight ball or a quarter of an ounce” of cocaine that night, that he sold

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ecstacy pills to the Defendant on behalf of Mr. Gossett, and that both he and the Defendant
used the cocaine and ecstacy.

Christopher Lyons testified that on January 6, 2008, he heard a knock on his front
door but did not answer it because the person on the other side did not identify himself. He
said the Defendant pushed the door in when Mr. Hardin opened it to see who was outside.
He said that the Defendant was armed with a police baton and brass knuckles and that the
Defendant swung the baton at Mr. Hardin. He said he heard a gunshot after Mr. Hardin
grabbed the Defendant’s arms. He said that Mr. Hardin fell to the floor and that the
Defendant chased Anthony Lyons to the bathroom and struck him with the baton. He said
he saw Mr. Ramirez standing near the front door holding a gun and Jessie Davis and the
Defendant chasing after Anthony Lyons. He said Mr. Ramirez shot him as he attempted to
flee upstairs. He said that the Defendant and Mr. Davis demanded money and drugs and
yelled, “we’re going to kill you guys if you don’t tell us where it’s at . . . we’ve already shot
a couple of your boys, we’re going to kill you all . . . .” He said the Defendant and the other
men remained in the cabin for only a few minutes before leaving.

Christopher Lyons testified that the bullet struck his leg and “shattered” his femur.
He had a steel rod placed in his leg and screws placed in his knee and hip. He experienced
pain in his leg daily. He spoke with the police and provided a statement while in the hospital.

On cross-examination, Christopher Lyons agreed that people used drugs at his home
on New Year’s Eve and that he did not have additional contact with the Defendant until the
attack on January 6, 2008. He said Mr. Gossett sold cocaine to the Defendant on January 5
and agreed that Mr. Gossett sold drugs for a living and that Anthony Lyons facilitated the
transaction between Mr. Gossett and the Defendant.

Christopher Lyons agreed that he and the Defendant stood near Mr. Hardin when the
first shot was fired and that the Defendant ran by him and chased Anthony Lyons after Mr.
Hardin fell to the floor. He said that the Defendant did not have a gun and that Mr. Ramirez
pointed the gun at him and had a “blank” face before shooting him. He did not see Mr. Davis
holding a weapon. He agreed the death threats occurred after he and Mr. Hardin were shot.
He did not know if he told the police that the Defendant threatened to kill the persons in the
cabin or if he mentioned the threat during his testimony at the preliminary hearing. He said
that he could not see who yelled the threat but that he heard it. He did not know if the
Defendant or the other men took anything from the cabin because he was evicted and his
possessions were discarded while he was in the hospital. He agreed the entire altercation
lasted only a few minutes. He agreed he told the police that he thought the attack was due
to the Defendant’s being upset about the quality of the cocaine the Defendant bought from
Mr. Gossett the previous night.

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 Anthony Lyons testified that he lived in a cabin with his brother in January 2008. He
met the Defendant three or four times before the incident on January 6, 2008. He said that
he saw the Defendant at a bar on January 5 and that the Defendant asked to buy ecstacy. He
said the Defendant came to his home and purchased ecstacy and one-quarter of an ounce of
cocaine from Mr. Gossett. He said the Defendant and Mr. Gossett initially argued over the
weight of the cocaine but resolved the argument after Mr. Gossett agreed to charge fifty
dollars less. He did not see the Defendant again until the attack.

Anthony Lyons testified that on January 6, 2008, the Defendant burst through his front
door as Mr. Hardin began to open it. He said that the Defendant was armed with a police
baton and brass knuckles, that Mr. Hardin grabbed the Defendant’s arms, and that he heard
a gun shot. He said that he ran to the bathroom after seeing Mr. Hardin fall to the floor and
that the Defendant chased him and hit him in the head with the baton. He said that his wife
and Chris Bond were in the bathroom and that they attempted to close the door as the
Defendant continued to swing the baton. He said that the Defendant hit him with the baton
about fifteen times and that he feared for his life. He said that he heard the Defendant
demand money and state, “If they don’t come out they’re dead,” and that he heard another
man demand money and drugs. He and his wife escaped through the bathroom window and
hid in the woods. As he was hiding, he saw the Defendant, Mr. Ramirez, and a black male
run through the woods and drive away in a blue Subaru. He was treated at the hospital for
a cut on his head and contusions on his arms and legs.

On cross-examination, Anthony Lyons testified that he met the Defendant before the
New Year’s Eve party at his home. He said that the Defendant bought cocaine from Mr.
Gossett at about 2:00 a.m. on January 6, 2008, and that he did not see the Defendant again
until the incident that night. He agreed that the Defendant was not armed with a gun during
the attack and that he fell into the bathroom when the Defendant struck him in the head with
the baton. He said that he did not see the Defendant make threats but that he heard the
Defendant and recognized his voice. He agreed that he heard the Defendant state, “If they
don’t come out they’re dead.” He acknowledged his preliminary hearing testimony that he
thought Mr. Ramirez fired the gun because Mr. Ramirez was scared after seeing how many
people were present in the cabin. He agreed that the Defendant could have been shot “as
easily as anybody else” while the Defendant fought with Mr. Hardin. He said he did not
injure himself when he jumped out the window and fled the cabin. He did not know of
anything that was missing from the cabin after the attack.

Sevier County Sheriff’s Detective Matthew Cubberley testified that he investigated
the attack on January 6, 2008. He arrived at the victims’ home at 10:54 p.m. and spoke with
Anthony Lyons and Mr. Gossett, who identified the Defendant and told him where the
Defendant lived. Mr. Hardin and Christopher Lyons had already been taken to the hospital

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when he arrived. He said he took photographs of the cabin, spoke with witnesses, and
recovered .45 caliber shell casings from the cabin.

Detective Cubberley testified that he and other officers drove to the Defendant’s home
but did not find him there. He said he spoke with a person nearby who stated that he gave
the Defendant a .45 caliber gun. Detective Cubberley said the Defendant was arrested the
next day and taken to the Sevier County Sheriff’s Office. He said that the Defendant gave
a statement to Captain Jeff McCarter and Detective Jeff Manis but that he was not present
during the statement. He said that he spoke with Mr. Hardin and Christopher Lyons while
they were in the hospital and that each identified the Defendant as a person who was
involved with the attack. He did not recover any of the weapons used in the attack.

On cross-examination, Detective Cubberley testified that the Defendant did not resist
arrest. He said three .45 caliber shell casings were found at the cabin and agreed that the
casings were found on the porch and just inside the front door. He said that although he
spoke with Anthony Lyons at the scene, Mr. Lyons did not provide a written statement. He
agreed his investigation revealed that the attack was related to a drug transaction the previous
day and that Anthony Lyons was the primary target. He agreed witnesses described the
incident as “chaotic.” He agreed little blood was found on the victims’ clothing or in the
cabin but said neither victim had an exit wound. He agreed the police did not find the third
bullet that did not strike anyone. He agreed that the police originally thought the case against
the Defendant involved an aggravated assault but that the Defendant was charged with
attempted first degree murder after the police spoke with Mr. Davis. He agreed the police
did not determine if anything was taken from the cabin during the attack.

Sevier County Sheriff’s Captain Jeff McCarter testified that he investigated the
incident at the victims’ home. He said that he interviewed the Defendant on January 7, 2008,
and that he read the Defendant his Miranda rights and obtained a signed waiver of those
rights before the interview began. He said that the Defendant provided a lengthy statement
lasting one and one-half hours and that the statement was recorded. The recording was
played for the court.

On cross-examination, Captain McCarter agreed his investigation revealed that Mr.
Ramirez fired the gun that injured the victims. He said that Mr. Ramirez fled the state after
the attack but that the Defendant did not leave Sevier County.

Sevier County Sheriff’s Deputy Leslie Franklin testified that she was the first officer
to respond to the victims’ cabin on January 6, 2008. She said the scene was “hectic” and
people were screaming. She saw Mr. Hardin lying face down on the floor and gasping for
air, saw Christopher Lyons with a gunshot wound in his leg, and found Anthony Lyons lying

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on the ground outside the cabin. She said Anthony Lyons told her he had been beaten with
a baton. On cross-examination, Deputy Franklin testified that she did not have any contact
with any of the defendants.

Laura Patrick, a Wal-Mart employee, testified that the store sold .45 caliber bullets
to the Defendant on January 6, 2008. She identified the sales receipt and agreed the
ammunition was sold to the Defendant at 8:08 p.m.

Levi Morton testified that he was the intake officer at the jail for the sheriff’s
department. He said that during intake, the Defendant stated that “he wasn’t a snitch and that
the guy got what he deserved for selling him bad drugs and he didn’t care if he was paralyzed
or what happened to him.” He said that the Defendant volunteered the statement and that it
was not in response to any question posed to the Defendant. On cross-examination, Officer
Morton testified that immediately before the Defendant made the statement, the Defendant
was asked to identify a Hispanic man at the jail and confirm that the man was involved with
the attack. Officer Morton did not know any of the victims in this case.

The Defendant testified that he went to the victims’ cabin on January 6, 2008, to
retrieve his money from Anthony Lyons, who he thought sold him “fake dope.” He said that
he did not have a plan and that he brought Mr. Ramirez and Mr. Davis with him to prevent
his being “jumped” for asking drug dealers for a refund. He said he never discussed killing
or shooting anyone. He said that Mr. Ramirez had a gun and that Mr. Davis had an air pistol.
He said he borrowed the gun from a friend in exchange for ammunition the Defendant
promised to purchase for the friend. He said the gun was for protection.

The Defendant testified that he knocked on the door and identified himself in a low
voice after someone inside asked who was at the door. He said that he heard laughing inside
and someone say he would not open the door but that a man eventually opened the door. He
said that he yelled at Anthony Lyons to return the money and that Mr. Lyons “swung” at him
and he swung back “out of reaction.” He said that Mr. Hardin grabbed his arms, that he
struggled to free himself, and that he heard muffled gunshots. He said that Mr. Hardin
released him and that he chased Anthony Lyons to the bathroom. He said that he placed his
foot in front of the bathroom door to prevent it from being closed and that he swung the
baton at Anthony Lyons while Mr. Lyons kicked him in the stomach. He said he did not hit
Mr. Lyons with the brass knuckles. He said he stopped hitting Mr. Lyons, walked to the
middle of the cabin, and yelled, “I want my f------ money back.” He said that he went
upstairs to search for Mr. Gossett and that he passed Christopher Lyons, who was lying in
the fetal position on the staircase.

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 The Defendant testified he was not sure if anyone had been shot until he was arrested,
when the police told him that Mr. Hardin was paralyzed and that Christopher Lyons had been
shot in the leg. He said he did not fire the gun or see Mr. Ramirez point the gun at anyone.
He said Mr. Ramirez fled after the gun was fired. After the incident, he encountered Mr.
Ramirez near the Defendant’s car, and they drove away.

The Defendant agreed that he repeatedly mentioned in his statement to the police that
the altercation caused him to “snap.” He said that although he had reached that level of anger
previously and had been in fights, he never attempted to shoot anyone. He agreed he told the
police, “If I would have went over there by myself, I’ll be honest with you all, wouldn’t
nobody have been alive in that house.” He said that the statement was an exaggeration, that
he was upset when he spoke with the police, and that he really meant if he had gone by
himself he would have been scared about the possibility of being attacked. He said that he
did not discuss firing the gun with Mr. Ramirez or Mr. Davis but agreed he told the police
that “everybody said it was just supposed to be a shot in the air just to scare people . . . .” He
agreed he told the police that “these two dudes got f----- up. That is worth more than all the
money I lost.” He said that the statement was made out of anger and that he never intended
to kill anyone.

On cross-examination, the Defendant testified that he parked his car about fifty yards
away from the cabin. He said he gave the gun to Mr. Ramirez because he did not want to
have it in the event that he were in a fight. He said that he told Mr. Ramirez to hold the gun
for him but that he did not tell Mr. Ramirez to do anything with the gun. He said that Mr.
Ramirez and Mr. Davis suggested he get the gun and the air pistol and that it was not his
idea. He agreed he got the gun from a man named Matt about four hours before going to the
cabin. He said that the gun contained bullets when Matt gave it to him but that he had to buy
more bullets for Matt in order to borrow the gun. He agreed he did not tell the police that the
bullets he bought were for Matt and not for the gun on the night of the attack. He said the
gun was for protection in case the victims attempted to use a gun. He did not know what
happened to the gun after he left the cabin.

The Defendant testified that he went to the cabin to request a refund and that he held
the baton and brass knuckles in his pockets. He agreed the victims did not give him
permission to enter the cabin but said it was not required because they knew him and he had
previously been to the home. He denied pushing the door when Mr. Hardin opened it. He
admitted hitting Anthony Lyons with the baton three times near the front door but did not
know how many times he struck Mr. Lyons in the bathroom. He said he did not know who
was injured during the attack because everyone in the house was on the floor after Mr.
Ramirez fired the gun. He said he was upset and trying “to get stuff off [his] chest” when
he gave his statement to the police.

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 Upon this evidence, the trial court found the Defendant guilty of two counts of
attempted first degree murder, especially aggravated burglary, two counts of aggravated
assault, and attempted aggravated robbery. The court sentenced the Defendant to an effective
fifty-year sentence. This appeal followed.

I

The Defendant contends that the evidence is insufficient to support his convictions
for attempted first degree murder because it did not establish that he acted with
premeditation. He argues that premeditation was negated by evidence showing that he fired
no shots, that shots were not fired until a confrontation began, that he pursued only Anthony
Lyons and did not inflict life threatening injuries, and that his statement to the police was
emotional. The State contends that the evidence of premeditation was sufficient. We
conclude that the evidence is sufficient to support the Defendant’s conviction for the
attempted first degree murder of Christopher Lyons but is not sufficient to support the
conviction for the attempted first degree murder of Rodney Hardin.

Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh
the evidence but must presume that the trier of fact has resolved all conflicts in the testimony
and drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the trier of fact.
See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

First degree murder is the unlawful “premeditated and intentional killing of another.”
T.C.A. §§ 39-13-201, -202(a)(1) (2010). Premeditation is “an act done after the exercise of
reflection and judgment.” Id. 39-13-202(d). The intent to kill must be formed before the act
itself but it is not necessary that the purpose to kill pre-exist in the mind of the accused for
any definite period of time. Id. The existence of premeditation is a question for the trier of
fact and may be established by the circumstances surrounding the killing, including “the use
of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of an intent to kill; evidence of procurement of a weapon; preparations
before the killing for concealment of the crime, and calmness immediately after the killing.”
Bland, 958 S.W.2d at 660 (citing State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992);
State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).

A person commits criminal attempt who

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 acting with the kind of culpability otherwise required for the
offense:

(1) Intentionally engages in action or causes a result that would
constitute an offense, if the circumstances surrounding the
conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without
further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a
result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and
the conduct constitutes a substantial step toward the commission
of the offense.

T.C.A. § 39-12-101(a)(1)-(3) (2010). A person acts knowingly with respect to the result of
his conduct when he is aware that his conduct is reasonably certain to cause the result. Id.
§ 39-11-106(a)(20).

Taken in the light most favorable to the State, the record reflects that early on the
morning before the attack, the Defendant went to the home of Anthony Lyons and purchased
ecstacy and one-quarter of an ounce of cocaine from Mr. Gossett. The Defendant became
upset after concluding that the substance was not cocaine. Later that day, the Defendant
armed himself with brass knuckles and a baton. The Defendant borrowed a .45 caliber pistol
from a friend about four hours before the attacks and bought .45 caliber bullets at 8:08 p.m.
The police found three .45 caliber shell casings at the cabin. The Defendant asked Mr.
Ramirez and Mr. Davis to accompany him to the victims’ cabin and armed Mr. Ramirez with
the .45 caliber pistol and Mr. Davis with an air pistol. Although the Defendant testified at
the trial that he did not discuss firing the gun with Mr. Ramirez or Mr. Davis, in his statement
to the police he stated that he told Mr. Ramirez to “shoot in the air so they know we are
serious . . . everybody said it was just supposed to be a shot in the air just to scare people man
and it went wrong.”

Mr. Hardin testified that at around 10:15 p.m., a group of men kicked open the door
to the cabin. He said he grabbed the first man who came through the door, the Defendant.
Mr. Hardin was shot in the spine shortly after he grabbed the Defendant’s arms. Christopher
Lyons testified that Mr. Hardin fell to the floor and that the Defendant chased Anthony Lyons
to the bathroom and struck him with the baton. Christopher Lyons saw Mr. Ramirez standing

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near the front door holding a gun, and Mr. Ramirez shot Mr. Lyons as he attempted to flee
upstairs. Mr. Lyons said the Defendant and Mr. Davis demanded money and drugs and
yelled, “we’re going to kill you guys if you don’t tell us where it’s at . . . we’ve already shot
a couple of your boys, we’re going to kill you all . . . .” Anthony Lyons testified that he ran
to the bathroom after seeing Mr. Hardin fall to the floor and that the Defendant chased him
and hit him in the head with a metal baton. He said that the Defendant hit him with the baton
about fifteen times and that he feared for his life. He said that he heard the Defendant
demand money and state, “if they don’t come out they’re dead.”

After the Defendant was arrested, an intake officer at the jail heard the Defendant state
that “the guy got what he deserved for selling him bad drugs and he didn’t care if he was
paralyzed or what happened to him.” The Defendant agreed he told the police that “these
two dudes got f----- up. That is worth more than all the money I lost.” He agreed he told the
police that everyone in the cabin would have died if he had gone to the cabin alone, but he
said the statement was an exaggeration.

The Defendant claims that premeditation is negated by evidence showing that he did
not fire the shots, the shots were fired only after a confrontation began, that he pursued only
Anthony Lyons and did not inflict life threatening injuries, and that his statement to the
police was emotional. We disagree. Premeditation was a question of fact to be resolved by
the trier of fact and could be established by the circumstances surrounding the killing. See
Bland, 958 S.W.2d at 660. The Defendant spent hours preparing for his return to the cabin
before the attack occurred, including obtaining deadly weapons, ammunition, and seeking
out the help of Mr. Ramirez and Mr. Davis. Mr. Ramirez and the Defendant used deadly
weapons on unarmed victims. The Defendant threaten to kill everyone in the cabin if he did
not receive money. Although the Defendant did not fire the gun and only attacked Anthony
Lyons, the Defendant was criminally responsible for the shootings because he sought out Mr.
Ramirez’s assistance and armed Mr. Ramirez with a gun before going to the cabin. See
T.C.A. § 39-11-402 (2010) (A person is criminally responsible for an offense committed by
another if “[a]cting with intent to promote or assist the commission of the offense, or to
benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts
to aid another person to commit the offense.”). The Defendant’s giving an emotional
statement to the police the day after the crimes does not establish his state of mind before and
during the shootings. We conclude that a rational trier of fact could have found beyond a
reasonable doubt that the Defendant acted with premeditation.

Although we conclude that the evidence was sufficient to establish that the Defendant
acted with premeditation, this does not end our inquiry. As noted above, the Defendant was
found to be criminally responsible for the actions of the shooter, Mr. Ramirez. See T.C.A.

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§ 39-11-402. In applying the provisions of Tennessee Code Annotated section 39-11-402,
our supreme court has stated that

In order to aid and abet another to commit a crime, it is
necessary that [the] accused in some sort associate himself with
the venture, act with knowledge that an offense is to be
committed, and share in the criminal intent of the principal in
the first degree; the same criminal intent must exist in the minds
of both.

State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997). As a result, to convict the Defendant
of attempted first degree premeditated murder, the evidence at the trial had to establish that
Mr. Ramirez acted with premeditation when shooting the victims.

The record reflects that Mr. Hardin grabbed the Defendant as soon as the door opened
and that Mr. Ramirez immediately shot Mr. Hardin. Although Mr. Ramirez used a deadly
weapon on Mr. Hardin and failed to render aid to him, such circumstances are not sufficient
under the facts of this case to establish beyond a reasonable doubt that Mr. Ramirez shot Mr.
Hardin after the exercise of reflection and judgment. Mr. Ramirez did not testify at the trial,
and there is no evidence showing that he said anything at the scene or to the police that
would indicate he acted with premeditation. Anthony Lyons acknowledged that he testified
at a preliminary hearing that he thought Mr. Ramirez fired the gun because Mr. Ramirez was
scared after seeing how many people were present in the cabin. There is no evidence that
Mr. Ramirez assisted the Defendant in planning the Defendant’s return to the cabin, other
than suggesting the Defendant obtain a gun. There is likewise no evidence that Mr. Ramirez
asked to hold the Defendant’s gun or that Mr. Ramirez indicated he intended to shoot anyone.
Despite the evidence being insufficient to establish premeditation with respect to Mr. Hardin,
we conclude that the evidence was sufficient to establish an attempted second degree murder.
See T.C.A. § 39-13-210 (Second degree murder is a “knowing killing of another.”).

We also conclude that the evidence is sufficient to allow a rational trier of fact to find
that Mr. Ramirez shot Christopher Lyons after the exercise of reflection and judgment. As
noted above, the intent to kill must be formed before the act itself but it is not necessary that
the purpose to kill pre-exist in the mind of the accused for any definite period of time.
T.C.A. § 39-13-202(d). The record reflects that after shooting Mr. Hardin, Mr. Ramirez
turned his attention to Mr. Lyons and shot Mr. Lyons as he attempted to flee, a circumstance
permitting an inference of premeditation. See State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim.
App. 2000) (“Some facts which may be indicative of the existence of premeditation include
. . . the shooting of the victim after he had turned to retreat or escape.”). Mr. Lyons testified
that he heard a gunshot and saw Mr. Hardin fall to the floor. He said that he saw Mr.

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Ramirez standing in the doorway as the Defendant chased Anthony Lyons to the bathroom
and that Mr. Ramirez shot him as he attempted to flee upstairs. Although the time frame
during which the victims were shot was short, the record reflects that Mr. Ramirez singled
out a fleeing victim before firing his second shot.

We conclude that the evidence was sufficient to support the Defendant’s conviction
for the attempted first degree murder of Mr. Lyons. However, because the evidence was not
sufficient to support the conviction with respect to Mr. Hardin, we reverse that conviction
and remand to the trial court for sentencing and the entry of a judgment of conviction for
attempted second degree murder.

II

The Defendant contends that his conviction for especially aggravated burglary is
prohibited under Tennessee Code Annotated section 39-14-404(d). The State concedes that
this conviction was improper. We agree.

Tennessee Code Annotated section 39-14-404(d) states that “[a]cts which constitute
an offense under this section may be prosecuted under this section or any other applicable
section, but not both.” T.C.A. § 39-14-404(d). “Subsection (d) prohibits using the same act
to prosecute for especially aggravated burglary and another offense.” State v. Holland, 860
S.W.2d 53, 60 (Tenn. Crim. App. 1993); see also State v. Jehiel Fields, No.
03C01-9607-CC-00261, Bradley County (Tenn. Crim. App. Mar. 18, 1997) (holding that
Tennessee Code Annotated section 39-14-404(d) precluded simultaneous convictions for
especially aggravated burglary and first degree murder). The appropriate remedy for
improper simultaneous convictions under Tennessee Code Annotated section 39-14-404(d)
and other applicable sections is to modify the especially aggravated burglary conviction to
aggravated burglary. See id.

Here, the effect of Tennessee Code Annotated section 39-14-404(d) is that the
Defendant could not be simultaneously convicted of especially aggravated burglary and
attempted first degree murder when the act of attempting to kill the victims constituted the
“serious bodily injury” that was used to enhance the burglary offense to especially aggravated
burglary. Accordingly, the Defendant’s conviction for especially aggravated burglary must
be modified to aggravated burglary, and we remand for sentencing on the aggravated
burglary conviction.

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 III

The Defendant contends that the trial court erred by applying improper sentencing
enhancement factors and ordering partially consecutive sentences. The State contends that
the trial court properly sentenced the Defendant after considering all relevant factors.

Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

However, “‘the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

In imposing a sentence within the appropriate range of punishment for the defendant:

[T]he court shall consider, but is not bound by, the
following advisory sentencing guidelines:

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 (1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and

(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).

The determination of concurrent or consecutive sentences is a matter left to the
discretion of the trial court and should not be disturbed on appeal absent an abuse of
discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which
states in pertinent part that the court may order sentences to run consecutively if it finds by
a preponderance of the evidence that:

(2) The defendant is an offender whose record of criminal
activity is extensive; [or]
...
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;

Only one criterion is needed to support the propriety of consecutive sentences. See State v.
Mickens, 123 S.W.3d 355, 394 (Tenn. Crim. App. 2003). If the trial court finds that the
defendant is a “dangerous offender” pursuant to Tennessee Code Annotated section
40-35-115(b)(4), the court must also determine that “an extended sentence is necessary to
protect the public against further criminal conduct by the defendant and that the consecutive
sentences must reasonably relate to the severity of the offenses committed.” State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). “[T]hese two ‘limitations’ go beyond the
definition of a dangerous offender and channel the types of aggravating circumstances that

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are required in order to impose consecutive sentences.” State v. Tadaryl Darnell Shipp, No.
03C01-9907-CR-00312, Knox County, slip op. at 3 (Tenn. Crim. App. Mar. 21, 2000).

At the sentencing hearing, Rodney Hardin testified that before the attack, he was
independent and worked as an electrician to support his three children. He said that after
being shot, he had to depend on others, was unable to work or play sports with his children,
and experienced constant pain. He did not know if he would be able to walk again. He said
his medical bills exceeded $300,000. On cross-examination, Mr. Hardin agreed that he had
never met the Defendant before the attack.

Christopher Lyons testified that before the attack, he was in good physical health and
spent long periods of time on his feet while working as a bartender and waiter. He said that
he was not able to support weight on his injured leg and that he experienced constant pain.
He said that he was unable to continue his job as a waiter and that his medical bills exceeded
$10,000. He said stress from the injury and memories of the attack made it hard for him to
sleep. On cross-examination, Christopher Lyons testified that he no longer had to attend
physical therapy for his leg but that he was still under a doctor’s care.

Anthony Lyons testified that the Defendant hit him in the head and body with a metal
baton during the attack, causing many contusions. He said that he experienced depression
and anxiety after the attack and that he no longer slept well. He said his medical bills were
about $2,000. On cross-examination, Anthony Lyons testified that after leaving the hospital,
he did not see a doctor for his physical injuries but that he saw a psychiatrist about the mental
trauma caused by the attack.

Laurisa Dugger testified for the defense that she was engaged to the Defendant. She
said that she had known the Defendant for about nine years and that they had a child together.
She said that the Defendant was not a violent person and that he worked two jobs to support
her. She said it was difficult to support her family without the Defendant’s help. On cross-
examination, Ms. Dugger agreed that the Defendant’s actions were the reason he could not
be with his family.

Susan Dugger-McCarrge testified that she was Ms. Dugger’s aunt and that she had
known the Defendant for over eight years. She said the Defendant was a “phenomenal”
person and that he made a very bad mistake. She had never seen the Defendant act violently.
She said she could help the Defendant find employment when he was released.

The Defendant testified that what he did to the victims was wrong. He said that he
did not intend for anyone to get shot and that he should have handled the situation differently.
He apologized to the victims. He said he would never use drugs again.

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 On cross-examination, the Defendant agreed that he gave Mr. Ramirez the gun used
to shoot the victims. He said he did not tell Officer Morton that the victims “got what they
deserved” or that he did not care if Mr. Hardin was paralyzed. He said he told Officer
Morton that it was not his fault if Mr. Hardin was paralyzed. He agreed he told the police
that the victims’ being shot was worth more than the money he lost but said he was upset
when he spoke with the police and did not mean what he said. He agreed he told the police
that if he had brought the gun into the house, everyone would have been dead but said he
made the statement out of anger.

The Defendant agreed he had prior felony convictions and said he was convicted for
possessing counterfeit money, cashing counterfeit checks, and delivering and manufacturing
marijuana. He estimated that he had been arrested eight times. He agreed he was convicted
of driving with a suspended license and possession of brass knuckles. He agreed that he
bought the brass knuckles that were used in this case after his previous set was confiscated.
He denied regularly carrying brass knuckles and said that he only had them for protection and
that he bought the brass knuckles and the baton on the day of the attack. He agreed he asked
other persons to accompany him to the victims’ cabin in addition to Mr. Ramirez and Mr.
Davis.

On redirect examination, the Defendant agreed that his statement to the police was
emotional and that he told the police he was sorry for what happened. He said he voluntarily
spoke with the police because he thought he was doing the right thing. He said he was a
different person than he was at the time of these crimes.

The trial court found that the following enhancement factors applied pursuant to
Tennessee Code Annotated section 40-35-114 (2010): (1) the Defendant had a previous
history of criminal convictions; (2) the Defendant was the leader in the commission of an
offense that involved two or more criminal actors; (6) the personal injuries inflicted upon the
victims were particularly great; and (9) the Defendant possessed a deadly weapon during the
commission of the offense. The trial court applied each factor to the attempted first degree
murder convictions, factors (1) and (2) to the aggravated assault conviction and the attempted
aggravated robbery conviction, and factors (1), (2), and (9) for the especially aggravated
burglary conviction. The court found that mitigating factor (13) applied because the
Defendant was remorseful and apologetic. See T.C.A. § 40-35-113 (2010). The court
applied factor (13) to each conviction but found that the enhancement factors greatly
outweighed the mitigation factor for each conviction.

In determining that consecutive sentences were appropriate, the trial court found that
the Defendant had an extensive record of criminal activity and that the Defendant was a
dangerous offender whose behavior indicated little or no regard for human life and no

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hesitation about committing a crime in which the risk to human life is high. See T.C.A. §§
40-35-115(b)(2), -115(b)(4) (2010).

With regard to enhancement factors, the Defendant argues that the record did not
support factor (1) and that factor (6) was inapplicable to the attempted first degree murder
convictions because the risk of great injury is inherent in that offense. He concedes that
enhancement factors (2) and (9) were appropriate.

The trial court found that factor (1) was applicable because the Defendant had
numerous misdemeanor convictions and a felony conviction. The record reflects that after
the Defendant’s eighteenth birthday, he obtained a felony conviction for possessing
counterfeit “bank-municipal bills,” eight misdemeanor convictions for traffic offenses, and
one misdemeanor conviction for possessing a prohibited weapon. We hold that the trial court
did not err by finding factor (1) applicable to the Defendant’s convictions.

With regard to factor (6), the trial court noted that the personal injuries inflicted upon
the victims were particularly great because Mr. Hardin was paralyzed and Mr. Lyons suffered
daily pain in his leg. The Defendant argues that this factor is inapplicable to any offense
where serious bodily injury is inherent in the offense. Although the risk of serious injury
may be inherent in an attempted first degree murder, an actual injury is not an element of that
offense. Enhancement factor (6) is predicated on the victim’s suffering great injury. Here,
Mr. Hardin and Christopher Lyons each suffered from gunshot wounds that can affect their
mobility for the rest of their lives. We hold that the trial court did not err by finding factor
(6) applicable to the Defendant’s attempted first degree murder convictions.

With regard to consecutive sentences, the Defendant argues that the record did not
support a finding that he had an extensive criminal record and that the trial court failed to
make the required findings to support its determination that he was a dangerous offender.
When determining if sentences should run consecutively, “trial courts are not limited to
considering the defendant’s criminal activity or conduct that occurred after the defendant’s
eighteenth birthday.” State v. Banks, 271 S.W.3d 90, 147 (Tenn. 2008). The record reflects
that in addition to his one felony conviction and nine misdemeanor convictions that were
obtained after the Defendant’s eighteenth birthday, he also was convicted of felony
delivering and manufacturing marijuana and felony uttering and publishing when he was
seventeen. We hold that the trial court did not err in finding that the Defendant had an
extensive record of criminal activity. See State v. Koffman, 207 S.W.3d 309, 324 (Tenn.
Crim. App. 2006) (holding that the trial court did not err by finding that a defendant with
three prior felony convictions, four prior misdemeanor convictions, and a history of illegal
drug use had a record of extensive criminal activity); State v. Michael D. Wright, No.
M2001-00793-CCA-R3-CD, Williamson County (Tenn. Crim. App. Feb. 14, 2002) (holding

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that the trial court did not err by finding that a defendant with two prior felony convictions
and seven prior misdemeanor convictions had a record of extensive criminal activity), perm.
app. denied (Tenn. June 24, 2002). This factor alone supports the trial court’s imposition of
consecutive sentencing. See Mickens, 123 S.W.3d at 394.

With regard to the trial court’s finding that the Defendant was a dangerous offender,
the trial court stated that the offenses were “terrible” and that

Mr. Dickson and the accomplices came to this home armed with
firearms, brass knuckles, a pellet pistol . . . [and] the baton.
After the initial confrontation of shots being fired Mr. Dickson
continued to assault Mr. Anthony Lyons with the club. The use
of these weapons, the conduct clearly shows dangerous behavior
and would justify the running sentences consecutive in this case
. . . . the aggregate sentence would reflect the seriousness of
these offenses and protect the community . . . .”

Although the trial court noted when considering the Defendant’s criminal history that the
Defendant’s previous conviction for carrying brass knuckles indicated he had a “propensity
toward use of deadly weapons or dangerous weapons,” the trial court did not find that an
extended sentence was necessary to protect the public against further criminal conduct by the
Defendant. However, the Defendant’s record of criminal activity supported the trial court’s
imposition of consecutive sentencing. The Defendant is not entitled to relief.

In consideration of the foregoing and the record as a whole, we affirm the judgments
for the attempted first degree murder of Christopher Lyons, aggravated assault, and
attempted aggravated robbery. We reverse the judgments for the attempted first degree
murder of Rodney Hardin and especially aggravated burglary and remand the case for
sentencing and entry of judgments of conviction for attempted second degree murder and
aggravated burglary.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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