State of Tennessee v. Anthony Humphrey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 1, 2002

STATE OF TENNESSEE v. ANTHONY HUMPHREY

Direct Appeal from the Criminal Court for Shelby County
Nos. 97-01305, 06, 07, 08 Arthur T. Bennett, Judge

No. W2002-00195-CCA-R3-CD - Filed May 16, 2003

The defendant was convicted of voluntary manslaughter, attempted voluntary manslaughter,
attempted aggravated robbery, and attempted especially aggravated robbery. He was sentenced to
six years for the voluntary manslaughter conviction, four years for the attempted voluntary
manslaughter conviction, six years for the attempted aggravated robbery conviction, and twelve years
for the attempted especially aggravated robbery conviction. The attempted voluntary manslaughter
conviction was ordered concurrent with the other three convictions which were ordered consecutive
to one another, for an effective sentence of twenty-four years. On appeal, the defendant raises three
issues for our review: (1) whether the evidence was sufficient to support his convictions; (2)
whether the trial court committed plain error by allowing testimony concerning his gang affiliations;
and (3) whether the trial court appropriately sentenced the defendant. Following our review, we
affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

Marty B. McAfee (on appeal) and Coleman W. Garrett (at trial), Memphis, Tennessee; Leon G.
Scroggins, Granite City, Illinois (at trial); and Jonathan Goldberg, Atlanta, Georgia (at trial), for the
appellant, Anthony Humphrey.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lee V. Coffee, Assistant District Attorney
General, for the appellee, State of Tennessee.
 OPINION

FACTS

This appeal resulted from an attempted robbery that occurred on the night of August 16,
1996, at the Andrew Jackson Apartments in Memphis, in which one victim was killed and another
was wounded.

Kevin Helms testified that, on August 16, 1996, Christopher Howard asked to borrow $400,
saying that he was on the verge of being evicted from his apartment.1 Helms did not have the money
to make the loan, so Howard returned to his apartment. Howard came back out with a backpack and
left on foot. A half-hour to an hour later, Howard returned to his apartment with “six Mexicans.”
With Rob Fulford present, Helms again spoke with Howard later that night and learned of Howard’s
plan to sell some guns to the Mexican men to get the $400 that he needed. At some point in the
conversation:

[S]omebody came up with the idea– Chris [Howard] was going to sell
the guns, and they said why you going to sell some guns when you
could just take them. They ain’t nobody but some Mexicans. They
could take the guns. He could sell them and then could go around
and take them right back, just get the money.

According to Helms, the “somebody” who came up with the idea to take the guns back and keep the
money was Fulford.

Helms testified that the group, because they were “amateurs” in the ways of armed robbery,
discussed enlisting the defendant’s participation because “he had did [sic] something like that
before.” Helms knew the defendant “from around the neighborhood,” but they were not closely
acquainted. The defendant arrived on the scene and expressed his desire to participate, resulting in
an argument with Fulford as to who would use the .38 and who would use the nine-millimeter in the
execution of their plan. According to Helms, this controversy was resolved by the defendant’s using
the .38 and Fulford using the nine-millimeter. Apparently, Howard had five guns in a backpack with
three to be sold, the defendant and his codefendants then using their two remaining pistols to rob the
victims of the three pistols just sold to them. A plan was devised whereby Howard was to go to the
victims and initiate the sale of the guns, while the defendant and Fulford watched from behind a
fence for Howard to put his backpack over his shoulder as this was the cue for them “to go through
the fence and go over there and rob the Mexicans.” However, according to Helms, as Howard was
talking to the victims, the defendant and Fulford grew impatient, went through a hole in the fence,
and proceeded toward the victims. The victims, seeing two men masked with bandanas, started
running. As Helms described, “It was like chaos. Everybody just started running,” and the
defendant and Fulford started shooting. Helms elaborated:

1
Both Helms an d Ho ward were codefendants.

-2-
 I don’t think [Fulford] was trying to shoot nobody, but he was just
shooting real wild in the air like that. I guess he was trying to scare
them or something. He was just shooting in the air. Well, I ain’t
going to say in the air, but he wasn’t shooting like aiming at
somebody like that. He was just shooting, you know.

....

[The defendant] was doing the same thing, you know. He was just
shooting[.]

Julian Becerarra Pereida, the victim in the voluntary manslaughter and attempted especially
aggravated robbery, did not run but stood in front of the defendant with his hands raised. The
defendant pointed his gun at the unarmed victim, who did not say a word. After this brief standoff,
the victim turned and ran, at which point the defendant shot twice, the first shot hitting the victim
in the chest. The defendant, Fulford, and Helms, who maintained that he was an observer rather than
a participant, fled to Howard’s apartment. Helms testified that, about an hour after the shooting, he
asked the defendant why he shot the victim and his only response was, “I don’t give a fuck.”

Christopher Howard testified that he was outside his apartment with the defendant, Kevin
Helms, and Rob Fulford on August 16, 1996. He explained that the others knew of his plan to sell
some guns that evening, which he sometimes did after taking guns as payment for drugs. According
to his testimony, however, he had no plan or agreement with the defendant or Fulford to rob the
victims after the sale. With the guns in his backpack, he approached the victims by himself in order
to negotiate a price when the following occurred:

[W]e were talking – they started running, and as I looked, you know,
I heard shots, and when I heard shots, I looked and out of my
peripheral vision – cause I started running too because I heard shots.
I was running with the Mexicans, and I seen three guys come around
the corner with bandanas on . . . and they just started shooting, and
they started running, and I started running.

....

[W]hen I heard the gunshot and I started running . . . I see somebody
that look just like [Fulford], but he had, you know, the physical
stature – he had something around his face, but [Fulford] is dark
skinned and he’s short, and I seen fire coming out of a gun, and I seen
[the defendant].

Howard ran straight to his apartment, went inside, and locked the door.

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 Howard testified that he was walking his dog the next day when the defendant approached
him and said, “[Y]ou know if you say anything to the police, the folk going to get you and your
wife.” Howard interpreted that as a threat and, when he was arrested the next day in relation to the
shooting, he told the police that he did not know anything about the incident because he “was afraid
of [what] all his associates and him . . . might do to his wife.” Howard next saw the defendant in
jail:

[W]hen we first was locked up and we was [sic] downstairs and in the
holding tank, I was just sitting back disgusted, and he was just sitting
there bragging about it to some guys in the holding tank.

....

[H]e was like, “Yeah, I blowed that Mexican’s ass off.”

....

He was just like it wasn’t nothing, you know what I’m saying . . . it
wasn’t nothing.

Tanilado Gonsales Rodriguez,2 the victim in the attempted voluntary manslaughter and
attempted aggravated robbery convictions, testified as to the events the night of August 16, 1996.
Through an interpreter, he said that he, Julian Pereida, Ciro Rodriguez, and Erasmo Rodriguez were
drinking “[j]ust a little” beer outside their apartment at the Andrew Jackson Apartments. Sometime
after dark, a black man approached, offering to sell two or three pistols. Because Tanilado
Rodriguez did not speak English, Ciro Rodriguez dealt with the man to arrange a sale. He had $500
with which he was going to pay for the guns. Later that night, the man with the guns returned and
the sales discussions, which the witness could not understand, continued. Although Tanilado
Rodriguez and his friends wanted to conduct the transaction upstairs, the seller insisted that it occur
outside. The witness said, “[A]ll of a sudden I saw them running. And I ran myself, and then after
that . . . there were some shots.” As he was running, the witness was shot in the back of his leg.
Although he did not see who fired the shots, he did see that Julian Pereida had also been shot. He
said that neither he nor his friends had guns or had threatened anyone.

Ciro Rodriguez testified that he and his friends were drinking outside their apartment on the
night of August 16, 1996, when they were approached by a black man offering to sell three guns for
$500, apparently identifying the seller as Christopher Howard.3 Tanilado Rodriguez showed the

2
The witness testified that his “re al name” is Jo se Remed os Fe rnand ez and that he goes by Re med os. However,
because he is identified throughout the record as Tanilado Gonsales Rodriguez, we will utilize that name.

3
The reco rd is not entirely clear as to whether the witness identified Christopher Howard or Kevin Helms as
the man selling the guns. With both men in front of him, he identified the man “who tried to sell us the guns” only as
(continued...)

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seller $500 and the seller left, returning a half-hour later, followed by some other men with bandanas
covering their faces. Ciro Rodriguez first saw Erasmo Rodriguez run past him, prompting him to
run and, while he was fleeing, he heard shots fired. He did not see the shooter, and neither he nor
his friends had guns or had threatened anyone.

Erasmo Rodriguez, also testifying through an interpreter, said that a man, identified as
Christopher Howard, approached him and his friends about buying some guns around 10:30 p.m. on
August 16, 1996. The man showed them three guns and Tanilado Rodriguez showed him $500, at
which point the man said he was going to go talk to a friend and would return in thirty minutes.
When he returned, his face was covered and another man was with him. This sight caused
Rodriguez to run, and a shot was fired. He testified that he did not see who did the actual shooting
and that neither he nor his friends had guns or had threatened anyone. When detectives were talking
to Erasmo Rodriguez the next day at the Andrew Jackson Apartments, Rodriguez saw the man who
had tried to sell him guns the previous night and informed the detectives.

Julio Cesar4 testified, through an interpreter, that he was the son of Julian Pereida. He said
that his father had come to Memphis in January 1996 and found work in construction. He was
thirteen years old at the time of his father’s murder and “didn’t see anything . . . just saw his
[father’s] corpse.”

Officer Thomas Tilton of the Memphis Police Department testified that, on August 16, 1996,
around 10:30 p.m., he received “a shooting call with one down and another one wounded on the
scene” at the Andrew Jackson Apartments. As the first officer to arrive at the scene, Officer Tilton
“found one male Hispanic laying on the ground and checked him immediately. He was dead, and
then there was a second male Hispanic who was holding his leg with a shirt or a towel or something
wrapped around it that had been shot and a whole bunch of other people standing around.”
Describing the condition of the victims, Tilton continued:

[O]ne bullet had entered . . . his chest, and . . . one bullet had entered
into his arm. There was a large amount of blood on him, a large
amount of blood on the ground as well as on the sidewalk . . . and
then the second male Hispanic he had a lot of blood coming down to
his leg.”

Officer Tilton “[g]ot a description of three male black subjects that were supposed to be responsible
for the shooting and attempt (sic) robbery.”

3
(...continued)
“the one that’s wearing glasses.” T he identification is clarified w hen, as betwe en H oward and H elms, the former is
described as “the short person with the glasses.”

4
The witness testified that his “com plete and full name” is Julian D e Saris of Sau ceda, but that he is called Julio
Cesa r, and he is identified as su ch in the record.

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 Shelby County Medical Examiner Dr. O’Brian Cleary Smith testified that Julian Pereida’s
cause of death was “due to a gunshot wound to the chest with heart injury and massive internal
bleeding.” The victim also had a gunshot wound on his right arm. Because no bullets or fragments
were recovered from the body, the type of gun used was undeterminable.

Lieutenant Ottis Stewart of the Memphis Police Department testified that the defendant
voluntarily came to the police station on August 20, 1996, saying he had heard that the police wanted
to speak with him. The defendant was read, and subsequently waived, his Miranda rights, denying
any involvement in the shooting. He said that he “was at home all day with [his] girl . . . sitting and
drinking and smoking marijuana and getting high” when he heard the gunshots outside the
apartment. He said that he did not own a gun.

Captain Charles Logan of the Memphis Police Department testified that he took a second
statement from the defendant later that same day. The defendant was again read his Miranda rights,
which he again waived. In his second statement, the defendant said that he had been involved in the
robbery at the Andrew Jackson Apartments, along with “Chris, Rob, and Kevin,” each of whom had
weapons. He said he was armed with a .22 revolver but never fired any shots and was “in shock”
when Chris and Rob fired their guns, even though he had been aware of the plan to rob the victims
and “was looking for some money,” but “didn’t get any.”

Lena Jones, the defendant’s second cousin, testified as the first defense witness, saying that
police officers had come to her apartment and that of the defendant’s mother, as they were searching
for the defendant. The officers told Jones that “they was [sic] looking for [the defendant] and
wherever they saw him, they was [sic] going to shoot him on the spot.” The defendant’s mother,
Kathleen Jackson, testified she told the defendant that he should turn himself in to the police because
“the police would shoot him on the scene.”

The defendant testified that he was playing dice at a friend’s apartment on August 16, 1996,
when Chris Howard and Kevin Helms approached him about selling guns to some Mexican men.
After he finished shooting dice, and as he was walking to his mother’s residence in the Andrew
Jackson Apartments, he heard gunshots and saw Chris Howard, Kevin Helms, and Rob Fulford
running from the area of the shooting. He, too, began running and, in the process, threw down the
.22 revolver he had been carrying. He said that, when he signed the waiver of rights form at the
police department, he did not know what it meant and asked for a lawyer but was told by the police,
“we don’t do that.” He said his first statement was truthful, that he had been with his girlfriend,
Adrian Hall, when they heard the shots fired. His second statement, that he had been involved in the
robbery, was false, but the officers said they would let him go if he made this statement.

ANALYSIS

I. Sufficiency of the Evidence

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 The defendant argues that the evidence was insufficient to support his convictions for
voluntary manslaughter, attempted voluntary manslaughter, attempted aggravated robbery, and
attempted especially aggravated robbery because the State’s primary witnesses were his codefendants
and the testimony was “conflicting and inconsistent.”

In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

This well-settled rule rests on a sound foundation. The trial
judge and the jury see the witnesses face to face, hear their testimony
and observe their demeanor on the stand. Thus the trial judge and
jury are the primary instrumentality of justice to determine the weight
and credibility to be given to the testimony of witnesses. In the trial
forum alone is there human atmosphere and the totality of the
evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

As the defendant points out, his codefendants were the only witnesses at trial who identified
him as being involved in the shooting, and a defendant cannot be convicted on the uncorroborated
testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), explains this
principle:

“[T]here must be some fact testified to, entirely independent of the
accomplice's testimony, which, taken by itself, leads to the inference,
not only that a crime has been committed, but also that the defendant
is implicated in it; and this independent corroborative testimony must

-7-
 also include some fact establishing the defendant's identity. This
corroborative evidence may be direct or entirely circumstantial, and
it need not be adequate, in and of itself, to support a conviction; it is
sufficient to meet the requirements of the rule if it fairly and
legitimately tends to connect the defendant with the commission of
the crime charged. It is not necessary that the corroboration extend
to every part of the accomplice's evidence. The corroboration need
not be conclusive, but it is sufficient if this evidence, of itself, tends
to connect the defendant with the commission of the offense,
although the evidence is slight and entitled, when standing alone, to
but little consideration.”

Id. (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992).

Here, sufficient evidence exists within the record from which a rational trier of fact could
conclude that the defendant was guilty of voluntary manslaughter, attempted voluntary manslaughter,
attempted aggravated robbery, and attempted especially aggravated robbery. Two victims identified
Chris Howard as the person who initiated the gun sale, and Howard testified that the defendant was
one of the two men who ambushed the victims. He further testified that, while the two were
incarcerated together, the defendant boasted, “I blowed that Mexican’s ass off.” Additionally, Kevin
Helms testified that it was the defendant who fired the fatal shots. Although the defendant first gave
a statement in which he denied any involvement in the crime, he later admitted that he was armed
with a .22 pistol and intended to share in the robbery proceeds, although denying he participated in
the robbery. At trial, he again denied involvement although he gave a different version of the facts
than that in his first statement. Inconsistent statements following the event indicate a “consciousness
of guilt from which the jury could infer unlawful conduct.” Hackney v. State, 551 S.W.2d 335, 339
(Tenn. Crim. App. 1977); see State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001) (defendant admitted
he was at crime scene, knew “one of the participants was armed and intended to steal a car,” and
another witness said he threatened her and her family if she testified); State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001) (in possession of cocaine with intent to deliver case, defendant was driving car in
which cocaine was found on the front seat, walked away shortly after the car was stopped, and
appeared to be “extremely nervous before he was asked to produce his driver’s license”).
Accordingly, we conclude that the proof was sufficient to support each of the defendant’s
convictions.

II. Plain Error

The defendant argues that the trial court committed plain error by allowing testimony
implying that he was affiliated with the Gangster Disciples. To properly address this issue, which
was not raised in the motion for new trial, we will establish the context in which this testimony was
given.

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 During the direct examination of Christopher Howard, the State inquired into his earlier
testimony that he had been threatened by the defendant:

Q [D]id some police officers attempt to talk to you about what you
know about this shooting?

A Yes, sir.

Q Did you talk to the police about it?

A No, sir.

....

Q Were you afraid of [the defendant] when you told the police you
didn’t know anything?

A Yes, sir.

Q Were you afraid of what he might do to your wife?

A I was afraid of all his associates and him what they might do to
my wife.

At some point between the direct and cross-examinations of Howard, it came to the trial
court’s attention that the defendant’s mother was overheard to say something toward Howard’s
mother that may have been a threat. With the jury out, the trial court inquired into the situation, and
the State explained that precautions had been made so that the matter of gang affiliation would not
be mentioned:

Part of what I’m trying to stay away from in this trial is there’s
an allegation that [the defendant] is a member of the Gangster
Disciples, and that’s why the word associates have [sic] been used.
That’s why Mr. Howard and Mr. Helms have told the jury that they
did have some fear for themselves and their family.

Subsequently, during his cross-examination, Howard then was pressed by the defense as to
why he had not initially told police officers of the defendant’s involvement in the crimes, as he had
done during his direct examination:

Q When did you decide your testimony was so important that you
would come and testify? Whether it would help your situation, when
did you make that decision?

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A It does not help my situation, sir.

Q Then why are you here?

A Because I want the Court to know the truth.

Q Did you want the police to know the truth when you first got
arrested?

A I didn’t tell them anything because I was in fear of my family’s
life.

Q Did you want the police to know the truth when you first got
arrested?

A Yes, sir.

Q You didn’t tell them the truth, did you?

A I didn’t say anything, sir.

Q They asked you, did they not?

A Yes, they asked me.

Q You denied any knowledge of this situation, didn’t you?

A Yes, sir, I told them I didn’t know anything.

Q You were lying, weren’t you?

A Sir, let me – Judge, can I –

Q Were you lying–

THE COURT: You can answer yes or no, and then you can explain
your answer.

A Okay.

Q Were you lying when you told the police you didn’t know
anything?

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 A Yes, sir.

Q But you wouldn’t lie to this jury today–

THE COURT: Now, if he wants to explain that answer he can do it.

A Yes, sir, I’d like to explain that, sir. Sir, where I live at . . . and
my family lived at was infested with GD’s.5 If I would have said
anything to those policemen, [the defendant] and all his folks they
would have did something to my family.

[DEFENSE COUNSEL]: Your Honor, I object as to the speculating
as to what would have happened under those circumstances, what [the
defendant] would have done.

THE COURT: He’s explaining his answer why he said what he said.
Overruled. You may explain.

A Yes, sir. I was in fear of my family’s life because I was locked
up, and they was out there among those people that would have
caused them harm.

Q Did you tell the police you were in fear of your life and fear of
your family’s life?

A I didn’t say anything, sir.

Q Why didn’t you tell them I can’t tell you because I’m in fear of
my life. My wife is in jeopardy because [the defendant] and the GD’s
are out there. Why didn’t you tell the police that?

A I was afraid, sir.

Q You were afraid to tell them that you were afraid. Is that
right?

A That’s right because Gangster Disciples be in jail also, sir.

Thus, the trial transcript shows that after Christopher Howard was pressed by the defense as
to why he had not earlier told of the defendant’s involvement in the crimes, he used the initials “GD”
in his response, explaining that he had not told police of his knowledge of the incident because he

5
“GD ” is a nickname for the Gangster Disciples.

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feared for the safety of his family if he did so. The defense objected not to the use of the initials, but
to the witness’s “speculating what would have happened” if he had been truthful. Continuing this
line of questioning, the defense itself then utilized the initials “GD” to ask a “why” question, why
the witness did not tell the police that he was “in fear of [his] life” and his wife was “in jeopardy
because [the defendant] and the GD’s are out there.” Again receiving the explanation that the
witness had not been truthful with the police because he was afraid, the defense persisted with the
same line of questioning, asking if the witness was “afraid to tell [the police] that you were afraid.”
The witness responded, “That’s right because Gangster Disciples be in jail also, sir.” No objection
was made to this response.

The defendant argues on appeal that the trial court committed plain error by “allowing
testimony concerning [the defendant’s] purported affiliation with the Gangster Disciples.” Thus, at
trial, the objection was that the witness was speculating while, on appeal, it has been recast into the
claim that unobjected-to testimony was prejudicial.

Tennessee Rule of Criminal Procedure 52(b) defines “plain error” as “error which has
affected the substantial rights of an accused” and which “may be noticed at any time, even though
not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the
appellate court where necessary to do substantial justice.” Since the intention of the rule is to serve
the ends of justice, it is invoked only in exceptional circumstances where necessary to avoid a
miscarriage of justice. State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994) (citing
United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980)). The following factors should be
considered by an appellate court when determining whether “plain error” has occurred:

a) the record must clearly establish what occurred in the trial court;

b) a clear and unequivocal rule of law must have been breached;

c) a substantial right of the accused must have been adversely
affected;

d) the accused did not waive the issue for tactical reasons; and

e) consideration of the error is "necessary to do substantial justice."

Id. at 641-42 (footnotes omitted). The presence of all five factors must be established by the record
before this court will recognize the existence of plain error, and complete consideration of all the
factors is not necessary when it is clear from the record that at least one of the factors cannot be
established. State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000). Recognition of “plain error” should
be limited to those errors that had an unfair prejudicial impact which undermined the fundamental
fairness of the trial. Adkisson, 899 S.W.2d at 642.

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 We respectfully disagree that plain error, or error at all, resulted from the use by the witness
of the words “Gangster Disciples” or the initials “GD.” For several reasons, this assignment is
without merit. First, it does not necessarily follow, as the defendant contends, that because the
witness testified he had been afraid of reprisals by the Gangster Disciples if he told the police the
truth about the crimes, the jury then would assume the defendant, himself, was a gang member.
Additionally, the explanations by the witness, as to his fear of the Gangster Disciples, resulted from
the defense continuing to press variants of “why” questions about the initial statement of the witness
to the police. In fact, we note that, during this line of questioning, defense counsel, himself, utilized
the initials “GD” in one of his questions. Thus, the defense contributed to the gang references, and
it has long been settled that a party cannot take advantage of errors which it committed or invited.
Tenn. R. App. P. 36(a). This assignment additionally is untenable because the defendant has
switched theories as to the assailed testimony, arguing at trial only that the testimony was improper
because the witness was “speculating” in explaining that he was untruthful to the police because he
feared reprisals by gang members, while contending on appeal that the testimony was inadmissible
because it “concerned [the defendant’s] purported affiliation with the Gangster Disciples.” Thus,
the argument on appeal was neither presented to nor ruled upon by the trial court. A defendant may
not object to the admissibility of evidence based on one argument, and then drop that argument and
object to the same evidence based on a new argument. State v. Aucoin, 756 S.W.2d 705, 715 (Tenn.
Crim. App. 1988) (citing State v. Brock, 678 S.W.2d 486, 489-90 (Tenn. Crim. App. 1984)).

Accordingly, we conclude that this assignment is without merit.

III. Sentencing

The defendant argues that the trial court erred as to the lengths of the sentences and in
ordering that three be served consecutively.

The trial court sentenced the defendant as a Range I offender to six years, the maximum
sentence in the range, for the voluntary manslaughter conviction, four years for the attempted
voluntary manslaughter conviction, six years for the attempted aggravated robbery conviction, and
twelve years for the attempted especially aggravated robbery conviction. The attempted voluntary
manslaughter conviction was ordered to be served concurrently with the other three convictions
which were ordered to be served consecutively to one another, for an effective sentence of twenty-
four years.

A. Standard of Review

When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
This presumption 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. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached

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by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial
court’s determination of controverted facts as the trial court's determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.

In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987).

The party challenging the sentences imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous.

B. Length of Sentence

In considering this issue, we first will review the defendant’s prior criminal record.
According to the presentence report, the defendant had at least two prior convictions for driving
while license suspended or revoked. Additionally, he was convicted in 2000, while on bond for the
crimes which are the basis for the present appeal, of driving while license suspended, cancelled, or
revoked and of possession of drugs. Further, a report prepared by Shelby County Pretrial
Services/County Probation for the defendant’s bail application stated that, in 1992, he was convicted
as a juvenile of “AA; CT,” for which he was committed to the Tennessee Department of Youth
Development. According to a statement of defense counsel at the sentencing hearing, one of these
juvenile convictions was for a felony, making it appear that “AA” is an abbreviation for aggravated
assault, a Class C felony. Also, the bond report sets out details of the defendant’s subsequent
conviction for violation of probation, saying that he had been placed on probation on September 7,
1994, for the unlawful possession of a weapon and was rearrested on October 15, 1994, for
possession of a prohibited weapon, for which he later was convicted, and for theft of property over
$500, for which he was not convicted.

In sentencing the defendant, the trial court applied the following eight enhancement factors:

(1) The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;

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 (2) The defendant was a leader in the commission of an offense
involving two (2) or more criminal actors;

(3) The offense involved more than one (1) victim;

(8) The defendant has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community;

(9) The defendant possessed or employed a firearm, explosive device
or other deadly weapon during the commission of the offense;

(10) The defendant had no hesitation about committing a crime when
the risk to human life was high;

(16) The crime was committed under circumstances under which the
potential for bodily injury to a victim was great; and

(20) The defendant was adjudicated to have committed a delinquent
act or acts as a juvenile that would constitute a felony if committed
by an adult.

Tenn. Code Ann. § 40-35-114(1), (2), (3), (8), (9), (10), (16), (20) (1997).

The defendant asserts that the trial court improperly applied factors (2), (9), (10), and (16),
first arguing that factor (2), that the defendant was a leader in the commission of an offense
involving two or more criminal actors, see Tenn. Code Ann. § 40-35-114(2), should not have been
applied because it is not supported by the record. However, there was testimony that the participants
sought to include the defendant because of his experience in such endeavors. After expressing his
desire to participate, the defendant began to assert his influence on the operation by arguing about
which gun he would use. Kevin Helms testified that it was the defendant who fired the fatal shots.
Accordingly, we conclude that evidence existed to allow the trial court to apply this factor as to each
offense.

The defendant argues that factor (9), that he possessed or employed a firearm during the
commission of the offense, see Tenn. Code Ann. § 40-35-114(9), should not have been applied
because it is an essential element of the four crimes for which he was found guilty. However, the
defendant was found guilty of voluntary manslaughter, an offense that this court has held does not
require the use of a weapon. State v. Shaun Michael Fleegle, No. E2000-02045-CCA-R3-CD, 2002
WL 83496, at *5 (Tenn. Crim. App. Jan. 22, 2002); see Tenn. Code Ann. § 39-13-211(a). Therefore,
we conclude that this factor was properly applied to the convictions for voluntary manslaughter and
attempted voluntary manslaughter. However, we conclude that factor (9) should not have been
applied to the convictions of attempted aggravated robbery or attempted especially aggravated

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robbery, for the use of a firearm is an element of those offenses. See State v. Nix, 922 S.W.2d 894,
903-04 (Tenn. Crim. App. 1995).

Additionally, the defendant argues that factor (10), that he had no hesitation about
committing a crime when the risk to human life was high, see Tenn. Code Ann. § 40-35-114(10),
should not have been applied because it is an essential element of the four crimes for which he was
found guilty. Unlike enhancement factor (16), factor (10) is broadly written to include "risk to
human life" and does not contain the restrictions to "the crime" and "a victim." State v. Imfeld, 70
S.W.3d 698, 707 (Tenn. 2002); see Tenn. Code Ann. § 40-35-114(10), (16). Addressing this issue
at the sentencing hearing, the trial court stated:

No. 10, that the defendant had no hesitation about committing a
crime when the risk to human life was high. The Court feels . . .
that’s definitely a situation where he was firing at persons who were
trying to flee from their attempt [sic] robbery, and right in an
apartment . . . complex where people frequently are out there,
children and everyone else; in addition to these persons, the Mexican
people who were there together when the shooting started. Bullets
could have hit anybody in the area. The risk to human life was high,
very high in an apartment complex parking lot.

According to the testimony of Kevin Helms and other witnesses, the victims were part of a group
of six Mexicans when the crimes were committed. However, it is not clear from the record the
extent to which others were jeopardized by the shots fired by the defendant, at least some of which
were in the air, according to Kevin Helms. Accordingly, we conclude that the record does not
support applying this factor to any of the convictions. We believe that this same rationale applies
to the application of enhancement factor (3), that the offense involved more than one victim. Thus,
we conclude that this factor as well is not applicable to any of the convictions.

The defendant argues, and the State concedes, that factor (16), that the crime was committed
under circumstances under which the potential for bodily injury to a victim was great, see Tenn.
Code Ann. § 40-35-114(16), should not have been applied because it is an essential element of the
four crimes for which he was convicted. We agree that factor (16) was not applicable to any of the
convictions. See Imfeld, 70 S.W.3d at 706 (holding that there is nothing in the statutory language
of factor (16) to indicate that it applies to potential victims or that it applies simply because the
offense was committed in the presence of other individuals and that it is therefore not applicable
when the offense involved bodily injury to a specific, named victim).

Additionally, the defendant urged the trial court to consider four mitigating factors. It
appears that the trial court declined consideration of the defendant’s mild retardation as a “mental
or physical condition that significantly reduced the defendant's culpability for the offense,”
explaining that it had “little, if any, [e]ffect on his culpability, because his retardation was not
significant enough to affect his culpability in this thing at all.” See Tenn. Code Ann. § 40-35-113(8)

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(1997). We note that the defendant testified at trial that he had completed the tenth grade and was
employed by a grocery store chain. The record supports the trial court’s determination not to credit
the defendant’s mild retardation as a mitigating factor. The trial court also declined to find that the
defendant acted under duress during the commission of these offenses, see id. § 40-35-113(12), and
the record supports this determination. Neither the testimony of the State’s witnesses nor that of the
defendant, who denied at trial that he was involved in the offenses, suggests that the defendant was
under duress when he committed the crimes.

The defendant contends that the trial court should have applied mitigating factor (4), that he
played a minor role in the commission of the offenses, and factor (6), that he, because of youth,
lacked substantial judgment in committing the offense. See Tenn. Code Ann. § 40-35-113(4), (6).
The trial court declined to apply factor (4) because of evidence that the defendant played a leadership
role in the commission of the offenses. As to factor (6), the trial court stated:

[The defendant] was not that young. In fact, he had been in juvenile
court and committed serious offenses in juvenile court, in which, they
tried to turn him around by putting him in some youth facility,
counseling, and it did not help him. He was not of tender years . . .
. He was old enough to take life, with judgment in the process. The
Court will not find that his youth had anything to do with him
committing this offense.

The record fully supports the trial court’s conclusions as to the defendant’s substantial prior
experience with the legal system. Thus, the court did not err in declining to apply this mitigating
factor.

Thus, following our review, we conclude that five enhancement factors apply to the
convictions for voluntary manslaughter and attempted voluntary manslaughter, while four apply to
the attempted aggravated robbery and attempted especially aggravated robbery convictions. No
mitigating factors apply to any of these convictions. In determining the appropriate sentence for a
felony conviction, the sentencing court, if there are enhancement factors but no mitigating factors,
may set the sentence above the minimum in that range but still within the range. See Tenn. Code
Ann. § 40-35-210(d) (Supp. 1999); State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).
There is no mathematical formula of evaluating the enhancement factors to calculate the appropriate
sentence. See generally id. “Rather, the weight to be afforded an existing factor is left to the trial
court's discretion so long as the court complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76 (citations
omitted). It is apparent from the record that the trial court appropriately considered the sentencing
purposes and principles. Accordingly, we conclude that the trial court did not err in setting the
lengths of the defendant’s sentences.

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 C. Consecutive Sentencing

The trial court ordered that three of the defendant’s sentences be served consecutively, and
this determination is an issue on appeal. As a general rule, consecutive sentences are imposed at the
discretion of the trial court upon its consideration of one or more of the following statutory criteria:

(1) The defendant is a professional criminal who has knowingly
devoted such defendant’s life to criminal acts as a major source of
livelihood;

(2) The defendant is an offender whose record of criminal activity
is extensive;

(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant’s criminal conduct
has been characterized by a pattern of repetitive or compulsive
behavior with heedless indifference to consequences;

(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;

(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims;

(6) The defendant is sentenced for an offense committed while on
probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (1997).

The trial court applied criteria (2) and (4). The defendant does not contest the application
of criterion (2), his prior record, as we have set out, consisting of a number of convictions and a
probation violation. Although the defendant does challenge the application of criterion (4), the
statutory criteria for consecutive sentencing are stated in the alternative; therefore, only one need

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exist to support the appropriateness of consecutive sentencing. Accordingly, we conclude that the
record supports the trial court’s order that three of the defendant’s sentences be served consecutively.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

___________________________________
ALAN E. GLENN, JUDGE

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