State v. Edward Mooney

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

JACKSON

AUGUST SESSION, 1996 FILED
December 30, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9508-CC-00216
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. JOHN FRANKLIN MURCHISON
EDW ARD L EE M OON EY, SR .,) JUDGE
)
Appe llant. ) (Direct Appe al - Attempted First
) Degree Murde r and Po ssession of a
) Deadly Weapon with Intent to
) Employ it in the Commission of an
) Offense)

FOR THE APPELLANT: FOR THE APPELLEE:

PAT RICK MAR TIN JOHN KNOX WALKUP
D. TYLER KELLY Attorney General and Reporter
213 E. L afayette S t.
Jackson, TN 38301 CHARLOTTE H. RAPPUHN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243

JERRY W OODALL
District Attorney General

DON ALLEN
Assistant District Attorney
P. O. Box 2825
Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
 OPINION

On September 28, 1994, a Madison Co unty jury co nvicted A ppellant,

Edward Lee Moo ney, Sr., of two counts of attempted first degree murder and one

count of possession of a deadly weapon with intent to employ it in the

commission of an offense. On November 8, 1994, the trial court sentenced

Appellant as a Ran ge I standard offender to concurrent sentences of twenty-five,

twenty-two, and two years. App ellant c hallen ges b oth his convic tions a nd his

sentences, raising the following issues:

1) whether the evidence was sufficient to support his convictions for
attempted first de gree mu rder;
2) whether the trial cou rt erred by not instructing the jury on the e lemen ts
of aggravated assault, attempted voluntary manslaughter, and attempted
criminally negligent homicide;
3) whethe r the trial court committed reversible error when it admitted
evidence about Appellant’s prior criminal record and other criminal
behavior;
4) whether the tria l court should have granted a mistrial when the
prosecutor commented on defense counsel’s closing argument; and
5) whether Appellant’s sentences are excessive.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTS

On November 20, 19 93, at a pprox imate ly 11:30 p.m., Melvin Eckford went

to a club in Jackson, Tennes see for a night of socializing. Soon after he arrived,

he met his frie nd, Da rrel W omac k. At one point when Eckford was alone,

Appellant approached him and said, “Tell Darrel I’ve got something for him and

I’ve got something for you.” Appellant then went outside, an d Eckford followed

him. Eckford then saw Appellant reach under the driver’s seat of his ca r and p ull

out a gun. When Eckford turned around and saw Womack coming out of the

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club, Eckford yelled “Ru n. He’s b ehind u s. He’s got a pistol.” Eckford and

Wom ack then ran in oppos ite directions . After Eckford and W omack ran away,

Appellant waited by Womack’s car for twenty to thirty minutes. When Appellant

finally left, Eckford and W omack waited for anothe r ten to fifteen minutes before

they got into Wo mack ’s car and drove aw ay.

As Wom ack and Eckford drove down the street o n their w ay to E ckford ’s

house, Appellant pulled his car out of a parking lot and began shooting at

Womack and Eckford. Appellant followed Womack’s car, shot out the back

window, and attempted to pull alongside the car. Appe llant fired appro ximate ly

four to five shots at Womack’s car, and one of these shots hit Eckford in the arm.

There were a lso bu llet hole s in the roof, the driver’s headre st, and the back door

on the d river’s side.

When Appellant was directly behind Womack’s car, Womack slammed on

the brakes and Ap pellant ran into him. Appellant then turned his car around and

left. Womack and Eckford then went to Wom ack’s house and W oma ck’s

girlfriend, Jean etta An n Bro oks, to ok the m to th e hos pital. Ec kford re main ed in

the hosp ital for fou r days fo r surge ry and treatm ent of tw o nerv es in his left arm

that were paralyze d as a re sult of the g unsho t injury.

Eckford testified that on the night he was adm itted to th e hos pital, he told

the police, “I knew who shot me, and I’ll take care of it myself.” Eckford explained

that he made this statement when he “was all ou t of it.” Eck ford su bseq uently

told the po lice that Ap pellant wa s the one who sh ot him.

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 Eckford testified that he had never ha d any pro blems with App ellant.

Wom ack, however, testified that h e had b een in se veral con frontations with

Appe llant. The first incident occurred two to three years before the November

1993 shooting, when Appellant pulled a knife on Womack while they were bo th

at Brooks’ home. Later, Appellant went to Womack’s residence, pulled a gun,

fired several sh ots at W omac k, and thre atened to kill him. A few months b efore

the November 1993 shooting, Appellant went to Womack’s residence, pulled a

gun on him, and threaten ed to kill him .

II. SUFFICIENCY OR THE EVIDENCE

Appellant contends that the evidence was insuffic ient to s uppo rt his

convictions for attempted first deg ree murd er. Specifically, Appellant claims that

there was no evidence that he intended to kill Womack and Eckford, and even if

there was evidence that he intended to kill them, there was no evidence that his

intent to kill was deliberate or premeditated.

When an a ppellant challenges the sufficiency of the evidence , this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

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insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evid ence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v.

Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally, R ule

13(e) of the Ten ness ee Ru les of A ppella te Pro cedu re prov ides, “fin dings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to suppo rt the finding s by the trier o f fact beyond a

reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.

Under Tennessee law,

A person comm its crimina l attempt w ho, acting with the kin d of culpa bility

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 resu lt
that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the

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 conduct constitutes a substantial step toward the commission of the
offense.

Tenn. Code Ann. § 39-12-101(a) (1997). At the time of the events in question

here, Tennessee’s first degree murder statute provided that “[f]irst degree murder

is: [a]n intentional, premeditated and deliberate killing of another.” Tenn. Code

Ann. § 39-13-2 02 (1993). 1 The e leme nt of pre med itation re quires a previo usly

formed design o r intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992)

(citation omitted). Deliberation requires that the offense be committed with cool

purpose, free of the passions of the mo ment. Id. (citation omitted). In addition,

the elements of premeditation and deliberation are questions for the jury which

may be inferred from the manner and circumstances of the killing. State v.

Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Facts showing the

defen dant’s planning activity, motive, and nature of the killing can all provide

evidence from which premeditation and deliberation can be inferred. See State

v. Gentry, 881 S.W .2d 1, 4–5 (T enn. Crim. A pp. 1993).

It is clear that, when viewed in the light most favorable to the State, the

evidence was su fficient for a ratio nal jury to co nvict Appellant of two counts of

attempted first degree murder. First, any reasonable juror could conclude that

Appellant intended to kill Eckford and Wo mack w hen he fired fou r or five

gunsh ots into their moving vehicle. Second, the jury could have inferred from the

evidence that Appellant had “a previously formed design or intent to kill.” Indeed,

Appellant had assaulted Womack with a weapon on three prior occasions and

had threaten ed to kill W omac k on two of those o ccasion s. In regard to Eckford,

1
A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: [a] premeditated and intentional killing
of another.”).

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the evidence showed that Appellant tried to entice both men into the parking lot

where he would be waiting with his loaded gun by telling Eckford that “I’ve got

something for him and I’ve go t something for you.” The jury cou ld have

concluded that Appellant’s premeditation was shown by his attempt to entice the

two men into the parking lot, his waiting for them by W oma ck’s ca r, and h is

waiting for them down the stre et until they drove by. Third, the jury could have

inferred that Appellant had acted with deliberation form the evidence that he

quietly waited by Womack’s vehicle for approximately thirty minutes before he

finally left to wait for the m dow n the stree t. The evid ence o f intent, premeditation

and de liberation is a bunda nt. This iss ue is witho ut merit.

III. JURY INSTRUCTIONS

Appellant contends tha t the trial court erred by not instructing the jury on

the offenses of aggravated assault, attempted voluntary manslaughter, and

attempted crimin ally neglig ent ho micid e. In ge neral, a defen dant ha s a “right to

a jury instr uction on all lesser included offen ses where ‘any facts . . . are

susc eptible of inferrin g guilt of any lesser include d offense.’” State v. T rusty, 919

S.W.2d 305, 310 (Tenn. 1996) (quoting State v. Wright, 618 S.W.2d 310 (Tenn.

Crim. App . 1981)).

The trial court clearly did not err when it declined to instruct the jury on

aggravated assault because under Tennessee law, aggra vated assa ult is not a

lesser gra de or clas s of attem pted first de gree m urder. Id. at 311–12.

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 Further, the trial cour t did not err w hen it declined to instruct the jury on

attempted voluntary man slaughter. Un der Tenn essee law, “[v]olunta ry

manslaughter is the intentional or knowing killing of another in a state of passion

produced by adequate provocation sufficie nt to lea d a rea sona ble person to act

in an irrationa l mann er.” Ten n. Cod e Ann. § 39-13-211(a) (1 997). T here is

abso lutely no evidence in the record that Appellant was provoked or that he was

enraged at any time during the events in question here. “[W ]here the record

clearly shows that the defendant was guilty of the greater offense and is devo id

of any ev idenc e perm itting an inferen ce of g uilt of the lesser offense, it is not error

to fail to charge on a lesser offense.” State v. Boyd, 797 S.W.2d 589, 593 (Tenn.

1990) (citation om itted).

Finally, the trial court did not err when it declined to instruct the jury on

attempted criminally negligent homicide. T his Court has previously held that the

crime of attempted crimin ally negligent homicide does not exist under Tennessee

law becau se one canno t intend to p erform a n uninten tional act. State v. Dale

Nolan, No. 01C01-951 1-CC-00387 , 1997 W L 351142, at *9 (Tenn. Crim. App.,

Nashville, June 26, 1997) (citing State v. Kimbrough, 924 S.W.2d 888 (Tenn.

1996)). T hus, this iss ue has no me rit.

IV. PRIOR BAD ACTS

Appellant contends that the trial court violated Rule 404(b) of the

Tennessee Rules of Evidence when it admitted evidence of his misdemeanor

record and prior criminal behavior. Rule 404(b) states that

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 Evidence of other crim es, wron gs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the

character trait. It may, however, be admissible for other purposes. The

conditions which must be satisfied before allowing such evidence are:

(1) The court upo n requ est m ust ho ld a he aring o utside the jury's
presence;
(2) The court must determ ine that a m aterial issue exists other than
conduct conforming with a character trait and must upon request
state on the record the material issue, the ruling, and the reasons for
admitting the evidence; and
(3) The court must exclude the evidence if its prob ative va lue is
outweighed by the danger of unfair prejudice.

Tenn. R . Evid. 404(b).

The record indicates that after a hearing outside of the jury’s presence, the

trial court ruled that evidence of the prior threats and assaults by Appellant

against Womack were admissible to prove both intent and motive.2 Wom ack

then testified that Appellant had pulled a knife on him on one occasion and had

pulled a gun on him and threatened to kill him on another occasion. When the

prosecutor asked Wom ack when this second incident had occurred, Womack

stated, “You will have to go back and get the police report. I reported it.”

Wom ack then testified, without objection, that Appellant had pulled a gun and

threatened to kill him on a third occasion and that he had also reported that

incident to the police. Appellant cla ims that this evidence should have been

excluded becau se its prejudic ial effect outw eighed its probative value. We

2
The record does not indicate that the trial court made an express finding that there was clear and
convincing evidence that Appellant had committed the prior crimes or made an express determination that
the d ang er of preju dice did no t outw eigh t he pr oba tive va lue of the e viden ce as requ ired b y State v.
Parton, 694 S.W.2d 299, 303 (Tenn. 1985). However, the fact that the trial court ruled that it would allow
evidence of the crimes themselves, but not evidence of the convictions for those crimes, indicates that the
court had made these required determinations. When, as in this case, a trial court substantially complies
with the procedural requirements of the rule, its determination will not be overturned absent an abuse of
discretion . State v. Dubose, 953 S.W .2d 649, 652 (Tenn. 1997 ).

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disagree. This evidence was clearly probative on the issues of intent and motive.

Further, Womack only testified that he had reported two of these incidents to the

police, he never testified that Appellant was either charged or convicted of these

offenses. Whether to admit evidence is within the d iscretion o f the court, a nd its

decision will not be ov erturned absen t an abu se of that d iscretion. State v.

Bigbee, 885 S.W.2d 797, 807 (Tenn. 19 94). Given the h ighly probative nature

of this evidence and its limited potential for prejudice, the trial court did not abuse

its discretion in finding that this evidence was admissible.

Appella nt also argues that he was p rejudic ed wh en W oma ck stat ed in

response to a que stion a bout w here h e was living du ring the events in question:

“the morning Jeanetta Brooks got shot, Mr. Mooney did that too.” Although

W oma ck’s comm ent was p rejudic ial to Ap pellan t, the rec ord ind icates that his

answer was unres ponsive and was in no wa y elicited by the prosec utor.

Moreover, the trial court imme diately adm onishe d W omac k to confine h imself to

his trouble with Appellant. The court subsequently instructed the jury that they

were to disregard this comment because there was no proof that Appellant had

anything to do with that incident or that it had any releva nce to this case. W e

presume that the jury followed this in struction. See State v. Little, 854 S.W.2d

643, 64 9 (Ten n. Crim. A pp. 199 2). Thu s, this issue is without m erit.

V. CLOSING ARGUMENTS

Appellant argues that the trial court erred when it failed to grant a mistrial

when the prosecutor commented on defense counsel’s closing argument. The

record indicates that during closing argument, defense counsel suggested that

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Wom ack and Eckford were shot at during a drug transaction that had somehow

gone awry and that they had blamed the shooting on App ellant in ord er to cover

up their own wrongdoing. During the State’s closing argument, the prosecutor

stated that there had been no evidence that drugs were involved in this case and

that defense counsel was “trying to muddy the waters” by interjecting something

that was not in the p roof.

W e agree with Appellant that the prosecutor’s comment was imprope r.

See State v. West, 767 S.W.2d 387, 395 (Tenn. 1989) (stating that it was

improper for prosecutor to tell jury that defense counsel was “trying to throw sand

in the eyes of the jury” and “b lowing smo ke in the face of the jury”). “Where

argument is found to be improper the established test for determining whether

there is rever sible error is ‘whether the improper conduct could have affected the

verdict to the prejudice of the defendan t.’” State v. Cauthe rn, 967 S.W.2d 726,

737 (Tenn. 1998) (quoting Harring ton v. State , 215 Tenn. 338, 385 S.W.2d 758,

759 (1965)). “We must consider: 1) the conduct complained of, viewed in light

of the facts and circumstances of the case; 2) the curative measures undertaken

by the court and the prosecution; 3) the intent of the prosecutor in making the

improper statem ent; 4) the c umula tive effect of the improper conduct and any

other errors in the record; and 5) the relative strength or weakness of the case.

Id. (citations om itted).

The application of the above test indicates that althou gh the prose cutor’s

statement was improper, it was harmless because it did not affect the ve rdict to

the prejudice of Appellant. First, the record indicates that the conduct

complained of consiste d of one brief, isolated statem ent. Second, the trial court

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imm ediate ly instruc ted the jury that this statement was just “lawyer talk” and that

the two attorneys we re merely giving the ir interpretation of what the proof

showed. The trial court also a ssured the jury that defense counsel had not done

anything uneth ical du ring his closing argum ent. T hird, the re is no indication that

the prosecutor was acting it bad faith. It appears that his intention was merely to

refocus the jury on deciding the case based on the evidence actually presented

at trial. Fourth, we cannot say that the cumulative effect of this error and any

other errors justifies relief beca use we have no t found an y error with respec t to

Appe llant’s previo us issu es. Fin ally, the S tate’s c ase w as rela tively strong. Both

victims ide ntified App ellant as th e shoo ter. Thu s, this issue has no merit.

VI. SENTENCING

Appellant conte nds th at the tria l court imposed excessive sentences for the

attempted murder convictions. “When reviewing sentencing issues . . . including

the granting or denial of probation and the length of sentence, the appellate cou rt

shall condu ct a de no vo review o n the rec ord of su ch issue s. Such review shall

be conducted with a presumption that the determinations made by the court from

which the appeal is taken are correct.” Tenn . Code An n. § 40-35-40 1(d) (1997).

“Howeve r, the pre sum ption o f correc tness which acco mpa nies th e trial co urt’s

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhan cing and mitigating factors, arg umen ts of coun sel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential

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for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the se ntence is improp er.” Id. Because the record in this

case indicates that the trial court failed to properly consider the sentencing

principles and all relevant facts and circumstances, our review is de novo without

a presumption of correctness.

In making its sentencing determinations, the trial court found that no

significant mitigating factors we re applica ble. Although the trial court found that

Appe llant’s good beha vior in jail was a mitigating factor, the court concluded that

this factor was not significant because it was not one of the enum erated factors

of Tennessee Code Annotated § 40-35-113. We agree that this factor was

entitled to very little weight and that no evid ence w as pres ented to suppo rt a

finding tha t any of the e nume rated fac tors of we re prese nt. 3

The trial court foun d that enh ancem ent factor (1 ) applied to both

convictions for attempted murder because Appellant had a previous history of

criminal convictions or crim inal behavior in addition to thos e nece ssary to

establish the app ropriate ra nge. See Tenn. Code Ann. § 40-35-114(1) (19 97).

Appellant concedes that the trial court correctly applied this factor, and we agree

that it applied to both co unts of attemp ted murde r.

3
Appellant contends that the trial court should have considered his good employment history as a
mitigating factor. While the trial court could have considered this fact under Tennessee Code Annotated §
40-35-113(13), the trial court was not required to do so and, even if it had, this fact, when balanced
against th e violent na ture of this o ffense , would ha ve been entitled to little weigh t.

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 The trial court found that enhancement factor (3) applied because th e

offense involved more than on e victim. See Tenn. Code Ann. § 40-35-114(3)

(1997). We conc lude th at the c ourt im prope rly app lied this factor because each

count of attempted murder involved only one victim and there were separate

conviction s for each offense. See State v. Clabo, 905 S.W.2d 197, 206 (Tenn.

Crim. App. 1995) (holding that factor (3) was an “improper enhance ment factor,

since there we re separate c onvictions for each victim”).

The trial court found that enhancement factor (6) applied to the conviction

for attemp ted mu rder of Ec kford be cause Eckford sustaine d serious injuries. See

Tenn. Code Ann. § 4 0-35- 114(6 ) (1997 ). The trial cou rt corre ctly app lied this

factor. Indeed, the record indica tes that the bullet that ente red Eckford’s left arm

paralyzed two of his nerves and that E ckford had to have surgery to repair the

damag e. Further, this Cou rt has previously held that this factor can be applied

to enha nce a convic tion for a ttemp ted first d egree murd er bec ause particu larly

great injuries are not esse ntial to the co mm ission of the offense. State v. Nix,

922 S.W .2d 894, 903 (Tenn. Crim . App. 1996 ).

The trial court found that enhancement factor (9) a pplied to b oth

convictions for attempted murder because Appellant employed a firearm in the

commission of the offens es. See Tenn. C ode Ann . § 40-35-114 (9) (1997).

Appellant contends that this factor was not applicable because he was also

convicted of the firearms charge. However, this Court has previously stated that

factor (9) can be applied regardless of whether a defendant has also been

convicted of an offense involving a weapo n. State v. Timothy N. Mosier, No. 2,

1991 W L 93019, a t *1 (Tenn. C rim. App., Jack son, June 5 , 1991).

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 The trial court found that enhancement factor (10) applied because

Appellant had no hesitation in comm itting an offen se whe n the risk to huma n life

was high. See Tenn. Code Ann. § 40-35-114(10) (1997). However, the trial

court clearly erred in applying this factor because a high risk to hum an life is

inherent in the offense of attempted murder. State v. Griffis, 964 S.W.2d 577,

603 (T enn. C rim. App . 1997).

The trial court also applied one nonstatutory enhancement factor—the

place where the offense occurred.4 Specifically, the trial court took judicial notice

of the fact that the street where the shooting occurred, Royal Street, was the

main thoroughfare in Jackson. The court stated that even though no evidence

had been introduced abou t the m atter, it wa s likely that other people and vehicles

had been prese nt on th is busy street a t the tim e of the shoo ting. Th e trial co urt’s

application of this nonstatutory enhancement factor was clearly erroneous.

Regardless of whether the court erred when it took judicial notice of the nature

of Royal Street, it is well settled that nonstatutory factors cannot be used to

enhance a senten ce. State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App.

1997); State v. Strickland, 885 S.W .2d 85, 89 (T enn. Crim. A pp. 1993).

Even though we hold that the trial court erred in applying some of the

enhancement factors, a find ing that enha ncem ent fac tors we re erro neou sly

applied does n ot equa te to a redu ction in the senten ce. State v. Keel, 882

S.W.2d 410, 4 23 (T enn. C rim. App. 1994). Two enhance ment factors w ere

4
Appellant also contends that the trial court improperly based the enhancement of the sentences
on its decis ion no t to im pos e con sec utive s ente nce s. Ho weve r, the r eco rd ind icate s tha t the tr ial cou rt did
not enhance Appellant’s sentences on this basis. Rather, the trial court merely stated that, for some
reason that is not clear, it believed that it could not apply enhanceme nt factors (3) and (9) to consecutive
senten ces.

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correc tly applied to the conviction for the attempted murder of Womack and three

factors were correctly applied to the conviction for the attempted murder of

Eckford. Furthe r, we ag ree tha t the m itigating factor in this cas e is entitled to little

weight. Under thes e circumstan ces, we con clude that the re cord supports a

sentence near the upper e nd of the ra nge for both counts of attempted first

degree m urder.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________
JERRY L. SMITH, JUDGE

CONCUR:

___________________________________
GARY R. WADE, PRESIDING JUDGE

___________________________________
WILLIAM M. BARKER, SPECIAL JUDGE

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