State v. James Fernandez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
SEPTEMBE R SESSION, 1997 January 14, 1998

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9609-CR-00394
)
Appellee, )
) DAVIDSON COUNTY
)
V. )
) HON. ANN LACY JOHNS, JUDGE
JAME S FER NAND EZ, )
) (ATTEMPTED FIRST DEGREE
Appe llant. ) MURDER; FELONY MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

LIONEL R. BARRETT, JR. JOHN KNOX WALKUP
Washington Square Two, Ste. 417 Attorney General & Reporter
222 Se cond A venue N orth
Nashville, TN 37201 EUGENE J. HONEA
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243

VICTO R S. JO HNS ON, III
District Attorney General

ROGER MOORE
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue S outh
Nashville, TN 37201

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION
 Following a jury trial in Davidson County Criminal Court, James Fernandez,

the Defendant, was convicted of one count of attempt to commit premeditated

first degree murde r and on e coun t of felony murder. He was sentenced by the

trial court to eig hteen (1 8) years fo r the con viction of attem pt to commit first

degree murder and a life sentence for the conviction of felony m urder. T he life

sentence was ordered to be served consecutively to the first sentence of eighteen

(18) years. The Defendant appeals as of right and raises the following issues on

appe al:

1) The evidence is insufficient as a matter of law to allow a trier of fact to
find the Defen dant guilty of attemp ted murde r or felony murde r.

2) The trial cou rt erred in failing to instru ct the ju ry that only first-degree
murder could be considered as an underlying and predicate offense for
felony murde r.

3) The trial court erred in overruling the Defendant’s motion for a judgment
of acq uittal.

4) The trial court erred in imposing consecutive sentences.

We affirm the ju dgme nts of the tria l court.

S UFFICIENCY OF THE EVIDENCE

When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia, 443 U.S.

307, 319 (19 79). On ap peal, the S tate is entitled to the stron gest legitim ate view

of the evidenc e and a ll inference s therefro m. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

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burden in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).

Questions conce rning the credibility of the witnesses, the weight and value

to be give n the e videnc e, as w ell as all factual issues raised by the evidence, are

resolved by the tr ier of fac t, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn . 1987). Nor ma y this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the trial judge accredits the S tate’s w itness es an d reso lves all

conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.

Several witnesses testified during the State’s case-in-chief. Anita Stevens,

the mother of the victim of the felony m urder, Jennifer Jones, stated that the

victim was seven teen (17) years old at the time of her death. Jennifer was in the

eleventh grade and had been dating Brian Wiggins for approximately a year and

a half prior to her death. On January 19, 1994, the night the victim was killed,

Jennifer had c alled Ms. Stevens to tell her that she and her friends were going

to a movie that night. The victim’s school was closed that day and the following

day due to the snow and icy road conditions. She was notified at app roxim ately

11:00 p .m. that he r daugh ter had b een sh ot.

Janet Land W iggins, a friend of the victim, was at home with Jennifer and

their friends on January 19. In addition to herself, the girls there included the

victim, Rachel Stacey, and Lee Ann Cherry. On January 18, 1994, Janet met

William Peck in a mall. The victim was with William Peck and the Defendant. On

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January 19, bo th Pec k and the De fenda nt cam e by Ja net’s house to visit the

girls. W hen th e girls left the house that night, Janet thought they were going to

go to the movies, but instead they went to the Eco no Lodge on Murfrees boro

Road. When they arrived at the Econo Lodge, they went to the room where the

Defendant and Peck were staying. E veryon e starte d drink ing alc oholic

beverages. At that time only Peck was in the room with the girls, and he showed

them a gun. Peck took the clip out and was flicking bullets at the television.

Shor tly thereafter, the Defendant came in and asked Peck for the gun. The two

argued about the gun for a few minutes, and Peck wanted to know why the

Defen dant wa nted the gun. Jan et did not h ear the D efenda nt’s reply.

During this time, the victim and Brian Wiggins had begun paging each

other back and forth on their beepers. Finally, Jennifer gave Wiggins her

telephone number at the motel, and when he called she asked him to drive over

to the Econo Lodge and pick her up. The victim went downstairs alone to wait

in Rachel Stacey’s car for Wiggins. While Janet did not know if Brian W iggins

had arrived, she saw Peck and the Defendant leave the room with the gun. She

and the other girls also left the room and stepped outside onto the balcony . She

saw the Defendant and Peck running down the stairs after Wiggins. Wiggins and

the victim were arguing, but they were walking to get in Wiggins’ car when Peck

and the Defendant followed them. She saw them all arguing, with Peck and the

Defendant kicking Wiggins’ car to try to stop him from leaving. As Wiggins was

trying to leave, Peck grabbed his door and was pulling it open. When Peck

pulled the door open, he swung at Wiggins. She did not see a gun at that time.

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 The girls went downstairs, and Rache l and Lee Ann we re yelling for h er to

get in their car to leave. Stephanie decided that she wanted to stay in the motel

room. Janet, Rachel, and Lee Ann got in Rachel’s car and were driving in the

oppos ite direction from the exit as they d id not kno w how to get out of the parking

lot. They turned around when they realized they could not get out that way and

were coming back around the motel when they saw Peck and the Defendant

walking beside them and Jennifer lying on the ground. When the girls asked

Peck and the Defendant what they had done, they refused to reply and only

walked past them to get in the Defen dant’s Je ep. Defe ndant drove away with

Peck in the car to the other side of the motel. They stopped and sat there for a

few minutes, then the Jeep cam e bac k arou nd an d the D efend ant wa s the o nly

one in it.

Rachel Stacey testified that she was with the victim o n the night of Jan uary

19, 1994. She met the Defendant and William Peck one or two days prior to the

incident at the m otel whe n Jenn ifer introduc ed them . Wh en they le ft Janet’s

house that night, she knew they were going to the Econo Lodge to “have fun” and

drink. All of them sat around, drinking and talking. She remembered that either

Peck or the Defendant had a gun in the room and was playing with the bullets.

During this time, Jennifer and Wiggins were beeping each other on their pagers,

until finally Jenn ifer pag ed W iggins with the teleph one n umb er of the ir mote l. The

two talked on the tele phone and W iggins sa id he wa s com ing over.

When Wiggins showed up a t the motel, everyone started going outside.

Jennifer was a lready o utside, waiting in the car. W hen she g ot to the balcony,

she saw Wiggins arguing with Peck and the Defendant. She got in her car and

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started driving. When the girls tried to get Jennifer to get in their car, she

declined and chose to ride with Brian. Wiggins’ car got stuck in the ice, so

Rachel drove to the other side of the motel to try to find another way out. When

they came back around the motel, she was too busy paying attention to her

driving to notice anything. Lee Ann told her that Jennifer was lying on the ground

and that they were beating up Wiggins. Rachel parked her car and we nt over to

where Jennifer lay on the ground. She could not see any visible wounds, so she

ran and got back in her car. The Defendant came over to her ca r then a nd told

her that nothing was wrong with the victim, that she was just in shock. When the

police arrived later, Rachel told the Defendant to get out of her c ar. He complied

and we nt upstairs to his room .

Lee Ann Cherry was next to testify regarding the events of January 19,

1994. She m et the D efend ant an d Pec k earlier that day while the girls were at

Jane t’s home. When they arrived at the Econo Lodge that night, they all sat

around, played quarters (a drinking game), and drank alcoholic beverages.

When they found out that Wiggins was coming over, Peck pulled out a gun from

a drawer and eventually put it under a pillow. Stephanie was standing at the

window when Brian arrived, and she announced that he was in the parking lo t.

Peck grabbed the gun and was running out the door with the Defendant running

out with him. She, Rachel and Janet de cided the y would le ave, and they ran to

Rach el’s car. Lee Ann saw Jennifer and W iggins getting into their car, along w ith

Juan Rosa. She saw Wiggins, Peck and the Defendant all wrestling on the

ground, with Peck and the Defendant on top of Wiggins beating him up. She got

in Rachel’s ca r, and the next time she looked over, Jennifer was lying on the

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ground. She then saw P eck an d the De fendan t running back tow ards a w hite

Jeep.

Steph anie Lawrence testified that she had known Peck for one (1) or two

(2) weeks prior to the day of the shooting. Jennifer had introduced her to Peck,

and she had also later introduced her to the Defendant. While the girls were at

Jane t’s home on January 19, Peck and the Defendant called and invited them to

come over to the Econo Lodge that night. When they got to the motel room, they

were all drinking and watching television. After Jennifer went downstairs to meet

with Wiggins, Peck and the Defendant were under the impression that she and

W iggins were arguing in the parking lot. Stephanie knew Peck an d the

Defendant did not like Brian Wiggins. They ran downstairs wit h one of them

carrying a gun, but she did not recall who possessed or owned the gun.

Steph anie went out on the balcony to see what was going on downstairs, and

saw Peck try to hit W iggins throug h the c ar wind ow. Sp ecifica lly, she recalled

that Peck was punching Wiggins through the window, and then she went back

inside. When s he went back outside, Jennifer was lying on the ground.

Steph anie ran down to Jennifer and talked with her. As she could not see any

blood a nd did no t hear a g unsho t, she thou ght the victim was on ly in shock .

Brian Wigg ins described his dating relationsh ip with Jennifer as “very

strong.” Prior to the shooting, Wiggins did not know Peck or the De fendan t. He

was at home when he and Jennifer started paging each other. For the first ten

(10) or twelve (12) times, Jennifer only put her pager n umb er in, bu t she fin ally

paged him with the telephone number at the motel room. When he called her at

the mote l, she to ld him that there were two (2) guys there that had a gun and that

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she wanted him to co me pic k her up . He left his home to go get Jennifer, and

picked u p a friend, J uan R osa, alon g the wa y.

When they arrived at the Econo Lodge, Jennifer was in Rachel’s car

waiting. Wh en W iggins went o ver to h er, they argue d for a m inute b ut then she

decided she was ready to leave. As they were walking toward s his car, Peck

and the Defendant came down the stairs and started to argue with him. When

Jennifer, Rosa and Wiggins got in the car and started to leave, Peck and the

Defendant began to kick the side of his car. Wiggins’ window was down, and

Peck punched him. Wiggins got out of the car and the two began fighting. When

he got back in the car, the Defendant said, “Blast him. Blast him.” Peck then

broke the back wind ow of W iggins’ car, and ap proximately two (2 ) to four (4)

seconds later, the gun went off. Jennifer, who was sitting in the front seat

between Rosa and W iggins, was screaming she had been shot. He could not

see who had the gun when it was fired, but Peck was the one who first pulled out

a gun. Rosa went to the pay phone to get help for Jennifer, who was lying on the

ground in front of the car. The Defendant came over to Wiggins and apologized,

stating that he w as sorry it ha ppene d. Wiggins did not see Peck again tha t night.

Juan Rosa was the next witness to testify. He stated that he rode over to

the Econo Lodge with Brian Wig gins on J anuary 1 9, 1994 . He was aware that

Brian and Jennifer were boyfriend and girlfriend. When they arrived at the mote l,

he saw Jennifer sitting in Rachel’s car, and they parked n ext to that car. Wiggins

got out and we nt to talk to Jennifer. The y talked about five m inutes and w ere

arguing when Peck and the Defendant walked up and confronted Wiggins. After

arguing for several moments, Peck raised his shirt and told them to leave. As

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soon as they saw the gun in the waistband of Peck’s pants, Rosa, Wiggins and

Jennifer went to get into Wiggins’ car. Because they had problems backing up

due to the ice in the parking lot, Peck and the Defendant were able to catch them

and ran up to try to get Wig gins out of the ca r. They were trying to hit Wiggins,

but Rosa was not sure if any blows were actually ma de. Rosa then heard the

Defendant tell Peck to “Blast him. Blast him.” He looked over his shoulder

towards the ba ck and obs erved the win dow b eing b usted out, felt g lass on his

shoulder and then sa w the flame o f the gun. The re was only a period of two (2)

or three (3) seconds between the time the glass was broken and when Rosa saw

the flame of the gun. Jennifer s tarted to sc ream th at she w as sho t. Rosa ra n to

get help for Jenn ifer.

James Bean was staying in the motel room next to where the girls, the

Defendant and Peck were partying. Wh en he b elieved the noise from the party

was getting out of hand, Bea n went outside on the balcon y. He though t he heard

a fight in the parking lot regarding somebody’s girlfriend. He heard a lot of

yelling, and then saw the Defendant walk across to a white Jeep and get

something out from under the passenger’s seat. He concealed it right away

undern eath his clothes. While Bean thought the object might have been a gun,

he co uld not say it was d efinitely a gu n. He did recall it was “s ometh ing shiny.”

The pistol used in the shooting was silver colored.

W hen the Defendant went back over to where the fight was going on,

peop le started sp reading out and some left the area . He saw Wiggins’ car trying

to leave, but the car started sliding. He saw the Defendant and Peck run up and

start beating the glass windows on the driver’s side of the car. Bean heard the

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glass break, then in a m inute saw a girl get out of the passenger’s side of the car.

He looked away for a m inute, a nd wh en he looke d bac k she was lyin g dow n in

front of the car. The D efendant an d Peck the n drove off in the white Jeep. Bean

went do wn whe n the po lice arrived a nd told the m wha t he had seen.

Tommy Jurnett, patrolma n with the Metro politan Nashville Police

Depa rtment, received a call to go to the scene at the Econo Lodge on January

19, 1994. When he pulle d into the parking lot at the motel, there were a lot of

peop le gathered around one location at the foot of the hill. He cou ld see a w hite

fema le lying on the ice, but from his own initial observations could not tell if she

had been shot because he could not see any blood. Because she was not

moving, he knew something was wrong and said she appeared to be dead. As

soon as the ambulance arrived, he began to talk to those who had observed the

fight and the shooting. Several people yelled that a white male on the second

level was “him ,” mean ing the on e that had shot the victim. Jurnett saw that

individual a nd was able to ide ntify him as the Defe ndant.

Sergeant Robert Nash, also of the Metro Police Department of Nashville,

was the patrol sergeant on January 19, 1994. He arrived at the Econo Lodge

Motel around 10:30 p.m. that evening, and Officers Tommy Jurnett and Ralph

Key were already on the scene. Nash helped to secure the scene, then learned

that a potential suspect, the Defendant, was staying in a room on the second

floor of the motel. Defendant was taken into cu stody a fter one of the fe male

subjects at the sce ne iden tified him a s being in volved in the shooting .

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 Officer Brad Corcoran of the Metro Police Department arrived at the crime

scene in time to see the victim’s body being removed. He photographed the area

and the variou s cars invo lved, then identified these photo graph s at trial.

Corcoran identified a p hoto of a shell ca sing fro m a .3 80 se mi-au toma tic handgun

that was fou nd inside the seat o f Wig gins’ car. A .380 calib er sem i-automatic

handgun was found at the fence line beside a tree on the back side of the m otel.

Three live rounds were also found near the weapon.

Dr. Ann B ucholtz, th e forensic pathologist for Davidson County, testified

that she examined the findings from the medical examiner as to the cause of

death of Jennifer Jones. She stated that the gunshot wound entered the victim ’s

chest on the left upper portion, near the armpit, p assing in to the che st cavity

itself. The bu llet then lace rated the left lung, hea rt, diaphragm and the liver

tissue. Th e bullet wa s recove red durin g the au topsy.

The Defendant rested without offering any proof. The jury found Defendant

guilty of the felony murder of Jennifer Jones and attempt to commit premeditated

first degree murde r of Brian W iggins.

The Defendant argue s that th e evide nce is insufficient as a matter of law

to allow a rational trier of fact to conclude that he was guilty of the premeditated

attempted murder of the victim . There fore, he co ntends that if he is no t guilty of

the premed itated attempted murder, then he cannot be guilty of the underlying

felony murder of the victim. At the time of the se offens es, the law defined firs t-

degree murder as an intentional, premeditated and deliberate killing of another

or a reckless killing of ano ther com mitted in th e perpe tration of, or a ttempt to

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perpetra te any first degree m urder. Tenn . Code An n. § 39-13-20 2(a)(1) and (2).

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

otherwise required for the offen se . . . 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 acts with intent to complete a course of

action or cause a result tha t would co nstitute 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.”

Tenn . Code Ann. § 3 9-12-10 1(a)(2) an d (3).

In order to hold th e Def enda nt crim inally res pons ible for first degree murder

based upon the actions of Pe ck, the State m ust prove that, acting with the intent

to promote or assist the commission of the offense, Defendant solicited, directed,

aided or attempted to aid Peck in the killing of Brian Wiggins. Tenn. Code Ann.

§ 39-11-402(2). An aider and abettor under this statute can be held crimin ally

respo nsible not only for the criminal offense aided or abetted, but also for any

other crime committed by an accomplice as a “natural and probable consequence

of the crime originally aided and abetted.” State v. Carson, 950 S.W.2d 951, 952

(Tenn. 1997). The court in Carson described “natural and probable

consequence” as “harms [the aiders and a bettors] have na turally, probably and

forese eably put in m otion . . . A ‘natural a nd probable consequence’ in the

‘ordinary course of things’ presupposes an outcome within a reason ably

predic table range.” Id. at 955 (citations omitted). In dicta, the supreme court also

declared that the “[natural and probable consequences] principle also has been

applied to accom plices under the felony murde r doctrine.” Id. at 955, n. 5. Also,

the killing must not be independent or sepa rate from the und erlying felon y. State

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v. Severs, 759 S.W.2d 935, 938 (T enn. C rim. App . 1988); Farmer v. State, 296

S.W .2d 879, 883 (Tenn. 195 6).

Defendant argues that the evidence does not support a fin ding that he

acted with the requisite intent, or shared intent, of the co-Defendant William Peck.

W hile a defendant’s intent to kill and his premeditation may be formed in an

instant for the commission of first degree murder, “deliberation requires some

period of reflection, during which the mind is free from the influence of excitement

or passion.” State v. B rown, 836 S.W.2d 530, 540 (Tenn. 1992) (citations

omitted). “In order to establish first degree murder, the premeditated killing must

also have been done deliberately, that is, with cooln ess an d reflection . Id. at 539.

Premeditation require s a “pre viously forme d des ign or intent to kill.” State v.

West, 844 S.W .2d 144 , 147 (T enn. 19 92).

The evidence shows that prior to the shooting, the Defendant came into the

motel room an d asked P eck for the gun . The two arg ued abou t who would h ave

possession of the gun . After W iggins arrived, the Defendant and Peck

imm ediate ly ran outside with the gun and b egan to arg ue with him. Several

witnesses observed the Defendant and Peck beating Wiggins. James Bean

testified that he saw the Defendant go over to a white car and get something out

from under the passenger’s seat. Bean saw the Defe ndant s how the object to

the crowd and that was when people started leaving the scene. Bean stated that

he though t the objec t was a gu n. Wiggins testified tha t when h e attem pted to

leave the motel in his car, that Peck and the Defendant were kicking the side of

his car and were trying to hit him. While they were still fighting with Wiggins,

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Defendant told Peck to “Blast him. Blast him.” Immediately afterwards, the glass

window was bu sted an d the victim was sh ot.

Although the jury m ay not e ngag e in sp ecula tion, the jury ma y infer

premeditation and deliberation from the circumstances surrounding the killing, or,

as in the insta nt case, th e attem pted killing. State v. Bord is, 905 S.W.2d 214,

222 (Tenn . Crim. A pp. 199 5); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim.

App. 1993). Defendant abandoned the scene of the argument and walked back

to his car to get a handgun. A rational trier of fact could reasonably infer from the

proof that D efend ant left th e sce ne, we nt to his car and returned with the gun and

the intention of shooting Wig gins. See State v. Wesemann , No. 03C01-9404-

CR-00144, slip op. at 9, Sullivan County (Tenn. Crim. App., at Knoxville, June 25,

1997) (Rule 11 application filed August 18, 1997). During this time, Defendant

certain ly had the opportunity for premeditation and deliberation. We can infer

premeditation from their use of a deadly weapon upon an unarmed victim.

Brown, 836 S.W.2d 541. Furthermore, the Defendant and Peck, after first

beating Wiggins, again attempted to stop Wiggins from leaving the scene of the

argum ent. Arme d with a ha ndgun , they kicked his car, busted out the window,

then shot in to the ve hicle. T he bu llet mis sed W iggins but struck and killed

Jennifer Jones, who was in the front seat between Wiggins and Juan Rosa. After

viewing the evide nce in the light mos t favorable to the State, the evidence was

sufficient for a jury to have concluded that Defendant, for himself and as aider of

Peck, acted w ith prem editated a nd delibe rated inten t to kill. See State v.

Burlison, 868 S.W .2d 713 , 718 (T enn. C rim. App . 1993).

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 During oral arguments, Defendant’s counsel noted that his conviction for

attempted first deg ree m urder was vo id in light of our su prem e cou rt’s holdin g in

State v. Kimbrough, 924 S.W .2d 888 (T enn. 1996). Th e sup reme court in

Kimbrough held that th ere is not a n offense of attempted felony murder as one

cannot intend to a ccom plish the u nintend ed. Id. at 892. Kimbrough is

distinguished from this case as Defendant was convicted of attempted

preme ditated first de gree m urder of B rian W iggins. Th is issue is w ithout me rit.

J URY INSTRUCTIONS

The Defendant argues that the trial court erred by failing to instruct the jury

that only first degree murder could be considered as an underlyin g and p redicate

offense for the felony murder charge. Defendant admits that there was no

objection to the ju ry char ge an d this iss ue wa s not ra ised in his motio n for new

trial. Defend ant con tends tha t the jury cha rge rises to the level of p lain error.

The Defendant specifically objects to the language of the following portion

of the trial judge’s instruction to the jury:

Any person who commits first degree murder is guilty of a crime.
For you to find the defendant guilty of this offense, the State must
have proven beyond a reasonable doubt the existence of the
following essential elements:

(1) that on January 19, 1994, James Fernandez unlawfully killed
Jennifer Jones, the alleged victim, and

(2) that the killing was committed in the perpetration of or the attempt
to perpetrate the alleged homicide of Brian Wiggins; that is, that the killing
was closely connected to the alleged attempt to kill Brian Wiggins, and was
not a separate, distinct and independent event, and

(3) that Jame s Ferna ndez inte nded to comm it the alleged attempted
homicide of Brian Wiggins; and

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 (4) that the killing was a result of a reckless act by James Fernandez.

(empha sis added).

W e first note that the Defendant did not object at the time the judge gave

the jury this instru ction, n or did h e inclu de this issue in his mo tion for n ew trial.

Issues regarding the form or fullness of jury instructions are ordinarily not

approp riate for appellate review and are deem ed to be waived. State v. Cravens,

764 S.W.2d 754, 756-57 (Tenn. 1989). Defendant’s counsel was given

opportu nity to review the jury instructions p rior to the charge to the jury and failed

to object prior to that charge. However, “the failure to make objection [to the

conte nt of an instruction given ] shall not prejudice the right of a party to ass ign

the basis of the objection as error in support of a motion for a new trial.” Tenn.

R. Crim. P. 30(b). At the very least, the Defendant’s failure to include the issue

in his motion for a new trial is waiver of that issue, unless as Defendant argues,

the jury instru ction con tains plain e rror.

Upon review of the entire set of jury instructions charged to the jury by the

trial court, w e see nothin g that a ffected the su bstan tial rights of the De fendan t.

Tenn. R. Crim . P. 52( b). W hen re viewing the en tire cha rge, we may o nly

invalidate it if, when read as a whole, it fails to fairly submit the legal issues or

misleads the jury as to the app licable law. In re Estate of Elam, 738 S.W.2d 169,

174 (Tenn. 1987). During the ch arge to th e jury on C ount 1, the attemp t to

com mit first degree murde r, the trial court explained to the jury in detail the

eleme nts of first degree murder and the requirements of both premeditation and

deliberation. The trial court stated as follows:

For you [the jury] to find the Defendant guilty of criminal attempt, the
State must have proven beyond a reasonable doubt the existence

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 of the following essential elements: 1) that the Defendant intended
to com mit the spec ific offense of premeditated first degree murder
on January 19, 1994, against the alleged victim, Brian Wiggins; and
2) that the Defendant did some act intending to cause an essential
element of premeditated first degree murder to occur, and at the
time believed that act would cause the element to occur without
further ac tion on the Defen dant’s pa rt.

The essential elements necessary to constitute premeditated first
degree murde r are: 1) tha t a defend ant unlaw ful[ly] [sic] kills an
alleged victim; and 2) that the killing is intentional; and 3) that the
killing is deliberate, and 4) that the killing is premeditated.

The trial cou rt furthe r expla ined the definitions of “intentional,” “premeditated” and

“delibera te.” The trial co urt in Cou nt 3 of the c harge to the jury spoke of the

“attempt to perpetrate the alleged homicide of Brian Wiggins” when referring to

the underlying felony. A fair reading of the instructions reveals that the reference

to the attempted homicide of Brian Wigg ins specifically related to the e arlier jury

instruction regarding the attempt to commit premeditated first degree murder of

Brian Wiggins as charged in Count 1 of the indictm ent. Jury instructions must be

reviewed in the context of the overall charge rather than in iso lation. State v.

Byrd, No. 02C01-9508-CR-00232, slip op. at 32, Shelby County (Tenn. Crim.

App., at Jacks on, De c. 30, 199 6), perm. to appeal denied (Tenn. 199 7) (citing

Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)); see

State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). When viewed

in the conte xt of the ove rall charge , the trial judge ’s use of th e word “homicide”

rather than “first degree murde r” did not se rve to mis lead the ju ry such th at a

substantial right of the Defendant was affected.

W hile we agree the more appropriate wording would have been “first

degree murder” rather than “alleged hom icide,” any error which might have been

made was at most harmless error. The jury found the Defendant guilty of attempt

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to commit premeditated first degree murder, and the felony murder conviction

was as a result of th at attem pt. This iss ue has no me rit.

M OTION FOR JUDGMENT OF ACQUITTAL

The Defendant argues that the trial court erred in overruling his motion for

a judgment of acquittal. The duty of a trial judge and the reviewing court on

appeal on the determination of a motion for a judgment of acquittal is the same

as for a motion for a directed verdict. This duty is as follows:

The rule for determining a motion for a directed verdict requires the
trial judge and the reviewing court on appeal to look at all of the
evidence, to take the strongest legitimate view of it in favor of the
opponent of the m otion, and to allow all reasonable inferences from
it in his favor; to discard all countervailing evidence, and if then,
there is any dispute as to any material determinative evidence, or
any doub t as to th e con clusio n to be drawn from th e who le
evidence, the motion must be denied.

Jones v. State, 533 S.W .2d 326 , 329 (T enn. C rim. App . 1975); see also State v.

Stowe, 634 S.W.2d 674, 675 (Tenn. Crim. App. 1982) (citations omitted). Just

as there was su fficient evidence for a rational trier of fact to find the Defendant

guilty of attempt to commit first degree murder and the felony murder, there was

more than sufficient evidence for the trial court to overrule Defendant’s motion for

a judgm ent of acq uittal. This iss ue is witho ut merit.

C ONSECUTIVE SENTENCING

Defendant argue s that th e trial co urt erre d in im posin g con secu tive

sentences. At the sentencing hearing, the trial court imposed an eighteen (18)

year sentence for the conviction of attempt to commit first degree murder and a

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life sentence for the charge of felony murder. The eighteen (18) year sentence

is to be served consecutively to Defendant’s life sentence. Defendant does not

contest the length of the eigh teen (18) year se ntence, only its con secutive

manner of service.

When an accused challenges the length, range or the manner of service

of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence

with a presum ption that the determ inations mad e by the trial court are correct.

Tenn. Code A nn. § 40-35-4 01(d). This pre sump tion is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this cou rt must cons ider:

(a) the evid ence , if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and

-210; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not

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modify the sentence even if we would h ave prefe rred a differe nt result. State v.

Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The trial court based the imposition of consecutive sentences on the

provisions of Tennessee Code Annotated section 40-35 -115( b)(4). U nder th is

provision, the Defendant was subject to consecutive sentences as a dangerous

offender. Furthe rmor e, the tria l court fo und th e following enhanceme nt factors

applicable: the Defendant’s prior history of criminal convictions or beh avior; h is

previous history o f unwillingnes s to comply with the conditions of a sentence

involving release into the community; his use or possession of a firearm; his lack

of hesitation about committing a crime when th e risk to human life was high; the

potential for bodily injury to a victim was great; and the Defe ndan t was o n bail

from a prior felony when the offense was committed. Tenn. Code Ann. § 40-35-

114 (1), (8), (9), (10), (13) an d (16).

In finding the Defendant to be a dangerous offender, the trial court must

also have found that the Defendant’s 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. Tenn. Code Ann. § 40-35-115(b)(4). Furthermore, confinement for

an extended period must be found as necessary to protect the public against

further criminal conduct by the Defendant, and the consecutive sentences must

reaso nably relate to the severity of the offens es com mitted. State v. Wilkerson,

905 S.W .2d 933 , 938-39 (Tenn . 1995). T he trial cou rt reason ed as follo ws:

I’ve gone b eyond, in the cons ideration, I’ve gone beyond just the
fact that by the nature of these offenses, obviously, they involve a
danger to other individuals. The trial judge is to go beyond that. I’ve
gone beyond the fact that there was no hesitation in committing the
crimes, and that the potential for bodily injury was great. I have

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 spec ifically considered that the terms imposed mus t be rea sona bly
related to the severity of the offenses that were committed. I think
it is imperative, given the extreme severity of these offenses, the
extreme seriousn ess of the crimes, it is im perative th at they carry
independent sentences, and, secondly, in conjunction with that, I’ve
considered that a sign ificant term of incarceration is neces sary to
protect the public from further, similar criminal activity on the part of
the defendant, so those are the bases for the co nsecutive
sentencing determination.

From our review of the sentencing hearing and th e entire record, the

Defendant in the case sub judice is a dangerous offender and there was a

sufficient basis on which to impose consecutive sentences. When Defendant

brought the gun over to the scene of the argument, this evidenced his lack of

hesitation in creating a high risk of death or serious bodily injury to all those

involved in the a rgum ent, pa rticularly in light of the fact that most of those same

peop le had been drinking alcoholic beverages and were potentially intoxicated.

The Defendant’s conduct in this case demonstrated an indifference to the

probab ility that someone in Brian Wiggins’ vehicle would be killed if Peck chose

to follow his instructions to “Blast him. Blast him.” Oth er perso ns in add ition to

the victims were put at great risk. The nature of the two offenses Defendant

committed are severe. Finally, an extended sentence is necessary to protect the

public against the Defendant’s further criminal conduct. At the time of these

offenses, the Defendant was already on bond from a felony offense committed

in Florida. His prior criminal record and the nature of these offenses prove that

there is a n eed to co nfine the D efenda nt, particu larly in ligh t of his statem ent to

the police in w hich he fa ils to dem onstrate any rem orse for h is actions. See

Wilkerson, 905 S.W .2d at 937 -39. Th is issue ha s no m erit.

Based upon o ur review o f the record , the judgm ents of the trial court are

affirmed.

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 ____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

___________________________________
GARY R. WA DE, Judge

___________________________________
J. CURWO OD W ITT, JR., Judge

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