State v. Melvin Henning

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997

FILED
STATE OF TENNESSEE, ) October 24, 1997
) No. 02C01-9703-CC-00126
Appellee ) Cecil Crowson, Jr.
) MADISON COUNTY Appellate C ourt Clerk
vs. )
) Hon. FRANKLIN MURCHISON, Judge
MELVIN EDWARD HENNING, )
) (Attempted First Degree Murder;
Appellant ) Attempted Second Degree Murder;
Aggravated Assault - 2 counts;
Possession of a deadly weapon
during commission of a felony)

For the Appellant: For the Appellee:

C. MICHAEL ROBBINS JOHN KNOX WALKUP
202 S. Maple, Suite C Attorney General and Reporter
Covington, TN 38019

ON APPEAL ELIZABETH T. RYAN
Assistant Attorney General
GEORGE MORTON GOOGE Criminal Justice Division
District Public Defender 450 James Robertson Parkway
227 W. Baltimore Street Nashville, TN 37243-0493
Jackson, TN 38301

AT TRIAL JAMES G. (JERRY) WOODALL
District Attorney General

DONALD H. ALLEN
Asst. District Attorney General
P. O. Box 2825
Jackson, TN 38302

OPINION FILED:

AFFIRMED IN PART; MODIFIED AND REMANDED IN PART; REVERSED AND
VACATED IN PART

David G. Hayes
Judge
 OPINION

The appellant, Melvin Edward Henning, appeals his Madison County jury

convictions for the crimes of attempted first degree murder, attempted second

degree murder, two counts of aggravated assault, and possession of a deadly

weapon during the commission of a felony. 1 Following the sentencing hearing,

the trial court sentenced the appellant, as a range I offender, to twenty-four years

for attempted first degree murder and to eleven years for attempted second

degree murder; and, as a range II offender, to nine years for each aggravated

assault conviction and to three years for the weapons conviction. The trial court

further ordered that the two attempted homicide convictions run consecutively to

each other but concurrent with all remaining sentences, for a total effective

sentence of thirty-five years in the Tennessee Department of Correction. On

appeal, the appellant raises the following issues:

I. Whether the evidence is sufficient to support the appellant's two
attempted homicide convictions;

II. Whether the appellant's convictions for aggravated assault
violate constitutional protections provided by State v. Anthony, 817
S.W.2d 299 (Tenn. 1991).

III. Whether the trial court properly charged the jury on reasonable
doubt;

IV. Whether the trial court failed to apply applicable mitigating
factors in determining the length of the appellant's sentences; and

V. Whether the trial court properly ordered the appellant's
attempted homicide convictions to run consecutively.

After a thorough review of the record before us, we affirm the appellant's

conviction for attempted second degree murder. However, we find the evidence

insufficient to support the conviction for attempted first degree murder, and,

accordingly, modify the judgment to reflect a conviction for attempted second

1
The appe llant w as als o con victed of res isting arres t, a cla ss A mis dem ean or. T his
conviction was not appealed.

2
 degree murder and remand to the trial court for resentencing. Moreover, we

conclude, as conceded by the State in part, that the appellant’s two convictions

for aggravated assault violate principles of double jeopardy and, therefore, must

be vacated and dismissed.

Background

On February 18, 1995, the appellant, accompanied by his cousin, Michael

Smith, drove to the residence of Adel Washington, located at 236 Circle Drive,

Jackson. Smith had agreed to accompany the appellant, believing that they

were going to visit the appellant’s sick mother.2 Immediately prior to arriving at

the Washington residence, the appellant made a stop at the residence of Ann

Smith and inquired as to the whereabouts of the Washington children. Learning

that they were with Ms. Smith, the appellant replied, “that’s all I need to know”

and proceeded to the Washington residence.3 After arriving at the Circle Drive

address, the appellant got out of his car and walked to the front door. At this

point, the appellant was unaware that Ms. Washington was not at home and that

the only occupant was her live-in-boyfriend, Keith Fason, who was unknown to

the appellant. The appellant pounded on the door and demanded that the door

be opened. Upon receiving no reply, the appellant fired two shots at the door.

At this point, Smith asked the appellant what was going on and the appellant

2
Michael Smith testified that, earlier that day, the appellant had told him “that some girl
had sent him to jail and ‘I am going to get the bitch.’” Smith said, although he was not certain, he
believed th e girl to be so meo ne nam ed “Ard el” or “Ade l.”

3
The proof at trial established that earlier in the month, Ms. Washington, who was
acquainted with the appellant, had refused to sell the appellant and a female com panion “dope.”
Following Ms. Washington’s refusal to sell drugs, a heated argument ensued. The appellant
produced what appeared to be a pistol and stated that he would be back. Shortly thereafter, Ms.
W ashingto n filed a com plaint with the p olice, resu lting in the app ellant’s arres t. On Fe bruary 17 ,
the appe llant, upon lea ving a nigh t club in Jac kson , discove red that his car had been va ndalized.
The a ppellant be lieved the p erson re spons ible was M s. W ashingto n.

3
turned and shot his cousin in the chest. Hearing the gunshots, Fason ran to a

window on the other end of the house where he observed the appellant assisting

the wounded Smith back to the passenger side of the car. Fason, while

watching the appellant though the window, called the police to report the

shooting. As Fason watched the appellant from the window, he observed the

appellant look into the window where Fason was standing, raise his arm and fire

one shot. The bullet passed through the window and struck a glass jar. Fason’s

arm was cut by a piece of the shattered glass.

The appellant returned to his car and left the scene. In the car, the

appellant informed his wounded cousin that "I ain't taking you to the doctor." He

proceeded to drive around until he saw Donald Morrow on East Chester Street.

He stopped the car, threw the bleeding and semi-conscious Smith out of the car

onto the street, and instructed Morrow to "Take [Smith] [expletive deleted] to the

hospital before he dies."

Jackson Police Officer Monty Belew was dispatched to the Jackson

Madison County General Hospital at 5:38 p.m., because a gunshot victim was

found in the parking lot. At the hospital, Belew learned that the victim was

Michael Smith. Smith, while being prepared for surgery, stated that he had been

shot by the appellant and provided descriptions of both the appellant and his

vehicle.

Law enforcement officers located the appellant at his mother's home at

125 Otis Street. Officer Kathy Dent repeatedly instructed the appellant to "put

his hands up" and "get on his knees." The appellant ignored the instructions and

exclaimed "I have a gun in my pocket." A struggle ensued. After subduing the

appellant, the officers recovered a loaded.380 handgun on the appellant's

person.

4
 Based upon this evidence, the jury returned a verdict finding the appellant

guilty of the attempted first degree murder of Keith Fason, aggravated assault of

Keith Fason, the attempted second degree murder of Michael Smith, aggravated

assault of Michael Smith, possession of a deadly weapon during the commission

of a felony, and resisting arrest.

I. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient for a rational trier

of fact to find him guilty, beyond a reasonable doubt, of both attempted first

degree murder and attempted second degree murder. Once a jury returns a

guilty verdict, the presumption of innocence, with which a defendant is initially

cloaked, is removed and is replaced with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining

the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence which is reviewed in the light most favorable to the State. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Moreover, the credibility of witnesses, the weight given to

testimony, and the reconciliation of conflicts in the testimony are all matters

entrusted exclusively to the jury as the triers of fact, whose determination this

court will not disturb on appeal. State v. Oody, 823 S.W.2d 554, 558 (Tenn.

Crim. App. 1991). It is the appellate court's duty to affirm the conviction if the

evidence, viewed under these standards, was sufficient for any rational trier of

fact to have found the essential elements of the offenses beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State

5
v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

A. ATTEMPTED FIRST DEGREE MURDER

First, the appellant contends that he did not have the culpable mental

state necessary to support the offense of attempted first degree murder. In

support of this claim, the appellant argues that, not only did he lack the

necessary intent to kill Keith Fason, but also that he was unaware that the house

was occupied at the time of the shooting. In order to convict the appellant of

attempted first degree murder in this case, the State was required to prove that

the appellant, acting with the kind of culpability otherwise required for the

offense:

(2) Act[ed] 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;

Tenn. Code Ann. § 39-12-101(a) (1991); and that the result intended was the

(1) intentional, premeditated and deliberate killing of another. Tenn. Code Ann.

§ 39-13-202(a)(1) (1994 Supp.).

In the light most favorable to the State, the evidence shows that the

appellant intentionally fired his weapon at Washington's house. The frightened

Fason ran to another room where he telephoned for help, during which time he

observed the appellant assist his wounded companion to the car. W hile

watching the appellant return to the driver's side of his vehicle, Fason noticed the

appellant peering through the window, behind which Fason was standing. Fason

testified that the appellant was able to see him standing in the window. Rather

than return to his vehicle, the appellant made the conscious decision to aim his

weapon and then fire his weapon into this window.

The State bears the burden of proving, beyond a reasonable doubt, the

separate and distinct elements of premeditation and deliberation. See Tenn.

6
Code Ann. § 39-11-201(1) (1991). As proof of premeditation and deliberation,

the State argues that the appellant made eye contact with Fason, who was

standing in the window, and rather than leaving the scene, consciously made a

decision to raise his arm and fire into the window. Premeditation necessitates

"the exercise of reflection and judgment," Tenn. Code Ann. § 39-13-201(b)(2)

(1991), "includ[ing] instances of homicide committed by poison or lying in wait,"

and "requiring "a previously formed design or intent to kill." State v. West, 844

S.W.2d 144, 147 (Tenn. 1992). Deliberation, on the other hand, is defined as a

"cool purpose . . . formed in the absence of passion." State v. Brown, 836

S.W.2d 530, 538 (Tenn. 1992) (citations and internal quotations omitted).

Deliberation also requires "some period of reflection, during which the mind is

free from the influence of excitement." Id.; see also Tenn. Code Ann. § 39-13-

201(b)(2).

Although there are no strict standards governing what constitutes proof of

premeditation and deliberation, several relevant circumstances are helpful in the

inquiry, including: the use of a deadly weapon upon an unarmed victim; the fact

that the killing was particularly cruel; declarations by the defendant of his intent

to kill; and the making of preparations before the killing for the purpose of

concealing the crime. State v. Bland, No. 02C01-9412-CR-00281 (Tenn. Crim.

App. at Jackson, Mar. 27, 1996), reh'g denied, (Tenn. Crim. App. May 1, 1996)

(citing Brown, 836 S.W.2d at 541-42). Additional factors from which the jury may

infer premeditation and deliberation include planning activities by the appellant

prior to the killing, the appellant's prior relationship with the victim, and the nature

of the killing. Id. (citing State v. Bordis, 905 S.W.2d 214 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1995) (quoting 2 W. LaFave and A. Scott, Jr.,

Substantive Criminal Law Sec. 7.7 (1986))); Gentry, 881 S.W.2d at 4-5 (citation

omitted)). Other than the appellant’s use of a deadly weapon, we find none of

the above circumstances present in the instant case.

7
 We are unable to conclude from the proof in the record that the

appellant’s firing of his weapon into the window was premeditated, i.e. as the

result of “the exercise of reflection and judgment with a previously formed design

or intent to kill.” In fact, Keith Fason confirmed the appellant's assertion that he

and Fason had never previously met nor had the two men had any prior

encounters or dealings. Notwithstanding our finding that the proof is insufficient

to establish the attempted first degree murder of Keith Fason, we acknowledge

that, once a homicide is established, it is presumed to be a second degree

murder. Brown, 836 S.W.2d at 543. Second degree murder is "a knowing killing

of another." Tenn. Code Ann. § 39-13-210(a)(1)(1991). Clearly, under the facts

of this case, the appellant acted "knowingly" with an awareness that firing a

loaded weapon at the victim was reasonably certain to produce death. See

Tenn. Code Ann. § 39-11-106(20) (1991). Thus, we conclude that there is

evidence to support "knowing" conduct, and, therefore, an attempted second

degree murder conviction. Accordingly, the appellant's conviction for attempted

first degree murder is modified to reflect the lesser offense of attempted second

degree murder. We remand to the trial court for resentencing for this offense.

B. ATTEMPTED SECOND DEGREE MURDER

The appellant also challenges the jury's verdict finding him guilty of the

attempted second degree murder of Michael Smith. See Tenn. Code Ann. § 39-

13-210(a)(1); Tenn. Code Ann. § 39-12-101(a). Specifically, he argues that the

proof failed to show that he was aware that his conduct was reasonably certain

to cause Smith's death. Rather, he asserts that the proof established that the

shooting of Michael Smith was a "drug induced and wildly reckless act."

Again, once a homicide is established it is presumed to be second degree

murder. Brown, 836 S.W.2d at 543. In order to support a conviction for

attempted second degree murder, the proof must establish that the appellant

8
knowingly attempted to kill Smith, without adequate provocation and with the

belief that his conduct would result in Smith's death without further conduct on

his part. See State v. Belle, No. 03C01-9503-CR-00094 (Tenn. Crim. App. at

Knoxville, Mar. 6, 1996), perm. to appeal denied, (Tenn. Sept. 16, 1996) (citation

omitted). The proof at trial established that, once the appellant began firing upon

the house, Michael Smith got out of the car and asked the appellant what he was

doing. The appellant turned and shot Smith point blank in the chest. There is no

proof that Smith either provoked or threatened the appellant. Moreover, there

was no proof introduced at trial to indicate the appellant's alleged level of

intoxication. Accordingly, the proof supports the jury's verdict finding the

appellant guilty, beyond a reasonable doubt, of attempted second degree

murder. This issue is without merit.

II. Double Jeopardy

The appellant next argues that, under State v. Anthony, 817 S.W.2d at

299, due process dictates that his convictions for the aggravated assaults of

Michael Smith and Keith Fason are necessarily incidental to his respective

convictions for attempted first and second degree murder and as such, cannot

stand. We find, however, that the factual circumstances present an issue of

double jeopardy rather than one of due process. See State v. Denton, 938

S.W.2d 373 (Tenn. 1996). Count one of the indictment charged the appellant

with attempted first degree murder of Michael Smith, and count two charged the

appellant with aggravated assault of Michael Smith. It is undisputed that only

one shot was fired at the victim Michael Smith, with that bullet striking the victim

in his chest. The State concedes that the same evidence was used to convict

the appellant of both aggravated assault and attempted second degree murder.

Accordingly, the State acknowledges that the appellant’s conviction for

9
 aggravated assault violates double jeopardy principles and cannot stand. We

agree. We affirm the appellant’s conviction for attempted second degree murder

and reverse and dismiss the appellant’s conviction for aggravated assault. See,

e.g., Denton, 938 S.W.2d at 382; State v. Hall, No. 02C01-9607-CC-00211

(Tenn. Crim. App. at Jackson, Jan. 28, 1997); State v. Adams, No. 02C01-9512-

CC-00376 (Tenn. Crim. App. at Jackson, Jan. 3, 1997), perm. to appeal denied,

(Tenn. June 2, 1997).

Count three of the indictment charged the appellant with attempted first

degree murder of Keith Fason and count four charged the appellant with

aggravated assault of Keith Fason. With reference to these convictions,

however, the State, on appeal, argues that the proof supports the commission of

separate and distinct offenses. Specifically, the State now argues that the

aggravated assault was established by the appellant’s act of shooting at the front

door. In support of the attempted second degree murder conviction, the State

relies upon the gunshot fired by the appellant through the window. Contrary to

the contemporaneous argument now advanced by the State, the record, at the

trial level, reveals that the State, in its argument to the jury, relied upon the shot

fired through the window to support both convictions. 4 Indeed, the record reflects

that the clear intent of the State was to proceed as to both victims upon charges

of aggravated assault as an alternative course of prosecution should the

evidence fail to support convictions for attempted homicide. Moreover, the trial

judge repeatedly noted that the appellant should not have convictions for “both

attempted homicides and also the aggravated assaults, but [conceded that he

4
The S tate’s pos ition on this iss ue is indica ted in both its opening statem ent and its
closing argument. One such illustration is noted by the prosecutor’s following remarks: “Ladies
and gentlemen, keep in mind that we have aggravated assault, and we also have attempted
mur der. W e are rea lly talking abou t one incident, but we are talking about two different
individuals.” (emphasis added).

10
 did not] know procedurally how to handle it.”5

In Denton, 938 S.W.2d at 373, our supreme court extended double

jeopardy protection under the Tennessee Constitution beyond that provided by

the federal constitution. Hall, No. 02C01-9607-CC-00211. Specifically, the

court, going beyond Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.

180, 182 (1932), promulgated the following analysis to determine whether the

punishment for multiple convictions for a single criminal action violates principles

of double jeopardy:

I. a Blockburger analysis of the statutory offenses; 6

II. an analysis, guided by the principles of Duhac v. State, 505
S.W.2d 237 (Tenn. 1973), of the evidence used to prove the
offenses; 7

III. a consideration of whether there were multiple victims or
discrete acts; and

IV. a comparison of the purposes of the respective statutes.

Denton, 938 S.W.2d.

Clearly, under a Blockburger analysis, the offenses of attempted first

degree murder and aggravated assault (1) are separate and distinct statutory

offenses, (2) neither offense is included in the other,8 (3) both require proof of

different elements, (4) each require proof of additional facts not required by the

other, and (5) the legislative intent suggests that two separate offenses were

5
As the supreme court noted in Denton, 938 S.W .2d a t 383 , n. 22 , “the t rial co urt sh ould
have instructed the jury that they could convict on only aggravated assault or attempted
hom icide.”

6
"[W]hether each statutory provision requires proof of an additional fact which the other
does n ot." Denton, 938 S.W.2d at 379 (quoting State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975)
(quoting Blockburger, 284 U.S . at 304, 52 S.Ct. at 18 2 (1932 )).

7
"[T]he tes t is whethe r the sam e eviden ce is nec essary to p rove bo th offens es." Denton,
938 S.W.2d at 380 (quoting Duhac, 505 S.W .2d at 241).

8
In State v. T rusty, 919 S.W.2d 305 (Tenn. 1996), our supreme court held that aggravated
assault is neither a lesser grade nor class of the offense of attem pt to comm it first degree murder.

11
 intended. Denton, 938 S.W.2d at 379 (quoting State v. Black, 524 S.W.2d 913,

919 (Tenn. 1975) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (1932)).

Having survived Blockburger, we next focus upon whether the evidence

used to support both aggravated assault and attempted first degree murder

convictions is the same. Based upon our previous review of the State’s position

at trial, the trial court’s pronouncements of its position relative thereto, and the

proof in the record, we conclude that “the same evidence [was] necessary to

prove both offenses.” Denton, 938 S.W.2d at 380 (quoting Duhac, 505 S.W.2d

at 241). Accordingly, we conclude that the appellant’s convictions for the

attempted second degree murder and aggravated assault of Keith Fason are the

“same” for double jeopardy purposes. Thus, only one conviction can be

sustained. We affirm the appellant’s conviction for the attempted second degree

murder of Keith Fason.9 The conviction for aggravated assault is reversed, the

accompanying sentence is vacated, and this count of the indictment is

dismissed.

Parenthetically, we note that, even if we had accepted the State’s

argument, the appellant’s act of shooting at the front door would not have

supported a conviction for aggravated assault under a sufficiency of evidence

analysis. Our supreme court has recently held that a conviction for aggravated

assault cannot stand absent evidence that the accused knew that the house was

occupied during the initial shooting as the proof cannot establish that the

accused intentionally or knowingly caused a victim to fear imminent bodily injury.

See State v. Wilson, 924 S.W.2d 648, 650 (Tenn. 1996). The proof is clear in

this case that the appellant was unaware of Fason’s presence in the house at

the time of the initial shooting into the front door. Apparently, in view of this

9
This ruling reflects our previous modification of the appellant’s conviction for attempted
first degree murder to the lesser offense of attempted secon d degree m urder.

12
 ruling, the State argues that the facts support a “reckless” aggravated assault as

defined by Tenn. Code Ann. § 39-13-102(a)(2)(B). However, the predicate

assault for this offense requires the infliction of “bodily injury to another.” Tenn.

Code Ann. § 39-13-101(a)(1). Because no bodily injury resulted from the initial

shooting by the appellant, this offense is inapplicable.

III. Reasonable Doubt Instruction

Next, the appellant contends that the trial court committed error by failing

to include language instructing the jury that the State has the burden of proving a

defendant's guilt to a moral certainty.10 Specifically, he complains that the

instruction provided by the trial court "emphasize[d] the level of uncertainty which

the standard of proof beyond reasonable doubt would permit." Although we

agree with the State that the appellant has waived this issue for failure to request

a particular jury instruction and failure to object to the instruction given, we elect

to proceed upon the merits of this claim. See Tenn. R. App. P. 36(a). See also

State v. Haynes, 720 S.W.2d 76, 85 (Tenn. Crim. App. 1986).

In state criminal trials, the Due Process Clause of the Fourteenth

Amendment protects the accused from conviction unless the prosecution

persuades the fact-finder "beyond a reasonable doubt" of the facts necessary to

establish each element of the offense charged. Sullivan v. Louisiana, 508 U.S.

275, 278, 113 S.Ct. 2078, 2080-81 (1993) (citations omitted); In re Winship, 397

U.S. 358, 364, 90 S.Ct. 1068, 1072-73 (1970); see also Jackson v. Virginia, 443

U.S. at 320 n. 14, 99 S.Ct. at 2790 n.14. The "beyond a reasonable doubt

standard" provides concrete substance for the presumption of innocence; "that

10
Ironically, we note that challenges to the reasonable doubt jury instruction in the past
have focused almost exclusively upon inclusion of the moral certainty language.

13
 bedrock axiomatic and elementary principle whose enforcement lies at the

foundation of the administration of our criminal law." Winship, 397 U.S. at 364,

90 S.Ct. at 1072; see also Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239,

1243 (1994). However, the Constitution does not require courts to define

reasonable doubt for the jury, or, if they elect to define reasonable doubt to use

any particular formula or words. See Holland v. United States, 348 U.S. 121,

140, 75 S.Ct. 127, 138 (1954); see also Victor, 511 U.S. at 5, 114 S.Ct. at 1243.

Indeed, the Court noted that "attempts to explain the term "reasonable doubt" do

not usually result in making it any clearer to the minds of the jury."11 Holland,

348 U.S. at 140, 75 S.Ct. at 138; see also United States v. Headspeath, 852

F.2d 753, 755 (4th Cir. 1988); United States v. Olmstead, 832 F.2d 642, 645 (1st

Cir. 1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1739 (1988) ("reasonable

doubt is a fundamental concept that does not easily lend itself to refinement or

definement"); United States v. Lawson, 507 F.2d 433, 443 (7th Cir. 1974), cert.

denied, 420 U.S. 1004, 95 S.Ct. 1446 (1975) overruled on other grounds by

United States v. Hollinger, 553 F.2d 535 (7th Cir. 1977).

Nonetheless, a jury instruction that permits conviction on a lesser

standard -- by shifting the burden of proof from the prosecution to the defendant,

or by suggesting that a higher degree of doubt than 'reasonable doubt' is

necessary for acquittal is constitutionally deficient and grounds for reversal.

Sullivan, 508 U.S. at 280, 113 S.Ct. at 2080-2082. Accord Lanigan v. Maloney,

853 F.2d 40, 48 (1st Cir. 1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788

(1989) (although the court need not define reasonable doubt, any definition given

must not reduce the government's burden of proof). In determining whether the

instruction is constitutionally deficient, the reviewing court must examine the

charge as a whole and consider how reasonable jurors could have understood

11
Interestingly, we note that some jurisdictions strongly advise against defining the term
“reasonable doubt.” See, e.g., United States v. Reives, 15 F.3d 42, 45 (4th Cr.), cert. denied, 512
U.S. 12 07, 114 S .Ct. 2679 (1994); Lawson, 507 F.2 d 433; Com mon wealth v. G oforth , 692 S.W.2d
803 (Ky. 1985).

14
the charge as correctly conveying the concept of reasonable doubt. Victor, 511

U.S. at 6, 114 S.Ct. at 1243; Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328,

329 (1990) (per curium) (citation omitted); Cupp v. Naughten, 414 U.S. 141,

146-147, 94 S.Ct. 396, 400-01 (1973). Accordingly, an asserted error in a

reasonable doubt instruction may be innocuous or inconsequential when viewed

in the context of the charge as a whole. See Vargas v. Keane, 86 F.3d 1273,

1277 (2nd Cir.), cert. denied, -- U.S. --, 117 S.Ct. 240 (1996).

In the present case, the trial court instructed the jury:

The law presumes that the defendant is innocent of the charge
against him. This presumption remains with the defendant thought
every stage of the trial, and it is not overcome unless from all of the
evidence in the case, you are convinced beyond a reasonable
doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant
beyond a reasonable doubt, and this burden never shifts, but
remains on the State throughout the trial of the case. The
defendant is not required to prove his innocence.

A reasonable doubt is a doubt based upon reason and common
sense after careful and impartial consideration of all of the
evidence in the case. It is not necessary that the defendant's guilt
be proved beyond all possible doubt, as absolute certainty of guilt
is not demanded by law to convict of any criminal charge. A
reasonable doubt is just that - - a doubt that is reasonable after an
examination of all of the facts in the case. If you find that the State
has not proven every element of the offense beyond a reasonable
doubt, then you should find the defendant not guilty.[12]

The State must prove beyond a reasonable doubt all the elements
of the crime charged. . .

(Emphasis added to challenged portion of instruction).

Again, the appellant claims that the instruction defining "reasonable

doubt" is constitutionally deficient. In support of his argument, the appellant

adopts the position of one panel of this court. See State v. Denton, No. 02C01-

9409-CR-00186 (Tenn. Crim. App. at Jackson, Aug. 2, 1996). The reviewing

panel, in Denton, expressed concerned that the pattern instruction, 2.03(a), does

12
See T.P.I. Crim. 2.03(a) (4th ed.).

15
 not adequately convey the evidentiary certainty required under the reasonable

doubt standard. Denton, No. 02C01-9409-CR-00186. Specifically, the panel

quoted two excerpts from the instruction, i.e., "a doubt based upon reason and

common sense after careful and impartial consideration of all the evidence" and

"absolute certainty of the defendant's guilt is not necessary to convict him."

Tennessee Pattern Instruction 2.03(a) tracks virtually identical language of

pattern reasonable doubt instructions approved by a majority of the federal

circuits.13 See, e.g., United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir.

1992), cert. denied, 508 U.S. 979, 113 S.Ct. 2979 (1993); United States v.

Campbell, 874 F.2d 838, 841 (1st Cir. 1989); United States v. Hall, 854 F.2d

1036, 1039 (7th Cir. 1988); United States v. Kirby, 838 F.2d 189, 191-192 (6th

Cir. 1988); United States v. Colon, 835 F.2d 27, 31-32 (2nd Cir. 1987), cert.

denied, 485 U.S. 980, 108 S.Ct. 1279 (1988); United States v. Dilg, 700 F.2d

620 (11th Cir. 1983); United States v. Alonzo, 681 F.2d 997, 1002 (5th Cir.), cert.

denied, 459 U.S. 1021, 103 S.Ct. 386 (1982); United States v. Robertson, 588

F.2d 575, 579 (8th Cir. 1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2166 (1979).

Moreover, the questioned language "based upon reason and common sense"

13
The most notable exception between the Tennessee Pattern Instruction and those
emp loyed by the fe deral cou rt is the Te nness ee instruc tion's om ission of th e langua ge "hes itate to
act." Althou gh the S uprem e Cou rt has indic ated a pr eferen ce for the se term s, see Holland, 348
U.S. at 12 6, 75 S.C t. at 130; accord United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975),
cert. denied, 424 U.S. 920, 96 S.Ct. 1125 (1976) (reasonable doubt instruction must be couched
in terms of hesitation to act), om ission of th is langua ge from an instruc tion does not am ount to
reversible error. See, e.g., United States v. Cleveland, 106 F.3d 1056, 1062 (1st Cir. 1997),
petition for cert. filed, (Apr. 30, 1 997); United States v. Barrera-Gonzales, 952 F.2d 1269, 1272
(10th C ir. 1992); Unite d Sta tes v. Bus tillo, 789 F.2d 1364, 1368 (9th Cir. 1986);. Moreover, the
use of th is term inology has repeate dly been cr iticized. See, e.g., Victor, 511 U.S . at ---. 114 S .Ct.
at 1252 (Ginsberg, J. concurring in part and concurring in judgment) (commenting that the 1987
Report to the Judicial Conference of the United States regards the analogy underlying the
"hesitation to act" form ulation as b eing m isplaced ); Gilday v. Callahan, 59 F.3d 257, 264 (1st Cir.
1995), cert. denied, -- U.S. --. 116 S.Ct. 1269 (1996) ("hesitate to act" language is unhelpful);
Vargas, 86 F.3d at 1274; United States v. Reese, 33 F.3d 166, 172 (2nd C ir. 1994), cert. denied,
513 U .S. 1092 , 115 S.C t. 756 (199 5); United States v. O'Brien, 972 F.2d 12, 15 (1st Cir. 1992)
("hesitation to act" langu age trivializes b urden o f proof); United States v. Noone, 913 F.2d 20, 28-
29 (1st C ir. 1990), cert. denied, 500 U.S. 906, 111 S.Ct. 1686 (1991)). Thus, failure to include
"hesitation to act" language in the Tennessee Pattern Instruction is not error.

16
and "absolute certainty is not required" has repeatedly been upheld as passing

constitutional muster. See, e.g., United States v. Kime, 99 F.3d 870 (8th Cir.

1996), cert. denied, -- U.S. --, 117 S.Ct. 1015 (1997); United States v. Miller, 84

F.3d 1244 (10th Cir.), cert. denied, -- U.S. --, 117 S.Ct. 443 (1996) overruled on

other grounds by United States v. Holland, 116 F.3d 1353 (10th Cir. 1997);

United States v. Campbell, 61 F.3d 976, 980-981 (1st Cir. 1995), cert. denied, --

U.S. --. 116 S.Ct. 1556 (1996); Hall, 854 F.2d at 1038-1039; United States v.

Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993).

We do not find that the instruction taken separately renders the

reasonable doubt instruction constitutionally deficient. Additionally, considering

this language in the context of the full charge, we find no reasonable likelihood

that the jury understood the instruction to permit conviction after anything but a

process of careful deliberation or upon less than proof beyond a reasonable

doubt. This issue is without merit.

IV. Sentencing

In his final challenge, the appellant avers that the trial court erred by

imposing excessive sentences and by ordering his convictions for attempted

homicide to run consecutively. Initially, we note that, in view of our previous

rulings in this opinion, our review extends only to his convictions for attempted

second degree murder of Michael Smith and possession of a deadly weapon

during the commission of a felony.

Review, by this court, of the length, range, or manner of service of a

sentence is de novo with a presumption that the determination made by the trial

court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption only

17
applies, however, if the record demonstrates that the trial court properly

considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In the case before us, the trial court considered relevant

sentencing principles; thus, the presumption applies. Moreover, this court may

only modify a sentence if the sentence is excessive or the manner of service is

inappropriate. State v. Russell, 773 S.W.2d 913, 915 (Tenn. 1989). On appeal,

the appellant bears the burden of showing that the sentence imposed was

improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-

401(d).

The proof at the sentencing hearing revealed that the appellant is a forty-

two year old father of two children, a ninth grade drop out, and a chronic

substance abuser. He receives disability benefits for a back problem and was

unemployed prior to the present offenses. His prior criminal record consists of a

conviction for the unlawful use of a weapon in Illinois in 1993; a 1982 conviction

for escape; a 1977 conviction for armed robbery; and 1973 convictions for auto

theft and grand larceny.

Michael Smith, the only witness at the sentencing hearing, testified that he

is the appellant's cousin and is also a victim of the instant offenses. He stated

that the appellant shot him one inch from his heart. As a consequence of the

shooting, Smith was hospitalized for one month, consisting of nine days in the

Intensive Care Unit. Smith underwent two surgeries due to the injuries received

to "his kidney, spleen, liver, heart, and lungs . . . ." As a result of this incident,

Smith asserted that "I am destroyed for the rest of my life."

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 A. LENGTH OF SENTENCES

In determining the appropriate sentence for the attempted second degree

murder of Michael Smith, the trial court found the following enhancement factors

applicable: (1) the defendant has a previous history of criminal convictions or

behavior, Tenn. Code Ann. § 40-35-114(1) (1995 Supp.); (6) that the personal

injuries inflicted were particularly great, Tenn. Code Ann. § 40-35-114(6); and (9)

the defendant possessed a firearm during the commission of the offense, Tenn.

Code Ann. § 40-35-114(9). Regarding the weapons charge, the trial court

applied enhancement factor (1) that the defendant has a previous history of

criminal convictions and behavior. Tenn. Code Ann. § 40-35-114(1). The trial

court concluded that no mitigating factors were applicable. Accordingly, the

court imposed a sentence of eleven years for the attempted second degree

murder conviction and three years for the possession of a weapon during a

felony conviction.14

The appellant does not dispute the applicability of the enhancement

factors utilized by the trial court; rather he contests the trial court's refusal to find

as mitigating factors (1) the appellant's long history of substance abuse and (2)

that the appellant aided Smith by ensuring treatment for his injury. We conclude

that the trial court properly rejected these proffered mitigating factors. As the

appellant concedes, the 1989 Code expressly excludes the voluntary use of

intoxicants as a "mental or physical condition that significantly reduce[s] [a

defendant's] culpability." See Tenn. Code Ann. § 40-35-113(8) (1990).

Nonetheless, he argues that this factor should be considered in light of the fact

that "the shooting . . .would not have occurred apart from the influence of the

drugs." In other words, the appellant concedes that his drug abuse should not

reduce his culpability as to his guilt of the crimes, but should be considered "in

14
Before imposing sentences, the trial court found that the appropriate sentencing range
was with in range I fo r the attem pted hom icide offen ses, bu t range II for the aggr avated a ssaults
and wea pon s ch arge . The appe llant d oes not c hallen ge th is clas sifica tion o n app eal.

19
fashioning an appropriate sentence." Again, the 1989 Sentencing Reform Act

excludes involuntary intoxication as a mitigating factor in sentencing. Tenn.

Code Ann. § 40-35-113(8). Moreover, the appellant has failed to present any

evidence that he was, in fact, intoxicated at the time the offenses were

committed. This contention is without merit.

The appellant also argues that his efforts to assist the injured Smith

should be considered in mitigation of his punishment. Tenn. Code Ann. § 40-35-

113(13). The proof does not support this assertion. Indeed, the testimony at the

sentencing hearing revealed that the appellant refused to transport the victim to

the hospital. Fortunately for Smith, the appellant met Donald Morrow on the

street. It was only by this chance encounter that medical attention for Smith was

foreseeable, but only after the appellant pushed the victim out of his vehicle and

onto the street. This factor was properly rejected by the trial court.

Upon de novo review, we agree with the trial court that no mitigating

factors are applicable to the instant offenses. Moreover, we conclude that the

proof supports the trial court's application of three enhancement factors to the

offense of attempted second degree murder of Michael Smith and one

enhancement factor to the weapons charge. When there are enhancement

factors and no mitigating factors, the trial court may set the sentence above the

minimum within the applicable sentencing range, but still within the range. Tenn.

Code Ann. § 40-35-210(d). The appellant was convicted as a range I offender of

a class B felony, and as a range II offender of a class E felony. Thus, the

sentence range for the appellant is eight to twelve years for the attempted

second degree murder conviction, and two to four years for the weapon

conviction. See Tenn. Code Ann. § 40-35-112(a)(2); -112(b)(5). The court

imposed sentences of eleven years and three years for the respective

convictions. We find the length of these sentences to be justified and not

20
excessive under the guidelines of the 1989 Sentencing Act. This issue is without

merit.

B. CONSECUTIVE SENTENCES

If a defendant is convicted of more than one criminal offense, the court

may order the sentences to run consecutively. Tenn. Code Ann. § 40-35-

115(1990). In the present case, the trial court ordered that the two attempted

homicide convictions run consecutively based upon the appellant's classification

as a dangerous offender and the appellant's extensive criminal background. The

appellant contests the trial court's classification of him as a "dangerous

offender," arguing the lack of aggravating circumstances to support this status.

Because we have modified the appellant's conviction from attempted first degree

murder to attempted second degree murder and remanded this conviction to the

trial court for resentencing, we are precluded from reviewing whether the

aggregate sentence imposed is reasonably related to the severity of the offenses

and is necessary to protect the public from further criminal acts of the appellant.

See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The determination

of this issue remains with the trial court on remand. However, we are able to

evaluate the appellant’s classification as a “dangerous offender.”

In Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976), our supreme court

held that "[a] defendant may be classified as a dangerous offender if the crimes

for which he is convicted indicate that he has little or no regard for human life,

and no hesitation about committing a crime in which the risk to human life is

high." (Emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4);

Wilkerson, 905 S.W .2d at 937. If a court decides to impose consecutive

sentences based upon the inherently dangerous nature of the instant offenses,

the court should base its decision upon the presence of aggravating

circumstances and not merely on the fact that two or more dangerous crimes

21
were committed. Gray, 538 S.W.2d at 393. In the present case, the appellant

armed himself with a loaded .380 handgun, drove to 236 Circle Drive to "get

even" with Ms. Washington for having him arrested, and proceeded to wantonly

fire the weapon at the house. During this episode, two victims were injured, i.e.,

Mr. Smith suffering a direct gunshot wound to the chest, and Mr. Fason receiving

injuries from flying debris. Immediately after the shooting, the appellant refused

to seek medical attention for the semi-conscious Smith. The proof before us

clearly establishes that the appellant had no hesitation about committing a crime

when the risk to human life was high and that the appellant has little or no regard

for human life. Accordingly, the trial court's classification of the appellant as a

dangerous offender is warranted.

V. Conclusion

After a thorough review of the record and the applicable law, we conclude

that the evidence is insufficient to support a conviction for the attempted first

degree murder of Keith Fason. We reverse the appellant's conviction for

attempted first degree murder, modify the judgment to reflect a conviction for

attempted murder in the second degree, and remand to the trial court for

resentencing. Additionally, in accordance with the principles announced in State

v. Denton, 938 S.W.2d at 373, we dismiss the appellant's convictions for

aggravated assault and vacate the accompanying sentences. We affirm the

appellant's remaining convictions for attempted second degree murder of

Michael Smith and possession of a deadly weapon. Moreover, we affirm the

length of the sentences imposed for these convictions and the trial court’s finding

that the appellant is a dangerous offender. Accordingly, we remand this cause

to the trial court for entry of judgments of conviction consistent with this opinion

and for re-sentencing regarding the modified conviction for the attempted second

22
degree murder of Keith Fason and for determination of whether consecutive

sentencing is appropriate.

________________________________
DAVID G. HAYES, Judge

CONCUR:

_______________________________
JERRY L. SMITH, Judge

_______________________________
THOMAS T. W OODALL, Judge

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