State v. Elder

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER SESSION, 1997 FILED
April 23, 1998

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9702-CR-00053
Appellee )
) KNOX COUNTY
vs. )
) Hon. Richard Baumgartner, Judge
THOMAS JEROME ELDER, )
) (Attempt to Commit Murder
Appellant ) in the second degree)

For the Appellant: For the Appellee:

Julie A. Martin John Knox Walkup
Attorney at Law Attorney General and Reporter
P. O. Box 426
Knoxville, TN 37901-0426 Peter M. Coughlan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493

Randall E. Nichols
District Attorney General

Robert Jolley
Asst. District Attorney General
City-County Building
Knoxville, TN 37902

OPINION FILED:

AFFIRMED

David G. Hayes
Judge
 OPINION

The appellant, Thomas Jerome Elder, appeals as of right from his conviction for

criminal attempt to commit murder in the second degree.1 Following his jury trial, the

Knox County Criminal Court imposed a twelve year sentence in the Tennessee

Department of Correction to be served consecutively to federal sentences for

convictions for cocaine distribution and related crimes. On appeal, the appellant

presents three issues for our review:

(1) Whether the evidence was sufficient to support his conviction for
criminal attempt to commit second degree murder;

(2) Whether the trial court committed reversible error by failing to instruct
the jury on the charge of attempted voluntary manslaughter; and,

(3) Whether the trial court erred by imposing the maximum sentence
allowed for a Range I, standard offender of a Class B felony.

After review, we affirm the trial court’s judgment.

Facts

The proof at trial established that, in 1992, the appellant and the victim in this

case, Steven Drew, were jointly engaged in the criminal enterprise of distributing drugs.

The appellant supplied drugs to Drew who, in turn, sold those drugs on the street.

Because Drew purchased his drugs from the appellant, the appellant permitted him to

use one of the street corners in the appellant’s “territory,” which was known as

“posting.” The area “posted” by Drew was a street corner in Austin Homes, an east

Knoxville neighborhood. During an encounter between the two on February 19, 1992,

the appellant initially spoke with Drew about a mutual acquaintance, Lisa, whom the

appellant had casually dated. The two briefly argued about the fact that Lisa had been

“coming to see [the victim] over in Austin Homes.” Drew related that Lisa and the

appellant did not have a “real close relationship” and that they both “saw other people

1
The appellant was indicted for criminal attemp t to comm it first degree murder.

2
. . . .” The conversation then changed to the sale of drugs. When Drew told the

appellant that he had found a new supplier of drugs, the appellant ordered Drew to

leave the area he had “posted.” Half an hour later, the appellant returned and asked

Drew why he still remained on the street corner. Drew then informed the appellant that

“it’s a free country.” The appellant replied, “You think I’m playin’; I’ll kill you.” Four

hours later, the appellant returned to the street corner. Drew had just completed a drug

sale when he was shot twice by the appellant from an approximate distance of six feet.

The bullets struck the victim in his leg and lower back. Fifteen to twenty people

witnessed the crime but no one came forward to testify to the events they observed.

At trial, Dr. Hugh Hyatt, the attending surgeon, testified that he examined the

victim when he was brought into the hospital in February 1992. Dr. Hyatt characterized

the wounds as serious. One bullet struck the victim’s left leg and the other entered the

sacrum in the lower back area. Dr. Hyatt further testified that the gunshot wound,

located near a major artery, was “a penetrating wound which involved the entire depth

of the body.” After opening the victim’s abdomen, a diverting colostomy was performed

which involves “a division of the colon to prevent any further spillage of fecal material

into the pararectal tissues.” The defense presented no proof. At the conclusion of the

evidence, the jury found the appellant guilty of the lesser offense of attempted second

degree murder.

I. Sufficiency of the Evidence

In the appellant’s first issue, he contends that the evidence is insufficient to

support his conviction for attempt to commit second degree murder. When reviewing

a trial court’s judgment, the appellate court will not disturb a verdict of guilt unless the

facts in the record and inferences which may be drawn from it are insufficient as a

matter of law for a rational trier of fact to find the defendant guilty beyond a reasonable

doubt. Tenn. R. App. P. 13(e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In other words, this court will not reevaluate or reweigh the evidence introduced at trial.

3
It is presumed that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the State. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Since a verdict of guilt

removes the presumption of a defendant’s innocence and replaces it with a

presumption of guilt, the defendant has the burden of proof on the sufficiency of the

evidence at the appellate level. Grace, 493 S.W.2d at 476.

In support of his argument, the appellant contends that the State failed to prove

that the shooting was a “knowing” attempt to murder the victim. In effect, the appellant

argues that his conduct was not reasonably certain to cause death, as evidenced by

the fact that the victim was shot at close range in the leg and lower back. This

argument, however, ignores the fact that, previous to the shooting episode, the

appellant had clearly told the victim, “You think I’m playin’; I’ll kill you.” After silently

approaching Drew from the rear, the appellant shot the victim twice. The wounds were

described as serious, near a major artery, and required surgery. In sum, in reviewing

the issue of the appellant’s intent, we are guided not by his marksmanship but, rather,

by the circumstances surrounding the shooting.

In order to obtain a conviction for attempted second degree murder in this case,

the State is required to prove that the appellant acted with the intent to cause the

knowing killing of another, believing his conduct would cause the result without

further conduct on his part. See Tenn. Code Ann. §§ 39-12-101(a)(2) and 39-13-

210(a).2

2
W e not e tha t the tr ial cou rt’s jur y instru ction on cr imin al atte mp t was incor rect. Rath er
than charging the applicable provision, Tenn. Code Ann. § 39-12-101(a)(2), the trial court charged
§ 39-12-101(a)(1), which involves conduct measured by the defendant according to the
circumstances as he believes them to be, rather than as they existed. For further analysis, see the
discussion below. Notwithstanding, we find the error harm less. Tenn. R. App. P. 36(b).

For instructional purposes, it must be recognized that our criminal code has established
three distinc t types of crim inal attem pts:
(1) In tentio nally en gag ing in a ction or ca usin g a re sult th at wo uld
constitute an offense if the circumstances surrounding the conduct were as the
person believes them to be. Tenn. Code Ann. § 39-12-101(a)(1). This type of

4
 Whether the appellant “knowingly” attempted to kill his victim is a question of

fact for the jury. Intent, which can seldom be proven by direct evidence, may be

deduced or inferred by the trier of fact from the character of the assault, the nature of

the act and from all the circumstances of the case in evidence. See State v. Holland,

860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). We find the evidence sufficient to

support the jury’s verdict of attempted second degree murder, i.e., that the appellant’s

conduct was reasonably certain to cause the victim’s death, based upon the use of a

deadly weapon, the number of wounds inflicted, the seriousness of the wounds and the

appellant’s express statement, hours before the shooting, that he intended to kill the

victim. Tenn. R. App. P. 13(e). This issue is without merit.

II. Proposed Jury Instruction Concerning Attempted Voluntary Manslaughter

In the appellant’s second issue, he contends that the trial court committed

reversible error by failing to charge the jury on attempted voluntary manslaughter. The

appellant argues that the victim’s testimony concerning their discussion of the girlfriend,

Lisa, supported proof that he shot the victim during a state of passion induced by

attempt is designed to reject the defense of impossibility. Examples include
receiving stolen property that was not, in fact, stolen, attempt to steal from an
empty house or empty pocket, offering a bribe to a person believed to be a juror
who is no t, etc.
2) Acts with intent to cause a result that is an element of the offense, and
believ es th e con duc t will ca use the re sult w ithou t furth er co ndu ct on the p erso n’s
part. Tenn. Code Ann. § 39-12-101(a)(2). This is the most common type of
attem pt. Ex am ples wou ld inclu de th e inte ntion al or k now ing sh ootin g of a victim
not resulting in death, an unsuccessful rape, robbery, etc. Both types (1) and (2)
deal with situations where the actor has done all he intends to do, but where the
crime neverthe less has not been com mitted.
(3) Acts with intent to complete a course of action or cause a result that
would constitute the offense, under the circumstances surrounding the conduct
as the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense. Type three attempts involve those
situations where the actor has taken a “substantial step” in preparing and
planning the com miss ion of the o ffense , yet has not d one all that h e intends to do.
The problem is to distinguish between acts of perpetration (which may not be
criminal) and a criminal attempt. In this instance, criminal liability depends upon
the actor having taken a “substantial step” in a corroborated course of conduct
planned to culminate in the commission of a crime. Tenn. Code Ann. § 39-12-
101(a)( 3) and (b ); see also M O D E L P E N A L C O D E Crim inal Attem pt, Section 5.01.
Examples would include reconnoitering the place for the commission of the
crim e, the poss ess ion of ma terials to be em ployed in the c om mis sion of the crim e
that are specifically designated for such unlawful use or that can serve no lawful
purpose of the actor under the circumstances, and lying in wait for the
contemplated victim of the crime. For a general discussion of inchoate crimes
and crim inal liability, see Section 5 .01, M O D E L P E N A L C O D E .

5
adequate provocation, thus warranting an instruction on manslaughter. The appellant

argues that, if “any” evidence is introduced of a lesser offense, the trial court is under

a duty to charge the lesser, contending that to do otherwise would usurp the jury’s

function.

A trial court has the duty, in criminal cases, to fully instruct the jury on the

general principles of law relevant to the issues raised by the evidence. In other words,

the court must instruct the jury on those principles closely and openly connected with

the facts before the court, and which are necessary for the jury’s understanding of the

case. This obligation includes giving instructions on lesser offenses included in the

indictment, without any request on the part of the defendant. See Tenn. Code Ann.

§ 40-18-110(a)(1990). However, there is no constitutional right to a jury instruction on

a lesser offense in every case. See Keeble v. United States, 412 U.S. 205, 208, 93

S.Ct. 1993, 1995 (1973).

Before an instruction on a lesser offense is warranted, the trial court must make

two essential determinations. First, in order to comport with the constitutionally

guaranteed notice requirements, the instruction must set out an offense which is a

lesser offense of the offense charged in the indictment. See State v. Trusty, 919

S.W.2d 305, 310 (Tenn. 1996); see also U.S. CONST . amend. VI; Hagner v. United

States, 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932). A lesser “grade or class” of

offense is established by the legislature and is determined simply by looking at the

offenses set forth in a statutory chapter and part. Trusty, 919 S.W.2d at 310. In

contrast, an offense is “lesser included” in another “only if the elements of the greater

offense, as those elements are set forth in the indictment, include but are not congruent

with, all the elements of the lesser.” Trusty, 919 S.W.2d at 310-311 (quoting Howard

v. State, 578 S.W.2d 83, 85 (Tenn. 1979)). Thus, as presented in the case sub judice,

attempted voluntary manslaughter is a lesser offense of attempted first degree murder

because it is a lesser grade or class of that offense. See generally Tenn. Code Ann.

6
§ 39-13-201 et seq. (1991). However, attempted voluntary manslaughter is not a lesser

included offense of attempted first degree murder because the elements of first degree

murder are not congruent with the elements of voluntary manslaughter. Compare

Tenn. Code Ann. § 39-13-202 with Tenn. Code Ann. § 39-13-211.

Although voluntary manslaughter is a lesser offense 3 of first degree murder, the

trial court’s inquiry is not complete. The trial court must next determine whether such

an instruction on attempted voluntary manslaughter is warranted by the evidence. See

State v. Vance, 888 S.W.2d 776, 780 (Tenn. Crim. App. 1994). Obviously, where

“there is no proof in the record which would support the instruction,” no jury instruction

on a lesser offense need be submitted to the jury. See Trusty, 919 S.W.2d at 311.

Nonetheless, the dilemma facing the trial court remains: what quantum of proof is

necessary to warrant the charging of a lesser offense.

In determining when an instruction should be given, we are mindful that the

ultimate goal of criminal proceedings should be a solemn search for the truth, so that

one accused of a crime will be convicted or acquitted depending on the sufficiency of

the evidence when measured against the reasonable doubt standard of proof. See

Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2789 (1979); In re Winship, 397

U.S. 358, 34, 90 S.Ct. 1068, 1073 (1970). The Due Process Clause of the Fourteenth

Amendment protects a defendant in a criminal case against conviction “except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” Jackson, 443 U.S. at 315, 99 S.Ct. at 2789; In re Winship, 397

U.S. at 364, 90 S.Ct. at 1073. The relevant question upon review of a criminal

conviction, be it the trial court or an appellate court, is whether, “after viewing the

evidence in the light most favorable to the prosecution,[4] any rational trier of fact could

3
The te rm “les ser offe nse,” as used thr ougho ut the rem ainder of this opinion, re fers both
to a lesser grade offense and a lesser included offense.

4
This sta ndard p reserve s the fac tfinder’s role as the w eigher of the eviden ce. See Clew is
v. State , 922 S.W .2d 126, 148 (Tex. Crim . App. 1996).

7
have found the essential elements of the crime beyond a reasonable doubt.”5 See

Tenn. R. App. P. 13(e); Tenn. R. Crim. P. 29(a). Consistent with the due process

principles announced in In re Winship, 397 U.S. at 364, 90 S.Ct. at 1073, the United

States Supreme Court held, in Keeble, that:

it is now beyond dispute that the defendant is entitled to an instruction on a lesser
included offense if the evidence would permit a jury to rationally find him guilty of the
lesser offense and acquit him of the greater.

Keeble v. United States, 412 U.S. at 208, 93 S.Ct. at 1995 (internal footnote

omitted)(emphasis added); see also Trusty, 919 S.W.2d at 311; Fed. R. Crim. P. 31(c).

Accordingly, before instructing a jury on a lesser offense, the trial court must determine

whether the evidence, when viewed in the light most favorable to the defendant’s theory

of the case, would justify a jury verdict in accord with the defendant’s theory, and would

permit a rational trier of fact to find the defendant guilty of the lesser offense and not

guilty of the greater offense.6 See Trusty, 919 S.W.2d at 311; see also People v.

Austin, 576 N.E.2d 505, 507 (Ill. App.), perm. to appeal denied, (Ill. 1991); State v.

Pierce, 927 P.2d 929, 934 (Kan. 1996); State v. Wilkins, 415 N.E.2d 303, 308 (Ohio

1980); Brandau v. Commonwealth, 430 S.E.2d 563, 564-565 (Va. App. 1993); State v.

5
See also Jac kso n v. Vir ginia , 443 U.S. at 317-319, 99 S.Ct. at 2788-2789.

6
Previous appellate decisions in this state have employed differing terminology when
defining th e me asure o f proof ne cessa ry to require th e giving of a n instructio n on a les ser offe nse.
Such terminology is illustrated by the following:
(1) where there is any evidence introduced as to a lesser offense, regardless of
the am ount or c onvincing force. Vance, 888 S.W .2d at 781. “[T]he cases are
clear that if there is any evidence which reasonable minds could accept as to any
such offenses, the acc used is entitled to the appropriate instructions.” Id.
(quoting Johns on v. State , 531 S.W .2d 558, 559 (Tenn. 1975 ) (emphasis add ed);

(2) where there are “any fa cts th at are sus cep tible o f infe rring guilt of any lesser
included offense.” Trusty , 919 S.W.2d at 310 (quoting State v. Wright, 618
S.W .2d 310 ( Tenn . Crim. A pp.), perm. to appeal denied, (Tenn. 1981));

(3) only if there is evidence introduced which would support a conviction for that
offense. “[D]efendants are entitled to jury instructions on all lesser included
offenses as defined in Howard and on all offenses which are a lesser grade or
class of the char ged offe nse, if the evidence would support a conviction for the
offense.” Trusty , 919 S.W .2d at 311 ; State v. Cleveland, 959 S.W.2d 548, 553
(Tenn. 1997).

Application of any one of these three standards, when reviewing the evidence in the light most
favorable to the defendant’s theory of the case, are consistent and are necessarily encompassed
within the standard announced in Kee ble and adopted by this court in the present case. Howe ver,
we note that other v ariations o f the stan dard, e.g., State v. Howard, 926 S.W.2d 579, 586-587
(Tenn . Crim. A pp. 1996 ).(“relatively sca nt testim ony”); State v. Ruane, 912 S.W.2d 766, 782
(Te nn. C rim . App . 199 5) (“s light” e viden ce); w ould b e inco nsis tent w ith the stan dard anno unc ed in
Kee ble.

8
Foster, 528 N.W.2d 22, 26 (Wis. Ct. App.), perm. to appeal denied, (Wis. 1995).

Again, the appellant argues that the trial court’s determination that a lesser

offense would not support a conviction constitutes an impermissible invasion of the

jury’s role as fact finder. Cf. Howard, 926 S.W.2d at 586-587; State v. Summerall, 926

S.W.2d 272, 278 (Tenn. Crim. App. 1995); Ruane, 912 S.W.2d at 782. We disagree.

The standard pronounced in Keeble and adopted herein preserves the integrity of the

jury as fact finder by ensuring that the jury is instructed as to a lesser offense only when

that offense constitutes a valid, rational alternative to the charged offense. If a jury

were instructed on a lesser offense even though the evidence did not raise it or the

offense was only raised by “slight” or “relatively scant” evidence, then the instruction

would constitute an invitation to the jury to return a compromise or otherwise

unwarranted verdict. See State v. Piper, 261 N.W.2d 650, 654 (N.D. 1977); Arevalo

v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997); State v. Melvin, 181 N.W.2d

490, 494 (Wis. 1970), overruled on other grounds by, 198 N.W.2d 63 (Wis. 1972).

Thus, a determination of whether an instruction on a lesser offense should be given to

the jury is not solved by merely determining that the crime charged includes the lesser

offense because juries are not given the freedom or discretion to pick and choose what

offense the accused should be found guilty of. See State v. Williford, 307 N.W.2d 277,

282 (Wis. 1981) (citations omitted). Indeed, absent such a standard regarding the

quantum of proof necessary to trigger an instruction on a lesser offense, the trial judge

who charges a lesser offense based upon less than sufficient evidence would be faced

with the absurd necessity, predicated upon its own invited error, of entering a judgment

of acquittal following the jury’s guilty verdict on the lesser offense.7 See Tenn. R. Crim.

P. 29(a). Thus, we conclude: the jury is bound by the evidence and should be limited

7
We acknowledge the vital role of the trial court in whose hands the Constitution places
“the responsibility for safeguarding the integrity of the jury trial, including the right to have a case
withheld from the jury when the evidence is insufficient as a matter of law to suppo rt a conviction.”
See United States v. Gainey, 380 U.S. 63, 68, 85 S.Ct. 754, 758 (1965). The trial court has the
duty to reasonably assist and instruct the jury so as to avoid a miscarriage of justice. Thus, the
determination of whether an instruction on a lesser offense is required, becomes a crucial factor
essen tial to main taining the inte grity of judicial pro ceeding s.

9
to those lesser offenses which a rational view of the evidence will sustain and does not

convince beyond a reasonable doubt that the elements of the greater crime exist.8 See

Melvin, 181 N.W.2d at 494.

In the case now before us, the appellant argues that the jury should have been

instructed on the lesser grade offense of attempted voluntary manslaughter. Reviewed

in the light most favorable to the appellant, the evidence at trial indicated that prior to

the shooting the appellant and the victim had “argued” over their mutual acquaintance

with Lisa. This discussion terminated and the conversation turned to business, i.e.,

“sale of drugs.” This conversation ended with the appellant ordering the victim to leave

the area. Thirty minutes later, the appellant returned and threatened to kill the

appellant. Four hours later, the appellant again visited the street corner, approached

the victim from behind, and shot the victim twice.

The trial court found that there is no “evidence in my judgment that the jury could

possibly have used to find provocation sufficient under the statute to justify a charge

of attempted voluntary manslaughter.” We agree. Even though evidence of an

argument was introduced at trial, this evidence is not sufficient for a rational trier of fact

to find the element of provocation nor the requisite “state of passion.” See Tenn. Code

Ann. § 39-13-211. The “argument” was followed by an interval of four and one-half

hours before the appellant’s return to the scene. Moreover, the appellant’s threat, “I’m

going to kill you,” and subsequent attack on the victim from behind would not

necessarily acquit the appellant of the greater offense. Under these circumstances, the

evidence, when viewed in the light most favorable to the defendant’s theory of

attempted voluntary manslaughter, would not have permitted a jury to have rationally

found him guilty of attempted voluntary manslaughter and acquitted him of the greater

8
A defendant is entitled to an instruction on a lesser offense only in cases where the jury
could rationally find him guilty of the lesser offense and not guilty of the greater crime. Thus, for
example, a person charged with rape who denies any involvement in the crime is either guilty of
rape or o f no offe nse at all. See State v. Fields, No. 11 (Tenn. Crim. App. at Jackson, Mar. 20,
1991), perm. to appeal denied, (Tenn . Jul. 1, 1991 ); see also People v. Thompson, 342 N.E.2d
445 (Ill. App. 1976).

10
offenses. Accordingly, the trial court was under no duty to instruct on this lesser

offense.

III. Sentencing

In the appellant’s last issue, he contends that the trial court erred in its imposition

of a twelve year sentence. 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

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

making our review, this court must consider the evidence heard at trial and at

sentencing, the presentence report, the arguments of counsel, the nature and

characteristics of the offense, any mitigating and enhancement factors, the appellant’s

statements, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-

102,-103(5),-210(b) (1990); see also State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim.

App. 1993) (citing Ashby, 823 S.W.2d at 168). The burden is on the appellant to show

that the sentence imposed was improper. Sentencing Commission Comments, Tenn.

Code Ann. § 40-35-401(d).

The appellant contends that the trial court erred in failing to consider two relevant

mitigating factors when imposing his sentence.9 First, he claims that, because he was

twenty years old on the date of the offense, he lacked substantial judgment while

committing the offense. Tenn. Code Ann. § 40-35-113(6)(1990). However, the trial

court found this factor inapplicable to the appellant’s case. As the trial court stated:

The proof I’ve heard in this case and the proof that I’ve heard-- extensive
proof that I’ve heard in a number of days of hearings with respect to Mr.
Elder’s conduct throughout his lifetime indicates to me that he was, if
anything, extremely street wise, extremely street experienced, that he
was-- that he did not lack any substantial judgment in his conduct of
creating business in which he chose to engage. He knew exactly what

9
The trial court also found three enhancing factors, howe ver, the propriety of these factors
are not c hallenge d on app eal.

11
 he was doing on the street. He conducted an extensive drug operation.
He employed individuals in that operation. He employed the use of
firearms. This is not a situation where he lacked substantial judgment in
committing this offense.

The application of this mitigating factor is not determined simply by the

chronological age of the offender but, rather, upon the offender’s “youth in context” of

various circumstances tending to demonstrate his or her ability or inability to appreciate

the nature of his or her conduct. State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993);

see, e.g., State v. Carter, No. 01C01-9312-CC-00447 (Tenn. Crim. App. at Nashville,

Apr. 27, 1995), perm. to appeal denied, (Tenn. Sept. 5,1995). The record supports the

trial court’s finding. The evidence does not preponderate against the trial court’s

rejection of this factor.

Second, the appellant contends, pursuant to Tenn. Code Ann. § 40-35-113(8)

(1990), that he suffered from a mental condition that reduced his culpability for the

offense. The court stated with regard to this factor:

Again, the Court found after several days of hearings that Mr. Elder’s I.Q.
is probably that--substantially lower than that of a normal person. But I
also found and believe sincerely in my heart that, notwithstanding the fact
that his intelligence quotient may be somewhat low, that his ability to
adapt and live and survive and conduct a business and conduct his
everyday living experiences was not deficient. As a matter of fact, he
was very efficient at doing what he did. And I don’t think that, again, he
suffered from a mental condition or a physical conviction that reduced his
culpability for committing this crime.

The record amply supports the trial court’s finding. This issue is without merit.

Accordingly, the judgment of the trial court is affirmed.

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 ____________________________________
DAVID G. HAYES, Judge

CONCUR:

_____________________________________
DAVID H. WELLES, Judge

____________________________________
THOMAS T. W OODALL, Judge

13