State v. Freddie Morrow & Damien Darden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1998 December 22, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9612-CC-00512 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON. ROBERT W. WEDEMEYER FREDDIE MORROW and ) JUDGE DAMIEN DARDEN, ) Appellants. ) (Direct Ap peal-F elony M urder-C ivil ) Rights Intimidation)

FOR THE APPELLANT: FOR THE APPELLEE:

COLLIER W. GOODLETT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 109 S. Second Street Clarksville, TN 37040 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

JOHN CARNEY District Attorney General

ARTHUR BIEBER Assistant District Attorney 500 S outh M ain Springfield, TN 37172

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

The appellants, Frederick D. Morrow and Damien Darden, were convicted after a Robertson County bench trial of one (1) count of felony murder, one (1) count of attem pted a ggrav ated k idnap ping a nd on e (1) co unt of c ivil rights intimidation. Both appellants were sentenced to life imprisonment for first degree murder. Morrow was sentenced as a Range I offender to consecutive terms of four (4) years for civil rights intimidation and five (5) years for attempted aggravated kidnapping.1 Darden received Range I sentences of three (3) years for civil rights intimidation and four (4) years for attempted aggravated kidnapping, to run concurrently with each other bu t consec utively to the life sentence for first degree murder. On appeal, appellants raise the following joint issues for our review:

(1) wheth er the trial co urt erred in denying appellan ts’ motion to dismiss Coun ts One , Three and Fo ur of the ind ictmen t;

(2) whether they were denied their constitutional rights to due process and equal protection by the abolition of an acceptance hearing pursuant to Tenn. Code Ann. § 37-1-159;

(3) whether the e vidence is sufficient to su pport the find ings o f guilt beyond a reasonable doubt; and

(4) whether the trial court erred in imposing consecutive sentences. Appellant Morro w furth er claim s that th e trial co urt erre d in (1) failing to dismiss the indictment on the basis that the grand jury selection process under Tenn. Code Ann. § 22-1-102 violates the Americans with Disabilities Act and the

1 The judgments of conviction indicate that Morrow’s sentences for attempted aggravated kidnapping and civil rights intimidation are to run concurrently with one another but consecutively to the life sentence for first degree murder. However, a review of the sentencing hearing transcript reveals that the trial court intended for all three (3) sentences to run consecutively to one another. When there is a conflict betwee n the trans cript and th e judgm ent, the tran script con trols. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App . 1991).

-2-Rehabilitation Act of 1973; (2) imposing excessive sentences; and (3) failing to allow Morrow to serve h is civil rights intimidation and attempted aggravated kidnapping sentences on probation. Appellant Darden raises the additional issue of whether the trial ju dge e rred in failing to recu se him self as a re sult of ex parte communications with the Assistant District Attorn ey. After a thorough review of the record b efore this C ourt, we find no reversible error and affirm the judgment of the trial cou rt.

FACTS

On January 14, 1995, Michael and Hannah Westerman were traveling from their home in Kentucky to Springfield, Tennessee, to do some shopping and have dinner. From the back of the Westermans’ Chevrolet pick-up truck flew a Confe derate battle flag, which was attached to a pole m ounte d on th e truck ’s tool box. On th eir way to Spr ingfield , the W esterm ans s toppe d at Ja nie’s M arket in Guthrie, Kentucky, to get some gas. Mr. We sterm an pa id for the gas, a nd wh ile he and Mrs. Westerman sat in the truck talking, Mrs. Westerman noticed a black man in a dark b lue car po inting at the m.

Mr. We sterma n pulled th e truck onto th e road, a nd as the y crosse d into Tennessee, Mrs. Westerman noticed two (2) cars, one light blue and the other dark blue, following them. Mr. Westerman passed a car in front of them, and both blue cars were able to catch up with the Westermans. Although the We stermans ’ truck was traveling a t approximately 85 miles per hour, the light blue car began to pass them on the left. Mr. Westerman push ed Mrs. We sterman on the floorboard of the truck as the car passed them. After the car

-3-passed, Mrs. Westerman sat up in her seat, and Mr. Westerman told her that he had be en sho t.

Mrs. Westerman climbed over to the driver’s side so that she could drive the truck. Suddenly, the light blue ca r came to a com plete stop in the middle of the road in front of the Westermans’ truck, and Mrs. Westerman saw a black man sitting in the car pointing a gun at the truck. The dark blue car which had been following the Westermans completely stopped behind the Westerman vehicle, and Mrs. Westerman was forced to drive through a ditch, across an embankment and into a parking lot in an attem pt to flee the scene. However, because the two cars had blocked her access to the paved driveways into the parking lot, Mrs. We sterman had to cross anoth er ditch in orde r to exit the parking lot. Mrs. We sterman then proceeded in the opposite direction, towards Guthrie, in an effort to seek medical attention for her husband and avoid further confrontation with the individuals in the blue cars.

Mr. We sterma n died the next day a t Vande rbilt Hosp ital as a resu lt of a gunsh ot woun d to the he art.

Shor tly after the incident, the police developed appellant Darden as a suspect in the shooting. While law enforcement authorities were conducting an interview with Darden concerning the incident, appellant Morrow appeared at the police station and confessed to the shooting. In his statement to the police, Morrow acknowledged that he was a passenger in Darden’s car when he shot several times at the W esterm ans’ truck. He stated that they chased the We stermans after someone in the truck shook the Confederate flag at them and shoute d a racial e pithet.

At the time th e inciden t occurred, both Morrow and Darden were seventeen (17) years of a ge. Tony Andrews and Marcus Merriweathe r, other passen gers

-4-in Darde n’s car du ring the inc ident, were also juveniles. Andrews was seventeen (17) years of age, and M erriweather wa s fifteen (15) years of age. All four were charged in juvenile court with the delinquent act of premeditated first degree murder, and upon a transfer hearing in that court, were transferred to the Robertson County Circuit Court to be tried as adults.

Subseq uently, Darden, Morrow, Andrews and Merriweather were each indicted on on e (1) co unt of c ivil rights intimidation, one (1) count of premeditated first degree m urder, one (1) co unt of felony mu rder and one (1) count of attempted aggravated kidnapping. Andrews entered into a plea ag reeme nt with the state wherein he pled g uilty to criminally negligent homicide and was placed on diversion for two (2) years. Merriweather was tried on the instan t offens es in a joint trial with Morrow and Darden.

At trial, Andrews testified for the state. Andrews stated that on the afternoon of the inc ident, h e and Dard en we re drivin g arou nd G uthrie in Dard en’s light blue c ar. Me rriwea ther an d Mor row ev entua lly joined them, and they went to a friend’s house so that Darden could collect some money owed to him. Wh ile they were sitting in the car, they noticed a red pick-up with a Confederate flag on its toolbox driving by. Subsequently, they saw the pick-up truck parked at Janie’s. Darden remarked that he wanted to fight the people in the truck and drove to a local hangout to inform others that he intended to fight the oc cupan ts of the truck. The group went back to Janie’s, and the truck was still in the parking lot. The truck then began to pull out of the parking lot, and when the truck was beside Dard en’s car, Morrow rolled his window down and began pointing at the flag. Andrews testified that he then saw someone reach out of the truck’s back window and sh ake the Confe derate flag .

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Darden’s car then pulled out of Janie’s parking lot and alongside a car containing Robe rt Bell, Ricky William s and M ichael M imms . Octavius Burks and Marcus Darden were in another car behind Bell’s. Wh en the W esterman truck began to exit Janie’s, Appellant Darden remarked , “there it goes.” Bell and Burks began to follow the truck, and the Dard en ca r turne d arou nd an d follow ed as well. The Darden car was approximately four (4) cars behind the Westerman truck, and Morro w told D arden to “catc h” Be ll. At this point, Morrow informed the other occup ants of the car that he was arm ed.

The Darden car caught up with Burks and Bell and eventually passed both cars, putting them directly behind the Westerman truck. Darden’s car was traveling approxima tely 70 to 80 miles p er hour, and the truck began to speed up in front of them. Darden began to speed up, and Andrews heard shots fired from the back seat on the driver’s side, where Morrow was sitting. Andrews turned around and sa w Morro w leaning out of the window firing his gun. Bell was following the Darden car approximately three (3) to four (4) car lengths behind.

Because Morrow’s gun jammed, he began fumbling with the weapon. Morrow then told Darden to pass the We sterman truck, a nd as the y started to pass the truck on the left side, Andrews heard another shot fired from the same direction. When the car pulled alongside the Westerman truck, Andrews heard another shot fired from the back passenger seat. After they passed the truck, Andrews noticed that the truck slowed down. Darden began to slow down and then stopped his vehicle in the middle of the road. The truck stopped behind them, and Morrow leaned out of his window, pointed his gun at the truck and exclaimed, “[I’ve] got them now.” The truck veered off into a ditch, and Morrow continued to fire his gun. Eventually, the truck wa s able to maneuver through the

-6-ditch, out of the parking lot and back onto the road proceeding in the op posite direction.

Morrow testified on his own behalf at trial. He stated that on the day of the incident, he was carrying a gun for protection because his life had been threaten ed. He testified that they followed the Westerman truck because all of the occupa nts in the car were “looking for a fight.” Although he acknowledged that they wanted to fight because some one in the truck wa ved the C onfede rate flag, he insisted that he did not shoot at the truck because of the flag. Instead, he testified that as Darden began to pass the Westerman truck, Darden, Merriweather and And rews started yelling, “shoot!” Because of the “pressure” from the others in the car, he started firing his gun into the air. He stated that he never told Darden to stop his car in the road and did not point his gun at the truck when the car was stopped. He further testified that he never inten ded to harm anyone during the incident.

Appellant Darden also testified for the defense at trial. He claimed that no one in the car discussed fighting with the occupants of the truck. He was offended when s omeo ne in the truck shook the flag, but had no intention of shooting anyone . He was chasing the truc k to “m ess” w ith its occ upan ts and did not know that Morrow was armed. He denied that anyone in the car coerced Morrow into shooting his weapon. When he heard the gunshots, he assumed that the truck was merely “backfiring.” He further denied stopping in the roadway or attem pting to “bo x in” the W esterm ans’ truck .

At the conclusion of the proof, the trial court found both Morrow and Darden guilty of one (1) coun t of civil rights intimidation, one (1) count of first degree murder in the perpetration of an attempted aggravated kidnapping and one (1) count of attempted aggravated kidnapping. Merriweather was acquitted

-7-of all charge s. Both Morrow and Darden were sentenced to life imprisonment for first degree murder. Morrow was sentenced as a Range I offen der to conse cutive terms of four (4) years for civil rights intimidation and five (5) years for attempted aggravated kidnapp ing. Darden received Range I se ntences of thre e (3) years for civil rights intimidation and four (4 ) years for attempted aggravated kidnapping, to run con currently w ith each o ther but c onsecutively to th e life sentence for first degree murder. From their convictions and sentences, appellan ts now b ring this ap peal as o f right.

MOTION TO DISMISS - MORROW AND DARDEN

Both appellan ts mainta in that the trial c ourt erred in failing to dismiss Coun ts One, Three and Fo ur of the ind ictmen t charging them w ith civil rights intimidation, felony murder and attempted agg ravated k idnapp ing. App ellants claim that they were transferred on the charge of premeditated first degree murder only, and there was no determination made in the juvenile court whether appellan ts were s ubject to be tried as ad ults on the charge s of civil rights intimidation, felony murder and attempted aggravate d kidnap ping. Ap pellants therefore argue that the circuit court lacked jurisdiction over the charges not prope rly transferre d from ju venile cou rt, and they were erroneously indicted on these ch arges a s a result.

Tenn. Code Ann . § 37-1-1 34(a) pro vides for the transfer of a juvenile to criminal court “to be held according to law a nd to b e dea lt with as an ad ult in the criminal court” once a petition alleging delinq uenc y has b een file d. Effec tive July 1, 1994, Tenn. Code Ann. § 37-1-134(c) was amended to provide for the following:

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(c) The transfer pursuant to subsection (a) terminates jurisdiction of the juvenile court with respe ct to an y and a ll delinquent acts with which the child may then or thereafter be charged, and the child shall thereafter be dealt with as an adult as to all pending and subsequent criminal charges; provided , that if a child transferred pursuant to this section is acquitted in criminal court on the charge or charges resulting in such transfer, or if such charge or charges a re dismissed in such court, this subsection shall not apply a nd the juvenile court s hall retain jurisdiction over such child.

Although the juvenile courts retain original and exclusive jurisdiction over juvenile matters , see Tenn. Code Ann. § 37-1-103, a transfer pursuant to Tenn. Code Ann. § 37-1-134(a) vests jurisdiction in the criminal courts over the juvenile. Subsection (c) serv es to d ivest the juvenile court of its jurisdiction over the child “with respec t to any and all delinquent acts with which the child may then or thereafter be charged.” Once the criminal court obtains jurisdiction over the child, the child is to be “dealt with as an adult as to all pending and subsequent criminal charges.” T enn. Cod e Ann. § 37 -1-134(c).

In the case sub judice, the appellants, upon being duly transferred from juvenile court, were subject to indictment by the Grand Jury of Robe rtson Coun ty. The grand jurors fo und p robab le cause to believe that appellants committed not only the offense of pre meditated first deg ree murd er, but also the offenses of felony murder, attempted aggravated kidnapping and civil rights intimid ation. W e believe that appellants we re properly “dealt with as [adults] as to all pending and subsequent criminal charges” within the meaning of Tenn. Code Ann. § 37-1-134(c).

Furthermore, Tenn. Code Ann. § 37-1-134(e) provides that “no child, either before or after reaching e ighteen (18) years of age, shall be prosecuted for an offense previously committed unless the case has been transferred as provided in subsection (a).” Emphasis added. Generally, when construing a statute, every

-9-word within the statute is presumed to “hav e me aning and p urpos e and shou ld be given full effec t.” State v. Odom, 928 S.W.2d 18, 29-30 (Tenn. 1996) (quoting Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968)). If the legislature had intended for the ju venile transfer hearing to be offense-specific, “offense” or “charge” sho uld have been sub stituted for the word “ca se.” Similarly, Tenn. Code A nn. § 37-1-13 4(a) provides for the transfer of the “child,” not the “offense .”

Certainly, this Co urt in no way aim s to trivializ e the importance of the proba ble caus e dete rmina tion with in the juve nile transfer hearing context. The juvenile court must find that there are “reasonable grounds” to believe that the child committed the delinquent act in order to properly transfer the child to criminal court. Tenn. Code Ann. § 37-1-134(a)(4)(A). However, we do not agree with appellants’ interpretation of the statute.

Moreover, even if this Court were to find that the o ffenses of felony m urder, attempted aggravated kidnapping and civil rights intimid ation w ere no t prope rly transferred from juvenile court pursuant to Tenn. Code Ann. § 37-1-134, appellan ts would n ot nece ssarily be e ntitled to relief. “[T]he absence of a transfer order cannot be said to affect the court’s subject matter jurisdiction, which, in a real sense, is concurrent with that of the juvenile court as to certain offenses committed by children falling within a specified age span.” Sawyers v. State, 814 S.W.2d 725, 72 9 (Ten n. 1991 ); see also State v. Hale , 833 S.W.2d 65, 67 (Tenn. 1992). The failu re to properly tra nsfer a ch ild from juve nile court is s ubject to a harmless error analysis, with this Court’s prima ry inquiry being whether transfer from juvenile co urt would have be en app ropriate. Sawyers v. State, 814 S.W.2d at 729.

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A child may be transferred from juvenile court pursuant to Tenn. Code Ann. § 37-1-134(a), if the juvenile court finds “reasonable grounds to believe that: (A) [t]he child committed the delinquent act as alleged; (B) [t]he child is not com mittab le to an institution for the mentally retarded or mentally ill; and (C) [t]he interests of the comm unity require that the child be put under legal restraint or discipline.” Tenn. Code Ann. § 37-1-134(a)(4). In determining that transfer was appropriate, the juvenile court found that appellants were not committable to a mental institution and that it was in the best interest of the community that appellan ts be put under legal restraint. Although the juvenile court did not specifically find “reasonable grounds to believe” that appellants committed the offenses of felony m urder, atte mpted aggrava ted kidna pping a nd civil rights intimidation, clearly th ere we re reas onab le grou nds in that appellants we re subsequently found guilty of these offenses beyond a reasonable doubt. As a result, we find that transfer would have been appropriate on these offenses, and any error in the transfer procedure is at worst harmless.

Additionally, this Cou rt notes tha t the state d ismisse d the pre medita ted first degree murder count against Darden, and Morrow was acquitted of that offense. At first glance, this would appear to trigger the second clause of Tenn. Code Ann. § 37-1 -134( c) whic h prov ides, “if a child transferred pursuant to this section is acquitted in criminal court on the charge or charges resulting in such transfer, or if such charge or charges are dismissed in such court, th is subs ection shall not apply and the juvenile court shall retain jurisdiction over such child.” Because neither appellant was convicted of premeditated first degree murder, the delinquent act alle ged in juvenile court, a strict rea ding o f that cla use c ould arguably require that the juvenile court assume jurisdiction over the appellants. Howeve r, as the state points out, a literal interpretation of the statute would also

-11-require the juve nile co urt to re tain jurisdic tion in instances where the juvenile was acquitted of the charged offense, but convicted of a lesse r included offense. W e do not b elieve that th e legislatur e intende d such an abs urd resu lt.

This Court’s primary duty in construing a statute is “to ascertain and give effect to the legislative intent without undu ly restrict ing or e xpand ing a s tatute’s coverage beyond its intended sco pe.” Owen s v. State, 908 S.W.2d 923, 926 (Tenn. 1995); see also State v. Davis , 940 S.W .2d 558, 561 (Tenn. 199 7). Legislative intent should be gleaned from the “natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the mean ing of the langua ge.” Carter v. S tate, 952 S.W.2d 417, 419 (Tenn. 1997 ). Furth ermo re, this C ourt sh ould construe a statu te so that its component parts are consiste nt and re asona ble, and in consiste nt parts sho uld be harm onized , where p ossible. State v. Odom, 928 S.W.2d at 30.

Once a juvenile has be en transferred out of juvenile court pu rsuant to Tenn. Code Ann. § 37-1-134(a), the criminal court has jurisdiction to indict and try that juvenile as an ad ult. The criminal co urt thereafter has jurisdiction over the child, unless the transfer proceedings are, in effect, reversed by reason of acquittal or dismissal of a ll the charges in the criminal court. Tenn. Code Ann. § 37-1-134(c). If the ch ild is completely absolved of all criminal charges, and the transfer proceeding s are rendere d invalid as a result, the juvenile court then retains jurisd iction over th e child. Id.

W e think that the second clause in Tenn. Code Ann. § 37-1-134(c) applies only when the juve nile is fully exonerated on the charges brought against him or her in criminal court. We think this to be a more sensible interpretation of the phrase, “charge or charges resulting in such transfer.” Principles of double jeopard y might b e implica ted if appe llants were forced to endure a delinquency

-12-hearing after having been found guilty of these crimes beyond a re ason able doubt. However, if the juven ile court were to retain jurisdiction over the appellan ts and a delinquency hearing were ba rred by do uble jeop ardy, app ellants would effectively rec eive no p enalty for these very serious crimes. Indeed, such a result would con travene the principles and pu rpose s of the pena l laws o f this state.

According ly, we con clude tha t appellan ts were properly indicted on Coun ts One, Three and Four, charging them with civil rights intimidation, felony murder and atte mpted aggrava ted kidna pping. T his issue is without m erit.

CONSTITUTIONALITY OF TENN . CODE ANN. § 37-1-159

MORROW AND DARDEN

Appe llants also claim that T enn. C ode A nn. § 3 7-1-1 59(d) is unconstitutional in that it denies th em the right to seek an ac cepta nce h earing in criminal court because they were transferred out of juvenile court by a lawyer judge. Darden argues that the abolition of an acceptance hearing under Tenn. Code Ann. § 37-1-159(d) deprives him of due process of law. Morrow asserts that there is no rational basis for distinguishing between those juveniles transferred by lawyer and non-lawyer judges; therefore, the denial of an acceptance hearing for those juveniles transferred by lawyer judges is a deprivation of equal protection of the law.

Prior to Apr il 15, 19 94, all juvenile s trans ferred from ju venile court had the right to see k an a ccep tance hearin g in crim inal court to determine whether the criminal court would accept jurisdiction over the child. Tenn. Code Ann. § 37-1-159 (1991). H oweve r, effective April 15, 1994, the Tennes see Legislature

-13-abolished the right to seek an acceptance hearing for those juveniles transferred by a lawyer jud ge. Ten n. Cod e Ann. § 37-1-15 9(d) prov ides, in pe rtinent part, “[i]f and only if a nonlawyer judge pre sides at th e transfe r hearing in juvenile co urt, then the criminal court, upon motion of the child filed within ten (10) days of the juvenile court order, excluding nonjudicial days, shall hold a hearing as exped itiously as possible to determine whether it will accept jurisdiction over the child.”

The right to a transfer hearing is “sufficiently fundamental to be considered a matter of due process, in the context of juvenile justice.” Sawye rs v. State , 814 S.W.2d at 729. The transfer hearing in juvenile court has been likened to a preliminary hearing with regard to the issue of probable cause. State v. Womack, 591 S.W.2d 437, 443 (Tenn. App. 1979). However, the accepta nce h earing in criminal court was created by statute as a review of the juvenile court’s decision to transfer a ju venile into c riminal co urt. Colyer v. S tate, 577 S.W.2d 460, 463 n. 2 (Tenn. 197 9). Ther e is no constitutional right to such an acceptance hearing in criminal court. State v. Joshua McDaniel, C.C.A. No. 03C01-9605-CC-00178, McMinn Coun ty (Tenn. Crim. App. filed June 5, 1997, at Knoxville). Furthermore, other avenue s of review exist for a juve nile to appe al the ju venile c ourt’s decision to transfer, including preservin g the issu e on ap peal to this Court. State v. Griffin, 914 S.W.2d 564, 566 (Tenn. Crim . App. 1995). Darden was not denied due process of law by the abolition of an acceptance hearing under Tenn. Code Ann. § 37-1-159 (d).

Morrow contends that Tenn. Code Ann. § 37-1-159(d) deprives him of equal protection of the laws under Article I, § 8 of the Tennessee Con stitution. As no fundamental right or suspect classification is involved, this Court’s inquiry is limited to a rational ba sis review. State v. Ray, 880 S.W.2d 700, 706 (Tenn.

-14-Crim. App. 19 93). Und er this review , this Cou rt must u phold the statute if the classification is rationally rela ted to a leg itimate go vernm ental intere st. Id.

Although the juvenile transfer hearing is considered “fundamental” in the context of juvenile justice, there is no right to an attorney juvenile judge at the transfer hearing . State v. Davis , 637 S.W.2d 471, 474 (Tenn. Crim. App. 1982); State v. Briley, 619 S.W.2d 149, 152 (Tenn. Crim. App. 1981). In abolishing the right to seek an acceptance hearing for juveniles transferred by a lawyer judge, the legislature saw fit to retain the added tier of review for those juveniles transferred by judges not formally trained in the law. See Tenn. Code Ann. § 37-1-159(d). Our Supreme Court has recognized the significance of lawyer versus non-lawyer judges w ithin the co ntext of de privation of libe rty. See City of W hite House v. Whitley, S.W.2d (Tenn . 1998); State ex rel. Anglin v. Mitch ell, 596 S.W .2d 779, 791 (Tenn. 1980). Therefore, due to the significant issues involved in a juvenile transfer hearing, see Tenn. C ode Ann . § 37-1-134(a ), (d), we find the distinction between those transferred by a non-lawyer as oppos ed to a lawyer to be neither arb itrary nor ca pricious. See State v. Ray, 880 S.W.2d at 706. Tenn. Code Ann. § 37-1-159(d) does not violate Morrow’s rights to equal protection of the law.

This issu e has n o merit.

TENN. CODE ANN. § 22-1-102 - MORROW

In his next issue, appellant Morrow asserts that Tenn. Code Ann. § 22-1-102 violates the Americans with Disabilities Act (“AD A”), 42 U .S.C. § 1 2101, et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq. He argues that Tenn. Code Ann. § 22-1-102 excludes “[p]ersons of

-15-unsound mind and habitual drunkards” from jury service. Because these individu als are considered “handicapped” within the meaning of the Rehabilitation Act and the ADA, he maintains that the state statute runs afoul of the federal statutes. As a result, he claims that he was indicted by a grand jury which was not comp osed of a rep resentative cross -section of the com munity.

The ADA and the Rehabilitation Act prohibit an entity from discriminating against a qualified individual with a disability, or excluding that individual “from participation in or [being] denied the benefits of [its] services, programs, or activities.” 42 U.S .C. § 121 32; see also 29 U.S.C. § 794. However, because the Rehabilitation Act ap plies o nly to entities receiving “F ederal fina ncial ass istance,” it is inapplica ble in this ca se. 29 U .S.C. § 7 94(a); see State ex rel. McCormick v. Burson, 894 S.W.2d 739, 747 (Tenn. App. 1994). Therefore, we will restrict our review to M orrow’s c laim und er the AD A, which does a pply to state governments. 42 U.S.C. § 12131(1)(A); McCormick v. Burson, 894 S.W.2d at 747.

Under the ADA , “ no qualified individual with a d isability shall, by reason of such disability, be exc luded from p articipa tion in or be denied the benefits of the services, program s, or activities of a public en tity, or be sub jected to discrimination by any such entity.” 42 U.S.C . § 1213 2. A “qua lified individua l with a disability” is defined as “an individual with a disability who, with or without reaso nable modifications to rules, policies, or p ractices . . . meets the essential eligibility requirements for the receipt of services or the p articipa tion in programs or activities provided by a public entity.” 42 U.S.C. § 1213 1(2). Th us, in orde r to prove that Tenn. Code Ann. § 22-1-102 contravenes the ADA, there must be a showing that “persons of unsound mind and habitual drunkard s” are otherwise qualified to serve as jurors. In other wo rds, app ellant mu st dem onstrate that,

-16-notwithstanding their handicap, these individuals meet all of the requirements of jurors. See Southeastern Community College v. Davis , 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979) (holding that an “otherwise qualified individu al” under the Re habilitation Act is “o ne who is able to m eet all of a program ’s requireme nts in spite of his hand icap”).

The grand ju ry serves a n impo rtant functio n, as its mem bers are called on to “exam ine[] and s crutinize[] ev idence in suppo rt of [a] charge, and must then say from that whether there is probable cause to believe that the perso n in question committed the offense and should be formally accused thereof by an indictment or presentm ent and brou ght to trial.” State v. Hudson, 487 S.W.2d 672, 674 (Tenn . Crim. A pp. 197 2). Certainly, the state has a legitimate interest in assuring that those making determinations involving the fundamental interest of liberty poss ess a so und an d sobe r mind. It is illogical to assume that “persons of unsound mind and habitual drunkards” are able to rationally analyze evidence to determ ine whe ther an ind ictmen t should b e issued . We, therefore, conclude that “persons of unsound mind and habitual drunka rds” ar e not p roper ly “qualified” within the meaning of the AD A, and a s a result, Tenn. Code Ann. § 22-1-102 does not violate the ADA.

Furthermore, this Cou rt sincerely d oubts that Morrow has standing to raise a claim under the ADA. The ADA establishes a civil remedy for those pers ons “alleging discrimination on the basis of [a] disa bility.” 42 U.S .C. § 121 33; see also 29 U.S.C. § 794a(a)(2) (establishing a remedy for “any person aggrieved” by reason of his or her disability). There is no showing that Morrow was discriminated against on the basis of a disab ility. Additionally, even if this Court were to find that Tenn. Code Ann. § 22-1-102 violates the ADA, this would not neces sitate a reve rsal of Mo rrow’s co nviction or a dismiss al of the ind ictmen t.

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Morrow also claims that, due to the exclusion of habitual drunkards and persons of unsound mind from the grand jury, he was denied a jury representing a fair cross-section of the community in violation of his cons titutional rights . A state is “free to prescribe relevant qualifications for [its] jurors and to provide reaso nable exemp tions so lon g as it ma y be fairly said that the jury lists or pan els are representative of the comm unity.” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975). The United States Supreme Court has held that, in order to establish a prima facie violation of the fair cross-section requirement, the appellant must demonstrate:

(1) that the group alleged to be exclud ed is a “distinc tive” gro up in the community; (2) that the representation of this group in venires from which juries are selected is not fa ir and re ason able in relation to the number of such pe rsons in th e com munity; and (3 ) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed .2d 579 (197 9); see also State v. Bell, 745 S.W .2d 858, 860 -61 (Tenn . 1988).

Morrow has failed to prove any of the aforementioned fa ctors. The ba re allegation that he was denied a jury composed of a fair cross-section of the comm unity as a result of the exclusion of persons of unsound minds and habitual drunkards from jury service is insufficient to establish a constitutional violation. As su ch, this argum ent m ust fail.

This issu e is withou t merit.

RECUSAL OF TRIAL JUDGE - DARDEN

In his next issue, Darden claims that the trial judge erred in failing to recuse hims elf after having ex parte communications with an Assistan t District Attorney.

-18-He asserts that such communication was improper and created an appearance of impropriety. Therefore, he maintains that the trial judge abused its discretion in failing to rec use him self.

Several months prior to trial Assistant Attorney General Dent Morriss learned that Darden and Marcus Merriweather, who had been released on bond, had felony charges pending against them in Kentucky. General Morriss traveled to Kentucky, verified that this information was co rrect and was inform ed that bo th Darden and Merriwe ather were sche duled to be tra nspo rted to a juvenile facility in Eastern Kentucky. Out of concern that a lengthy extradition proce ss wo uld be necessa ry in order to secure Darden a nd Merriwea ther’s presen ce in cou rt, Morriss prepare d an ord er revokin g their bon d. Coun sel for both defend ants were notified of the state’s intentions.2

General Morriss broug ht the order to Jud ge W edeme yer, who was presiding over anothe r trial at the time . Morriss and Judge Wedemeyer engaged in a conversation lasting approxim ately thirty (30) seconds, whereby Morriss informed him of the situation and presented certified copies of the Kentucky charging instruments. Judge Wedemeyer signed the order revoking defendants’ bond, on the condition that a full hearing on the issue would be held w ithin four (4) days. Fo ur days la ter, a bond hearing was held, and the trial court ordered that defendants’ bond remain revoked.3

Subse quently, Darden an d Mer riweath er filed a motio n for rec usal, claiming that Judge Wedemeyer’s impartiality was tainted by the ex parte

2 The tes timony a t the hearin g som ewhat c onflicts in this re spect. C ounse l for the defe ndants testified that they were notified that the state was filing a “motion” or an “application” to revoke Darden and Merriwe ather’s bo nd. How ever, it is clear f rom the testim ony that co unsel we re inform ed that the state intended to revoke the defendants’ bond.

3 The trial co urt re vok ed bo nd on the b asis that d efen dan ts’ inc arce ration in Ken tuck y wou ld be in direct violation of the conditions of bond requiring that they remain within 50 miles of Springfield, Tenn essee .

-19-communications with the Assistant District Attorney. At the conclusion of the hearing on the motion to recuse, the trial judge found that he could be impartial despite any ex parte communications with the state. The trial court stated:

The issue on Monday that brought this all up, like I said, it was proba bly all of 30 seconds, pertains to bond. This Court, not on a daily basis bu t certainly on a week ly basis, he ars bon d matte rs on cases that are going to even tually go to trial be fore this C ourt. In the process of that th e Cou rt hear s things both favorable and unfav orable to defendants on bond issues. Just numerous, numerous times the Co urt has heard on different defendants on why their bond should be reduced or modified from the Defense and from the State why the bond should remain at a high level from Sessions Court or why bond should be revoked, et cetera. The Court believes that [it] is able to go ahead and preside on those cases keeping in min d that th is Court practiced law for 13 years and has been o n the be nch m ore than 5. I have to follow the law and not cons ider bond issues later during the trial unless they somehow work them selves into the evide nce in an ap propriate ma nner.

....

I do not find that the recusal motion should be granted. I do not think that my impartiality, and I realize it’s kind of difficult when you are ruling on your own impartiality, I believe that I will continue to be fair and impartial to the defen dants in th is case d espite signing that order.

A motion to recuse is a matter that rests within the sound discretion of the trial court, which will not be overturned on appeal unless an abuse of discretion is evident from the record. State v. Hines, 919 S.W .2d 573, 578 (Tenn. 199 5); State v. Smith, 906 S .W .2d 6, 1 1 (Te nn. Crim. A pp. 19 95). A trial judg e sho uld recuse himse lf whene ver he ha s any do ubt as to h is ability to pres ide im partially or wheneve r his “impartiality might reas onably be qu estioned.” S.Ct. R ule 10, Canon 3(C)(1) (1 995); State v. Hines, 919 S.W .2d at 578 ; State v. Boggs, 932 S.W.2d 467, 472 (Tenn. Crim. App. 19 96); State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim . App. 1 993). H owev er, the is sue fo r this Court to consider is whether the trial judge “committed an error which resulted in an unjust disposition of the case.” State v. Hurley, 876 S.W .2d 57, 64 (T enn. 1993 ).

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The trial judge found that he could remain impa rtial notw ithstan ding h is communication with the Assistant District Attorney. Certainly, the fact that the trial judge acquitted M erriweather of all cha rges is indicative of his imp artiality. The trial judge assured the parties that he w ould disregard any irrelevant information during the defendants’ trial, and there is nothing in the record to show otherwise. We find no abuse of discretion from the record.

This issu e is withou t merit.

SUFFICIENCY OF THE EVIDENCE - MORROW AND DARDEN

In their next issue, both appellants contend that the evidence was insufficient to support their convictions. In a bench trial, the verdict of a trial judge is entitled to the same weight on appeal as a jury verdict. State v. H atchett, 560 S.W.2d 627, 630 (T enn. 19 78); see also State v. Horton, 880 S.W.2d 732, 734 (Tenn. Crim. A pp. 199 4). A guilty ve rdict accre dits the sta te’s witn esse s and all conflicts are resolved in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strong est legitim ate view of the e vidence and all leg itimate or reaso nable infe rences which m ay be dra wn there from. Id.

This Court is not at liberty to reweigh or reevalu ate the ev idence . State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, this Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find th e accu sed gu ilty beyond a reaso nable d oubt. State v. Brewer, 932 S.W .2d 1, 19 (T enn. C rim. App . 1996). Acco rdingly , it is this Cour t’s

-21-duty to affirm the co nviction s if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offense beyon d a rea sona ble doubt. Tenn. R. App . P. 13(e); Jack son v. V irginia, 443 U.S. 30 7, 317, 99 S.Ct. 2781, 2 789, 61 L.Ed.2d 560 (19 79); State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 199 4).

A. Civil Rights Intimidation

Appe llants claim th at the e videnc e is insu fficient to supp ort their convictions for civil rights intimidation because there was no evidence presented at trial that th e victim s in this c ase, M ichae l and Hannah W esterman , were exercising a constitution al right at the time of the incident. Tenn. Code Ann. § 39-17-309(b)(2) (1991) provides:

[a] person comm its the offen se of intimidating others from exercising civil rights who . . . [i]njures or threatens to injure or coerces another person with the intent to unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of the United States or the constitution or laws of the State of Tennessee.

Both Darde n and M orrow tes tified at trial that they noticed the Westermans’ truck because of the Confederate flag, and they wanted to fight with the occup ants of the truck. A fter beco ming a ngered by one o f the truck’s o ccupa nts shaking the Con federate flag at them, Darden, Morrow and their cohorts chased the truck a t exces sive sp eeds until Morrow was in position to fire his weapon at the truck, resulting in the death of Mr. Westerman. When Darden was asked whether he intended to catch the We sterma ns’ truck a nd fight, he resp onded , “[i]t might have crossed m y mind.”

Taking the evidence in the light mos t favora ble to th e state , it is clear that Darden and Morrow intended to injure or threaten the Westermans because the Confederate flag was d isplayed o n their truck . See Tenn. Code Ann. § 39-17-

-22-309(b)(2) (1991). No matter how offe nsive a sy mbol the Confe derate flag may be to some members of our society, it is well-established that displaying a flag is cons titutiona lly protected “symbolic speech.” See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 27 27, 41 L .Ed.2d 8 42 (197 4); Strombe rg v. Califo rnia, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). We, therefore, conclude that the evidenc e is sufficien t for a rationa l trier of fact to find that appellants committed the offens e of civil rights intim idation be yond a re asona ble dou bt.

This issu e has n o merit.

B. Attempted Aggravated Kidnapping

Appe llants also challenge the s ufficien cy of the eviden ce for th eir convictions of attem pted ag gravated kidnapp ing. Aggravated kidnapping is “false imprisonment . . . comm itted . . . [w]ith the intent to inflict serious bodily injury on or to terrorize the victim or another.” Tenn. Code Ann. § 39-13-304 (a)(3) (1991). False impris onm ent is d efined as “kn owing ly remov[ing] or confin[ing] another unlaw fully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann. 39-13-302 (a) (1991). A criminal attempt is committed when a person, “acting with the kind o f culpa bility othe rwise require d for the offens e . . . [a]cts with intent to cause a result that is an element of the offense, and believes the conduct will cau se the result without further conduct on the person’s part.” Tenn. Code A nn. § 39-12-1 01(a)(2) (1991 ).

Hannah Westerman testified that after her hus band w as sho t, the light blue car that had passed them came to a complete stop in the roadway in front of them, and another car stopped behind them. As a result of this, she was forced to drive the truck through a ditch, across an embankment and into a parking lot in an effort to flee the sc ene. However, when she tried to exit the parking lot, the cars had blocked her access to the paved driveway, so she drove through

-23-another ditch to exit the parking lot. All the while, someone in the light blue car was lea ning ou t of the wind ow poin ting a gun at the truck .

Furthermore, Andrews testified that Darden stopped his car in the m iddle of the roadway, and Morrow leaned out of the window, pointed his gun at the truck and exclaime d, “[I’ve] got the m now .”

Looking at this e videnc e in the light m ost favora ble to the state, a rational trier of fact could conclude that appellants attempted to confine the Westermans so as to “interfere substantially” with their liberty and with the intent to inflict serious bodily injury on or to terrorize them. Tenn. Code Ann. §§ 39-13-302 (a), 39-13-304(a)(3) (1991). The evidence is sufficient to sustain appellants’ convictions for attempted aggravated kidnapping.

This issu e is withou t merit.

C. Felony Murder

Appe llants also con tend tha t the evidenc e is insu fficient to susta in their convictions for felony murder. Appellant Darden claims that the evidenc e is insufficient to support the underlying felony of attempted aggravated kidnapping; therefore he can not be convicted of first degree murder in the perpetration of the attempted aggrava ted kidna pping. Morrow contends that the killing of Michael We sterman was collateral to the attempted aggravated kidnapping, and therefore can not be sustaine d under State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988 ).

Tenn. Code A nn. § 39-13-2 02(a)(2) (1991) provid es, in pertin ent part, “[f]irst degree m urder is . . . [a] reckless killing of anothe r committed in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burgla ry, theft, k idnap ping o r aircraft piracy.” In the c ase of State v. Severs, this Co urt held that “to s ustain a conviction of first-degree felony m urder,

-24-the killing must have been in pursuance of, rather than collateral to, the unlawful act described by the statute.” 759 S.W.2d at 938. However, there is no requirement that the murder occur as a proximate cause of the underlying felon y. State v. Middlebrooks, 840 S.W.2d 317, 332 (T enn. 19 92). The statute mere ly requires that the murd er occ ur durin g the “p erpetr ation of, or attemp t to perpetrate” the und erlying felon y. Tenn . Code Ann. § 39-13-202 (a)(2); State v. Middlebrooks, 840 S.W.2d at 332.

In this case, the evidence is clear that the murder occurred during the attempted perpetra tion of an aggravated kidnapping. Darden and Morrow wanted to fight the occupants of the truck as a result of seeing the Confederate flag displayed on the truck. In an effort to catch the W esterm an vehic le and sto p it, they began chasing the Westermans . As they were passing the Westerman truck, Morrow began shooting his gun and killed Michael Westerman. The shooting occurred in the “pursuance of” and was not merely collateral to the attempted aggravated kidnapping.

Moreover, because the evidence was sufficient to support appellants’ convictions for attem pted a ggrav ated k idnap ping, D arden ’s argument also fails. The evidence was sufficient to support appellants’ convictions for first degree murder in the perpetration of an attempted aggravated kidnapping.

This issu e has n o merit.

SENTENCING - MORROW AND DARDEN

In their final issues, appellants contend that the trial court erred in imposing their sente nces . Both a ppella nts ch alleng e the tria l court’s imposition of consecu tive sentences. Further, Morrow argues that his sentences for attempted

-25-aggravated kidna pping and c ivil rights in timidation are excessive, and the trial court erred in failing to grant probation.

A. Sentencing Standard of Review

This Court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sente nce is improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts. In conducting our review, we are required, pursua nt to Ten n. Cod e Ann. § 40-35-210, to consider the following factors in sentencing:

(1) [t]he evidence , if any, received at the trial and the sentencing hearing;

(2) [t]he pre senten ce repo rt;

(3) [t]he principles of sentencing and arguments as to sentencing alternatives;

(4) [t]he nature and characteristics of the criminal conduct involved;

(5) [e]viden ce an d inform ation offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and

(6) [a]ny statement the defendant wishes to mak e in the defen dant's own behalf about sentencing.

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Because the trial court considered the principles and purposes of the 1989 Sentencing Act, we will review appellants’ sentences de novo with a presumption of correctness.

B. Excessive Sentences - Morrow

Morrow claims that the trial court erred in imposing excessive sentences for his con victions for attem pted a ggrav ated k idnap ping a nd civil rights intimidation. Specifically, he asse rts that the trial court misap plied five enhancement factors to his convictions.

Under the 198 9 Sente ncing A ct, the presumptive sentence for these offenses is the minimum within the applicable range if no mitigating or enhancement factors for s entenc ing are p resent. T enn. C ode An n. § 40-35-210 (c); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991 ). Howeve r, if such factors do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code A nn. § 40-35-2 10(e). No pa rticular w eight fo r each factor is prescribed by the sta tute, as the weight given to each factor is left to the discretion of the trial court as long as its findings are supported by the record. State v. Santiago, 914 S.W .2d 116 , 125 (T enn. C rim. App . 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.

In imposing Morrow’s sentence for civil rights intimidation, the trial court found that the following enhancement factors applied:

(1) the offense involved more than one (1) victim, Tenn. Code Ann. § 40-35-11 4(3);

(2) the personal injuries inflicted upon the victim were p articula rly great, Tenn . Code An n. § 40-35-11 4(6);

-27-

(3) the defendan t possesse d a firearm during the commission of the offense, Tenn. Code Ann. § 40-35-114(9); and

(4) the defendant had no hesitation about comm itting a crime whe re the risk to human life was high, Tenn. C ode Ann . § 40-35-114 (10).

The trial court also found as a mitig ating fa ctor tha t the de fenda nt, bec ause of his youth, lacked substantial judgment in committing the offense. Tenn. Code Ann. § 40-35-113(6). After weighing the enhancement and mitigating factors, the trial court sentenced Morrow to fou r (4) years, the ma ximum R ange I sente nce for a Class D felon y.

With regard to Morrow’s conviction for attempted aggravated kidnapping, the trial court found two enhancement factors to be applicable, namely: (1) the defendant had no hesitation about committing an offense when the risk to human life was high, Tenn. Code Ann. § 40-35-114(10); and (2) the crime was committed under circumstances under which the potential for bodily injury to a victim was great, T enn. Cod e Ann. § 40 -35-114(16). The trial court also found that Morrow lacked substantial judgment due to his youth and applied that as a mitigating factor. Te nn. Co de Ann . § 40-35-113 (6). The trial court then imposed a sentence of five (5) years for attempted aggravated kidnapping, a Class C felony.

1.

Morrow claims that the trial court erred in applying Tenn. Code Ann. § 40-35-114(3), that the offense involved more than one (1 ) victim, to his conviction for civil rights intimidation. He ma intains that there is no proof in the record to show that he was aware that there was more than one (1) person in the truck during the incident. He fur ther ar gues that H anna h W esterm an is not a “vic tim” with in the mean ing of Tenn . Code An n. § 40-35-11 4(3).

-28-

W e find Morro w’s claim to be totally without merit. First of all, the indictment lists both M ichael an d Han nah W esterm an as victim s of the civil righ ts intimidation charg e. W hile Mo rrow is correct in his assertion that a person who has lost a lov ed on e is not a “victim” under this enhancement factor, see State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994), such is not the case here. During a high speed car chase, Morrow fired his gun at the Westermans’ truck, not only killing Michael Westerman, but also threaten ing serious bo dily injury to Hannah We sterman. Certainly, she is a “victim” as contemplated by Tenn. Code Ann. § 40-35 -114(3). See State v. Raines, 882 S.W .2d at 384 (holding th at a “victim” is one who is “injured, killed, had property stolen , or had p roperty destroyed by the perpetrator of the crim e”).

Furthermore, Tenn . Code Ann. § 40-35-114(3) does not require that the defendant must be a ware of the number of persons he is victimizing in order for this enhancement factor to ap ply, nor do es Mor row cite any authority that stands for such a proposition. The trial court properly applied Tenn. Code Ann. § 40-35-114(3) as an enhance ment factor.

2.

Morrow next contends that the application of Tenn. Code Ann. § 40-35-114(6), that the offe nse invo lved particu larly great pe rsonal inju ries, was inappropriate. He claims that the particularly great personal injury sustained by Michael We sterman w as “inherent in his death and his death cannot be separated from the felony murder count for which he has been sentenced and separa tely applied to the civil rights in timidation count.”

W hile Morrow’s argument would be correct if this enhancement factor were applied to a homicide conviction, his reasoning is erroneous with regard to the civil rights in timida tion ch arge. S erious bodily injury is not an essential element

-29-of the offe nse o f civil rights intimid ation. See Tenn . Code Ann. § 39-17-309 (b)(2). Because Michael Westerman died during the co urse o f the offe nse, th is demonstrates greater c ulpability for the offense. See State v. Nix, 922 S.W.2d 894, 903 (T enn. C rim. A pp. 19 95). T he trial c ourt, the refore , did no t err in applying this enh ancem ent factor.

3.

Morrow ne xt insists that the trial court erred in applying Tenn. Code Ann. § 40-35-114(9), the use of a deadly weapon du ring the commission of the offense, as an enhancement factor for his convictions for attempted aggravated kidnapping and civil rights intimidation. He alleges that the use of a deadly weapon was the aggravating circumstance in the attempted aggravating kidnapping conviction and wa s thus an essen tial eleme nt of that offe nse. He further maintains that “the proof is not clear if the weapon played any part in the Civil Rights Intimidatio n convictio n and th us is inap plicable to th at coun t.”

W e must note that Morrow is incorrect in his assertion that the trial court applied this enhancement factor on the attempted aggravated kidnapping conviction. Our review of the record indicates that the trial court did not consider the use of a deadly weapon as an enhancement factor for this conviction. Nonetheless, we find that the trial court would have been justified in doing so. Morrow was indicted on attempted aggravated kidnapping with the intent to inflict serious bodily injury on or to terrorize the victims . See Tenn. Code Ann. §§ 39-13-302(a), 39-13-304(a)(3) (1991). The use of a deadly weapon is not an essential element of the offense for which he was convicted, and the trial court could prope rly have conside red this as an en hancem ent factor.

Second ly, contrary to Morrow’s assertion, the record is abundantly clear that the use of a deadly weapon was instrumental in injuring or threatening to

-30-injure the Westermans during the commission of the civil rights intimidation offense. See Tenn. Code Ann. § 39-17 -309(b)( 2) (1991 ). The trial cou rt prop erly applied this en hanc eme nt facto r to Mo rrow’s convic tion for c ivil rights intimidation.

4.

Morrow also claims that the trial court erred in finding as an enhancement factor that he had no hesitation about committing a crime when the risk to human life was high for his conviction for attempted aggravated kidnapping. Tenn. Code Ann. § 40-35-114(10). He argues that this enhancement factor was applied solely beca use a dead ly weap on wa s use d in the commission of the offense, and because the use of a deadly weapon is an element of the offense, this was an inappropriate e nhancem ent factor.

Once again , Morro w is inco rrect in h is argument that the use of a de adly weapon is an element of the attempted aggravated kidnapping conviction. In any event, the proof showed that other motorists were on the roadway during the high speed chase . Any of the se mo torists were subject to injury or death by Mo rrow’s actions. See State v. Williamson, 919 S.W .2d 69, 83 (T enn. Crim. A pp. 1995). The trial court prop erly applied this enha nceme nt factor.

5.

Morrow also alleges that the trial court erred in finding as an enhancement factor for his attempted aggravated kidnapping conviction that the crime was committed under circumstances under which the potential for bodily injury to a victim was grea t. Tenn. Cod e Ann. § 40 -35-114(16 ).

The evidenc e at trial show ed that D arden drove his car at exc essive speeds while Morrow fired a weapon at the Westermans in an effort to stop the truck and substantially interfere with Hannah Westerma n’s liberty. By his actions, Morrow could have shot Mrs. Westerman and injured or killed her. He co uld

-31-have caused a serious car acc ident, resulting in injuries or death to Mrs. We sterman. We conclud e that Mo rrow’s ac tions “dem onstrate a culpab ility distinct from and a ppreciably gre ater than that incident” to the attempted aggravated kidnapp ing. State v. Jones, 883 S.W .2d 597, 603 (Tenn. 199 4). Therefore, the trial court did not err in applying factor (16) to enha nce M orrow ’s sentence.

6.

W e find no error with rega rd to the tria l court’s application of enhancement factors. Furthermore, the we ight give n to m itigating and e nhan cem ent fac tors is left to the discretion of the trial court as long as its findings are supported by the record. State v. Santiago, 914 S.W.2d at 125. Accordingly, we conclude that Morrow ’s sentences of five (5) years for attempted aggravated kidnapping and four (4) years for civil rights intimidation were appropriate.

This issu e has n o merit.

C. Probation - Morrow

Morrow mainta ins that the trial court erre d in failing to grant probation on his sentences for attempted aggravated kidnapping and civil rights intimidation. He claims th at he is a p roper ca ndidate for proba tion due to his “insignifica nt” criminal history and there is no evidence in the record which would rebu t his statutory presumption favoring alternative sentencing.

An espe cially mitigated or stand ard offen der con victed of a C lass C, D or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court m ust presu me tha t a defendant sentenced to eight years or less and who is not an offende r for whom inc arceration is a priority is subjec t to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It

-32-is further presu med that a s enten ce oth er than incarc eration would result in successful rehabilitation unless rebutted by sufficient eviden ce in the reco rd. Id. at 380.

Under the 1989 Sentencing Act, sentences which involve con finement are to be based on the following considerations:

(A) [c]onfinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) [m]easures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.

Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). A trial court may consider the enhancement and mitigating factors set forth in Tenn. Code Ann. §§ 40-35-113, 40-35-114 as they are relevant to the § 40-35 -103( 1) con sidera tions. State v. Boston, 938 S.W.2d at 438; State v. Zeolia , 928 S.W .2d 457, 461 (Tenn. Crim. App. 1996). The trial court should a lso cons ider the de fendan t’s potentia l for rehabilitation when determining whether an alternative se ntence would b e appro priate. State v. Zeolia , 928 S.W.2d at 461.

In determining whether to grant or deny probation, a trial court shou ld consider the circumstances of the offense, the defendant's criminal record, the defen dant's social history and present condition, the need for deterrence, and the best interest of the d efenda nt and the public. State v. Boyd, 925 S.W.2d 237, 244 (Tenn . Crim. A pp. 199 5); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995 ).

Probation may be denied based solely upon the circumstances surrounding the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.

-33-App. 1995). How ever, the circumstances of the offense as committed must be espe cially “violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors favoring proba tion.” State v. H artley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) (quoting State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 19 85)).

There is no mathematical equation to be utilized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. § 4 0-35-10 3(2); State v. Boggs, 932 S.W.2d 467, 476-7 7 (Te nn. C rim. A pp. 19 96). “In deed , individu alized punis hme nt is the essence of alternative sentenc ing.” State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 19 94). In sum mary, se ntencing must b e determined on a case-by-case basis, tailoring each sentence to that particular defendant based upon the facts of that case and the circumstances of that defen dant. State v. Moss, 727 S.W .2d 229, 235 (Tenn. 198 6).

The trial court determined that confinement was necessary to avo id depreciating the seriousn ess o f the offe nses com mitted and w as pa rticularly suited to provide an effective deterrence to others likely to commit similar offenses. As a res ult, the trial court denied probation on appellants’ convictions for attempted aggravated kidnapping and civil rights intimidation.

W e agree with the trial court that the circumstances of the offenses mand ate incarcera tion in this ca se. After observing the Confederate flag on the We stermans ’ truck, the appellants decided to “fight” with the occupants of the truck. T herefo re, they pursu ed the We sterm an truc k, trave ling in excess of the speed limit, and Morrow began firing a weapon at the Westermans, endangering not on ly his intended victims, but also other motorists in the area. Darden then

-34-passed the truck on the left, putting M orrow in th e position to fire the fatal sh ot. Darden then b rough t his vehicle to a stop in front of the Westermans, and Morrow continued to shoot. As a res ult, Mrs. Westerman had to man euver her veh icle off of the paved roa dway in order to elude the gunfire. We hold that the circumstances of the offense are especially violent, horrifying, shocking, reprehensible and offensive to warrant the denial of probation in this case.

This issu e has n o merit.

D. Consecutive Sentencing - Morrow and Darden

In their final issue, appellants assert that the trial court erred in imposing consecu tive sentences. Consecutive sentencing is governed by Tenn. Code Ann. § 40-3 5-115 . A trial court may order sente nces to run c onse cutively if it finds that one or m ore of the statu tory criteria exis ts by a preponderance of the evidence. Tenn . Code Ann. § 4 0-35-11 5(b); State v. Black, 924 S.W.2d at 917. Additionally, when a trial co urt imp oses cons ecutive sente nces on the basis that the defendan t is a dangerou s offender, the court must also find that an extended sentence is “necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences must reasonably relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 19 95).

The trial cou rt found that bo th app ellants were dangerous offenders “whose behavior indica tes little o r no reg ard for hum an life, a nd no hesita tion about committing a crime in which the risk to human life is high.” Tenn. Code Ann . § 40-35-115(b)(4). The trial court stated:

Mr. Darden w as the individual who decided that a fight was approp riate based on the truck and th e flag. M r. Dard en ba sically recruited the other vehicle an d its occupants to help with what was going to be a fight. . . So, the critical thing for the Court is, as far as Mr. Dard en’s in volvem ent, wh at did he do at the time that he knew

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it was potentially more than a fight? That would have been at the time that Mr. Morrow pulled out his pistol and com mence d fire and attempting to fire and re peated ly firing the weapon. O bvious ly in retrospe ct, if Mr. Darden had simply stopped his vehicle realizing that the situ ation h ad go tten ou t of han d we w ouldn ’t be here toda y, . . . But he did n’t. What he did was speed up. When he learned of the weapo n before it was fired he sped up and passed the other vehicle. He then proceeded to drive 80 miles an hour parallel in the wrong lane to the truck to pu t Mr. Morro w in a position to shoot and after shots were fired Mr. Darden then proceed[ed] to pass the truck and stop. . . Then after the truck pulled through the ditch into the parking lot Mr. Darden proceeded to drive his vehicle into that lot and a further attempt to block the occupa nts of the truck. All the while his companion Mr. Morrow was continuing to fire, and or attem pt to fire, th e pisto l.

The court also noted tha t Morrow had “rep eated o pportun ities to refrain from the use of a firearm” but continued “recklessly with no hesitation and no indication of any regard for h uman life to repe atedly fire the weap on.”

W e agree with the trial court that both ap pellants are dangerou s offenders within the meaning of Tenn. Code Ann. § 40-35-115(b)(4). Furthermore, we find that the terms imposed by the trial court are reasonably related to the severity of the offenses and are nec essary to protect the public from further criminal acts by the appellan ts. State v. Wilkerson, 905 S.W.2d at 938. Although the trial court did not make the findings req uired by Wilkerson, we find that these fac tors are present under o ur powe r of de novo review. See State v. Samuel Paul Fields, C.C.A. No. 01C 01-951 2-CR -00414 , Davidso n Cou nty (Ten n. Crim. A pp. filed February 26, 199 8, at Nas hville); State v. Edward Thompson, C.C.A. No. 03C01-9503-CR-00060, Cocke County (Tenn. Crim. App. filed December 12, 1996, at Knoxville). Consecutive sentencing was appropriate in this case.

This issu e has n o merit.

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CONCLUSION

Upon our review of the record, we find that appellants’ issues are without merit. Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ DAVID G. HAYES, JUDGE

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