State v. James Fernandez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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

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

FOR THE APPELLANT: FOR THE APPELLEE:

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

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

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

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

Following a jury trial in Davidson County Criminal Court, James Fernandez, the Defendant, was convicted of one count of attempt to commit premeditated first degree murde r and on e coun t of felony murder. He was sentenced by the trial court to eig hteen (1 8) years fo r the con viction of attem pt to commit first degree murder and a life sentence for the conviction of felony m urder. T he life sentence was ordered to be served consecutively to the first sentence of eighteen (18) years. The Defendant appeals as of right and raises the following issues on appe al:

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

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

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

4) The trial court erred in imposing consecutive sentences. We affirm the ju dgme nts of the tria l court.

S UFFICIENCY OF THE EVIDENCE

When an accused challenges the sufficiency of the convicting evidence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecution, any rational trier of fact could have found the essential eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (19 79). On ap peal, the S tate is entitled to the stron gest legitim ate view of the evidenc e and a ll inference s therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the

-2-burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).

Questions conce rning the credibility of the witnesses, the weight and value to be give n the e videnc e, as w ell as all factual issues raised by the evidence, are resolved by the tr ier of fac t, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn . 1987). Nor ma y this court reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict approved by the trial judge accredits the S tate’s w itness es an d reso lves all conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.

Several witnesses testified during the State’s case-in-chief. Anita Stevens, the mother of the victim of the felony m urder, Jennifer Jones, stated that the victim was seven teen (17) years old at the time of her death. Jennifer was in the eleventh grade and had been dating Brian Wiggins for approximately a year and a half prior to her death. On January 19, 1994, the night the victim was killed, Jennifer had c alled Ms. Stevens to tell her that she and her friends were going to a movie that night. The victim’s school was closed that day and the following day due to the snow and icy road conditions. She was notified at app roxim ately 11:00 p .m. that he r daugh ter had b een sh ot.

Janet Land W iggins, a friend of the victim, was at home with Jennifer and their friends on January 19. In addition to herself, the girls there included the victim, Rachel Stacey, and Lee Ann Cherry. On January 18, 1994, Janet met William Peck in a mall. The victim was with William Peck and the Defendant. On

-3-January 19, bo th Pec k and the De fenda nt cam e by Ja net’s house to visit the girls. W hen th e girls left the house that night, Janet thought they were going to go to the movies, but instead they went to the Eco no Lodge on Murfrees boro Road. When they arrived at the Econo Lodge, they went to the room where the Defendant and Peck were staying. E veryon e starte d drink ing alc oholic beverages. At that time only Peck was in the room with the girls, and he showed them a gun. Peck took the clip out and was flicking bullets at the television. Shor tly thereafter, the Defendant came in and asked Peck for the gun. The two argued about the gun for a few minutes, and Peck wanted to know why the Defen dant wa nted the gun. Jan et did not h ear the D efenda nt’s reply.

During this time, the victim and Brian Wiggins had begun paging each other back and forth on their beepers. Finally, Jennifer gave Wiggins her telephone number at the motel, and when he called she asked him to drive over to the Econo Lodge and pick her up. The victim went downstairs alone to wait in Rachel Stacey’s car for Wiggins. While Janet did not know if Brian W iggins had arrived, she saw Peck and the Defendant leave the room with the gun. She and the other girls also left the room and stepped outside onto the balcony . She saw the Defendant and Peck running down the stairs after Wiggins. Wiggins and the victim were arguing, but they were walking to get in Wiggins’ car when Peck and the Defendant followed them. She saw them all arguing, with Peck and the Defendant kicking Wiggins’ car to try to stop him from leaving. As Wiggins was trying to leave, Peck grabbed his door and was pulling it open. When Peck pulled the door open, he swung at Wiggins. She did not see a gun at that time.

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The girls went downstairs, and Rache l and Lee Ann we re yelling for h er to get in their car to leave. Stephanie decided that she wanted to stay in the motel room. Janet, Rachel, and Lee Ann got in Rachel’s car and were driving in the oppos ite direction from the exit as they d id not kno w how to get out of the parking lot. They turned around when they realized they could not get out that way and were coming back around the motel when they saw Peck and the Defendant walking beside them and Jennifer lying on the ground. When the girls asked Peck and the Defendant what they had done, they refused to reply and only walked past them to get in the Defen dant’s Je ep. Defe ndant drove away with Peck in the car to the other side of the motel. They stopped and sat there for a few minutes, then the Jeep cam e bac k arou nd an d the D efend ant wa s the o nly one in it.

Rachel Stacey testified that she was with the victim o n the night of Jan uary 19, 1994. She met the Defendant and William Peck one or two days prior to the incident at the m otel whe n Jenn ifer introduc ed them . Wh en they le ft Janet’s house that night, she knew they were going to the Econo Lodge to “have fun” and drink. All of them sat around, drinking and talking. She remembered that either Peck or the Defendant had a gun in the room and was playing with the bullets. During this time, Jennifer and Wiggins were beeping each other on their pagers, until finally Jenn ifer pag ed W iggins with the teleph one n umb er of the ir mote l. The two talked on the tele phone and W iggins sa id he wa s com ing over.

When Wiggins showed up a t the motel, everyone started going outside. Jennifer was a lready o utside, waiting in the car. W hen she g ot to the balcony, she saw Wiggins arguing with Peck and the Defendant. She got in her car and

-5-started driving. When the girls tried to get Jennifer to get in their car, she declined and chose to ride with Brian. Wiggins’ car got stuck in the ice, so Rachel drove to the other side of the motel to try to find another way out. When they came back around the motel, she was too busy paying attention to her driving to notice anything. Lee Ann told her that Jennifer was lying on the ground and that they were beating up Wiggins. Rachel parked her car and we nt over to where Jennifer lay on the ground. She could not see any visible wounds, so she ran and got back in her car. The Defendant came over to her ca r then a nd told her that nothing was wrong with the victim, that she was just in shock. When the police arrived later, Rachel told the Defendant to get out of her c ar. He complied and we nt upstairs to his room .

Lee Ann Cherry was next to testify regarding the events of January 19, 1994. She m et the D efend ant an d Pec k earlier that day while the girls were at Jane t’s home. When they arrived at the Econo Lodge that night, they all sat around, played quarters (a drinking game), and drank alcoholic beverages. When they found out that Wiggins was coming over, Peck pulled out a gun from a drawer and eventually put it under a pillow. Stephanie was standing at the window when Brian arrived, and she announced that he was in the parking lo t. Peck grabbed the gun and was running out the door with the Defendant running out with him. She, Rachel and Janet de cided the y would le ave, and they ran to Rach el’s car. Lee Ann saw Jennifer and W iggins getting into their car, along w ith Juan Rosa. She saw Wiggins, Peck and the Defendant all wrestling on the ground, with Peck and the Defendant on top of Wiggins beating him up. She got in Rachel’s ca r, and the next time she looked over, Jennifer was lying on the

-6-ground. She then saw P eck an d the De fendan t running back tow ards a w hite Jeep.

Steph anie Lawrence testified that she had known Peck for one (1) or two (2) weeks prior to the day of the shooting. Jennifer had introduced her to Peck, and she had also later introduced her to the Defendant. While the girls were at Jane t’s home on January 19, Peck and the Defendant called and invited them to come over to the Econo Lodge that night. When they got to the motel room, they were all drinking and watching television. After Jennifer went downstairs to meet with Wiggins, Peck and the Defendant were under the impression that she and W iggins were arguing in the parking lot. Stephanie knew Peck an d the Defendant did not like Brian Wiggins. They ran downstairs wit h one of them carrying a gun, but she did not recall who possessed or owned the gun. Steph anie went out on the balcony to see what was going on downstairs, and saw Peck try to hit W iggins throug h the c ar wind ow. Sp ecifica lly, she recalled that Peck was punching Wiggins through the window, and then she went back inside. When s he went back outside, Jennifer was lying on the ground. Steph anie ran down to Jennifer and talked with her. As she could not see any blood a nd did no t hear a g unsho t, she thou ght the victim was on ly in shock .

Brian Wigg ins described his dating relationsh ip with Jennifer as “very strong.” Prior to the shooting, Wiggins did not know Peck or the De fendan t. He was at home when he and Jennifer started paging each other. For the first ten (10) or twelve (12) times, Jennifer only put her pager n umb er in, bu t she fin ally paged him with the telephone number at the motel room. When he called her at the mote l, she to ld him that there were two (2) guys there that had a gun and that

-7-she wanted him to co me pic k her up . He left his home to go get Jennifer, and picked u p a friend, J uan R osa, alon g the wa y.

When they arrived at the Econo Lodge, Jennifer was in Rachel’s car waiting. Wh en W iggins went o ver to h er, they argue d for a m inute b ut then she decided she was ready to leave. As they were walking toward s his car, Peck and the Defendant came down the stairs and started to argue with him. When Jennifer, Rosa and Wiggins got in the car and started to leave, Peck and the Defendant began to kick the side of his car. Wiggins’ window was down, and Peck punched him. Wiggins got out of the car and the two began fighting. When he got back in the car, the Defendant said, “Blast him. Blast him.” Peck then broke the back wind ow of W iggins’ car, and ap proximately two (2 ) to four (4) seconds later, the gun went off. Jennifer, who was sitting in the front seat between Rosa and W iggins, was screaming she had been shot. He could not see who had the gun when it was fired, but Peck was the one who first pulled out a gun. Rosa went to the pay phone to get help for Jennifer, who was lying on the ground in front of the car. The Defendant came over to Wiggins and apologized, stating that he w as sorry it ha ppene d. Wiggins did not see Peck again tha t night.

Juan Rosa was the next witness to testify. He stated that he rode over to the Econo Lodge with Brian Wig gins on J anuary 1 9, 1994 . He was aware that Brian and Jennifer were boyfriend and girlfriend. When they arrived at the mote l, he saw Jennifer sitting in Rachel’s car, and they parked n ext to that car. Wiggins got out and we nt to talk to Jennifer. The y talked about five m inutes and w ere arguing when Peck and the Defendant walked up and confronted Wiggins. After arguing for several moments, Peck raised his shirt and told them to leave. As

-8-soon as they saw the gun in the waistband of Peck’s pants, Rosa, Wiggins and Jennifer went to get into Wiggins’ car. Because they had problems backing up due to the ice in the parking lot, Peck and the Defendant were able to catch them and ran up to try to get Wig gins out of the ca r. They were trying to hit Wiggins, but Rosa was not sure if any blows were actually ma de. Rosa then heard the Defendant tell Peck to “Blast him. Blast him.” He looked over his shoulder towards the ba ck and obs erved the win dow b eing b usted out, felt g lass on his shoulder and then sa w the flame o f the gun. The re was only a period of two (2) or three (3) seconds between the time the glass was broken and when Rosa saw the flame of the gun. Jennifer s tarted to sc ream th at she w as sho t. Rosa ra n to get help for Jenn ifer.

James Bean was staying in the motel room next to where the girls, the Defendant and Peck were partying. Wh en he b elieved the noise from the party was getting out of hand, Bea n went outside on the balcon y. He though t he heard a fight in the parking lot regarding somebody’s girlfriend. He heard a lot of yelling, and then saw the Defendant walk across to a white Jeep and get something out from under the passenger’s seat. He concealed it right away undern eath his clothes. While Bean thought the object might have been a gun, he co uld not say it was d efinitely a gu n. He did recall it was “s ometh ing shiny.” The pistol used in the shooting was silver colored.

W hen the Defendant went back over to where the fight was going on, peop le started sp reading out and some left the area . He saw Wiggins’ car trying to leave, but the car started sliding. He saw the Defendant and Peck run up and start beating the glass windows on the driver’s side of the car. Bean heard the

-9-glass break, then in a m inute saw a girl get out of the passenger’s side of the car. He looked away for a m inute, a nd wh en he looke d bac k she was lyin g dow n in front of the car. The D efendant an d Peck the n drove off in the white Jeep. Bean went do wn whe n the po lice arrived a nd told the m wha t he had seen.

Tommy Jurnett, patrolma n with the Metro politan Nashville Police Depa rtment, received a call to go to the scene at the Econo Lodge on January 19, 1994. When he pulle d into the parking lot at the motel, there were a lot of peop le gathered around one location at the foot of the hill. He cou ld see a w hite fema le lying on the ice, but from his own initial observations could not tell if she had been shot because he could not see any blood. Because she was not moving, he knew something was wrong and said she appeared to be dead. As soon as the ambulance arrived, he began to talk to those who had observed the fight and the shooting. Several people yelled that a white male on the second level was “him ,” mean ing the on e that had shot the victim. Jurnett saw that individual a nd was able to ide ntify him as the Defe ndant.

Sergeant Robert Nash, also of the Metro Police Department of Nashville, was the patrol sergeant on January 19, 1994. He arrived at the Econo Lodge Motel around 10:30 p.m. that evening, and Officers Tommy Jurnett and Ralph Key were already on the scene. Nash helped to secure the scene, then learned that a potential suspect, the Defendant, was staying in a room on the second floor of the motel. Defendant was taken into cu stody a fter one of the fe male subjects at the sce ne iden tified him a s being in volved in the shooting .

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Officer Brad Corcoran of the Metro Police Department arrived at the crime scene in time to see the victim’s body being removed. He photographed the area and the variou s cars invo lved, then identified these photo graph s at trial. Corcoran identified a p hoto of a shell ca sing fro m a .3 80 se mi-au toma tic handgun that was fou nd inside the seat o f Wig gins’ car. A .380 calib er sem i-automatic handgun was found at the fence line beside a tree on the back side of the m otel. Three live rounds were also found near the weapon.

Dr. Ann B ucholtz, th e forensic pathologist for Davidson County, testified that she examined the findings from the medical examiner as to the cause of death of Jennifer Jones. She stated that the gunshot wound entered the victim ’s chest on the left upper portion, near the armpit, p assing in to the che st cavity itself. The bu llet then lace rated the left lung, hea rt, diaphragm and the liver tissue. Th e bullet wa s recove red durin g the au topsy.

The Defendant rested without offering any proof. The jury found Defendant guilty of the felony murder of Jennifer Jones and attempt to commit premeditated first degree murde r of Brian W iggins.

The Defendant argue s that th e evide nce is insufficient as a matter of law to allow a rational trier of fact to conclude that he was guilty of the premeditated attempted murder of the victim . There fore, he co ntends that if he is no t guilty of the premed itated attempted murder, then he cannot be guilty of the underlying felony murder of the victim. At the time of the se offens es, the law defined firs tdegree murder as an intentional, premeditated and deliberate killing of another or a reckless killing of ano ther com mitted in th e perpe tration of, or a ttempt to

-11-perpetra te any first degree m urder. Tenn . Code An n. § 39-13-20 2(a)(1) and (2). “A person comm its crimina l attempt w ho, acting with the kin d of culpa bility otherwise required for the offen se . . . acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or acts with intent to complete a course of action or cause a result tha t would co nstitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.” Tenn . Code Ann. § 3 9-12-10 1(a)(2) an d (3).

In order to hold th e Def enda nt crim inally res pons ible for first degree murder based upon the actions of Pe ck, the State m ust prove that, acting with the intent to promote or assist the commission of the offense, Defendant solicited, directed, aided or attempted to aid Peck in the killing of Brian Wiggins. Tenn. Code Ann. § 39-11-402(2). An aider and abettor under this statute can be held crimin ally respo nsible not only for the criminal offense aided or abetted, but also for any other crime committed by an accomplice as a “natural and probable consequence of the crime originally aided and abetted.” State v. Carson, 950 S.W.2d 951, 952 (Tenn. 1997). The court in Carson described “natural and probable consequence” as “harms [the aiders and a bettors] have na turally, probably and forese eably put in m otion . . . A ‘natural a nd probable consequence’ in the ‘ordinary course of things’ presupposes an outcome within a reason ably predic table range.” Id. at 955 (citations omitted). In dicta, the supreme court also declared that the “[natural and probable consequences] principle also has been applied to accom plices under the felony murde r doctrine.” Id. at 955, n. 5. Also, the killing must not be independent or sepa rate from the und erlying felon y. State

-12-v. Severs, 759 S.W.2d 935, 938 (T enn. C rim. App . 1988); Farmer v. State, 296 S.W .2d 879, 883 (Tenn. 195 6).

Defendant argues that the evidence does not support a fin ding that he acted with the requisite intent, or shared intent, of the co-Defendant William Peck. W hile a defendant’s intent to kill and his premeditation may be formed in an instant for the commission of first degree murder, “deliberation requires some period of reflection, during which the mind is free from the influence of excitement or passion.” State v. B rown, 836 S.W.2d 530, 540 (Tenn. 1992) (citations omitted). “In order to establish first degree murder, the premeditated killing must also have been done deliberately, that is, with cooln ess an d reflection . Id. at 539. Premeditation require s a “pre viously forme d des ign or intent to kill.” State v. West, 844 S.W .2d 144 , 147 (T enn. 19 92).

The evidence shows that prior to the shooting, the Defendant came into the motel room an d asked P eck for the gun . The two arg ued abou t who would h ave possession of the gun . After W iggins arrived, the Defendant and Peck imm ediate ly ran outside with the gun and b egan to arg ue with him. Several witnesses observed the Defendant and Peck beating Wiggins. James Bean testified that he saw the Defendant go over to a white car and get something out from under the passenger’s seat. Bean saw the Defe ndant s how the object to the crowd and that was when people started leaving the scene. Bean stated that he though t the objec t was a gu n. Wiggins testified tha t when h e attem pted to leave the motel in his car, that Peck and the Defendant were kicking the side of his car and were trying to hit him. While they were still fighting with Wiggins,

-13-Defendant told Peck to “Blast him. Blast him.” Immediately afterwards, the glass window was bu sted an d the victim was sh ot.

Although the jury m ay not e ngag e in sp ecula tion, the jury ma y infer premeditation and deliberation from the circumstances surrounding the killing, or, as in the insta nt case, th e attem pted killing. State v. Bord is, 905 S.W.2d 214, 222 (Tenn . Crim. A pp. 199 5); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Defendant abandoned the scene of the argument and walked back to his car to get a handgun. A rational trier of fact could reasonably infer from the proof that D efend ant left th e sce ne, we nt to his car and returned with the gun and the intention of shooting Wig gins. See State v. Wesemann , No. 03C01-9404-CR-00144, slip op. at 9, Sullivan County (Tenn. Crim. App., at Knoxville, June 25, 1997) (Rule 11 application filed August 18, 1997). During this time, Defendant certain ly had the opportunity for premeditation and deliberation. We can infer premeditation from their use of a deadly weapon upon an unarmed victim. Brown, 836 S.W.2d 541. Furthermore, the Defendant and Peck, after first beating Wiggins, again attempted to stop Wiggins from leaving the scene of the argum ent. Arme d with a ha ndgun , they kicked his car, busted out the window, then shot in to the ve hicle. T he bu llet mis sed W iggins but struck and killed Jennifer Jones, who was in the front seat between Wiggins and Juan Rosa. After viewing the evide nce in the light mos t favorable to the State, the evidence was sufficient for a jury to have concluded that Defendant, for himself and as aider of Peck, acted w ith prem editated a nd delibe rated inten t to kill. See State v. Burlison, 868 S.W .2d 713 , 718 (T enn. C rim. App . 1993).

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During oral arguments, Defendant’s counsel noted that his conviction for attempted first deg ree m urder was vo id in light of our su prem e cou rt’s holdin g in State v. Kimbrough, 924 S.W .2d 888 (T enn. 1996). Th e sup reme court in Kimbrough held that th ere is not a n offense of attempted felony murder as one cannot intend to a ccom plish the u nintend ed. Id. at 892. Kimbrough is distinguished from this case as Defendant was convicted of attempted preme ditated first de gree m urder of B rian W iggins. Th is issue is w ithout me rit.

J URY INSTRUCTIONS

The Defendant argues that the trial court erred by failing to instruct the jury that only first degree murder could be considered as an underlyin g and p redicate offense for the felony murder charge. Defendant admits that there was no objection to the ju ry char ge an d this iss ue wa s not ra ised in his motio n for new trial. Defend ant con tends tha t the jury cha rge rises to the level of p lain error.

The Defendant specifically objects to the language of the following portion of the trial judge’s instruction to the jury:

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

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

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

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

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

W e first note that the Defendant did not object at the time the judge gave the jury this instru ction, n or did h e inclu de this issue in his mo tion for n ew trial. Issues regarding the form or fullness of jury instructions are ordinarily not approp riate for appellate review and are deem ed to be waived. State v. Cravens, 764 S.W.2d 754, 756-57 (Tenn. 1989). Defendant’s counsel was given opportu nity to review the jury instructions p rior to the charge to the jury and failed to object prior to that charge. However, “the failure to make objection [to the conte nt of an instruction given ] shall not prejudice the right of a party to ass ign the basis of the objection as error in support of a motion for a new trial.” Tenn. R. Crim. P. 30(b). At the very least, the Defendant’s failure to include the issue in his motion for a new trial is waiver of that issue, unless as Defendant argues, the jury instru ction con tains plain e rror.

Upon review of the entire set of jury instructions charged to the jury by the trial court, w e see nothin g that a ffected the su bstan tial rights of the De fendan t. Tenn. R. Crim . P. 52( b). W hen re viewing the en tire cha rge, we may o nly invalidate it if, when read as a whole, it fails to fairly submit the legal issues or misleads the jury as to the app licable law. In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987). During the ch arge to th e jury on C ount 1, the attemp t to com mit first degree murde r, the trial court explained to the jury in detail the eleme nts of first degree murder and the requirements of both premeditation and deliberation. The trial court stated as follows:

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

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

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

The trial cou rt furthe r expla ined the definitions of “intentional,” “premeditated” and “delibera te.” The trial co urt in Cou nt 3 of the c harge to the jury spoke of the “attempt to perpetrate the alleged homicide of Brian Wiggins” when referring to the underlying felony. A fair reading of the instructions reveals that the reference to the attempted homicide of Brian Wigg ins specifically related to the e arlier jury instruction regarding the attempt to commit premeditated first degree murder of Brian Wiggins as charged in Count 1 of the indictm ent. Jury instructions must be reviewed in the context of the overall charge rather than in iso lation. State v. Byrd, No. 02C01-9508-CR-00232, slip op. at 32, Shelby County (Tenn. Crim. App., at Jacks on, De c. 30, 199 6), perm. to appeal denied (Tenn. 199 7) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)); see State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). When viewed in the conte xt of the ove rall charge , the trial judge ’s use of th e word “homicide” rather than “first degree murde r” did not se rve to mis lead the ju ry such th at a substantial right of the Defendant was affected.

W hile we agree the more appropriate wording would have been “first degree murder” rather than “alleged hom icide,” any error which might have been made was at most harmless error. The jury found the Defendant guilty of attempt

-17-to commit premeditated first degree murder, and the felony murder conviction was as a result of th at attem pt. This iss ue has no me rit.

M OTION FOR JUDGMENT OF ACQUITTAL

The Defendant argues that the trial court erred in overruling his motion for a judgment of acquittal. The duty of a trial judge and the reviewing court on appeal on the determination of a motion for a judgment of acquittal is the same as for a motion for a directed verdict. This duty is as follows:

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

Jones v. State, 533 S.W .2d 326 , 329 (T enn. C rim. App . 1975); see also State v. Stowe, 634 S.W.2d 674, 675 (Tenn. Crim. App. 1982) (citations omitted). Just as there was su fficient evidence for a rational trier of fact to find the Defendant guilty of attempt to commit first degree murder and the felony murder, there was more than sufficient evidence for the trial court to overrule Defendant’s motion for a judgm ent of acq uittal. This iss ue is witho ut merit.

C ONSECUTIVE SENTENCING

Defendant argue s that th e trial co urt erre d in im posin g con secu tive sentences. At the sentencing hearing, the trial court imposed an eighteen (18) year sentence for the conviction of attempt to commit first degree murder and a

-18-life sentence for the charge of felony murder. The eighteen (18) year sentence is to be served consecutively to Defendant’s life sentence. Defendant does not contest the length of the eigh teen (18) year se ntence, only its con secutive manner of service.

When an accused challenges the length, range or the manner of service of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence with a presum ption that the determ inations mad e by the trial court are correct. Tenn. Code A nn. § 40-35-4 01(d). This pre sump tion is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this cou rt must cons ider: (a) the evid ence , if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and -210; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact adequately supported by the record, then we may not

-19-modify the sentence even if we would h ave prefe rred a differe nt result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The trial court based the imposition of consecutive sentences on the provisions of Tennessee Code Annotated section 40-35 -115( b)(4). U nder th is provision, the Defendant was subject to consecutive sentences as a dangerous offender. Furthe rmor e, the tria l court fo und th e following enhanceme nt factors applicable: the Defendant’s prior history of criminal convictions or beh avior; h is previous history o f unwillingnes s to comply with the conditions of a sentence involving release into the community; his use or possession of a firearm; his lack of hesitation about committing a crime when th e risk to human life was high; the potential for bodily injury to a victim was great; and the Defe ndan t was o n bail from a prior felony when the offense was committed. Tenn. Code Ann. § 40-35-114 (1), (8), (9), (10), (13) an d (16).

In finding the Defendant to be a dangerous offender, the trial court must also have found that the Defendant’s behavior indicates little or no regard for human life and, no hesitation about committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). Furthermore, confinement for an extended period must be found as necessary to protect the public against further criminal conduct by the Defendant, and the consecutive sentences must reaso nably relate to the severity of the offens es com mitted. State v. Wilkerson, 905 S.W .2d 933 , 938-39 (Tenn . 1995). T he trial cou rt reason ed as follo ws:

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

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

From our review of the sentencing hearing and th e entire record, the Defendant in the case sub judice is a dangerous offender and there was a sufficient basis on which to impose consecutive sentences. When Defendant brought the gun over to the scene of the argument, this evidenced his lack of hesitation in creating a high risk of death or serious bodily injury to all those involved in the a rgum ent, pa rticularly in light of the fact that most of those same peop le had been drinking alcoholic beverages and were potentially intoxicated. The Defendant’s conduct in this case demonstrated an indifference to the probab ility that someone in Brian Wiggins’ vehicle would be killed if Peck chose to follow his instructions to “Blast him. Blast him.” Oth er perso ns in add ition to the victims were put at great risk. The nature of the two offenses Defendant committed are severe. Finally, an extended sentence is necessary to protect the public against the Defendant’s further criminal conduct. At the time of these offenses, the Defendant was already on bond from a felony offense committed in Florida. His prior criminal record and the nature of these offenses prove that there is a n eed to co nfine the D efenda nt, particu larly in ligh t of his statem ent to the police in w hich he fa ils to dem onstrate any rem orse for h is actions. See Wilkerson, 905 S.W .2d at 937 -39. Th is issue ha s no m erit.

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

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____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Judge

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

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