IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED AUGUST SESSION, 1998 October 21, 1998 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CR-00259 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. SETH NORMAN, JUDGE HAROLD WAYNE SHAW, ) ) (SECOND DEGREE MURDER; Appe llant. ) AGGRAVATED KIDNAPPING)

FOR THE APPELLANT: FOR THE APPELLEE: KARL F. DEAN JOHN KNOX WALKUP Metro Public Defender Attorney General & Reporter WENDY S. TUCKER DARYL J. BRAND Assistant Public Defender Assistant Attorney General (At Tr ial) 2nd Floor, Cordell Hull Building Fifth Avenue North JEFFREY A. DeVASHER Nashville, TN 37243 Assistant Public Defender 1202 Stahlman Building VICTO R S. JO HNS ON, III Union Street District Attorney General Nashville, TN 37201 (On App eal) KIMB ERLY HAAS Assistant District Attorney General Washington Square Second Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________ CONVICTIONS AFFIRMED; SENTENCES REVERSED AND CASE REMANDED FOR NEW SENTENCING HEARING THOMAS T. WOODALL, JUDGE OPINION The Defendant, Harold Wayne Shaw, appeals as of right his convictions for second degree murder and aggra vated kidna pping in the Davidson County Criminal Court. The trial court sen tenced De fendant as a Range II M ultiple Offender to thirty- five (35) years on the second degree murder conviction and eighteen (18) years on the aggravated kidnapping conviction. The sentences were ordered to be served cons ecutive ly to one anoth er as well as to a prior e ight (8) year senten ce for a felony drug c onvictio n. Def enda nt raise s the fo llowing six issu es in th is app eal: (1) Whether sufficient evidence supported the convictions for second degree murder and aggravated kidnapping; (2) Whether the trial court erred in disallowing questioning of a victim regarding his claim for victim’s compensation; (3) Whether the trial court erred in admitting testimony regarding Defendant’s prior incarceration; (4) Whether the trial court erred in refusing to declare a mistrial when th e State asked a witness if Defendant had been on the Tennessee Bureau of Investigation’s “Most Wa nted List”; (5) Whether the trial court committed plain error in failing to instruct the jury regarding facilitation of second degree murder as a lesser included offense of premeditated first degree murder; and (6) Wh ether the trial court committed various sentencing errors.

After a careful review of the record, we affirm Defendant’s convictions, but remand the case to the trial court for resentencing.

-2- Sum mary o f the Fac ts

On December 29, 1993, at approximately 10:00 p.m., police officers and an ambulance were d ispatc hed to G-Ma n’s Ma rket on Brick C hurch Pike in Nash ville in response to a call that a shooting had occurred. Upon arrival, they found 24-yea r- old Corey Barbee on the floor, bleeding from several gunshot woun ds. Ba rbee to ld them that “some dudes got Garland [Brinkley].” The victim was asked if the same men who had taken Garland had shot him, and Barbee responded “yes.” He told them that three men in masks had entered the store, fired several shots, and then taken awa y the owner of the market (G arland Brinkley).

Barbee was taken to Vanderbilt University Hospital, where over the next few days he underwent several surgeries. Fourteen days later, on January 12, 1994, Corey Barbee died of complications from the gunshot wounds to his chest and abdomen.

Garland Brinkle y, who se nick nam e is “G -Man ,” was th e own er of G -Man ’s Marke t. About six months earlier, Brinkley was involved in some drug transactions, spec ifically cocaine, with a man he knew as Harold Moore, but whose name was actua lly Harold S haw, the Defen dant. Brin kley testified that he and Defendant agreed that Defe ndant w ould “fron t” the cocaine to Brinkley to sell, and then Brinkley would later pay Defendant. The cocaine was actually given to Brinkley by a man named Eric, wh o Brink ley testifie d was a “go-b etwee n.” Brin kley tes tified tha t in two such transactions, he gave the drug s to som eone e lse to sell. The proceeds from the drug deals w ere apparently never given to Brinkley so he in turn never returned any of the proc eeds to Defen dant. It is not clear from the record as to the total -3- amount and value of the cocaine in the transactions. At the preliminary hearing, Brinkley said he owed $3,8 00 for three ounces on the first transaction and $9,000 for 12 ounces on the second deal. However, he told investigators and testified at trial that the de als involved a quarte r kilo valued at $27,00 0.

Brinkley testified that on the morning of December 29, 1993, Defendant telephoned him at the store and demanded that Brinkle y turn o ver his h ouse and h is Chevrolet Blazer as payment for the cocaine debt. Defendant claimed that Brinkley owed him $27,000 plus a $5,000 late fee, for a total of $32,000. Later that morning, Defendant came to G-Man’s Market and again demanded payment from Brinkley.

Howe ver, Brinkle y refused and D efenda nt left.

Brinkley testified that later that evening, Corey Barbee, known as “Bruno,” was at the store with Brinkley. Barbee and Brinkley had been friends for several years.

Barbee would stop by the market and watch television and would som etime s help Brinkley clean the store a nd close it at night. As the y were closing the store on the night of Dec emb er 29, 1 993, th e doo r sudd enly flew open and a masked man stepped in and sh ot Barbee five or six times. Brinkley described the shooter as a black male, ab out six feet ta ll and 175 pound s, with a hood over his head in addition to the mask. He was armed with what Brinkley described as a nine millimeter Glock or Beretta. T he sho oter was followed in to the market by two more men. The second man had no mask on his face, but only a hood and sunglasses. Brinkley recognized this man as Haro ld Moore (Shaw), the Defendant. Defendant was armed with a pistol-g rip shotgu n. The third man, who was also masked, was shorter and chubb ier. Accor ding to B rinkley, all three men w ere black .

-4- After Barbee was shot, Barbee asked to use the phone to call an ambulance.

He then managed to get to the phone and call 911 for help. Brinkley testified that the Defendant then ordered Brinkle y to leav e the m arket w ith them . Brinkle y said that he initially refus ed and that the m an who had sh ot Barbe e then “shot me and grazed my leg.” He testified that the bullet did not enter his leg, but that he has a scar from be ing graze d. Howeve r, there is apparen tly no medical rec ord of such a graze wound. Brinkley eventually got into the 1976 or 1977 blue Chevrolet Impa la with the thre e men . Barbee was left at the marke t.

This same evening, Clara Coleman was helping in some remodeling work on a business locate d in the sa me bu ilding as G -Man’s M arket. Sh e heard gunsh ots and looked o ut in time to see a light blue older model car speed away from the marke t. She testified that she saw three or four black m en in the car. Ms. Coleman did not know Brinkley.

As the car drove off, Defendant told the shooter to put duct tape over Brinkle y’s face and to bind his hands together with the tape also. Defendant held the shoo ter’s gun while he taped up Brinkley. According to Brinkley, the car ride lasted about 15 to 25 minutes. Defendant kept saying to Brinkley, “you think I’m playing with you?” The c ar eve ntually came to a stop and the men pulled Brinkley out and took him into a garage or shed. They bound his feet with d uct tape. There the three men proceede d to beat Brinkley. Defendant pistol-whipped him. Brinkley testified that he be lieves he passed out two or three times during the beatings which he estimated lasted “for hou rs.” De fenda nt then forced Brinkle y to ma ke se veral cellular phone calls in an e ffort to have Brinkley’s w ife bring the de ed to th eir hou se. Ca lls

-5- were m ade to B rinkley’s m other, au nt, brother-in-law, and a cou sin, bu t they co uld not locate Brinkley’s w ife.

Brinkley said that three or four more black men later joined the group and participated in the beatings. Brinkley still had tape over his eyes, but he said he could tell the men we re black by their voices. The men took his wallet which had about $300 cash in it. They cut his pants and inflicted a four to five inch laceration on his left thigh . Acco rding to Brinkle y, his atta ckers poure d som e liquid on his wound and attempted several times to light it with a match, althou gh doctors were unab le to find any evidence of burns. However, a trauma surgeon who treated Brinkley at Vanderbilt testified that lacerations often produce a burning sensation, particularly if liqu id is poure d on the m.

The beatings continue d until som eone s aid “kill him.” At this point, most of the men steppe d outside to confer, but when they returned Brinkley was told that he was “lucky.” They then cut the tape from his a nkles, threw him back in the car, an d drove to Whites Creek Pike. The car slowed down near the United Parcel Service location and Br inkley was thrown o ut. He testified that as he rolled d own an emba nkme nt, he hea rd two or th ree sho ts fired. The car then took off.

Brinkley was able to pull the tape from his eyes enough to see, and he then walked to the UPS security guard station. One guard called 911 while the other cut the tape fro m Br inkley’s face a nd wris ts. An a mbu lance took B rinkley to Vand erbilt Hospital where he was treated for a fracture to his upper jaw, a large cut on the back of his scalp, a cut on his left thigh, injuries to his mo uth, and rib pain suggesting a fractured rib. Brinkley was discharged from Vanderbilt on December 31, 1993.

-6- Investigators found six nine millimeter shell casings, two outside the market and four inside. Brinkley acknowledged that the fully-loaded .357 revolver found on the floor of the market belon ged to Barb ee, wh o usu ally carr ied it in his coat p ocket.

Also, a fully-loaded nine millimeter semiautomatic pistol was found under the cash register. Brinkley identified that gun as belonging to him. Officer Brad Corcoran testified that neithe r of thes e wea pons appe ared to have b een fire d. The only fingerprints identified at the scene were those of Brinkley and Barbee.

On January 12, 1994, the day Corey Barbee died, homicide detectives Johnny Lawrence and Mike Roland interviewed B rinkley. They sho wed Brinkley a photo graph ic array fro m wh ich Brin kley identified Defendant as the leader of the group that kidnapped him and killed Barbee.

The day after Brinkley was released from the hosp ital, Def enda nt calle d him and reiterated that he wanted the deed to Brinkley’s house. When Brinkley asked why Defe ndan t allowed Barbee to be killed, Defend ant replied, “I don’t give a f--- about him.” Defenda nt continued to c all Brinkley every day and sometimes several times a day. Brinkley finally called the police because of the harassing calls from Defen dant. Detective s went to Brinkle y’s hou se an d reco rded tw o inco ming calls from Defen dant. In those calls, Brinkley and Defendant argued about the shooting of Barbee. However, Dete ctive Clifford Douglas admitted that police made no attempt to trace the telephone calls, nor was any voice analysis done in an attempt to determine w hether the calls w ere actually made by Defendant. Defendant continued to call Brinkley until Brinkley was incarcerated for food stamp fraud.

-7- Brinkley acknowledged that after the incident, he was admitted to Tennessee Christian Medical Center where he claimed he remained for about a month for psychological problems. However, Brinkley admitted on cross-examination that he was only at the m ental health facility for twelve days. Brinkley told a doctor at the center that he had been assaulted and kidnapped for no reason by six men.

Although documented by the doctor, Brinkely denied at trial telling the doctor that he heard voices in his head or that he had fears that his friends would turn on him.

There were many inconsistencies in Brinkley’s testimony. For instance, Brinkley told detectives and he testified at the prelimina ry hearing that he w as sho t, not grazed in the leg as he later cla imed . He initia lly told po lice tha t his ankles were taped while he was in the car and that a hood was plac ed over h is head. Howeve r, at trial he te stified th at only his hands were bound and that tape, not a hood, was placed over his eye s. He a ckno wledg ed fals ely testifying at the preliminary hearing that his nose was broken, and that both his upper and lower jaws were broken. He testified that during the beatings that he called his cou sin, Be cky Bo nds, a nd told her to go to the G-Man’s Market and try and find his wife. However, Ms. Bonds testified that Brinkley ca lled her an d told her to go to the market in order to put the telephone back on the hook . Brinkley o riginall y told police that he was assaulted due to a dispute about “running numbe rs,” not drugs, at his market. He testified at the preliminary hearing that he was hosp italized for four or five da ys. He said th at if hospital records indicated that he sp ent on ly one n ight in th e hos pital, “I know that would be a lie.” Brinkley te stified at trial that h e first met D efenda nt when both attended Maplewo od High S chool in 1984 or 1985. Ho wever, he admitted testifying at the preliminary hearing that he met Defendant two years before the shooting at his auto detail shop. There were also numerous inconsistencies and discrepancies -8- in his testimony pertaining to the drug transactions, such as when exactly the transac tions occ urred an d the am ount of dr ugs an d mon ey actua lly involved.

I. Sufficiency of the Evidence

Defendant raises two arguments that the evidence was insufficient to convict him of second degree murder and aggravated kidnapping. First, he contends that the State failed to prove his identity as perpetrator of the crimes. Second, he argues that the evidence was insufficient to prove that he was crimin ally responsible under Tenn. Code Ann. § 39-11-402 for the conduct of another person in murdering Corey Barbee.

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosection, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 30 7, 319 (1979 ).

This standard is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitled to th e strongest legitimate view of the evidence and all inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

-9- Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evide nce, are resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t approved by the trial judge accredits the State’s witnesses and resolve s all conflicts in favor of the State. Grace, 493 S.W .2d at 476 .

Moreover, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W .2d 237 (Tenn . 1973); State v. Jones, 901 S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1981). However, before an accused may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so stro ng and cogen t as to exclud e beyo nd a re ason able doubt every other reaso nable hypothe sis save g uilt of the defe ndant." State v. Crawfo rd, 225 Tenn. 478, 470 S.W .2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reaso nable d oubt." Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).

A. Identity Garland Brinkley identified Defendant as one of three men who entered his store on the night of December 29, 1993, and kidnapped him after one of the men shot Corey Barbee. Two weeks after the shooting, homicide detectives interviewed Brinkley. The detectives showed him a photographic array from which Brinkley -10- identified Defendant as the leader of that group. Police subsequently tape-recorded two phone calls from Defendant to Brinkley, in which the two angrily discussed the events of Dece mber 2 9, 1993, and the shooting of Barbee. Brinkley identified the voice at the other end of those calls as that of Defendant. At trial, Brinkley identified Defendant in the courtroom as the person who was present when Barbee was shot and when he was kidnapped.

Defendant asserts that Brinkley’s identification testimony was suspect because of inco nsiste ncies in other are as of h is testim ony. H owev er, Brin kley’s identification of Defendant as the perpetrator was never contradicted by any other evidence or by any inconsistent identifications. Again, he identified Defendant in the photo lineup as the perpetrator a s well as the in-cou rt identification at trial. He also identified Defendant’s voice on the taped telephone calls. Despite defense couns el’s attempt to impeach Brinkley, the jury weighed his testimony and found Brinkley’s identification of Defen dant su fficient to con vict.

It is well-established that the identification of a defendant as the perpetrator of the offense for which he is on trial is a question of fact for determination by the jury. State v. Strickland, 885 S.W .2d 85, 87 (Tenn . Crim. A pp. 199 3), perm to appeal denied (Tenn. 199 4). Further, the identifica tion testim ony of a victim is, by itself, sufficient to support a conviction . Id. Garland Brinkley’s identification of Defendant as the perpe trator is th us su fficient to supp ort the c onvictio ns in th is case.

This issu e is withou t merit.

B. Crim inal Res ponsib ility

-11- Defendant argues that he was improperly found criminally responsible for the conduct of his masked accomplice who shot and killed Corey Barbee. He argues that there was no proof that he shared any common intent with that assailant or that he acted with intent to promote or assist in the shooting.

In order to convict Defendant under the theory of criminal responsibility, the State was req uired to pro ve beyon d a reas onable doubt that Defendant solicited, directed, aided or attempted to aid another person to commit the offenses while “acting with the intent to promote or assist the commission of the offense[s ], or to bene fit in the proceeds or results o f the offens e[s]. See Tenn. Code Ann. § 39-11- 402(2). This co de provis ion is the co dification of th e “natural and prob able consequences” rule from the comm on law pertaining to aiders and ab ettors. See Tenn. Code Ann. § 39-11-402 Sentencing Commission Comm ents; State v. Carson, 950 S.W.2d 951, 953 (Tenn. 1997). Thus, under Tenn. Code Ann. §§ 39-11-401 and 402, an individual in a multiple offender felony is responsible for the criminal acts of any of th e othe r particip ants if th e individ ual sh ares in the inte nt to co mm it the primary felony and the criminal acts committed by the other participants are the natural and probable consequence of the commission of the primary felony. Id. at 953-54.

The evidence in this case shows that Defendant and the unknown shooter were united in the common purpose of committing the kidnapping of Garland Brinkley. Defen dant h ad be en invo lved in drug deals with Brinkley. On the morning of the shooting, Defendant telephoned Brinkley to demand payment of a drug debt and later went down to G-Man’s Market for the same pu rpose. Later that sa me day, Defendant and two unidentified masked men together burst into the market at -12- closing time. Defendant and at least one of the other men were armed. After the first mask ed ma n shot B arbee, th e three p erpetrato rs abdu cted Brin kley, with Defendant giving the o rders the entire time . As the ca r drove off, Defendant told the shooter to put duct tape over Brinkely’s eyes and to bind his hands. Defendant held the shooter’s gun while the tape was being put on Brinkley. A ll three men we re clearly united in the com mon pu rpose of kidna pping Brinkley.

The murder of Corey Barbee occurred as a natural and probable consequence of the kidnapping. As the men entered the market that evening, the shooting started almost immediately. The police found Barbee’s own firearm fully loaded and appa rently unfired near his b ody. T he sh ooting was a natura l and p robab le consequence of the action by the kidnappers.

The evidence, toge ther with the reasonable inferences from that evidence, clearly demonstrate the Defendant “knowingly, voluntarily, and with common intent unite[d] with the principal offenders in the comm ission of the crime ” and is, therefore liable for their actions. Carson, 950 S.W.2d at 954 (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). Viewing the evidence in the light most favora ble to the State, as we are req uired to do up on ap peal, a reaso nable jury cou ld have determined that Defendant played an active role in the crime by acting as the leader of his co-perpetrators, thereby aiding the commission of the offenses and acting with the intent to assist in the crimes. Clearly, it was reasonable for the jury to conclude that Defendant’s role exceeded mere presence and that he associated hims elf with the ven ture and shared in the crim inal intent of th e perpe trators. See Carson, 950 S.W .2d at 954 (citation om itted). This is sue is with out me rit.

-13- II. Victim’s Compensation

The trial court refused to allow defense counsel to cross-examine Brinkley regarding a claim he had filed with the State Division of Claims Administration for crimin al victim ’s injury com pensa tion unde r Tenn . Code Ann. § 29-13-101 et seq.

During an offer of proof by the de fense , Brinkle y ackn owled ged th at his cla im had been dism issed. Defendant argues that cross-examination regarding the victim’s compe nsation claim s hould have been allowed as impeachment evidence of bias or prejudice under Tenn . R. Evid. 61 6. Defendant contends that the excluded evidence was relevant to Brinkley’s credibility by its suggestion that the witness exaggerated his injuries “in a failed attem pt to bene fit financ ially from the crimes allege dly comm itted by the defendant.” In other words, Defendant argues that Brinkley was a biased witness because he allegedly had a financial stake in the criminal prosecution. He also argues that the excluded evidence showed that Brinkley had made false statem ents o f his injur ies in th e app lication for victim ’s compensation.

In the claim filed, Brinkley alleged that he was shot, beaten and kidnapped, and that he suffered serious injuries to his leg, neck, head, back and rib s. The claim also alleged that Brinkley knew Defendant “from their neighborho od.” T he cla im requested $5,000 for men tal health counseling, $3,000 for loss of income, and $50,000 for “permanent disability.” Brinkley testified at trial that even though he signed the claim for victim’s compensation that his atto rney a ctually prepared it and that he did not read it before signing.

-14- After a careful review of the evidence, we find that it was error to exclude the aforementioned evidence beca use it is admissible to im peach B rinkley’s credibility.

This Court has held that “for the purpose of showing interest, or bias, a witness for the prosecution in a criminal case may be questioned as to whether he has brought an action against the accused, based on the acts involved in the criminal case.”

State v. Horne, 652 S.W.2d 916, 919 (Tenn . Crim. A pp. 198 3). In the instant case, the excluded evidence showed that Brinkley, the key witness in this case, sought moneta ry com pens ation in the tota l amo unt of $ 73,00 0 due to Def enda nt’s actions.

In seeking such compensation, Brinkley signed a notarized statement averring that he was permanently disabled. His claim was later dismissed because he was unab le to offer p roof of h is losses and expenses. At trial, Brinkley’s testimony made no reference to him being permanently disabled. The excluded evidence co uld have suggested to the jury that Brinkley exaggerated the nature of his injuries in an attempt to bene fit financially from the crime s alleged ly comm itted by Defen dant.

This is precisely the type of evidence rendered admissible to show bias or prejudice under T enn. R . Evid. 616 .

Howeve r, as mentioned before, Brinkley’s claim ha d been dism issed before he testified at the trial in this case . There fore, at the time of his trial testimon y, Brinkley had no real pecuniary interest in the case. Furthermore, even though the claim for compensation was erroneously excluded, we find that ample evidence had already been admitted regarding Brinkley’s prior inconsistent statements. For instance, defense counsel vigorously cross-examined Brinkley regarding his prior statement about the nature and extent of h is injurie s and the len gth of h is hospitalization. A Van derbilt U niversity trauma surgeon who treated Brinkley also revealed further inconsistencies in Brinkely’s descriptions of his injuries, as did the -15- admission notes and discharge summaries recounting his complaints when he was treated.

Although we believe that the trial judge should have admitted the evidence, we do not be lieve his failure to do so re sulted in re versible err or. Tenn. R. App. P. 36(b). We find that the trial c ourt’s ru ling in not allowing cross-examination regarding Brinke ly’s victim’s compensation claim did not affect the outcome of the trial in this case, and th at any e rror in n ot allowing it was harm less. Tenn. R . Crim. P. 52(a); Tenn. R . App. P. 36(b).

III. Prior Incarceration Statement

In this issue, D efend ant arg ues th at the tria l court e rred in o verrulin g his objection to Brinkley’s reference s to Defend ant’s prior incarcera tion. Brinkley testified on direct examination that he was involved in two cocaine transactio ns with Defendant prior to the shooing at G-Man’s Market. During cross-examination of Brinkley, defense counsel was exploring the timing and circumstances of Brinkle y’s prior drug transactions with Defendant. Defense counsel was also trying to establish that Brinkley had no personal dealings with Defendant, but only with a man named “Eric,” described by Brinkley as Defendant’s “go-between.” The following exchange occurred in the presence of the jury:

Q (By Ms. Tucker): Okay. And I want to look at, if we can, these deals that yo u’re talk ing ab out. O kay? Y ou sa id there we re two se parate in cidents, rig ht?

A: Yeah.

Q: Two separate transactions?

-16- A: Yes.

Q: Th at you go t through Eric, right?

A: Yes.

Q: And I be lieve you sa id it was how lon g befo re this incident happened?

A: Maybe about th ree weeks. I think about three weeks.

I’m not sure.

Q: Do you remember telling Detective Johnny Lawrence it was about six and a half months before this incident happened?

A: W hat, from the prior tim e he go t out?

Q: I’m talking ab out the first dea l. Wa s it six an d a ha lf month s or three weeks before th is incident?

A: We ll, when it hap pened ? W hen the incident happened?

Q: Th e first--right.

A: No. W hen-- Q: The first drug transaction.

A: It was like three weeks in that period of time.

Q: Okay.

A: But after--after he g ot out of jail-- Ms. Tucker: Okay. Your Honor, I’m going to object to that as com pletely irreleva nt.

Brinkle y’s first reference to Defendant’s incarceration, “the prior time he [Defen dant] got out,” drew no objection from defens e coun sel. How ever, c ouns el did object to the reference “after he got out of jail,” as irrelevant and nonresponsive. The trial court ove rruled the objection , noting tha t Brinkley’s comment was in fact

-17- responsive to defense counsel’s question. A few minutes later, the following exchange occurred, also in th e presenc e of the jury:

Q: (By Ms. Tucker): Those are the only deliveries that you say were between you and Harold Shaw?

A: Yeah.

Q: The only ones?

A: Yeah.

Q: And they were both delivered by Eric?

A: Righ t.

Q: Okay. T he first trans action, how long before the shooting of Bruno was it?

A: Like I sa id at first, he wa sn’t even o ut of jail yet.

Defense coun sel m ade n o obje ction a t all to this th ird refer ence to Def enda nt’s prior incarceration. All three comments regarding Defendant’s previous incarceration came during defense counsel’s aggressive cross-examination.

Brinkley never mentioned the offense(s) for which Defendant had been incarcerated.

By exploring the timing of Brinkley ’s drug de als with D efenda nt, the defense opened the door to the relevant fact that their course of drug dealing began while Defendant was still in jail. As the trial court found, the refere nces ma de by Brinkley w ere responsive to defense counsel’s questions, and we therefore find this issue to be without m erit.

IV. Mistrial

-18- During cross -exam ination of a po lice de tective c alled a s a witness by Defen dant, the State asked if Defendant was on the TBI’s “Most Wanted List” at the time of his taped teleph one calls to Brinkley. Defense counsel moved for a mistrial and the trial court conducted a bench conference out of the hearing of the jury. The court found that an earlier witness, Homicide Detective Johnny Lawrence, had already testified, without objection, that D efendant wa s placed on the TBI’s “M ost Wanted List.” Alth ough the trial c ourt denied the mistrial motion, it did instruct the prosecutor to not “go any further on it, General.” Defense counsel did not request a curative instruction.

Whether an occu rrence d uring the course of a trial warrants a mistrial is a matter which addresses itself to the sound discre tion of the trial court, and this C ourt will not interfere with the exe rcise of tha t discretion absen t clear abu se. State v. McPherson, 882 S.W.2d 365, 370 (Tenn . Crim. A pp. 199 4), perm. to appeal denied (Tenn. 1994). The burden of establish ing the ne cessity for mistrial lies w ith the party seeking it. State v. Williams, 929 S.W .2d 385 , 388 (T enn. C rim. App . 1996). In making this determination, no abstract formula should be mechanically applied, and all circums tances should b e taken into acco unt. State v. Mounce, 859 S.W.2d 319, 322 (Ten n. 1993).

When the trial court denied Defendant’s motion for a mistrial, Defendant shou ld have requested a curative instruction. See McPherson, 882 S.W.2d at 371. “[A]n accused is not entitled to relief when he fails ‘to take whatever action was reasonably available to prevent or nullify the harmful effect of an erro r.’” Id. (citing Tenn. R. App. P. 36(a)). As the McPherson court points out, counsel may have wanted to avoid calling further attention to the matter by a sking for an instruction.

-19- Such a decision would have been a legitimate trial tactic. 882 S.W.2d at 371.

Nonetheless, failure to request a curative instruction technically waives this issue.

However, even after having reviewed the rec ord, we are unable to conclude that the second question regardin g Defe ndant b eing on TBI’s “M ost W anted L ist“ created a man ifest nece ssity for a m istrial. We cannot say that the question “m ore proba bly than not affecte d the ju dgm ent” in th is case. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). The question had previously been asked without objection and the Defendant’s objection and the trial court’s action prevented the witness from even answering. Th us, we cann ot say th at the tria l court a buse d its disc retion in denying Defe ndan t’s motion for a mistrial. Any error was harmless. Tenn. R. App. P. 36(b); Ten n. R. Crim. P. 5 2(a).

V. Failure to Charge Lesser Included Offense

Defendant argue s in this issue that the trial court erred by not charging the jury with the lesser included offense of facilitation of second de gree mu rder. The jury was charge d on the offenses of premeditated first degree murder, criminal respon sibility for facilitation of first degree murder, and second degree murder. As to all of these charges, the court instructed the jury regarding the concept of criminal respon sibility for the conduct of another. Defendant contends that facilitation of second degree murder should have also been charged. However, Defendant failed to raise this issue in his motion for new trial. In Harrison v. State, 532 S.W.2d 566 (Tenn. Crim. App . 1975), and a gain later in State v. Spadafina, 952 S.W.2d 444 (Tenn. Crim. App. 1996), this Court held that the failure to raise this very issue in a -20- motion for new trial waived the issue on appeal. This Court also stated that unless the trial court were given an opportunity to address the issue through a motion for new trial, then the issue will not be considered on appea l. Spadafina, 952 S.W.2d at 451 (c itation om itted); see also Tenn. R . App. P. 3(e).

Howeve r, Defendant contends that this Court should recognize plain error in this instance. This Court may, in an exercise of its discretion, consider an issue which has been waived. In order for this Court to find plain error, the error must affect a substantial right of the accused. Tenn. R. Crim. P. 52(b). After a careful review of the record, we find that the evidence in this case did not fairly raise the issue of facilitation of second degree murder as a lesser offense, and the trial court therefore properly o mitted it from the jury instru ctions. Th is Court h as held th at a jury should be instructed on facilitation only when the evidence raises an issue that the defend ant “lacke d the inten t to prom ote or assist in, or benefit from, the [underlying] felony’s comm ission.” State v. Utley, 928 S.W.2d 448, 452 (Tenn. Crim.

App. 1995). The general rule is that a trial court need only instruct on a lesser offense when the evidence would su pport a c onviction fo r that offens e. State v. Trusty, 919 S.W .2d 305 , 311 n.5 (T enn. 19 96).

The record in the case sub judice, as fully e xplained in Issu e I, clea rly suppo rts Defe ndan t’s conviction for criminal responsibility for the shooting of Corey Barbee, and is devoid of any evidence upon which a rational jury could have found him guilty of mere facilitation. A d efenda nt is respo nsible for fa cilitation of a felony if “knowing that another inten ds to com mit a spe cific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the pe rson k nowin gly furnishes substantial assistance in the commission of the felony.” Tenn. Code Ann. -21- § 39-11-403 (emph asis add ed). There is no evidence in the record that Defendant knew of his accomplice’s intent to sho ot Bar bee b ut lack ed the intent to bene fit from the felonio us conduct. On the contrary, the evidence shows that Defendant knew of the armed kidnapping and the natural an d proba ble cons equen ce that a shooting would occur, and he intended to benefit from it all. The evidence showed that the armed kidnapping was part of an effort by Defendant to collect drug debts from Brinkley. Thus, the evidence showed an intent by Defendant “to benefit in the proceeds or results of the offense,” a key element of the intent required for criminal responsibility. See Tenn. Code Ann. § 39-11-402(2). Therefore, Defendant lacked the mental state for facilitation. In the context of plain error, we see nothing that affects the substan tial rights of Defen dant. See Tenn. R. Crim. P. 52(b). This issue is without m erit.

VI. Sentencing

When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the reco rd that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this Court must cons ider the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing -22- alternatives, the nature of the offense, and the defendant’s potential for rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955- (Tenn . Crim App . 1996).

If our rev iew refle cts tha t the trial court followed the statutory sentencing procedure, impo sed a lawful s enten ce afte r havin g given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). A fter a careful review of the record, we conclude that the trial court failed to follow prope r statutory sentencing guidelines, and therefore, review by this Court will be de novo without the presumption of correctness.

A. Range Defendant was sentenced by the trial court as a Range II M ultiple Offender.

Howeve r, the State conc edes , and w e agre e, that D efend ant sh ould be sentenced as a Ra nge I Sta ndard O ffender. See Tenn . Code Ann. § 4 0-35-20 2(a).

B. Enhan cemen t Factors The trial cou rt found the five fo llowing enha ncem ent fac tors to b e app licable to Defendant’s convictions of second degree murder and aggravated kidnapping: 1. Defenda nt has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; 2. Defendant was a leader in the commission of an offense involving two (2) or more criminal actors;

-23- 3. The offense involved more than one victim; 4. Defendant treated or allowed a victim to be treate d with exceptional cruelty during the commission of the offense; and 5. Defendant had no hesitation about committing a crime when the risk to human life was high.

See Tenn. Code Ann. § 40-35-114(1), (2), (3), (5) and (10). The trial court found no applic able statutory mitigating factors. Defendant does not contest the applicab ility of the enhancement factor pertaining to his previous history of criminal behavior or the factor pertaining to him being a leader where there are two or more criminal actors. See Tenn. C ode Ann . § 40-35-114 (1) and (2). Defendant also does not challenge the applicability of the exceptional cruelty factor to the aggravated kidnapping conviction. See Tenn. Code Ann. § 40-35-114(5). However, Defendant does challenge three other factors to the second degree murder conviction, and two factors to the aggravated kidnapping conviction.

First, the State concedes, and we agree, that enh ancem ent factor (3), that the offense involves multiple victims, does not apply in this case. See Tenn. Code Ann. § 40-35-114(3). Defendant was convicted of the second degre e mu rder of the victim Barbee, and was convicted of the aggravated kidnapping of the victim B rinkley. T his Court has held that where a defendant is convicted of a separate offense against each of the tw o victim s, this e nhan cem ent fac tor doe s not a pply. See State v. Williamson, 919 S.W .2d 69, 82 (Tenn . Crim. A pp. 199 5); Ten n. Cod e Ann. § 40-35- 114(3). Therefore, enhancement factor (3) should not be applied to either conviction.

Next, Defendant contends that the enhancement factor involving exceptional cruelty to the victim does not apply to the second degree murder co nviction. See -24- Tenn. Code Ann. § 40-35-114(5). However, he does concede that it applies to the aggravated kidna pping convic tion. The evidence shows that victim Corey Barbee was shot five or six times by his assailant and died approximately two weeks la ter in the hospital. This Court has held that the application of Tenn. Code Ann. § 40-35- 114(5) requ ires a finding of cruelty over a nd above that inhere ntly attenda nt to the crime for which the defen dant is co nvicted. State v. Emb ry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). This factor has typically been applied in situations where the victim(s) we re tortured or abus ed. See State v. Davis , 825 S.W.2d 109, 113 (Tenn. Crim. A pp. 199 1), perm. to appeal denied (Tenn. 1992). Although it was undo ubted ly cruel to shoot the victim multiple times at close range, this case involved no exten ded len gth of torture , nor any unus ual type of abu se tha t would upho ld this factor. We find no evidence in the record to support a finding of exceptional cruelty. See State v. John Dennis Rushing, C.C.A. No. 01C01-9501- CR-00020, Davidson Coun ty (Tenn . Crim. A pp., Nashville, Feb. 13, 1996). In State v. Thom as Edwa rd Murphy, Jr., C.C.A. No. 02C01-9502-CC-00032, Fayette C ounty (Tenn. C rim. App., Jack son, June 2 8, 1996), this Court held that Tenn. Code Ann. § 40-35-114(5) did not apply to a second degre e mu rder co nviction where the victim was sh ot twice in the chest an d once in the hea d.

Furthermore, the victim’s medical com plicatio ns wh ich m ay hav e cau sed h im to suffer before his ultimate death do not affect the applicability of this particular enhancement factor. This Court has specifically limited the application of Tenn. Code Ann. § 40-35-114(5) to the treatment of the victim during the commission of the offense. See State v. Robert W illiam Holmes, C.C.A. No. 01C01-9303-CC- 00090, Montgo mery C ounty (T enn. C rim. App ., Nashville, A ug. 11, 19 94), perm. to appeal denied (Tenn . 1995). B ased o n the fore going, w e find that the trial court -25- erred in applying enhancement factor (5) to the second degree murder conviction, but as Defe ndant c onced es, it is applica ble to the aggravated kidnapping conviction.

Defendant also ch alleng es the applic ability to both convictions of enhancement factor (10) , “no hes itation to commit the crime when the risk to human life was high.” Tenn . Code An n. § 40-35-11 4(10). The c ourts of this State ha ve cons istently held that this factor does apply, however, when persons other than the intended victim are present and placed at risk of harm . See, e.g., State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. A pp. 199 5); State v. Makoka, 885 S.W.2d 366, 373 (Tenn . Crim. A pp. 199 4). In this cas e, Brinkley was present and in close proximity when the intruders entered the market and fired five or six shots at Corey Barbee. Also, the intrusion by the three men, at least two of whom carried firearms with the intent to kidnap Brinkley, placed Barbee at risk of his life and in fact resulted in his death. Therefore, each of Defendant’s offenses was committed under circumstances which created a high risk to the life of a person other than the intended victim. The trial cou rt prop erly applied enhancement factor (10) to both the secon d degre e murd er convic tion and th e aggra vated kidn apping conviction .

In summary, upon remand for resentencing within Range I, the trial court shou ld apply enhancement factors (1), (2) and (10) to the second degree murder conviction and enhancement factors (1), (2), (5) and (10) to the aggravated kidnapping conviction.

C. Consecutive Sentencing In ordering that Defendant’s sentences for aggravated kidnapping and second degree murder be served consecutively, the trial court stated: -26- [T]he Court recalls that this was a case where an innocent bystander, in all effect, was just sh ot dow n bec ause , it’s apparent from the proof in this case, the Defendant did not receive his money from drug transactions.

The scourg e of this community is based on drug transactions. Most o f the diffic ulty we h ave in th is cour t is the result of drug transactions. This [c]ourt has no sympathy, whatsoeve r, for an individual that participates, or commits, murder to enforce drug transactions.

The trial court failed to follow proper statu tory sentencing procedure, in that it did not set forth the required statutory reasoning in imposing consecutive sentences.

Therefore, on rem and o f this case to the trial court, it must state specific findings of fact and c onclusio ns of law o n the rec ord if cons ecutive se ntencing is impos ed.

Defendant also con tends tha t even if consec utive se ntenc ing wa s prop er in the case sub judice, the trial court nevertheless erred in ordering his sente nces in this case to be s erved cons ecutive ly to his sentence in another case, Davidson Coun ty Criminal Court docket no. 92-A-104. Defendant argues that the conviction in that case has not been reduced to judgment and the sentence has not yet been imposed, thereby not making it a previously imposed sentence to which the present sentences may be run consecutively.

The detailed facts surrounding this issue reveal that in May of 1993, Defendant went to trial and was convicted by a jury on the charge of possession of cocaine with intent to deliver, a Class B felony. The trial court sentenced Defendant to eight (8) years as a Range I O ffender. However, subsequently on a post-verdict motion for judgm ent of acq uittal, the trial cou rt conclud ed that the evidence of Defe ndan t’s intent to deliver was insuffic ient. The court therefore set aside the verdict, acqu itted D efend ant of fe lony po ssession, a nd se ntenc ed him to eleven (11) -27- months and twenty-nine (29) days for misdemeanor cocaine posse ssion. T he State appealed. See State v. Harold Wayne Shaw, C.C.A. No. 01C01-9312-CR-00439, slip op. at 1, Davidso n County (T enn. Crim. A pp., Nashville, Oc t. 24, 1996).

The State’s appeal was pending at the time Defendant committed the offenses in this case. On October 24, 1996, this Court issued its decision reversing the trial court’s action. This Court expressly ordered the following in regard to sentencing: The case is remanded to the trial court for it to reinstate the eight-year sentence and five thousand dollar fine and to enter a judgment of conviction for possession of cocaine with the inte nt to deliver, a Class B felony. Id., slip op. at 4. Defendant did not apply to the supreme court for permission to appeal, and the mandate issued January 2, 1997.

The effect of this Court’s reversal of the trial court’s action was to restore the original felony conviction as if the trial cou rt had never set it aside. A decision of an appellate court reversing or modifying a trial co urt dec ision is e ffective r etroac tively to the date of the original judgment, unless the appellate court judgment specifies otherwis e. Gotten v. Gotten, 748 S.W .2d 430, 431 (Tenn. Ap p. 1987).

In defen dant’s case, this Cou rt explicitly directed the trial court on rem and to reinstate the Class B felony conviction and the eight (8) year sentence as well as the original fine impo sed. Shaw, C.C.A. No. 01C01-9312-C R-00439, slip op. at 4.

Defendant’s 1993 felony conviction for possession of cocaine with intent to deliver was therefo re reins tated re troactiv ely to the date it w as orig inally entered. That makes the eight (8) year sentence on that conviction a previously imposed sentence.

The trial court was therefore authorized by Tenn. R. Crim. P. 32(c)(2) to run the

-28- sentences in this case conse cutively to the senten ce in the e arlier case . This issue is without m erit.

Conclusion

Based on all the foregoing, Defendant’s convictions for second degree murder and aggrava ted kidna pping a re affirme d. The case is remanded to the trial court for resentencing in accordance with this opinion.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge

-29-