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State v. Bush4/14/2004
C.A. § 39-13-401. A person is guilty of theft if that person, with the intent to deprive the owner of property, knowingly obtains or exercises control over the property without the owner's effective consent. T.C.A. § 39-14-103. A person is guilty of the offense of aggravated burglary if he or she enters a habitation without the effective consent of the owner with the intent to commit a theft. T.C.A. §§ 39-14-402, -403. Aggravated assault as charged in the indictment occurs when the defendant intentionally, knowingly, or recklessly causes another reasonably to fear imminent bodily injury while using or displaying a deadly weapon. See T.C.A. §§ 39-13-101(a)(2), -102(a)(1)(B).
A person commits attempt who, acting with the kind of culpability otherwise required for the offense:
(1) Intentionally engages an action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;
(2) 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
(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.
T.C.A. § 39-12-101(a). In State v. Marcum, 109 S.W.3d 300 (Tenn. 2003), our supreme court held that unless the evidence viewed in the light most favorable to the defense supports an instruction on attempt, an attempt instruction is not warranted.
In this case, the evidence shows that on the night of July 26, 2000, the defendant, Tigg, and May planned to rob Pascual Lopez-Blacos. The three of them drove with two Hispanic men to Mr. Lopez's house, and the defendant kicked in the door to the home. The defendant and Tigg went into Mr. Lopez's bedroom, demanded money, and shot him in the knee. A man with a gun also went into Angel Lopez-Morales's bedroom, hit him in the head, and took his wallet. The two Hispanic men removed a stereo and a CD from a third bedroom. We conclude that this evidence shows the defendant committed the crimes of especially aggravated robbery and aggravated burglary against Pascual Lopez-Blacos and aggravated assault against Angel Lopez-Moralez. There is no hint of evidence that the defendant merely attempted to commit the crimes and, therefore, no attempt instructions were warranted.
X. EXCESSIVE SENTENCE
The defendant contends that his twenty-two-year sentence for especially aggravated robbery is excessive. He claims that based upon May's and Tigg's participation and involvement in the crimes, the trial court should have sentenced him to no more than twenty years in confinement for the robbery. The state claims that the trial court properly enhanced the defendant's sentence. We agree with the state.
At the defendant's sentencing hearing, the defendant read a statement that he had written. In the statement, the defendant asked for mercy. He said that he had been incarcerated in jail for the past eighteen months and that he had had time to reflect on his life during that time. He said that he had chosen the wrong friends and that he did not rob, burglarize, or assault anyone. He said his trial attorney had been more interested in him pleading guilty than in proving his innocence. He said he had refused to plead guilty because he had not committed the crimes. He asked that the trial court grant him an alternative sentence and order rehabilitation for his drug and alcohol abuse. He said that even though he
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