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State v. Mosley4/19/2005
Facts and Procedural History
On March 3, 2003, the Henry County Grand Jury returned a three- count indictment charging the defendant, Robert Leonard Mosley, with attempted first degree murder (a Class A felony), aggravated burglary (a Class C felony), and aggravated assault (a Class C felony). Following a jury trial on July 21, 2003, the defendant was convicted of the lesser included offense of attempted second degree murder (a Class B felony) and aggravated assault. Upon finding two enhancing factors and no mitigating factors applicable, the defendant was sentenced, as a Range I, standard offender, to ten years for attempted second degree murder and four years for aggravated assault. The sentences were ordered to be served concurrently, for a total effective sentence of ten years.
On September 19, 2003, the defendant filed a motion for new trial, which was denied by the trial court three days later. The defendant now appeals to this Court challenging: (1) the sufficiency of the evidence to support the verdict; (2) the sentence imposed, in light of the Supreme Court's recent holding in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004); and (3) the denial of alternative sentencing.
The record reflects a lengthy and somewhat tumultuous history between the defendant and the victim, who were married for approximately twelve years and had been divorced for just over a month at the time of the subject incident. At trial, the victim related the events leading up to the encounter that is the subject of this appeal. She testified that, following her divorce from the defendant on August 5, 2002, she went to the couple's former residence to retrieve some personal belongings. While there, the defendant threatened the victim by saying that " could kill " and attempted to prevent her from leaving. The victim indicated that the two argued for some time, but she was eventually able to escape the house. She obtained an order of protection against the defendant the following day.
On September 1, 2002, the victim agreed to meet the defendant for the purpose of allowing the defendant to see their daughter ("Angela") before she returned to the Nashville School for the Blind, where she was a student. During this encounter, the defendant referenced a song by the musical group the Dixie Chicks, stating, "Just like Earl . . . Earl walked right through that restraining order. That is how good that piece of paper is." The victim testified that the defendant made this statement in the presence of both the victim's mother and Angela.
On September 14, 2002, the victim testified that she was awakened by a telephone call from the defendant at approximately 3:30 a.m. Although she was unable to pick up the phone in time, she did listen to the message left by the defendant, which stated that the victim should return his call immediately. Upon so doing, the victim learned that the defendant was upset at being omitted from the visitation list at Angela's school, which would result in his being unable to attend her track meet as he had planned. The victim assured the defendant that it was a misunderstanding and that she would call the school the following morning to "get it straightened out." The defendant thanked her, and she went back to sleep.
However, at approximately 4:30 a.m., the victim was awakened a second time by a knock at the door. She approached the door and recognized the defendant, who stated that he "just want to talk." The victim attempted to stall the defendant and dial 911 but, after receiving no answer, she hung up. The defendant then said, "Do you think this door is going to stop me?" As the victim attempted to dial 911 a second time,
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