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State v. Mosley4/19/2005
h the evidence, and resolve all factual issues. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). In determining the defendant's mental state, the jury can consider both lay and expert testimony. State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002) (citations omitted). Further, the weight and value given to expert testimony is a question of fact for the jury. Id. Upon our review, we conclude that there was sufficient evidence presented, such that a reasonable jury could reject the theory of diminished capacity and find the defendant guilty of the convicted offenses. Therefore, the convictions are affirmed.
II. Sentencing
The defendant also challenges the sentences imposed in light of the Supreme Court's recent holding in Blakely v. Washington. Blakely requires that enhancement factors be either admitted by the defendant or found by a jury determination beyond a reasonable doubt. Blakely, 124 S.Ct. at 2537. An exception to this rule is that state law may authorize a trial judge to increase a sentence beyond the maximum based upon "the fact of a prior conviction." Id. at 2536. On appeal, the defendant contends that his sentences were issued in error, as the enhancement factors applied met neither Blakely requirement.
In the present case, the defendant was convicted of attempted second degree murder, a Class B felony, which carries a Range I penalty of between eight and twelve years; and aggravated assault, a Class C felony, which carries a Range I penalty of between three and six years. The trial court began with the presumptive sentence, the minimum in the range, and found two enhancement factors applicable: (2) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; and (10) the defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense. Tenn. Code Ann. § 40-35-114 (2004). Based upon these findings, the defendant's attempted second degree murder sentence was enhanced to ten years, and his aggravated assault sentence was enhanced to four years. The sentences were ordered to be served concurrently, for a total effective sentence of ten years.
Turning first to factor (2), we mention that the trial court noted three facts in applying this factor. First, the court noted that the defendant had two self-reported DUI's; however, the court opined that, because they were both remote in time and self-reported, "the Court [would] not give [them] great weight." Secondly, the trial court noted "other charges" which were reported from the National Crime Information Center (NCIC), but stated that, because the dispositions were unknown, the court "couldn't consider them." Finally, the trial court noted that the defendant,
was engaged in an around the time of the commission of this criminal act in the use of a class - I beg your pardon, a Scheduled two controlled substance, cocaine, as well as excessive use of alcohol and they would constitute criminal behavior in addition to those necessary to establish the range and it does carry substantial weight with this Court.
We conclude that, because the application of enhancement factor (2) was based on prior criminal behavior rather than prior criminal convictions, Blakely would require either an admission or a jury determination of these facts prior to utilizing them as a basis for enhancement. As neither requirement was fulfilled, factor (2) was errantly applied.
Likewise, we conclude that the application of enhancement factor (10) was in error as it was neither admitted by the defendant nor found by a jury determination beyond a reasonable doubt, as
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