State of Tennessee v. Timothy Whitaker ( 2022 )

02/10/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 17, 2021
STATE OF TENNESSEE v. TIMOTHY WHITAKER
Appeal from the Criminal Court for Knox County
No. 109595 Steven Wayne Sword, Judge
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No. E2021-00456-CCA-R3-CD
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Defendant, Timothy Whitaker, was convicted following a jury trial of attempted second-
degree murder, two counts of aggravated assault by use of a deadly weapon, two counts of
aggravated assault with serious bodily injury, and misdemeanor reckless endangerment.
The trial court sentenced Defendant to an effective sentence of fourteen years. On appeal,
Defendant argues that the evidence was insufficient to support his conviction for attempted
second-degree murder and that the trial court abused its discretion in ordering partially
consecutive sentences. Following our review of the entire record and the parties’ briefs,
we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Timothy A. Whitaker.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This case arises from the assaults of two employees of Beardsley Community Farm
(“the farm”) on November 8, 2016, in Knoxville, Tennessee. The first victim, Ms. Yar
Khan Chov was the director of urban agriculture and, the second victim, Mr. Adam Caraco
was the assistant director of agriculture at the farm. Defendant became a volunteer with
the farm in 2012, and after a few years, Ms. Chov hired Defendant as a part-time urban
agriculture assistant.
The State’s Proof at Trial
Russ Whitfield, a forensic technician with the Knoxville Police Department testified
that he photographed the aftermath of the attack at the farm on November 8, 2016. The
photos taken by Mr. Whitfield were admitted into evidence and depicted the injuries of
both victims, the scene of the offense, the tools used in the attack and the condition of
Defendant immediately following the offense. After taking photographs at the crime scene,
Mr. Whitfield traveled to the hospital to photograph the injuries of the victims and the
condition of Defendant. On cross-examination, Mr. Whitfield agreed that there was not a
wound on the back of Ms. Chov’s neck or shoulders when he photographed her on the day
of the offense. Mr. Whitfield further agreed that the photographs he took did not depict
blood left on the ground at the scene. On redirect examination, Mr. Whitfield clarified that
the photographs he took would not show internal injuries sustained by either of the victims.
Kellie Hill testified that she served with AmeriCorps as a full-time volunteer. Ms.
Hill testified that AmeriCorps is a national service program that works with different
nonprofits and that the farm began in 1998 to address the issue of food insecurity. She
testified that she had been a volunteer at the farm since the summer of 2016. The farm’s
mission was to increase access to food through community gardening and donating food to
other non-profit organizations. The farm also hosted interns and volunteers to teach them
about nutrition and the environment. At the farm, Ms. Hill worked as the environmental
educator. Ms. Hill explained the day-to-day activities on the farm which began with a
morning meeting to delegate tasks which varied from day to day. Ms. Hill testified that
her relationship with Defendant was “strictly” work-related. She testified that Defendant
was hostile and liked to debate, especially in the days leading up to the election in
November 2016. In October or early November 2016, Ms. Hill expressed concern about
Defendant with Khan Chov, telling her that Defendant made Ms. Hill feel uncomfortable
and that conversations with him made her feel “belittled.” Ms. Hill testified that she was
at work on November 7, 2016, and recalled that Defendant was “not in a good mood” on
that day.
Ms. Hill testified that on November 8, 2016, the day began with the morning
meeting at the farm which Defendant did not attend. When Defendant arrived and Ms.
Chov greeted him, he walked away without responding. According to Ms. Hill, Defendant
walked out to the barn and began pushing the bush hog by himself. Usually, more than
one person is required to move the bush hog and raise it up on two benches to be repaired.
Ms. Hill heard Adam Caraco say to Ms. Chov, “[Defendant is] trying to work on the bush
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hog first thing. Like, let’s go out there and try to help him.” Ms. Hill followed Ms. Chov
and Mr. Caraco out of the building to the pavilion as they were offering help to Defendant.
Ms. Hill recalled that she was walking along the greenhouse when she began to hear
Defendant “screaming” at Ms. Chov. Ms. Hill testified that Defendant began yelling
profanities at Ms. Chov and that Ms. Hill was “terrified” and “afraid for [her] life.” Ms.
Hill heard Ms. Chov try to calm Defendant by talking to him, but Defendant continued
yelling. According to Ms. Hill's testimony, Defendant cursed Ms. Kahn and “was just
yelling really terrifying things.” Ms. Hill called 9-1-1. As she was on the phone speaking
to emergency services, she observed Defendant retreat to the barn, so she hung up because
she believed that the situation was diffusing.
Ms. Hill testified that at some point, she went inside the education center and
continued to watch the encounter among Defendant, Ms. Chov and Mr. Caraco through a
window. While she was inside the education center with Jenna Bailey, another volunteer,
Ms. Hill locked the doors to the building. Ms. Hill testified that she observed Defendant
return from the barn with two hand mattocks1, and she watched as Defendant
“aggressively” hit one of the mattocks into a wooden picnic table. Ms. Hill then saw
Defendant retrieve the mattock he had thrown into the picnic table, so that he wielded a
mattock in each hand. At this point, Ms. Hill called 9-1-1 again. Ms. Hill testified that she
watched as Ms. Chov began walking towards the parking lot, and Defendant “chase[d]
Khan across the parking lot with the hand mattocks, like, raised, ‘cause he was gonna hit
her with it, and the he hit Khan, like, in her head, but she, like, blocked it with her hand,
and then [Ms. Hill] just saw her on the ground, and she wasn’t moving.”
Ms. Hill observed Mr. Caraco grab Defendant from the back in an attempt to pull
Defendant away from Ms. Chov. At some point during the struggle with Mr. Caraco, Ms.
Hill observed that Defendant dropped one of the hand mattocks while he continued to
swing the other at Mr. Caraco. Ms. Hill testified that Ms. Bailey ran out of the education
center to grab the hand mattock that had fallen while Mr. Caraco and Defendant continued
to struggle. Throughout Ms. Hill’s observation, she remained on the phone with
emergency services. During the struggle, Ms. Hill noticed that Mr. Caraco was bleeding
from his head and that there was “a huge gash on [Mr. Caraco]’s face.” Ms. Hill testified
that while Mr. Caraco and Defendant were locked together, struggling on the ground,
emergency services and police arrived to the farm. On cross-examination, Ms. Hill agreed
that she had never heard Defendant verbally threaten anyone. Ms. Hill also agreed that her
original statement to prosecutor’s did not include her observation of Defendant hitting Ms.
Chov; however, Ms. Hill maintained that her testimony was correct on the day of trial, that
she did observe Defendant hit Ms. Chov.
1
A hand mattock is a tool used for digging, prying or chopping. It has a long handle with
a round head at the top, adjoining a vertical axe blade to a horizontal adze; it is similar to a pickaxe.
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Barbara Kelly testified that she was the Executive Director of the Knox County
Community Action Committee and that she supervised staff and oversaw various programs
including Beardsley Farm. Ms. Kelly testified that on November 8, 2016, she was working
in her office when she received a phone call from Ms. Chov who was screaming. In
response, Ms. Kelly hung up the phone and called for help, then she immediately went to
the farm where she observed Defendant lying on the ground and handcuffed. Ms. Kelly
testified that she saw Mr. Caraco bleeding from his head and Ms. Chov crying and
screaming with blood on her hands. Ms. Kelly testified that she saw the picnic bench
Defendant struck with the mattock and saw the gouge in the wood. On cross-examination,
Ms. Kelly testified that she did not have much contact with Defendant.
Yar Khan Chov testified that, at the time of the trial, she had worked at the farm for
ten years. Ms. Chov began as the fam’s manager and was eventually promoted to Urban
Agriculture Director. Ms. Chov explained that throughout the course of each year, nearly
1,300 unduplicated volunteers work at the farm. Ms. Chov testified that in November
2016, there were four staff members, including Defendant plus two AmeriCorps volunteers
working at the farm. Defendant’s title was Urban Agriculture Assistant, and he assisted
with projects on the farm. Ms. Chov described Defendant as skilled at building and at
trouble-shooting and said that he was efficient. Ms. Chov also testified that she often
bragged about how strong Defendant was and that after knowing him for a while as a
volunteer, she hired him. Ms. Chov described her relationship with Defendant as “friends.”
She explained that Defendant was not very talkative but they talked about work and that
he was reliable and dependable for the farm. Overall, Ms. Chov described her relationship
with Defendant as “cordial” prior to November 8, 2016.
Ms. Chov testified that she discussed the concerns of the staff and volunteers on the
farm with Kellie Hill, Jenna Bailey and Charlotte Rodina. Ms. Chov testified that in
response to the concerns about Defendant that were raised to her, she advised Ms. Hill, Ms.
Bailey and Ms. Rodina to avoid uncomfortable conversation topics. Ms. Chov decided that
Mr. Caraco should be involved in the conversation with Defendant because “[Defendant]
and [Mr. Caraco] were closer,” and she thought Defendant felt comfortable around Mr.
Caraco. Mr. Caraco and Ms. Chov approached Defendant to take a walk around the farm
with them, and asked him to leave “uncomfortable topics off the table.” Ms. Chov testified
that she and Mr. Caraco also encouraged Defendant to find places outside of work, such as
church groups, to have those discussions. Ms. Chov believed that the situation had been
resolved following the conversation she and Mr. Caraco had with Defendant, that
Defendant had listened to her request and that he had expressed appreciation that he was
able to talk with Ms. Chov and Mr. Caraco.
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On November 7, 2016, Ms. Chov recalled that Mr. Caraco had warned her that
Defendant was angry and that she should stay away from him. Ms. Chov testified that she
tried to give Defendant space and that he left the farm early that day. The next day,
November 8, 2016, Ms. Chov testified that she arrived at the farm and began to prepare for
the morning meeting. She recalled Mr. Caraco’s arriving, and when Defendant arrived,
Ms. Chov greeted him, but Defendant did not respond. Ms. Chov explained that Defendant
walked out of the building toward the barn and that she heard him begin to struggle with
the bush hog. According to Ms. Chov’s testimony, she and Mr. Caraco went outside to try
to set up the benches so that the bush hog could be placed on top of them for repairs to be
made. Ms. Chov testified that she and Mr. Caraco barely touched the benches before
Defendant picked the bench up over his shoulder and slammed it on the ground. Defendant
then began screaming at Ms. Chov, “Damn you.” Ms. Chov testified that she was scared
and that her heart was racing. She asked Defendant, “What did I do? Why me? What did
I do?” Ms. Chov continued to attempt to talk calmly with Defendant but he could not be
consoled. Ms. Chov testified that she watched Defendant walk into the barn and return
with two hand mattocks, then he threw one of the mattocks into the picnic table. Ms. Chov
explained that she began to walk towards the parking lot and that Defendant chased after
her. Ms. Chov testified, “I was just cowering, and—and he struck me in the head. My
arm—my reflexes got in the way, thankfully. Had I not had my arm up, I do feel like I
would have had a blow to the head with a mattock. . . .” Ms. Chov then fell to the ground
and “blacked out.” Ms. Chov regained consciousness and was able to stand up off the
ground, at which point, she observed Mr. Caraco bleeding from his head, yelling “9-1-1.”
Ms. Chov testified that she ran into the building and screamed, “Call 9-1-1.” Ms. Chov
then called Ms. Kelly.
Ms. Chov testified that she sustained a skull fracture at the base of her skull and the
fifth vertebra down, as well as fractures in her hand as a result of the attack. She testified
that she could not move her hands, neck or head for six weeks and that she could not drive.
She required physical therapy and had to have someone with her constantly for two months
after the attack. Ms. Chov had to wear a cervical collar, and she did not return to work for
a month. Ms. Chov testified that she also sought psychological counseling following the
attack because she was experiencing stress and nightmares. On cross-examination, Ms.
Chov acknowledged that she had never heard Defendant physically threaten anyone. Ms.
Chov also conceded that she did not see Defendant strike her because she was cowered “in
fear of [her] life.” Ms. Chov also explained on cross-examination that Defendant typically
enjoyed, and “took pride” in, working on projects alone. She also testified that political
conversations were not frequent on the farm, but that the rule against discussing
controversial topics was necessary to avoid disturbances during work.
Adam Caraco testified that he began working at the farm in 2008 as a volunteer for
AmeriCorps, then eventually became a full-time staff member in 2015. Mr. Caraco
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described his relationship with Defendant as being “good friends.” He explained that he
and Defendant played chess together on lunch breaks, went for bike rides and that
Defendant visited Mr. Caraco’s home for dinner “countless times.” Mr. Caraco testified
that Defendant helped him with projects around his home and that Defendant was present
at Mr. Caraco’s wedding, and even helped to set up the wedding ceremony. Mr. Caraco
recalled that Defendant often expressed feeling isolated, so Mr. Caraco offered to go to
church with Defendant. Mr. Caraco explained that he would “do anything for any of [his]
friends.” When Defendant needed to travel farther than where he could ride on his bicycle,
Mr. Caraco would give him a ride and when Defendant lost the keys to his home, he stayed
at Mr. Caraco’s home. Mr. Caraco saw Defendant outside of work for social activities, and
Mr. Caraco introduced Defendant to his friends. Mr. Caraco testified that during one day
at work, Mr. Caraco asked Defendant, “Hey, if this was a zombie apocalypse, what
weapons would you go for, the two hand mattocks?” To which Defendant replied, “Every
time.”
Mr. Caraco was happy to talk with Defendant regarding the concerns raised to Ms.
Chov by other staff members and felt comfortable talking with Defendant. Mr. Caraco
testified that he and Ms. Chov intentionally approached Defendant when he was not with
other people so that Defendant would not feel like he was being “taken aside.” Mr. Caraco
recalled that Defendant was withdrawn and quiet during the conversation and that
Defendant said, “You guys have people to go home and talk to. If I don’t talk here, I don’t
talk anywhere[ ].” Mr. Caraco responded that Defendant was welcome to talk to him, just
not around the volunteers when the conversation was on a controversial topic. Mr. Caraco
believed that even when he and Defendant disagreed, they mutually respected each other.
On November 8, 2016, Mr. Caraco explained that he rode his bike to work that
morning and saw Defendant as he was coming down the driveway to the farm.
“[Defendant] was walking in. I have fun. Like that’s what I do. I remember I made a silly
noise, like a crow, and he just glared at me.” When Defendant arrived to work, Mr. Caraco
recalled that he did not respond to greetings directed at him, and then he went out of the
building toward the bush hog. Mr. Caraco testified that he heard Defendant struggling with
the bush hog and that he and Ms. Chov went outside to help Defendant. Mr. Caraco said
that he told Defendant that he would help with the bush hog, and Defendant began yelling
profanities, and Ms. Chov began talking to Defendant, asking, “What did we do?” Mr.
Caraco testified that he told Defendant, “You can talk to us . . . I know you’re a little
stressed.” Defendant responded, “You haven’t seen stress yet. I’m just blowing off a little
steam.” Mr. Caraco then observed Defendant walk to the barn and return with two hand
mattocks.
Mr. Caraco testified that at some point, Defendant had picked the bench up over his
shoulder and slammed it down, and when Defendant returned from the barn, he threw one
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of the mattocks into the picnic table, cutting a chunk of wood out of the table. Mr. Caraco
then testified that Defendant picked the mattock back up from the picnic table and chased
down Ms. Chov as she ran away and struck her once with a mattock. Mr. Caraco testified
that he thought that Defendant had killed Ms. Chov. Mr. Caraco testified that he could not
tell if Defendant had hit Ms. Chov in the face or in the hand, and later testified that
Defendant “swung a mattock at her head. Of course her life was in danger. He hit her
once, and he had a mattock up in the air about to hit her again.” Mr. Caraco didn’t
remember running toward Defendant but at some point was “face to face with him.” Mr.
Caraco explained that Defendant had a mattock in each hand and that during the struggle,
Mr. Caraco was hit in the head with a mattock. Mr. Caraco and Defendant ended up on
the ground as Mr. Caraco tried to grab Defendant’s hands. Mr. Caraco was able to restrain
Defendant until emergency personnel arrived.
Mr. Caraco testified that he suffered a subarachnoid hemorrhage as a result of the
attack and that he had terrible pain the day after the attack that resulted in his having to be
re-admitted to the hospital for treatment. Mr. Caraco lost the ability to spell temporarily;
he slept almost constantly during his recovery and experienced symptoms similar to
depression. Mr. Caraco testified that he could barely get out of bed to do small tasks or to
take care of his basic hygiene needs. Mr. Caraco did not return to work until February, at
which point, he was still experiencing daily headaches. Mr. Caraco also explained that he
suffered from nightmares. Mr. Caraco’s thumb sustained a deranged ligament from the
struggle with Defendant. Mr. Caraco continued to go to physical therapy for several
months, and a lump on his scalp resulting from his injuries was still visible at the time of
Defendant’s trial.
Defendant’s Proof at Trial
Defendant testified that he moved to Tennessee after going through a difficult
divorce in Florida. After moving to Knoxville in 2012, Defendant began volunteering at
the farm within a couple of months. Defendant testified that he liked the farm’s mission to
provide food for donation, and he explained the various tasks he assisted with on the farm.
Defendant felt productive on the farm and enjoyed the management at the farm. Defendant
explained that during his time volunteering, his brother supported him financially and he
often received food in exchange for his work on the farm. Defendant recalled that he was
hired at the farm after a few years of volunteering. Defendant agreed with Mr. Caraco’s
testimony that they became close friends through working on the farm. Defendant also
conceded that he had suggested that he would use the hand mattocks as weapon in the event
of “World War Z” or a zombie attack.
Defendant believed that his relationships with his co-workers on the farm were
“pretty good” and recalled that he only began having trouble with his co-workers when the
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younger AmeriCorps volunteers began in the summer of 2016. Defendant believed that he
was in the political minority at the farm and felt as though discussions about politics
occurred naturally around the election in November 2016. Defendant testified that in these
conversations, he felt like “a lone Indian” and expressed that he felt as though the
volunteers “crowded around [him]” when they disagreed with him. Defendant recalled an
incident after an elementary school field trip at the farm. Defendant explained that he knew
the children from having volunteered at the school, so when one of the children ran around
and was not paying attention, Defendant stopped the child and said, “Hey, hey, we—we
don’t do that in here.” Defendant testified that Ms. Bailey disagreed with his having
touched the child when he stopped the child from running. Ms. Bailey admonished
Defendant with Ms. Rodina and Ms. Chov. Defendant disagreed with the characterization
that the AmeriCorps volunteers felt threatened by him, and explained that they had “gotten
into [his] face and crowded around [him]” so he did not know why they would feel
threatened by him. Defendant explained that after his conversation with Ms. Chov and Mr.
Caraco about not discussing uncomfortable topics at work, he understood. He testified that
initially he thought “Well, we’re really not here to discuss politics or religion . . . you’re
right.” However, Defendant began to feel isolated and felt as though he didn’t have anyone
outside of his friends at work with whom to have conversations. Defendant began to feel
as though he was being excluded from the groups at work.
On November 7, 2016, Defendant testified that things on the farm were very busy
and that he was feeling frustrated and “bottled up” and angry. Defendant worked
throughout the morning but testified that he chose to leave work that day soon after lunch
when he felt ostracized by his co-workers during lunch. On November 8, 2016, Defendant
testified that he almost did not go to work because he had not slept well and was feeling
frustrated. However, Defendant decided to go to work despite his “blue mood,” and he
encountered Mr. Caraco on his way to work, when Mr. Caraco made a “coo-coo noise” at
Defendant. Defendant testified that when he arrived at work, he went straight out to the
pavilion to work on the bush hog. He saw Mr. Caraco and Ms. Chov walking toward him
as he was moving the benches, and he just wanted to be left alone because he was feeling
frustrated and angry. Defendant testified that he believed that he was being kicked off the
farm and that when Ms. Chov and Mr. Caraco reached him in the pavilion, he began yelling,
“Damn you.” Defendant explained that he has trouble verbalizing when he is angry and
that it frustrated him when Mr. Caraco and Ms. Chov offered to talk with him because he
had been admonished not to talk at work. Defendant acknowledged that he went to the
barn and returned to the pavilion with the hand mattocks to go cut down weeds. When he
returned, Defendant testified that he remembered Ms. Chov saying, “What are you doing
with the picnic—or the mattocks, and you’re scaring us,” which frustrated Defendant.
Defendant testified that he threw the mattock at the picnic table and Ms. Chov said,
“We’re—we’re not gonna—we’re not gonna let you destroy those picnic tables.”
Defendant testified that he felt as though he was being valued as less than the picnic tables.
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Defendant testified that Ms. Chov began to walk away from him but that she turned
around and began to say something to him, which caused him to “[see] red” as he ran
towards her and hit her with one of the mattocks. Defendant testified that he was aiming
for Ms. Chov’s hand. He recalled that Ms. Chov did not have her hand over her face and
testified that her hand was at her chest or near her shoulder but insisted that her hand was
not over her head. Defendant testified that Ms. Chov then began running away and that he
ran after her because he wanted her to “stay away.” Defendant testified that he was not
trying to kill Ms. Chov. Defendant testified that Ms. Chov fell forward while she was
running and that he believed that she had blacked out. Defendant remembered pumping
the mattocks once or twice in the air before seeing Mr. Caraco running towards him.
Defendant explained that he turned towards Mr. Caraco and then was hit by Mr. Caraco
running at him. Defendant did not recall how Mr. Caraco was hit by one of the mattocks
in the head, but he believed that it happened when his hand swung to the side during the
struggle. Defendant testified that he did not intend to hurt Mr. Caraco and explained that
eventually Mr. Caraco got him into a chokehold, so he stopped struggling and ended up
dropping the mattock in his right hand, while maintaining control of the mattock in his left
hand, although he had stopped swinging it.
Defendant reiterated that he did not intend to kill either Ms. Chov or Mr. Caraco.
On cross-examination, Defendant agreed that Ms. Chov was smaller than him and that she
was unarmed on the day of the offense. He conceded that he was not acting in self-defense
when he hit her. Defendant agreed that he knew that mattocks were dangerous and that
one could be used as a weapon. Defendant testified that he believed that Mr. Caraco and
Ms. Chov were lying during their testimony, or at the very least, exaggerating what had
occurred.
Following the attack, Defendant was indicted on the following six counts: Count 1
attempted first-degree premeditated murder as to Adam Caraco; Count 2 attempted first-
degree premeditated murder as to Yar Khan Chov; Count 3 aggravated assault by use of a
deadly weapon as to Adam Caraco; Count 4 aggravated assault with serious bodily injury
as to Adam Caraco; Count 5 aggravated assault by use of a deadly weapon as to Yar Khan
Chov; and Count 6 aggravated assault with serious bodily injury as to Yar Khan Chov.
Based on the foregoing evidence, the jury convicted Defendant of reckless endangerment
in Count 1, attempted second-degree murder in Count 2, and aggravated assault in Counts
3, 4, 5 and 6.
Sentencing Hearing
Defendant’s presentence investigation report was exhibited to the hearing and
indicated that he had no prior criminal record. Ms. Chov’s victim impact statement was
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also admitted into evidence. She described being scared for her life and further detailed
the injuries to her head and hands. Mr. Caraco testified at the sentencing hearing and
described the severity of his brain injury and hand injuries. Mr. Caraco further testified
that Defendant told him that after Defendant’s divorce he had seriously considered killing
his father-in-law and that his siblings had talked him out of his plan to do so. Mr. Caraco
also recalled an occasion when Defendant offered to fight a man who had been aggressive
toward Ms. Chov.
Defendant testified that he held no grudges against either of the victims and that he
still considered each of them to be his friends. Defendant testified that he was not
motivated by hatred toward the victims. He believed that the attack had been a “bad
situation” and that he just “blew up” and “lost it.”
In sentencing Defendant, the trial court indicated that it had considered the evidence
presented at trial and at the sentencing hearing, the victim impact reports, the presentence
investigation report, the results of the Strong-R assessment, the principles and purposes of
sentencing, arguments of counsel, and the nature and circumstances of the offense. The
trial court found that Defendant was a Range I Standard Offender.
As the thirteenth juror, the trial court found that although no expert medical
testimony was offered, the medical records and the testimony from each of the victims
regarding their injuries were sufficient to support the jury’s finding of serious bodily injury
in Counts 4 and 6. Regarding the aggravated assault counts, the trial court merged Count
4 into Count 3, and Count 6 into Count 5. The trial court considered enhancement and
mitigating factors and applied Enhancement Factor 6 to Counts 2, 3 and 5; Enhancement
Factor 9 to Counts 2, 4 and 6; and Mitigating Factor 1 to all counts.
The trial court then considered whether the sentences on each count should run
concurrently or consecutively. The trial court applied the Wilkerson factors in analyzing
whether Defendant’s behavior indicated little to no regard for human life and whether he
had shown no hesitation about committing a crime in which the risk to human life was
high. See State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The trial court found that the
circumstances of the offense were aggravated in that Defendant was treated with kindness
by his co-workers at the farm, that the staff was trying to make the environment healthy
for everyone who worked on the farm, that they approached Defendant “with as much
grace as they could and still protect the other folks who worked there at the farm,” and
Defendant’s response was one of “extreme rage.” The court further noted that in response
to Defendant’s rage, the victims did not express their own rage but tried to “de-escalate”
the situation and attempted to help Defendant calm down. The trial court credited
Defendant’s testimony at the sentencing hearing that he had “just blown up” but explained
that it found that it was “a sustained blowing up” in which Defendant had intentionally
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gone to retrieve a weapon, then returned and struck the picnic table in a “very scary and
threatening manner” towards the victims. The trial court further noted that when Ms. Chov
retreated and attempted to get away from Defendant in the midst of his anger, Defendant
chased her down. The trial court accredited Ms. Chov’s testimony that Defendant was
trying to strike her in the head over Defendant’s testimony that he tried to hit her hand.
The trial court further found that Mr. Caraco tried to save Ms. Chov at the risk of his own
life and that Defendant “still did not calm down as Mr. Caraco was trying to talk to him
while he’s wrestling with him, and [Defendant’s] response was is to--to reach behind him
and continue to swing the mattock, and then caused injury to Mr. Caraco’s head.”
The trial court found that based upon the circumstances of the attack and
Defendant’s discussions about considering violence in the past, an extended sentence was
necessary to protect society from Defendant. The court further considered whether the
aggregate length of the sentence was reasonably related to the offense for which Defendant
was convicted and found that the aggregate length of the sentence was reasonably related
to each of the offenses of which Defendant was convicted. The trial court found that
looking at the totality of the circumstances, Defendant is a dangerous offender, that his
behavior indicated little to no regard for human life and that Defendant did not hesitate
when committing crimes when the risk to human life was high. Consequently, the trial
court found that partially consecutive sentencing was warranted and ordered Defendant to
serve ten years for Count 2; four years each for merged Counts 3 and 4 to run consecutively
with Count 2; four years for merged Counts 5 and 6 to run concurrently with Count 2; and
eleven months and twenty-nine days for Count 1 to run concurrently with Count 2 for a
total effective sentence of fourteen years. Defendant received credit for 871 days in
custody.
Analysis
On appeal, Defendant argues that the evidence was insufficient to uphold his
conviction for attempted second-degree murder of Ms. Chov and that the trial court erred
in ordering partially consecutive sentencing. Defendant specifically argues that the
evidence did not support a finding that he intended to cause the death of either victim.
Further, Defendant contends that the court erred in finding him to be a dangerous offender
for purposes of ordering consecutive sentencing. The State maintains that the evidence
was sufficient to uphold Defendant’s conviction for attempted second-degree murder and
that the trial court did not err in ordering a less-than-maximum partially consecutive
sentence. We agree with the State.
Sufficiency of the Evidence
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When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court must answer
is whether any rational trier of fact could have found the accused guilty of every element
of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view
of the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Questions concerning the credibility of the witnesses and the weight
and value to be given to evidence, as well as all factual issues raised by such evidence, are
resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990).
Second-degree murder is a knowing killing of another. T.C.A. § 30-13-210(a)(1).
A person acts knowingly with respect to a result of the person’s conduct when the person
is aware that the conduct is reasonably certain to cause the result. T.C.A. § 39-11-106(22).
Criminal attempt is defined as follows:
A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:
...
(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[.]
T.C.A. § 39-12-101(a).
Here, the record clearly reflects that Defendant arrived at the farm visibly upset on
the morning of the offense. He skipped the morning meeting with his co-workers and
walked past the pavilion to the barn where he attempted to move the bush hog by himself.
In an effort to assist, Ms. Chov and Mr. Caraco followed him and began to move a bench
on the pavilion where the bush hog would be placed for repairs. Defendant yelled and
cursed at both victims who made repeated attempts to calm him. Defendant retreated to
the barn, came out with two hand mattocks, returned to the pavilion where Ms. Chov and
Mr. Caraco were standing, and he threw one of the mattocks aggressively into a bench.
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When efforts to calm Defendant were unsuccessful, Ms. Chov attempted to walk away,
and in fact ran toward the parking lot. Defendant chased after Ms. Chov while wielding a
mattock in each hand, caught up with her and swung a mattock at her head, striking her.
Ms. Chov lost consciousness and fell to the ground. Mr. Caraco ran to Ms. Chov’s defense
and struggled with Defendant in an attempt to disarm him while Defendant continued to
wield the mattocks and swing them above his head. During the struggle, Defendant hit Mr.
Caraco in the head with one of the mattocks. Both victims suffered severe injuries that
required hospitalization, months of recovery, physical therapy and psychological
counseling. From this evidence, the jury could reasonably conclude that Defendant
knowingly swung the mattock at Ms. Chov believing that it could kill her.
Defendant argues specifically that the evidence did not prove beyond a reasonable
doubt that he had either the intent to kill Ms. Chov or the motive to do so. However, his
argument misunderstands the requisite mental state for a conviction of attempted second-
degree murder. Motive is not an element of the offense; therefore, the State was not
required to prove that Defendant had a motive to attempt to kill Ms. Chov. Furthermore,
Defendant’s argument seems to suggest that the State was required to prove that he
intentionally or purposefully attempted to kill Ms. Chov; however, Defendant’s conviction
for attempted second-degree murder requires only that Defendant acted knowingly.
Whether a defendant acted “knowingly” in killing another is a question of fact for the jury’s
determination. State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010). Based on the evidence
presented at trial, a reasonable jury could have concluded beyond a reasonable doubt that
Defendant attempted a knowing killing of Ms. Chov. The jury accredited Ms. Chov’s
testimony over that of Defendant. This court will not displace the jury’s credibility and
weight determinations with its own. Defendant is not entitled to relief on this claim.
Sentencing
When an accused challenges the length of a sentence, this court reviews the trial
court’s sentencing determinations under an abuse of discretion standard accompanied by a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “This
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing.” State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012). See also State v. Pollard,
432 S.W.3d 851, 859-60 (Tenn. 2013) (standard of appellate review for consecutive
sentencing is abuse of discretion accompanied by a presumption of reasonableness). A
finding of abuse of discretion indicates the “trial court’s logic and reasoning was improper
when viewed in light of the factual circumstances and relevant legal principles involved in
a particular case.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). A trial court has not
abused its discretion unless “the record [is] void of any substantial evidence that would
support the trial court’s decision.” Id.- 13 -
In making sentencing decisions, trial courts must consider the following: (1) the
evidence received at trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the conduct involved; (5) evidence and information offered by the parties
regarding the statutory mitigation and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (6) any statistical information provided by
the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make on his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See T.C.A. § 40-35-210(b).
Tennessee Code Annotated section 40-35-115(b) sets forth the criteria the court
shall consider in ordering sentences to run consecutively or concurrently:
(b) The court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
(4) The defendant is a dangerous offender whose 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;
T.C.A. § 40-35-115(b)(4). See also Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). A
defendant may be classified as a dangerous offender if the crimes for which he is convicted
indicate that he has little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high. Id. See also T.C.A. § 40-35-115(b)(4). The
decision to impose consecutive sentences when crimes inherently dangerous are involved
should be based upon the presence of aggravating circumstances and not merely on the fact
that two or more dangerous crimes were committed. Id. To impose consecutive sentencing
based on a finding that the defendant is a dangerous offender, the court must also find that
“an extended sentence is necessary to protect against further criminal conduct by the
defendant and that the consecutive sentences must reasonably relate to the severity of the
offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The trial
court must also make specific findings about “particular facts” that support the Wilkerson
factors. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999) (citing Wilkerson, 905 S.W.2d at
939). So long as the trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal. Pollard, 432
S.W.3d at 862.
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As set out above, the trial court articulated its reasons for consecutive sentencing
and sentenced Defendant to within-range sentences that reflect the purposes and principles
of the Sentencing Act. The trial court did not abuse its discretion by finding that Defendant
was a dangerous offender whose actions indicated little to no regard for human life and
that he expressed no hesitation about committing a crime in which the risk to human life
was high. The trial court made the requisite Wilkerson findings, and concluded that the
circumstances of the offense were aggravated, that confinement for an extended period of
time was necessary to protect society from further criminal activity from Defendant, and
that the aggregate sentence reasonably related to the seriousness of the offenses.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
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