OPINION
delivered the opinion of the court,
The Defendant, James David Alder, was convicted of attempted second degree murder, aggravated assault and reckless endangerment. He was sentenced as a Range III Persistent Offender to twenty (20) years for the attempted second degree murder, eleven (11) months and twenty-nine (29) days for assault, and three (3) years for reckless endangerment. His sentences were ordered to run concurrent
On the morning of August 28, 1998, the Defendant entered the Favorite Market in Dunlap, Tennessee with a 20-gauge shotgun and shot his wife, Casey Davidson (then Casey Alder), in the stomach and chest area. Davidson stated that she had arrived for work at about 5:00 a.m., and had been there approximately ten minutes when the Defendant entered the store and walked towards the kitchen area. Davidson was in the kitchen with Nancy Early, another Favorite employee. She testified that the Defendant looked at her and said “Bitch, today is your day.” Davidson said that she told the Defendant to “do what he felt like he had to do.” She stated that they began to argue, and the Defendant kept insisting that she leave with him, but she refused. Davidson testified that she told the Defendant that their relationship was over and that she was not going to leave with him. She asked her co-worker, Lynnette Farley to сall the police, but the Defendant “pulled the hammer back on the gun and he turned the gun on Lynnette, and he told her if she didn’t put the phone down he would kill her.” Davidson said that she yelled at the Defendant and reminded him that the argument was between them, and not Mrs. Farley.
At that point, the Defendant turned the gun on Davidson and said, “Casey, I love you ... I want to be with you ... But you don’t love me any more ... If I can’t have you, nobody will.” The Defendant pulled the trigger and shot his wife at “point blank range” in the stomach and chest. Nancy Early stated that Davidson was standing near her, when the Defendant shot Davidson. Next, the Defendant “broke down the gun,” “popped the shell out,” put another shell in the gun, raised the gun, pointed it at his wife and pulled the trigger, but the gun snapped. The Defendant left the store and Lynnette Farley called the police.
The victim was life flighted to Erlanger Hospital in Chattanooga, Tennessee, where she underwent extensive surgery and was in a coma for two months. Dr. Richart, a traumа surgeon at Erlanger Hospital, testified that he was the surgeon on call when Casey Davidson was brought to the hospital. He stated that the victim “sustained a close range blast injury to her left upper quadrant area and left chest area.” Dr. Richart testified that a “significant amount” of Ms. Davidson’s left breast had been blown away. He stated that she suffered injury to the left lobe of her liver, a disrupted spleen, her left colon was blown in half (which caused stool to spread throughout hеr abdomen), her small bowel was severely damaged, and the tail of her pancreas was injured. Dr. Richart also stated that he found “several metal fragments ... a yellow plastic appearing cup and some ... cardboard material” inside Ms. Davidson.
Dr. Richart testified in great detail, as to the initial operations that were performed on Ms. Davidson’s abdomen to control bleeding and stool contamination, as well as to repair her left breast, colon and smаll bowel. Dr. Richart also described how Ms. Davidson’s bowels were left ex
ANALYSIS
I. Admission of Medical Testimony
In his first issue, Defendant contends that the trial court erred in denying his motion to limit the medical testimony relating to the victim’s injuries. He claims that much of Dr. Richart’s testimony was not relevant to prove the charged offense and was highly prejudicial.
First, we note that the record does not contain a written motion in limine from the Defendant. Second, the record shows that prior to the start of trial, the Defendant brought before the trial court an oral motion in limine. The motion raised several issues, including the admissibility of Dr. Riehart’s medical testimony concerning the extent of the victim’s injuries, the number of surgeries performed on the victim, and the length of the victim’s hospital stay. The Defendant’s motion regarding the doсtor’s testimony was brief and broad. The extent of the motion is as follows:
Mr. Harmon [Defense Counsel]: Also, Your Honor, the State has apparently a doctor under subpoena that was a trauma surgeon at Erlanger Hospital. We would be objecting to the doctor testifying, because of the relevance of it, how badly she was injured and how long she was hospitalized and how many surgeries it took and the length of her hospital stay. We feel like that’s not relevant as to whether оr not he went into that store and shot his wife.
The Court: I’m going to overrule that one.
(emphasis added). After the trial court overruled the Defendant’s objection to the doctor’s testimony, the defense proceeded to argue another issue.
During Dr. Richart’s testimony, the Defendant made no contemporaneous objection to any specific testimony offered by the doctor. We conclude that the Defendant’s failure to specifically articulate his objection to Dr. Richart’s testimony, both before and during trial, constitutes a waiver of this issue.
See
Tenn. R.App. P. 86(b). In
State v. McGhee,
The substance of Defendant’s motion in limine against the testimony of Dr. Richart was particularly broad; therefore, the Defendant took a risk in not renewing his objection. We find that some of Dr. Ric-hart’s testimony was relevant to the
In addition, we observe that the Defendant’s oral motion in limine appears to object to the relevancy of Dr. Richart’s testimony to the issue of identity. The Defendant’s objection specifically states that this testimony “is not relevant as to whether or not he [Defendant] went into that store and shot his wife.” It is the opinion of this Court, that while the medical testimony presented was not relevant to the issue of identity, it was, in part, relevant to other issues, as noted above. Moreover, the Defendant’s argument, on appeal, challenges the admissibility of this evidence as to any issue at trial. It is well-settled that an appellant is bound by the evidentiary theory set forth at trial, and may not change theories on appeal.
See State v. Banes,
However, even if the trial court’s admission of this evidence was error, we find that it was harmless error. As noted by the State, the victim testified, without objection from the defense, that she had been in a coma following the shooting, and stayed in the hospital for at least seven weeks. She also testified that she had undergone twelve major surgeries and had been in and out of the hospital due to injuries caused by this shooting. Therefore, we cannоt say that the admission of Dr. Richart’s testimony more probably than not affected the jury’s verdict, when the substance of most of the evidence was before the jury via the victim’s testimony. Also, the victim’s testimony, along with the testimony of the other witnesses, overwhelmingly established the Defendant’s guilt of attempted second degree murder beyond a reasonable doubt, without the doctor’s testimony. The Defendant is not entitled to relief on this issue.
II. Sufficiency of the Evidence — Reckless Endangerment
In his next issue, the Defendant argues that the evidence wаs insufficient to convict him of recklessly endangering the life of Nancy Early. He contends that his mere possession of a gun was insufficient to establish the elements of reckless endangerment. We disagree with Defendant’s analysis of the proof and his legal arguments.
The Defendant was convicted by a jury of reckless endangerment committed with a deadly weapon. Reckless endangerment occurs when a person “recklessly engages in conduct which places or mаy place another person in imminent danger of death or serious bodily injury.” TenmCode Ann. § 39-13-103(a) (emphasis added). Reckless endangerment is a Class E felony when it is committed with a deadly weapon. Tenn.Code Ann. § 39-13-103(b).
The Defendant argues that the evidence failed to establish that he recklessly engaged in conduct that “places or may place another person in imminent danger of death or serious bodily injury,” because
The Defendant also cites
State v. Baldwin,
No. 01C01-9612-CR-00530,
because the restaurant was small and narrow, and the bullet could have ricocheted off one of the metal appliances, striking Clark, the defendant committed reckless endangerment by placing Eddie Clark in imminent danger of death or serious bodily injury when he shot Deborah Martin.
Id., at *3. A panel of this Court held that “mere speculation that Clark might have been hit by the bullet is insufficient to prove beyond a reasonable doubt that Clark was in imminent danger of death or serious bodily injury.” Id.
We find that the facts and analysis of Baldwin are, likewise, not applicable to this case. In a light most favorable to the state, the evidence showed that the Defendant pointed the loaded gun at Lynnette Farley, and then turned and shot Davidson in the stomach. Nancy Early testified that she and Davidson were standing next to each other, when the Defendant entered the partition leading to the kitchen area of the store. Early further testified that the victim was standing near her, when the Defendant shot the victim. Early also stated that, after the gun fired, she moved clоser to the back of the kitchen. From the evidence presented at trial, it is clear that Early was in the line of Defendant’s fire, within the “zone of danger,” and clearly in imminent danger of death or serious bodily injury.
In
State v. Payne,
Near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. Something which is threatening to happеn at once, something close at hand, something to happen upon the instant, close although not yet touching, and on the point of happening.
In the present case, we find that there was more than a mere possibility that Nancy Early might have been hit by a stray bullet. Mrs. Early was a few feet away from Casey Davidson at the time of the shooting. Unlike the reckless endangerment victim in Baldwin, who was sitting behind the' defendant in that case, Early was in front of the Defendant and a reasonable probability of danger to Early existed. And, unlike Fox, we conclude that the evidence was sufficient to establish beyond a reasonable doubt that Early was in imminent danger of serious bodily injury. The Defendant is not entitled to relief on this issue.
III. Excessive Sentencing
In his final issue, the Defendant claims that the trial court improperly apрlied the sentencing requirements in Tenn.Code Ann. § 40-35-101, et. seq., and improperly ordered the sentences in this case to run consecutively to a companion case. We find no error in the judgment of the trial court.
When a defendant challenges the length, range or manner of service of a sentence, the reviewing court must conduct a de novo review on the record with a presumption that the determinations made by the trial court were correct. Tenn. Code Ann. § 40-35-401(d). Wе condition the presumption of correctness “upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.”
State v. Ashby,
In reviewing the record, this court must consider (a) the evidence at the trial and the sentencing hearing, (b) the presen-tence report, (c) the principles of sentencing, (d) the arguments of counsel, (e) the nature and characteristics of the offenses, and (f) the appellant’s potential for rehabilitation.
See
Tenn.Code Ann. § 40-35-210;
see also
Tenn.Code Ann. § 40-35-102 & 103. In
State v. Jones,
Where one or more enhancement factors apply but no mitigating factors exist, the trial court may sentence above the presumptive sentence but still within the range.
See
Tenn.Code Ann. § 40-35-210(d). Where both enhancement and mitigating factors apply, the trial court must start at the presumptive sentencе (i.e., the midpoint of the range for Class A felonies and the minimum sentence in the range for Class B, C, D and E felonies), enhance
Here, the Defendant was sentenced as a Range III Persistent Offender. The trial court applied enhancement factors (1), (8), and (13) to his convictions in Count I (attempted second degree murder) and Count III (aggravated assault). See Tenn. Code Ann. § 40-35-114(1), (8) & (13). The trial court also considered the Defendant’s mental condition at the time of the commission of the offense, Tenn.Code Ann. § 40-35-113(8), as a mitigating factor with respect to Count I and Count III of the indictment. The Defendant does not challenge the applicability of these enhancement and mitigating factors on appeal. Neither does the Defendant challenge his sentence for reckless endangerment in Count II, for which he received the minimum sentence of four (4) years. However, the Defendant claims that the trial court failed to properly balance the enhancing and mitigating factors as required by statute. From the record, it is clear that the trial court properly weighed the enhancing and mitigating factors in sentencing the Defendant. In considering the sentence for Count I and III, the trial court stated:
It’s not a set of scales where you just stack them up on one side and say, [w]ell, I’ve got all these on this side, I only have one on the other side, and bingo, instantly it’s the maximum sentence. The court is supposed to rationally weigh those things. I think any rational weighing of the factors in this case, though, lead to the same conclusion that it would lead to if you were weighing them. The enhancing factors so overwhelmingly outweigh the mitigating factors that I feel that I’m not only obligated, but compelled to impose a sentence of 20 years as to Count I and that will be the sentence in Count I.
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Count 3 is the offense of aggravated assault. It carries a sentence of 10 to 15 years. The enhancing factors that the State lists there, again would be the same as the first one, previous history of criminal convictions, behavior, an unwillingness to comply with the conditions of release into the community, and committing the offense while on bail. The same mitigating factor would be applicable. I, again, think a rational consideration of the enhancing factors when compared to the mitigating factors are such that would justify the Court of [sic] imposing a sentence of 15 years for that offense and I’m going to do that.
This Court has previously held that a defendant’s “sentеnce is not determined by the mathematical process of adding the sum total of enhancing factors present then subtracting from this figure the mitigating factors present for a net number of years.”
See State v. Boggs,
The Defendant аlso challenges the trial court’s order of consecutive sen
We further find that consecutive sentencing is mandated by Rule 32(c)(3)(C) of the Tennessee Rules of Criminal Procedure, which provides that:
Where a defendant is convicted of multiple sentences from one trial or where the defendant has additional sentences not yet fully served as the result of the convictions in the same or other court and the law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so orders or not. This rule shall apply:
(A)To a sentence for a felony committed while on parole for a felony;
(B) To a sentence for escape or for a felony committed while on escape;
(C) To a sentence for a felony where the defendant was released on bail and the defendant is convicted of both offenses; and
(D) Any other ground provided by law.
Tenn. R.Crim. P. 32(c)(3)(C). In addition, Tennessee Code Annotated section 40-20-111(b) provides:
In any case in which a defendant commits a felony while such defendant was released on bail ... and the defendant is convicted of both such offenses, the trial judge shall not have discretion as to whether the sentence shall run concurrently or cumulatively, but shall order that such sentences be sеrved cumulatively.
Tenn.Code Ann. § 40-20-111(b) (1997). Under these provisions, consecutive sentencing is mandatory when a defendant commits a felony while on bail and the defendant is subsequently convicted of both offenses. At the time Defendant committed the instant offenses, he was on bail for the offenses in case # 12714. Subsequently, the Defendant was convicted for the present offense, as well as the offenses in case # 12714. Therefore, consecutive sentencing was mandatory in this case. The Defendant is not entitled to relief on this issue.
CONCLUSION
For the reasons set forth in this opinion, the judgment of the trial court is affirmed.