IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1999 September 9, 1999
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9805-CC-00230 ) Appellee, ) ) ) MOORE COU NTY VS. ) ) HON. CHARLES LEE BETTY W. NORMAN, ) JUDGE ) Appe llant. ) (Direct Appeal - Class E Felony ) & Class A M isdemean or)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFTON N. MILLER PAUL G. SUMMERS Henry, McCord, Bean & Miller Attorney General and Reporter 300 North Jackson Street Tullahoma, TN 37388 KIM R. HELPER Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
MIKE MCCOWEN District Attorney General
CHARLES CRAWFORD Assistant District Attorney P. O. Box 878 Fayetteville, TN 37334
OPINION FILED ________________________
CONVICTIONS FOR RECKLESS ENDANGERMENT COUNT ONE AND TWO MERGED; AFFIRMED AS MODIFIED
JERRY L. SMITH, JUDGE OPINION
The appellant, Betty W . Norman, was convicted by a Moore County jury of
two (2) counts of reckless endangerment, a Class E felony, and one (1) count of
harass ment, a Class A misdemeanor. The trial court sentenced the appellant as
a Range I offender to consecutive terms of one (1) year and three (3) months and
one (1) year and two (2) months for the reckle ss end angerm ent con victions. The
appellant received a concurrent sentence of six (6) months for her conviction for
harass ment. The tr ial cou rt orde red tha t the ap pellan t serve her se ntenc es in
confineme nt. On appeal, the appellant presents the following issues for our
review:
(1) whether the trial court erred in limiting the appellant’s cross- examination of a state w itness reg arding th e trajectory of a bullet and by subseq uently instructing the jury to disre gard the witness’ testimon y regardin g the trajec tory of the b ullet;
(2) whether the trial cour t erred in failing to allow the appellan t to question the victim s, Robert and Loretta Norman, regarding any domestic problems between them;
(3) whether the evidence was sufficient to supp ort the a ppella nt’s conviction s beyon d a reas onable doubt;
(4) whether the trial court imposed excessive sentences;
(5) whether the trial court erred in imposing consecutive sentences; and
(6) whether the trial court erred in denying probation.
After a thorough review of the record before this Court, we conclude that the
appellant was erroneously convicted of two (2) co unts of reckless endangerment
arising out of the same course of conduct. Therefore, the appellant’s conviction
for reckless endangerment in Count One is merged with her conviction for
-2- reckless endangerment in Count Two. In all other respects, however, the
judgment of the trial court is affirmed.
FACTS
The appellant was previously married to the victim, Robert Norman, and
they had two (2) sons, Derrick, age thirteen (13) at the time o f trial, and Micha el,
eight (8) years o f age at the time of trial. Since their divorce in 1992, the
appellant and Rob ert Norma n had app eared in Ch ancery Court on several
occasions as a result of disputes over custody of their children. In 1997, R obert
Norman had custody of the children, but the appellant h ad visitation every
Sunday. In addition, Robert Norman had remarried, and the appellant and
Robert’s pres ent wife, Loretta, exhibited a n obvious dislike for o ne anothe r.1
At approximately 1:30 a.m. on July 11, 19 97, Ro bert and Loretta Norman
were sleeping in their home when the telephone rang. Loretta answered the
phone, but hung up because there was no one on the other end of the line. The
phone rang a second time, but neither Robert nor Loretta answered it. When the
phone rang the third time, Loretta answered the phone and heard someone
saying, “what are you d oing now? ” Robert picked up anothe r extension of the
phone and heard a woman saying, “doing.” B oth Robert and Loretta identified
the caller as the appellant. Additionally, the Caller ID box attached to the
Normans’ telephone identified the phone number of the incoming calls. T he ca lls
came from the appellan t’s residen ce in Pe lham, T ennes see. However, only two
1 The animosity between the women had culminated into a previous incident whereby the appellant struck Loretta in the head with a baseball bat. The appellant was convicted of simple assault as a result. The appellant and Loretta had been ordered by the Chancery Court to have no contact with one anothe r.
-3- (2) telephon e calls reg istered on the Calle r ID box, one at 1:28 a.m. and the other
at 1:29 a.m .
On Augus t 2, the appellant and the Normans were involved in a
confrontation which took place at Michael Norman’s baseball game in
Murfreesboro. Robert and Loretta brought De rrick and Micha el to Murfreesbo ro
for Michael’s game. The appellant arrived soon thereafter and attempted speak
with Derrick, b ut Derrick did not wis h to talk to his mother. The appellant
continued her efforts for several minutes, but Derrick continued to ignore her.
Robert looked at the appellant and stated, “[c]an’t you see that he does n’t want
to talk to you or see you?” The appellant then pointed at Loretta and proclaimed
in a loud vo ice, “I’m go ing to bea t the hell ou t of her.”
After the game concluded, the appellant attempted to take pictures of
Micha el, but because Robert and Loretta wanted to go home, they would not
allow her to take pictures of her son. The appellant grabbed Michael’s arm and
stated, “he is coming with me.” Loretta grabbed Michael’s other arm.
Eventually, the appellant released Michael’s arm but followed Robert, Loretta and
the boys as they walked to their car. The appellant’s actions frightened the
Normans, and they contacted security for a police escort from the baseball field.
The next day, the appellant was scheduled to have visitation with her sons.
Howeve r, because Michael was limping due to a n injury susta ined a t the ba seba ll
game on the previous day and because D errick was expe riencing a seve re
headache, Robe rt decided it was not a good day for visitation. W hen Rob ert
telephoned the appellant to inform her that he would not bring Derrick and
Michael for the weekly visitation, the appellant demanded that he bring them.
Robe rt refused .
-4- Later that afternoon, at app roximately 4:15 p .m., Robert was re laxing in his
home when he he ard his dog barking. He heard the doorbell ring, and because
he was not dressed, walked into another room looking fo r clothes. L oretta
walked into the room and informed him that the ap pellant was at the fron t door.
Robert walked to the telephone and, as he passed by the front door, saw the
appellant standing at the door wearing a purple bathing s uit. Robert called 911,
and he and his sons went into th e closet o f the ma ster bed room. L oretta walked
into the kitchen to lock the door leading to the garage and heard the appellant
standing outsid e of this door yelling for Robert. As she turned to walk out of the
kitchen, Loretta heard a gunsho t. She ran into the b edroom , and Rob ert called
911 again. After th e police arrive d, the N orma ns ob serve d that th e dea dbolt lock
on the d oor lead ing to their kitc hen ha d been shot.
The police did not collect any evidence on August 3, but the next day
Loretta discovered a red plastic shotgun shell casing in her garag e and gave it
to her husband. Robert subsequently turned the shell casin g, along with the
dead bolt and bullet fragments, over to the police. However, the police
subsequently misplaced this evidence.
The appellant was subsequently arrested and indic ted with two (2) co unts
of aggra vated assa ult 2 for the Au gust 3 incident and one (1) count of harassment
for the July 1 1 inciden t.
At trial, the defe nse called David Vaughn of the Ben Lomand Rural
Telephone Co-op in McMinnville to testify. Vaughn produced copies of phone
bills from the residence of Gladys Sartain, the appellant’s mother, with whom the
appellant had been residing. The bills indicated only one call to the Norman
2 One count charged the appellant with the aggravated assault of Robert Norman on August 3, and the other count charged her with the aggravated assault of Loretta Norman on August 3.
-5- residence on Ju ly 11, 199 7, at 1:29 a.m. Vaughn testified that every outgoing
long distance call that is answered is recorded on these records. However, he
acknowledged that if a phone call is not answere d, there is no reco rd of the c all
on the p hone b ill.
The appellant attempted to establish an alibi for her whereabouts on the
afternoon of August 3. Wendee Partin, a clerk at a FINA station in Pelham,
testified that she was working on August 3 when the appellant came into the
service station between 3:00 p.m. and 4:00 p.m. When the appellant walked
through the door, she appeared as if she might faint. The appellant, who suffered
from seizur es, fell to the floo r and a sked Partin to call Da le Perr y, the ap pellan t’s
brother-in -law. Because she had other customers to attend, Partin summoned
her friend, Ch ris Davids on, to ass ist the app ellant. Davidson attempted to rouse
the appellant, and the appellant asked him to call Perry. Davidson complied, and
Perry arrived sh ortly therea fter. Perry he lped the a ppellant to his car an d then
drove her to h er resid ence . Perry s tayed with the appe llant for a pprox imate ly
thirty (30) minutes and returned home aroun d 6:00 p.m. T he ap pellan t’s mother,
Gladys Sartain, testified that she and the appellant remained at home for the rest
of the eve ning.
Perry testified that, driv ing the spee d limit, it ta kes a pprox imate ly forty-six
(46) minutes to drive from the FINA station to Rob ert No rman ’s house in M oore
Coun ty.
The jury returned guilty verdicts for the lesser offense of felony reckless
endangerment in Count One and Count Two. The jury also found the appellant
guilty of harassment as charged in Count Three of the indictment. Th e trial court
sentenced the appellant to consecutive terms of one (1) year and three (3)
months and one (1) year and two (2) months for the appellant’s convictions for
-6- reckless endan germe nt. These se ntences we re ordered to run con currently w ith
a six (6) month sentence for harassment. From her convictions and sentences,
the ap pellan t now b rings th is app eal.
TESTIMONY CONCERNING BULLET TRAJECTORY
In her first is sue, th e app ellant a rgues that the trial cou rt impro perly
restricted the cross-examination of Moore County Sheriff’s Deputy Michael
Blackburn regard ing the trajecto ry of the bullet in the de adbo lt lock. She further
claims that the trial court erred in subsequently instructing the jury to disreg ard
Officer Black burn’s testim ony co ncern ing the trajectory of the bullet. The
appellant contends that the proposed testimony regarding the trajectory of the
bullet was admissible as lay testimony under Tenn. R. Evid. 701 because it was
based upon B lackburn ’s observ ations of th e bullet.
During the state’s examination of Officer Blackburn, he testified that “the
person who shot the door knob had to be standing up on the porch because the
projectory [sic] of the bullet was kind of downward.” When defense counsel
attempted to cross-e xamine Officer Bla ckburn on this sta temen t, the state
objected. The trial court sustained the objection, finding that “the angle and
trajectory of a bullet normally requires expert opinion,” and because Officer
Blackburn was not qualified as an expert, his opinion regarding the trajectory of
the bullet w as inadm issible. When counsel attempted to resume questioning
Blackburn, the trial court interjected:
Cou nsel fo r the de fense is partia lly correct. It would not be proper for the State to ask a person an opinion then object to that same opinion being as ked ab out. Consequently the Court is g oing to sustain the State’s objection. The jury shall disregard any statem ents this witness mad e abo ut any o pinion s concernin g this
-7- bullet. He is not an expert. The Court will strike that testimony as offered by the State since the State is not objecting to the same testimony being offered. The jury will disregard and consider for no purpose this witness’s opinions concerning any trajectory evidence concerning this travel of b ullet. That is an opinion that only an expert can testify to and this p erson w as not qu alified as an expert.
“Questions regard ing the adm issibility, qualifications, relevancy and
competency of expert testimon y are left to the discretion of the trial court, whose
ruling will not be overturned in the absence of abuse or arbitrary exercise of
discretion .” State v. Begley, 956 S.W.2d 471, 475 (Tenn. 1997). The admission
of expert testimony is governed by Tenn. R. Evid. 702, which provides:
If scient ific, tech nical, o r other spec ialized know ledge will subs tantially assist the trier of fact to unde rstand th e eviden ce or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.
Evidence is “scientific technical or other specialized knowledge” if “it concerns a
matter that ‘the average juror would not know, as a matter o f course. . . .’” State
v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997) (quoting State v. Bolin , 922
S.W .2d 870, 874 (Tenn. 199 6)).
W e agree with the trial court that testimony concerning the trajectory of a
bullet ordinarily req uires exp ert testimo ny. See State v. Tiffany La fonzo B etts,
C.C.A. No. 02C01-9709-CC-00337, 1999 Tenn. Crim. App. LEXIS 73, at *4,
Madison County (Tenn. Crim. App. filed January 29, 1999, at Jackson) (holding
that testimony concerning the mechanics of a shotgun “would have been
approp riate only from an expe rt on firearm s”). Because Officer Blackburn was
not qualifie d as an expert in this regard, the trial court properly sustained the
state’s objection to this testimony on cross-examination. Furthermore, the trial
court properly instructed the jury to disregard Officer Blackburn’s statement on
direct examina tion concerning the bullet’s trajectory.
-8- W e reject the a ppellant’s contention that the state’s objection to the
testimony on cross-exa mination wa s improper because the sta te effec tively
“opened the door” to such testimony by directly eliciting the trajectory testimony
on direct exam ination. T he prosecutor asked Officer Blackburn, “[d]o you
remember seeing anything on top of the door facing on the outside --”. Blackburn
responded, “[n]ot tha t I reme mbe r. The only thing -- when I looked at the door
the person who shot the door knob had to be standing up on the porch because
the projectory [sic] of the bullet was kind of downward.” Clearly, the portion of
Black burn’s answer referring to the b ullet’s trajectory was not responsive to the
question posed by the prosecutor. Thus, we disagree with the appellant that the
state directly elicited this response from Blackburn.
The testimony concerning the trajectory of the bullet required expert
testimony, and Blackburn was not qua lified as an e xpert to testify in this regard.
As such, the trial court acted properly in instructing the jury to disregard the
impro perly adm itted tes timon y and in refusing to allow any further testimony on
the sub ject.
This issu e is withou t merit.
CRO SS EX AMIN ATION OF VIC TIMS
In her next issue , the appe llant asse rts that the trial co urt erred in failing to
allow defense counsel to cross-examine Robert and Loretta Norman concerning
any domestic relations problems between them. The appellant claims that
evidence of the Normans’ marital problems would indicate tha t the parties were
biased against her. Thus, she argue s that th e evide nce w as pro perly a dmis sible
under Tenn. R. Evid. 616. We must disagree.
-9- Other than the app ellant’s allegations, there is no evidence in the reco rd
that Robert and Loretta, in fact, had martial problems. In any event, evidence
that Robert and Loretta Norman had marital difficulties does not indicate that they
were biased a gainst the appellan t. Furthermore, any domestic disputes between
the Normans are irrelevant to whether the appellant comm itted the instant
offense s. See Tenn . R. Evid. 40 1. The tria l court did a llow defen se cou nsel to
question both Robert and Loretta as to whether either o f them was re spon sible
for shoo ting the do or on Au gust 3.
The adm issibility of testimony as well as the scope of direct and cross-
examination is a matter within the sound discretion of the trial court. See State
v. Barnard, 899 S.W .2d 617, 624 (Tenn. Crim . App. 1994 ). Furthermore, a trial
court’s determination of relevancy is subject to an abuse of discretion standard.
State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). The trial court restricted
the appellant’s cross-examination of the victims in this regard because it found
the evidence to be irrelevant and unduly prejudicial and confusing to the jury.
See Tenn. R. Evid. 403. The trial court did not abuse its discretion by refusing
to allow the victims to be cross-examined regarding alleged martial difficulties.
This issu e has n o merit.
SUFFICIENCY OF THE EVIDENCE
The appellant challenges the sufficiency of the evidence for her
convictions. First, she claims that the evidence is insufficient to support her
convictions for reckless endangerment because no one observed her shooting
the door to the Norman residence and because she presented evidence of an
alibi on the afternoon of August 3. With respect to the harassment conviction she
-10- contends th at under State v. Hoxie , 963 S.W.2d 737 (Tenn. 1998), to establish
the offense o f harassm ent, the sta te is required to prove that she placed more
than one telephone call in a repetitious manner. As a result, she insists that
because the telephone records reveal that only one call was placed to the
Norman residence on the morning of July 11, the appellan t canno t be found guilty
of haras smen t.
A. Standard of Review
When an accused challenges the sufficiency of the evide nce, this Cou rt
must review the record to determine if the evidence adduced during the trial was
sufficient “to support the findings by the trier of fact of guilt beyond a reaso nable
doubt.” Tenn. R. Ap p. P. 13 (e). Th is rule is a pplica ble to fin dings of guilt
predicated upon direct evidence, circumstantial evidence or a combination of
direct and c ircum stantia l evidenc e. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.
Crim. App . 1996).
It is well-settled that a criminal offense may be established exclusively by
circumstantial evidenc e. State v. Lequire, 634 S.W.2d 608, 614 (Tenn. Crim.
App. 1981); State v. Hailey, 658 S.W .2d 547 , 552 (Tenn. C rim. App. 198 3).
Further, to support a conviction based upon circumstantial evidence alone, the
facts and circumstances “must be so strong and cogent as to exclude every other
reasonab le hypothesis sa ve the guilt of the defen dant.” State v. Crawford, 225
Tenn. 47 8, 470 S.W .2d 610, 612 (1971).
In determining the sufficiency of the e videnc e, this Court does not reweigh
or reevaluate the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Nor may this Court substitute its inferences for those drawn by the trier
of fact from circumstantial evidence. Liakas v. S tate, 199 Tenn. 298, 305, 286
S.W.2d 856, 859 (19 56). To the co ntrary, this Court is required to afford the state
-11- the strongest legitimate view of the evidence contained in the record as well as
all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the S tate.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Questions concerning the
credibility of the witnesses, the weight and value to be g iven the eviden ce as well
as all factual issues raised by the evidence are resolved by the jury as the trier
of fact. State v. Tuttle , 914 S.W.2d at 932.
Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burd en in this Court
of illustrating why the evidence is insufficient to support the verdict returned by
the trier of fact. State v. Tug gle, 639 S.W. 2d 913 , 914 (T enn. 19 82); State v.
Grace, 493 S.W.2d at 476.
B. Reckless Endangerment
The appellan t contend s that the evidence was insufficient to sustain her
convictions of reckless endangerment because no one saw her shoot the door
to the Norman residence and none of the state’s witnesses saw her with a gun.
Furthermore, she argues that she presented more than substantial proof of an
alibi for the afte rnoon o f Augus t 3.
An accused commits the offense of reckless endangerment when he or
she “recklessly engages in conduct which places or may place another person
in imminent danger of dea th or se rious b odily injury.” Tenn. Code Ann. § 39-13-
103(a). When reckless endangerment is committed with a deadly weapon, the
offense is a Clas s E felony. Ten n. Code A nn. § 39-13-1 03(b).
-12- The evidence at trial showe d that the a ppellant w as obs erved by Robe rt,
Loretta, Derrick and Michael Norman ringing the doorbell at the Norman
residence on the afternoon of August 3. Due to th eir previou s confron tations with
the appellant, Robert Norman called 911 and took his sons into a bedroom
closet. Loretta walked into the kitchen to lock the door leading into the garage
and heard the ap pellant standing o utside of the d oor ye lling Ro bert N orma n’s
name. She testified that approximately 2 to 3 seconds after she heard the
appellan t’s voice, she heard a gunsh ot.
Although no one actually observed the appellant shoot the door, a rational
trier of fact c ould conclude that the appellant was the shooter. By shooting the
door, the appellant recklessly engaged in conduct which place d the N orma ns in
imminent danger of de ath or serious bo dily injury. Moreover, while the appellant
presented evidence of an alibi, four witnesses testified that the appellant was at
the Norman residence on the afternoon of August 3. By their verdict o f guilt, the
jury obviously accredited the testimony of the state’s witnesses. It is well-settled
that the jury, as the trier of fact, resolves questions regarding the credibility of the
witnesses. State v. Maddox, 957 S.W.2d 547, 556 (Tenn. Crim. App. 1997). The
evidenc e was s ufficient to co nvict the ap pellant of re ckless e ndang ermen t.
Although not raised by the appellant nor the State o f Ten ness ee, this Court
notes that the appellant has two (2) convictions for reckless endangerment as a
result of her shooting the door at the Norman residence. However, this Court has
held that the act of firing a single shot constitutes only one (1) act of reckless
endan germe nt, regardless of the num ber of victim s enda ngered . State v. Don nie
W ebb, C.C.A . No. 03C 01-911 2-CR -00414 , 1996 T enn. C rim. App . LEXIS 200,
at *1, Co cke C ounty (Ten n. Crim . App. filed March 29, 199 6, at Kno xville); see
also State v. Ramsey, 903 S.W .2d 709 , 713 (Tenn. Crim. App. 1995) (holding
-13- that one act of reckless driving does n ot justify multiple convictions for reckless
endangerment even th ough the de fenda nt end ange red m ultiple vic tims). In this
case, the appellant was convicted for firing a single shot into the door at the
Norman residence, and only one (1) conviction for reckless endangerment was,
therefore, proper. As a result, the appellant’s conviction for reckless
endangerment in Count Two is vacated and merged into the appe llant’s
conviction for reckless endangerment in Count One.
C. Harassment
The appellan t also con tends tha t the evidence does not support her
conviction for haras smen t. She asserts that the Tennessee Supreme Court has
held that the offense of hara ssmen t requires proof of m ore than o ne ph one c all
in a repetitiou s man ner. See State v. Hoxie , supra. Because the telephone
records only indicate one phone call to the Norman residence on July 11, the
appellant argues that the evidence is insufficient to support the jury’s finding of
guilt for this offense. Furthermore, she claims that any phone call made to the
Norman residence was accidental; therefore, there is no evidence that the
appellant knowingly annoyed or alarmed the recipient of the phone calls.
A perso n com mits th e offen se of h arass men t who in tentionally “[p]laces
one (1) or m ore tele phon e calls a nonym ously, or at an incon venien t hour, o r in
an offensively re petitious manner, or without a legitimate purpose of
communication, and by this action kn owingly a nnoys o r alarms the recipie nt.”
Tenn. C ode Ann . § 39-17-308 (a)(2).
The appellant claims that und er State v. Hoxie , 963 S.W.2d 737 (Tenn.
1998), the state is required to p rove more than one te lephon e call in orde r to
establish the offense of harassment. However, the appellant’s reliance on Hoxie
is misplaced.
-14- In Hoxie , the Supreme Court decide d the is sue w hethe r the sta te is
required to make an election o f offenses at the clos e of its proo f with regar d to
the offense o f stalking. Id. at 741 . The C ourt he ld that n o elec tion is required
due to the nature of the stalking offense as a “continuing course of conduct.” Id.
at 743. The Court further added, “[l]ikewise, the offense of telephone harassment
for which the defendant was convicted contemplates a continuing course of
condu ct. . . . The offense of ha rassmen t itself requires more than one telephone
call or telephone c alls in a repetitious ma nner.” Id.
W e do not agree with the appellan t’s interpreta tion of Hoxie as requiring
the state to present evidence of more than one phone call to establish the offense
of harassment under Tenn. Code Ann. § 39-17-308. Although the Court’s opinion
states, “[t]he offense of harassment itself req uires m ore tha n one teleph one c all
or telephon e calls in a re petitious m anner,” th is statem ent con tradicts the clear
language of the statute. Under Tenn. Code Ann. § 39-17-308(a)(2), an accused
comm its the offense of harassment by placing “one (1) or more teleph one c alls
. . .”
Moreover, in Hoxie , the Supreme Court was faced with the issue whether
the state is required to elect o ffenses for the offense of stalking. The issue of
election of offenses with regard to the offense of harassment was not before the
Court; therefore, the statemen t that harassment “requires more than one
telephone call” was only dicta and, as a result, not binding as pre cedent. “Cou rt
decisions must b e read w ith specia l reference to the que stions involved and
necessa ry to be d ecide d, and langu age u sed w hich is not decisive of the case or
decided therein is not binding as precede nt.” Shepherd Fleets, Inc. v. Opryland,
U.S.A., 759 S.W.2d 914, 921-22 (Tenn . Ct. App .), perm. to app. denied (Tenn.
1988).
-15- In any event, we conclude that the state presented sufficient evidence that
the appellant placed one (1) or more telephone calls at an inconvenient hour and
in an offensively repetitious manner. Robert and Loretta Norman testified that the
telephone rang three (3) times at approximately 1:30 a.m. on July 11, 1997.
When Loretta answered the phone on the first ring, there was no one on the other
end of the line. The phon e rang a secon d time, bu t neither R obert no r Loretta
answered it. When th e phone ra ng the third time, Lore tta answered the phone
and heard someone saying, “what are you doing now?” Robert picked up
another extension of the phone and heard a woma n saying , “doing.” B oth Robert
and Loretta identified the ca ller voice as that of the appellant. In addition, the
Caller ID box attached to the Norm an’s telephone identified the appellant’s phone
number as the origin of two (2) of the incoming calls.
Although David Vaughn of the Ben Lomand Rural Telephone Co-op
testified that the phone records indicated only one (1) phone call to the Norman
residence on the morning of July 11, he acknowledged that the records would not
indicate a phone call that was not answered. It was a question for the jury, as
trier of fact, to resolve whether the appellant made multiple phone calls to the
Norman residence on July 11.
The appellant further claims that there is no evidence that she “knowingly”
annoyed or alarmed the Normans because the evidence demonstrates that the
phone calls were accidental. To the contrary, there was no evidence presented
at trial that the appellant accidentally called the Norman residence multiple times
in the early morn ing hours of Ju ly 11. The evi dence demonstrated that the
appellant made telephone calls to the Norman residence at an hour in which they
would obviously be asleep. According to the Normans, she called three (3) times
within a two-minute period. After thoroughly reviewing the evidence presented
-16- at trial, we conclude tha t a rational trier of fact could have found that the appellant
placed one or more telephone calls to the Norman residence at an inconvenient
hour and in an offensively re petitious manner an d by he r action s kno wingly
anno yed or alarm ed the recipie nt of the teleph one c all.
SENTENCING ISSUES
The appellant claims that the trial court erred in imposing her sentences.
First, she claims that the trial court misapplied one enhancement factor and failed
to apply a mitigating factor in determining her sentence; as a result, she argues
that her sentences are excessive. She further asserts that the trial court erred
in imposing consecutive sentences.3 Finally, she contends that the trial court
erred in denying probation.
This Court’s review of the sentence imposed by the trial court is de novo
with a presu mption of correctn ess. Te nn. Co de Ann . § 40-35-401(d). Th is
presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencin g principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.
1997).
3 The trial co urt im pos ed co nse cutive sent enc es as to Co unts One and T wo o nly. Be cau se th is Court has determined that the appellant’s convictions for reckless endangerment in Counts One and Two should m erge into o ne (1) co nviction, we need no t addres s the app ellant’s argu men t with regard to consecutive sentencing.
-17- The burden is upon the appealing party to show that the sentenc e is
improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts.
In conducting our review, we are required, pursua nt to Ten n. Cod e Ann. §
40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing;
(2) [t]he pre senten ce repo rt;
(3) [t]he principles of sentencing and arguments as to sentencing alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and
(6) [a]ny statement the defendant wishes to make in the defen dant's own behalf about sentencing.
Under the 1989 Sentencing Act, the presumptive sentence is the minimum
within the applicable range if no mitigating or enh ancem ent factors for sentencing
are present. Tenn. Code Ann. § 4 0-35-21 0(c); State v. Fletcher, 805 S.W.2d
785, 788 (Tenn. Crim. App. 1991). How ever, if such factors do exist, a trial court
shou ld start at the m inimu m se ntenc e, enh ance the m inimu m se ntenc e within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. C ode Ann . § 40-35-210 (e). No particular weight for
each factor is prescribed by the statute, as the weight give n to each factor is left
to the discretion of the trial court as long as its findings are supported by the
record. State v. Santiago, 914 S.W .2d 116 , 125 (T enn. C rim. App . 1995); see
Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.
B. Trial Court’s Findings
-18- In determining the appellant’s sentence, the trial court found two (2)
enhancement factors would apply: (1) that the appellant had a previou s history
of criminal convictions, Tenn. Code Ann. § 40-35-114(1); and (2) that the
appellant committed the present offense while she was on probation, Tenn. Code
Ann. 40-35-1 14(13)(C ). In mitigation, the appellant presented evidence that she
suffered from seizures and proposed that these seizures constituted a “physical
condition that significantly reduced [her] culpability for th e offense .” Tenn. Code
Ann. § 40-35-113(8). However, the trial court rejected this mitigating factor due
to the lack of evidence that the offenses committed were related to her physical
condition. As a result, the trial court imposed sentences of one (1) year and three
(3) months and one (1) year and two (2) months for the appellant’s convictions
for reckless endan germe nt. The trial court further imposed a sentence of six (6)
month s for the ap pellant’s co nviction for h arassm ent.
The trial court found that because the instant offenses were committed
while the appellant was on probation, her sentences for both counts of reckless
endangerment should ru n cons ecutively to one another. The court found that the
sentence for harassment should run concurrently with the appellant’s convictions
in Counts One and Two.
With regard to alternative sentencing, the trial court noted that measures
less restrictive than confinement had been recently applied unsuccessfully to the
appellan t. Significantly, the court observed that the appellant was on probation
for an assault committed upon Loretta Norman, one of the victims in the instant
case. Furthermore, the trial court determined that granting proba tion wo uld
dimin ish the seriousne ss of the offense s comm itted. Therefore, the trial cou rt
denied probation and ordered that the ap pellan t serve her se ntenc es in
confinem ent.
-19- C. Excessive Sentences
The appellant contends that the trial court imposed excessive sentences
for her co nvictions for reckless endangerment in Counts One and Two. 4
Specifically, she argues that the trial court misapplied Tenn. Code Ann. § 40-35-
114(13) and failed to apply her prop osed m itigating factor. Thus, she claims that
she is entitled to the m inimum s entence of o ne (1) year for the C lass E felony.
1. Tenn. Code Ann. § 40-35-114(13)
The appellant claims that the trial court misapplied Tenn. Code Ann. § 40-
35-114(13) because she was on probation for a misdemeanor, not a felony, at
the time the instant offenses were committed. We agree. Tenn. Code Ann. § 40-
35-114(13) specifically states that this enhancement factor is applicable if the
defendant commits an offense while on releas e statu s “if such release is from a
prior felony conviction.” Becaus e the appe llant was on prob ation for a
misdemeanor assault conviction, the trial court improper ly applie d this
enhance ment factor.
2. Tenn. Code Ann. § 40-35-113(8)
The appellant also maintains that the trial cou rt erred in not applying as a
mitigating factor that she suffered from a physical condition, i.e., seizures, which
reduced her culpability for the offenses committed. Tenn. Code Ann. § 40-35-
113(8). At the sentencing hearing, the appellant testified that she had a seizure
on August 3 and suffered from a lapse of memory following the seizure.
The trial court observed at sentencing,
[t]he defendant wishes her cake and desires to eat it, too. She maintains her innocen ce before the jury and before the Court today
4 The appellant also mak es a conclusory allegation that the trial court impose d an excessive senten ce with reg ard to he r harass men t conviction in Coun t Three . Becau se the ap pellant has failed to sup port th is alleg ation with a rgum ent, th is Co urt will n ot ad dres s this issue on th e m erits. Ten n. Ct. Crim . App. R. 10(b).
-20- even but says well, I could be wrong. I could have had a seizure. I could have had a seizure and it is somehow related to the offense and therefore it is a mitigating factor.
The trial court found that the appellant suffered from a physical condition which
caused her to have seizures, but rejected this as a mitigating factor because
there was no evidence in the record that the seizures reduced her culpability for
the offenses committed. We agree.
Tenn. Code Ann. § 40-35-113 (8) is applicable only when the defendant can
establish that the mental or physical condition reduced his or her culpability for
the offenses committed. Therefore, there must be a causal connection between
the condition and the offense. See State v. John Walter Whitten, C.C.A. No.
01C01-9803-CR-00106, 1999 Tenn. Crim. App. LEXIS 164, at *2-3, Davidson
Coun ty (Tenn. Crim. App. filed February 24, 199 9, at Nas hville); State v.
Katherine Irene Warren, C.C.A. No. 01C01-9710-CC-00455, 1998 Tenn. Crim.
App. LEXIS 1123, at *5, Bedfo rd County (Tenn. Crim. App. filed October 28,
1998, at Nash ville); State v. Mark W. Rawlings, C.C.A. No. 02C01-9612-CR-
00475, 1998 Tenn. Crim. App. LEXIS, at *6, Shelby County (Tenn. Crim. App.
filed February 10, 1998, at Jackson). There is no evidence in the record that the
appe llant’s seizures are related to her com mitting the offense of reckless
endangerment on August 3. Indeed, at the sentencing hearing, defense counsel
acknowledged, “[d]id this physical cond ition play into the events of this crime?
I don’t know. W e don’t have an y proof conne cting those two.”
The trial cou rt’s determination that Tenn. Code Ann. § 40-35-113(8) did not
apply in mitigation is fully supported by the record.
-21- 3. Appropriate Length of Sentence
Although the trial court misapplied Tenn. Code Ann. § 40-35-114(13), the
appellant is not nec essarily en titled to a red uction in h er sente nce.5 State v.
Lavender, 967 S.W .2d 803 , 809 (Tenn. 1998). The trial court did not consider
two enha ncem ent fac tors wh ich are clearly a pplica ble here. F irst, the a ppella nt’s
previous conviction for assault estabilshes a history of criminal convictions or
behavior above and beyond tha t necessary to establishe her standard offender
range. See. Tenn. Code Ann. S ec. 40-3 5-114(1 ). In addition , the use o f a
firearm justifies enhance ment of the a ppellant’s senten ce for reckless
endan germe nt. See, Tenn. Code Ann. Sec. 40-35-114 (9). Furthermo re, there
are no mitigating factors which are applicable to the appellant’s sentence for
reckless endangerment. For her conviction in Count One, the appellant received
a sentence of one (1) yea r and th ree (3) mon ths, a s enten ce wh ich is ba rely
above the minimum for a Class E felony. W e conclude that the trial court
imposed an appropriate sentence of one (1) year and three (3) mon ths for the
appellan t’s conviction for reckles s enda ngerm ent.
D. Probation
In her final issue, the appellant contends that the trial court erred in
denyin g probation. She claims that because she has an insignificant criminal
history and was convicted of a Class E felony and a Class A m isdemea nor, she
is presumed to be a favorable candidate for alternative sentencing.
5 Although the trial court found that two (2) enhancement factors were applicable, it indicated that it would be placing weight on only one (1) enhancement factor. The court stated, “if the law permits me, I’m not s ure it does , to rely upon b oth of thos e enha ncing fa ctors, I’m only relying to a gre at part on o ne. Makes no difference which one you choose because they are both present . . . But I place great weight upon the enhan cing fac tor I’m relying upon.”
-22- An especially mitigated or standard offender convicted of a Class C, D or
E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of eviden ce to the c ontrary. T enn. C ode Ann. § 40-35-102(6). A trial
court m ust presu me tha t a defend ant sen tenced to eight years or less and who
is not an offende r for whom inc arceration is a priority is subjec t to alternative
sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It
is further presumed that a sentence other than inca rcerat ion wo uld res ult in
successful rehabilitation unless rebutted by sufficient evidence in the record. Id.
at 380.
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations:
(A) [c]onfinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.
Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston, 938 S.W.2d 435, 438 (Tenn.
Crim. App. 19 96). A trial co urt may consider the enhancement and mitigating
factors set forth in Tenn. Code Ann. §§ 40-35-113, 40-35-11 4 as they are
relevant to the § 40 -35-103 (1) cons iderations . State v. Boston, 938 S.W.2d at
438; State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The trial
court should also consider the defendant’s potential for rehabilitation when
determining whether a n alterna tive senten ce wou ld be app ropriate. State v.
Zeolia , 928 S.W.2d at 461.
In determ ining w hethe r to gran t or den y prob ation, a trial court shou ld
consider the circumstances of the offense, the defendant’s criminal record, the
-23- defen dant's social history and present condition, the need for deterrence, and the
best interest of th e defen dant and the public. State v. Boyd, 925 S.W.2d 237,
244 (Tenn . Crim. A pp. 199 5); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.
App. 1995 ). The re is no math ema tical eq uation to be u tilized in determining
sentencing alternatives . Not only s hould the senten ce fit the offen se, but it
shou ld fit the offender as w ell. Tenn. Cod e Ann. § 40 -35-103(2); State v. Boggs,
932 S.W .2d 467, 476 -77 (Tenn . Crim. App. 19 96).
The trial court found that incarceration was appropriate because measures
less restrictive than confin eme nt had recen tly been applied unsuccessfully to the
appellant. We agree.
As a result of her striking Loretta Norman in the head with a baseb all bat,
the appellant was convicted in December 1996 with one (1) cou nt of sim ple
assa ult and rec eived eleven (11) months and twenty-nine (29) days probation.
Notwithstanding a court order to stay away from Loretta Norman, eight (8)
months later the appellant fired a s hotgun into the door at Robert and L oretta
Norm an’s residence. Obviously, measure s less res trictive than c onfinem ent have
proven unsuccessful, and this reflects poorly on the appellant’s rehabilitation
potential.
After conside ring the circ umsta nces o f these offenses, along with the
appe llant’s recent unsu ccessful effort at rehabilitation, we conclude that the trial
court properly found sufficient “evidence to the contra ry” to reb ut the a ppella nt’s
presumption for alternative sentencing.6 The tr ial cou rt prop erly denied probation
in this case.
This issue is meritless.
6 Because the appellant was convicted of reckless endangerment in violation of Tenn. Code Ann. § 39-13-103, she is ineligible for comm unity corrections under Tenn. Code A nn. § 40-36-106(2).
-24- CONCLUSION
Because the appellant was improperly convicted of two (2) counts of
reckless enda ngerm ent aris ing ou t of the s ame crimin al con duct, th e app ellant’s
conviction for reckless endan germe nt in Cou nt Two is vacated and m erged w ith
the appellan t’s conviction for reckless enda ngerme nt in Count O ne. Howe ver,
in all other respects, the judgment of the trial court is AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ NORMA MCGEE OGLE, JUDGE
-25-