IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
JUNE SESSION, 1999 FILED July 19, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9810-CC-00330 ) Cecil Crowson, Jr.
Appellee, ) Appellate Court Clerk )
) OBION COUNTY
VS. )
) HON. WILLIAM B. ACREE FREDERICK BOYD ALLEN, ) JUDGE )
Appe llant. ) (Reck less Ag gravated Assau lt)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF OBION COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. PAUL G. SUMMERS On Appeal Attorney General and Reporter 113 North Court Squ are Wa verly, TN 37185 R. STEPHEN JOBE Assistant Attorney General JOSE PH P . ATN IP 425 Fifth Avenu e North District Public Defender Nashville, TN 37243
COLIN JOHNSON THOMAS A. THOMAS Assistant Public Defender District Attorney General Dresden, TN 38225 JIM CANNON
Assistant District Attorney General P.O. Box 218
Union City, TN 38261
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defendant, Frederick Boyd Allen, was indicted on a single count of aggravated assault by use of a deadly weapon. On August 18, 1998, he was tried before an Obion County jury and found guilty of the lesser included offense of reck less ag grava ted as sault by use of a de adly weapon. He was sentenced as a Range I standard offende r to three ye ars in con fineme nt, with his sentence to run concurre ntly with a se ntenc e he w as the n servin g from a con viction in General Sessions Court. Pursuant to Rule 3 of the Tennessee Rules of Appe llate Proced ure, the D efenda nt now a ppeals his convic tion and h is sentence. He presents two issues for our review: (1) whether the evidence presented at trial is sufficient to support his conviction; and (2) whether the trial court properly s entenc ed the D efenda nt to three years in confinement, rather than imposing a n alternative sentence involving split confinement. We affirm the judgm ent of the tria l court.
EVIDENCE PRESENTED AT TRIAL The victim in this case, Amanda Hartsfield, a resident of Paducah, Kentucky, testified that she was visiting her grandmother in South Fulton, Tennessee with her two young children when the incident underlying the Defenda nt’s conviction occurred. She testified that she had known the Defendant since childho od an d that th ey had been friends for som e time . The v ictim recalled that she was cooking a meal for her children, her grandmother, and herse lf shortly before midnight on the evening of March 27, 1988 w hen she h eard a knock at the kitch en door. She answered the knock and discovered the
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Defendant standing outside. She invited him into the house, and they conversed norm ally for a while. During the conversation, the Defendant noticed a box of cigars on the tab le and left the kitchen to ask the vic tim’s grand moth er, Ma ttie Garm on, if he co uld have a cigar.
The victim testified that the Defe ndant returne d three to five minutes later and started “talk ing very cra zy abou t killing peop le and stu ff . . . and just basica lly about bringing harm to people.” The victim stated that although she “didn’t re ally feel like [she] was at harm,” she began to feel uneasy. She asked the Defendant to leave, and wh en he refuse d, she called he r grandm other “to com e and rem ove him.” The victim m aintain ed tha t as he r grand moth er cam e runn ing do wn the hall to the kitchen, the Defendant grabbed the knife that the victim had been using while cooking. She began to wrestle with the Defendant for the knife, holding onto h is arm with both hands. She recalled that she had to kick her infant son, who was at her feet on the kitchen floor, out of the way to prevent harm to him. The victim claimed that during the struggle, the Defendant “was talking about he could kill [her] because he’s hurt people before when he was in C alifornia, . . . he was broug ht up th at way in California and don’t nobody know what he is or what he’s capab le of.”
At some point during the struggle, Garmon arrived in the kitchen and began to beg the Defendant to put the knife down. According to the victim, Garmon realized that the Defendant would not comply and therefore started trying to wrest the knife out of his hand. The victim stated that the Defendant event ually “eased up off the knife,” and she was able to take it from his hand.
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When the knife fell to the floor, the victim kicked it behind the garbage can. The Defen dant the n turned and left the home “like nothing happe ned.”
After the Defendant departed, the victim realized that she had received a cut to the palm of her left ha nd. She stated that the wound “probably needed stitches” but stated that she te nded th e cut her self. The victim maintained that she did no t recall how or when she was cut. On cross-examination, she admitted that she ma y have received the wound by grabbing the blade of the k nife wh ile trying to recover it from the Defendant’s hand. She also testified that she was not actually afraid of the Defendant until he grabbed the knife.
Garmon testified that she was in her bedroom when the Defendant arrived at her hom e. She s tated th at she heard him knock and enter the house, and then she heard the Defendant and the victim conversing and laughing . She next heard the Defendant come down the hall toward her bedroom and stop to use the bathroom located next to her bedroom. According to Garmon, the Defendant then went back to the kitchen, and she heard the victim calling for her to “put Frederick out.” She jumped up and ran to the kitchen, where she saw the Defendant holding “a knife up over [the victim’s] head, and they both was [sic] wrestling with the knife at the same time.” Garmon ran to the De fendan t, grabbed his arm , and be gan to beg h im not to hurt her granddaughter. According to Garmo n, the Defend ant respond ed, “I’m gonn a kill her.”
While she was still holding the De fendan t’s arm, the victim ma naged to take the knife out of the Defendant’s hand and kick it behind the garbage can. Garmon testified that the Defe ndan t then b egan walkin g to the door, a ll the wh ile
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telling the victim, “I will get you. . . . I’m gonna get you. . . . I dare you to come out in the street.” Garmon told him to stop threatening the victim and threatened to call the police. Garmon testified that when the Defendant left, he go t into his truck, backed very quickly out of the driveway, went up the street to ge t “a start,” and then drove back. However, on the way back toward the house, he appa rently lost control of his truck and drove into a ditch. Garmon then called the police.
Officer Ben Duncan of the South Fulton Police Department answered the call. He testified that he was dispatched to an accident and observed the Defe ndan t’s truck in a creek near Garm on’s home when he arrived. He stated that no one was in the truck when he arrived. Duncan also testified that he spoke with bo th the vic tim and Garm on and sa id that their testimony in co urt mirrored what they had told him on the night of the incident. He described the victim as “very upset and scared” when he arrived at Ga rmon ’s home and testified that he noted the cut on her left palm. He also collected a knife, which he found on the kitchen floor. In addition, Duncan reported that he and two other officers present at the scene “heard a scuffle of someone getting into a fight down the street about two doors down . . . , and it was [the Defen dant],” wh om the y then too k into custody.
The Defendant presented a different version of the events that occurred on the night of March 27, 1998 and during the early morning hours of March 28, 1998. He testified that he stopped by Garmon’s house that evening and knocked on the door. He stated that the victim answered the door, invited him in, and they began to converse while she cooked. He testified that he noticed a pack of
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cigars on the kitchen table and went to ask Garmon if he could have one. Howeve r, he claimed that as he headed to Garmon’s room, he changed his mind, deciding that he did not want a cigar, and went back to the kitchen instead. He denied stopping at Garm on’s bath room.
The Defendant maintained that when he arrived back at the kitchen, “things seemed to go haywire.” He claimed that he and the victim got into an argument about something “stupid,” although h e could not rec all precisely why they we re arguing. He testified that the victim then asked him to leave. He responded that he did not have to leave because it was her grandmother’s house. He stated that the second time the victim told him to leave, she grabbed a knife from the table, held it in her raised hand , pointed it toward him, and approached him. He reported that he did not believe that he could back away from her, so he grabbed her by the w rist to de fend h imself. He te stified that the y struggle d for the kn ife in the presence of Garmon. He claimed that the victim cut herself when she attempted to transfer the knife fro m her rig ht hand to her left hand. He reported that when she cut herself, she droppe d the knife . Accord ing to the D efenda nt, when the victim dropped the knife, he backed away and left the house.
The Defendant maintained that he never held th e knife in his hand, that he never threatened the victim, and that he never had any intention of hurting the victim. He stated, “I’m sorry that it ever happened . . . but, you know, it wasn’t my fault.” The Defendant explained that when he left the house , he was ang ry and upset and therefore drove too fast. He also explained that when he backed out of the driveway, he was unable to turn his truck around, so he had to drive up the street to reverse directions and then drive back by Garmon’s home. He claimed
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that because it was dark and he was driving fast, he couldn’t “get the truck to turn and it locked up.” T his cau sed h im to drive in to the creek. On cross- examination, the Defendant admitted that he had plea ded gu ilty to the crime of burglary in 1996.
SENTENCING HEARING
At the sentencing hearing, Dale Green of the Tennessee Department of Corrections testified about the Defendant’s prior criminal record. He stated that he had filed th e prese ntence report in th is case. Green reported that the Defendant had been previously convicted of burglary and second degree burglary in California, both in 1996. The presentence report indicates that the second degree burglary offense is a felony in California but was treated as a misdemeanor for sen tencin g purp oses . The r eport a lso ind icates that “the re is no question Defen dant wa s still on prob ation wh en the ins tant offens e occu rred.” Furthermore, Green reported that the Defendant had also been convicted of both assau lt, in 1998, and harassment, in 1997, in the Obion County General Sessio ns Cou rt.
Derrick Hayes , a lifelong frien d and fo rmer co worker o f the Defe ndant, testified that the Defendant is a truthful and nonviolent person. However, Hayes admitted on cross-examination that he was unaware the Defendant had been recently convicted o f assault against D efendant’s fathe r.
The Defendant testified on his own behalf at the sentencing hearing. He testified that he was presently incarcerated for ninety da ys in the O bion Co unty jail for assault against his father. He explained that he and his father “had an
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altercation .” The Defendant also testified that he had b een e mplo yed pr ior to his incarceration and that he had a lways tried to maintain steady employment. He claimed that he had abided by the terms of his probation for his California conviction and had n ever been b rought into cou rt for a viola tion of h is probation.
The Defendant further testified that he had advised his probation officer of his move to Tennessee. However, on cross-examination, he conceded that although he was req uired to report to his pro bation officer any new criminal charges, convictions, or arrests, he had not reported this conviction as of the time of sentencing. He blamed his failure to do so on losing the pro bation officer’s business card. W ith rega rd to his alterca tion with the victim, he stated he “regret[ted ] that it ever ha ppene d.”
I. SUFFICIENCY OF THE EVIDENCE The Defendant first argues that the evidence presented at trial is insufficient to suppo rt his convic tion. Althou gh the D efenda nt was ch arged w ith aggravated assault, a C lass C fe lony, see Tenn. C ode Ann . § 39-13-102 (a)(1)(B), (d), he was convicted of the lesser included offe nse of reckless aggravated assa ult by use o f a dead ly weapo n, a Clas s D felon y. See Tenn . Code Ann . § 39-13-102 (a)(2), (d). In order to supp ort the D efend ant’s conviction for reckless aggravated assa ult, the S tate m ust ha ve pro ven tha t the D efend ant rec klessly caused bodily in jury to th e victim by use of a de adly weapo n. See Tenn. Code Ann. § 39-13 -101(a)( 2)(B). “Bo dily injury” includ es a cut. Tenn . Code Ann. § 39- 11-106 (a)(2).
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Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P . 13(e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State, 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re- weigh or re-evaluate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
In this case, the State presented the tes timon y of two witnes ses, th e victim and her grandmother, indicating that the Defendant picked up a knife and threatened the victim with it. According to both the victim an d her grand mother, the victim entered into a struggle, later accompan ied by he r grandm other, with the Defendant for possession of the knife. The victim testified that she grappled
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for the knife in order to protect herself and her child, and that during the struggle, she was cu t. This is clearly s ufficien t eviden ce from which a jury co uld conclude that the Defendant was guilty of reckless aggravated assault by a use of dea dly weapo n.
Testimony by the Defendant indicating that he did not initiate the struggle, threaten the victim, or actually hold the knife was also presented to the jury, and apparently, the jury dismissed the Defendant’s testimony as dubious. We will not disturb this conclusion on appeal. Viewing the evidence in the light most favorable to the State , we co nclud e that th e evide nce p resen ted at tria l is sufficient to support the Defendant’s conviction.
II. SENTENCING
The Defendant next argues that his sentence of three years as a Range I stand ard offe nder is impro per an d that th e trial court erre d by de nying h im alternative sentencing in the form of split confinement. He contends that the use of “shock incarcera tion” followed by “intensive probation” would have been a more appropriate disposition of this case.
When an accused challenges the length, range, or manner of service of a sentence, this Cou rt has a du ty to conduct a de novo review of the senten ce with a presumption that the determinations made by the trial cour t are corre ct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).
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When conducting a de novo review of a senten ce, this Co urt must consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sen tence even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ).
The Defendant concedes, and we agree, that the trial judge in this case conducted on the record a thorough review of the facts and circumstances of the case, an analysis of the enhancement and mitigating factors, and a review of the principles of sentencing, thereby fulfilling his role in the sentencing process. Our standard of review is thus de novo with a presumption of correctness.
The trial judge noted that the Defendant, as a standard offender convicted of a Class D felony, was presumed a favorable candidate for alternative sentencing in absence of eviden ce to the c ontrary. See Tenn. Code Ann. § 40-
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35-102(5), (6). However, the trial judge also noted the sentencing considerations codified at Tennessee Code Annotated § 40-35-103 and concluded that “the State . . . proved [two of] these c onside rations. N umb er 1(A ), confin eme nt is necessa ry to protect society by restraining a defendant who has a long history of criminal conduct; and also 1(C), measures less restrictive than confinement have been applied u nsucce ssfully to the defenda nt.” See Tenn. Code Ann. § 40-35- 103(1)(A), (C). In support of his conclusion, the judge pointed to the D efend ant’s four previous convictions, all of which had occurred over the two years previous to sentencing and two of which were crimes similar to this crime, assault and harass ment. 1
In cons idering the De fenda nt’s su itability for full probation, the trial judge emphasized that in order to warrant such a sentence, a defendant must dem onstra te that fu ll proba tion will serve the ends of justice in the best interest of both th e pub lic and the Defen dant. The judge first considered the nature of the crime, which he characte rized as “a n unpro voked a ttack upo n the victim , a female, by the use of a knife.” The judge also emphasized that the Defendant had previously received probation for prior convictions and stated that “the Co urt would look to the prior efforts at rehab ilitation . . . , and tha t has not w orked.” Therefore, the judge concluded that the Defen dant wa s not a pro per can didate for alternative sentencing and not entitled to probation.
Finally, after consideration of enhancement and mitigating factors, the trial judge applied one e nhancem ent factor, “[t]he defend ant has a pre vious history
1 The Defendant was only twenty-one years old at the time of sentencing.
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of criminal convictions or crim inal beha vior in additio n to those neces sary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1). The judge denied application of all mitigating factors suggested by the defense. Therefore, applying one enhancement factor, the judge increased the presumptive sentence for the Defendant’s crime by one year, thus establishing a three year sentence.
The trial court conducted an exemplary review of the facts and circumstances of the case and consideration of the principles of sentencing. Based upon our thorough review of the record and careful consideration of the findings of the trial court, we conclude that the Defendan t has failed to demo nstrate that the sente nce he received is improp er. W e therefore affirm the sentence imposed.
The jud gmen t of the trial cou rt is accord ingly affirme d.
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DAVID H. WELLES, JUDGE
CONCUR:
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THOMAS T. WOODALL, JUDGE
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NORMA McGEE OGLE, JUDGE