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
-2- 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.
-3- 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
-4- 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
-5- 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
-6- 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
-7- 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).
-8- 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
-9- 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).
-10- 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-
-11- 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.
-12- 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.
____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ THOMAS T. WOODALL, JUDGE
___________________________________ NORMA McGEE OGLE, JUDGE
-13-