                                                                                         07/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              February 22, 2017 Session

            STATE OF TENNESSEE v. CHARLES EDWARD DAY

                 Appeal from the Circuit Court for Anderson County
                     No. B2C00571 Donald R. Elledge, Judge


                            No. E2016-00632-CCA-R3-CD


The defendant, Charles Edward Day, appeals his Anderson County Circuit Court jury
conviction of reckless aggravated assault, claiming that the trial court erred by admitting
certain evidence at trial, that the State committed prosecutorial misconduct during closing
argument, that the evidence was insufficient to support his conviction, that the sentence
imposed was excessive, and that the cumulative effect of these errors prevented him from
receiving a fair trial. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Tom Marshall, Assistant District Public Defender, for the appellant, Charles Edward
Day.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             The Anderson County Grand Jury charged the defendant with one count of
the aggravated assault of the victim, Toni Roberts. The trial court conducted a jury trial
in March 2015.

             The State’s proof at trial established that the victim was working as a
registered nurse in the Intensive Care Unit (“ICU”) of Methodist Medical Center
(“MMC”) on the night of June 8, 2012. On that date, the defendant was an ICU patient at
MMC. At some point that evening, the victim saw the defendant loudly arguing with his
ICU nurse, Alexander Pierce; the victim was unsure, but she believed that the defendant
was wearing restraints during the argument. Mr. Pierce recalled that the defendant had
experienced periods of agitation and restlessness earlier in the evening. Shortly before
midnight, the victim observed the defendant standing by his hospital bed and attempting
to free himself from his wrist restraints. The victim informed Mr. Pierce of the situation,
and Mr. Pierce entered the defendant’s hospital room to instruct the defendant to return to
the bed. Mr. Pierce testified that, despite the defendant’s agitation, the two were still able
to communicate clearly, and he stated that the defendant understood the directions he was
given. During this time period, the victim “heard some commotion and some cussing and
some struggling,” and she and other nurses, including Katherine McDowell, entered the
room to assist. Ms. McDowell recalled that the defendant was behaving “[v]ery
aggressive[ly].”

              Because the defendant had managed to position his entire body near the
foot of the bed, Mr. Pierce and Ms. McDowell attempted to reposition the defendant
while the victim stood at the foot of the bed as “backup.” The defendant was “cussing,
threatening, [and] saying obnoxious things to everyone” during this process. As soon as
the defendant’s wrist restraints were removed to reposition him, the defendant, while
jerking his arms back and forth, lifted his legs, looked the victim “dead in the eye,” and
kicked her below her chin. Both Mr. Pierce and Ms. McDowell witnessed the
defendant’s kicking the victim in the face. The force of the impact caused the victim’s
body to go airborne, and she landed on her left side 15 to 20 feet away near the nurses’
station. She immediately experienced “excruciating pain” in her hip, pelvic area, and
legs before her legs “went numb.” At that point, she believed that she was paralyzed.
Unable to stand, she was transferred to a wheelchair and taken to the emergency
department. The victim saw a specialist for her injuries and was out of work for four
months before returning on light duty for two months.

               Mr. Pierce confirmed that ankle restraints were not placed on the defendant
until after he had kicked the victim, and Ms. McDowell testified that she overheard the
defendant say that he “wasn’t meaning to kick [the victim]” but he “was trying to kick
that big guy.”

              Officer Max Smith testified that, on June 9, 2012, he was working for the
Oak Ridge Police Department when he was dispatched to MMC shortly after midnight to
investigate an assault. Officer Smith observed the victim in the emergency department
and saw that she was “physically shaken” and “emotionally disturbed.” When Officer
Smith visited the defendant in his ICU room, he asked the defendant what had happened,
and the defendant responded that “he had done something bad,” that he “thought it was a
man and not a woman,” and that “he hope[d] she’s okay.” Officer Smith testified that the
defendant seemed “sleepy” but that he had no trouble communicating with him. On cross
                                             -2-
examination, Officer Smith conceded that he saw no visible physical injuries to the
victim.

              Doctor Michael O’Brien, an orthopedic surgeon, testified as an expert
witness in the field of orthopedic surgery and orthopedics. Doctor O’Brien treated the
victim following her injury and ordered two magnetic resonance imaging (“MRI”) tests.
His review of the MRIs revealed that the victim’s pelvis was broken in three places and
that her abductor tendon was torn. Doctor O’Brien stated that such injuries are “usually
quite painful” and cause difficulty in walking and sleeping. With respect to her recovery
time, Doctor O’Brien testified that the victim’s bones had healed by December 2012 but
that she was still experiencing residual pain. Doctor O’Brien described the injury as
“serious” and stated that it was “consistent” with the victim’s description of the
defendant’s assault. Doctor O’Brien conceded that the victim was suffering from
osteoporosis at the time of her injury, which would cause her to be more susceptible to
broken bones, but he stated that the osteoporosis would not have slowed the victim’s
healing process and would likely not have contributed to the victim’s torn tendon.

               With this evidence, the State rested. Following the trial court’s denial of
the defendant’s motion for judgment of acquittal and a Momon colloquy, the defendant
elected to testify and to put on proof.

              Diane Day, the defendant’s mother, testified that the defendant was taken to
a Loudon County hospital in June 2012 following “an overdose” and that he was later
transferred to the ICU at MMC. Ms. Day was “pretty sure” that she had visited the
defendant on June 8 at 3:30 p.m. and that he was “not himself.” When Ms. Day asked the
defendant what he was doing that day, the defendant had responded that he was “just
shopping here at Walmart picking up a few things for the girls.” Ms. Day also believed
that, based on his behavior, the defendant did not recognize her or other family members
who visited him that day.

              Sharon McClain, the defendant’s fiancée, testified that she visited the
defendant at 5:30 p.m. on June 8 and that he did not appear to recognize her.

              The defendant testified that he had overdosed on Seroquel and Vicoplin.
The defendant clarified that he had been prescribed Vicoplin but not Seroquel. The
defendant testified that he recalled taking both medications and “walking over to the
garbage can” on June 3 and that he recalled nothing until he awoke in the hospital on
June 11. The defendant remembered nothing about his time in the ICU and did not recall
kicking the victim. The defendant stated that he “was shocked” and “felt bad” when he
learned what he had done because he “[doesn’t] act like that.”

                                           -3-
               Doctor Edgar Diaz, a hospitalist with MMC and Roane Medical Center,
testified as an expert witness in the field of internal medicine and hospital medicine.
Doctor Diaz first encountered the defendant on June 10 when the defendant was moved
out of ICU to a regular hospital room. Doctor Diaz diagnosed the defendant as suffering
from acute encephalopathy, which he defined as confusion or a lack of orientation “to
self, to what time it is, to what day it is.” To treat the defendant, Doctor Diaz prescribed
Librium, a sedative typically used “to alleviate withdrawal symptoms,” and Dilantin, an
anti-seizure medication. Doctor Diaz discharged the defendant “two or three days” later,
deeming him medically able to return home.

               On cross-examination, Doctor Diaz acknowledged that the defendant’s
discharge summary from Loudon Medical Center indicated that the defendant’s urine
screen was positive for cocaine, marijuana, and opiates. Doctor Diaz agreed that the
MMC discharge summary stated that the discharging physician “‘after a thorough
evaluation of patient and patient’s history, did concur that the patient’s symptomatology
was most likely secondary to poly substance abuse, slash, overdose, slash, withdrawal.’”
Doctor Diaz agreed that the summary indicated that the defendant’s medical issues were
due in part to an overdose and withdrawal from narcotics.

               On redirect examination, Doctor Diaz stated that Seroquel was an anti-
psychotic medication primarily used to treat bipolar disorder and that the defendant
suffered from bipolar disorder. With respect to the symptoms of withdrawal following an
overdose of Seroquel, Doctor Diaz opined that patients could be “very agitated, their
heart rate can be high, [and] blood pressure would be high.” Doctor Diaz also agreed that
a patient experiencing withdrawal symptoms typically would be “resistant and hostile and
combative” prior to receiving sedatives.

              Based on this evidence, the jury convicted the defendant of the lesser
included offense of reckless aggravated assault. Following a sentencing hearing, the trial
court sentenced the defendant as a standard offender to a term of four years’
incarceration. Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal.

              In this appeal, the defendant contends that the trial court erred by admitting
certain evidence at trial, that the State committed prosecutorial misconduct during closing
argument, that the evidence was insufficient to support his conviction, that the sentence
imposed was excessive, and that the cumulative effect of these errors prevented him from
receiving a fair trial. We will address each issue in turn.




                                            -4-
                            I. Admission of Witness Testimony

               The defendant first contends that the trial court erred by permitting Doctor
Diaz to testify about the defendant’s prior illegal drug use.

               Outside the presence of the jury, the prosecutor questioned Doctor Diaz
about the notes in his discharge summary, which indicated that the defendant’s urine
screen, upon his admission to MMC, was positive for cocaine, carotenoids, and opiates.
Doctor Diaz confirmed that his evaluation of the defendant’s history convinced him that
the defendant’s “symptomatology . . . was likely secondary to the poly substance abuse,
overdose and withdrawal.” At the conclusion of this testimony, the prosecutor argued
that this testimony should come before the jury both as evidence of the defendant’s
voluntary intoxication and his lack of credibility in that he had failed to mention having
taken cocaine and marijuana prior to his June 3 overdose. Defense counsel responded
that such testimony was improper evidence of prior bad acts under Tennessee Rule of
Evidence 404(b). The trial court ruled as follows:

              [The defendant] said he took two medications; one with
              prescription and one without. Nowhere did he mention
              [c]ocaine or cannabis, nowhere. And, to me, especially when
              he’s up here and we have testimony of statements that he has
              made that he didn’t mean to kick the woman, he was trying to
              kick the man and the knowledge. And then when he testifies
              that he doesn’t remember anything about this and he testifies
              that he had a prescription for one of these drugs and said that
              to the trier of fact and just happens to omit the fact that he
              says [c]ocaine and cannabis. I think that strongly goes to the
              issue of credibility. Strongly goes to the issue. Because the
              witnesses that we have in support of him [are] his mother and
              his fiancé[e]. And the jury will take whatever decision that
              they believe is appropriate based upon the relationship that
              they have and their own ability to observe their testimony and
              how they testify and what they said. But specifically as it
              pertains to the defendant, what he testified to this [c]ourt is
              inconsistent with what his medical records show, by his own
              expert.

                     ....

                    The drugs that [the defendant] testified he took I didn’t
              even hear mentioned from your expert. I didn’t hear him
                                           -5-
                mention either of those drugs that he said he had and one of
                which he said he had a prescription for. So there’s a huge
                issue of credibility that I think is important for the jury. I
                really do. I will overrule your objection. I will allow the
                questions as asked. It bothers the [c]ourt because it boils
                down to an issue of credibility with the jury. What your
                client has said under oath as the defendant, his mother and his
                fiancée. And whether he did or didn’t remember anything,
                whether he knew or didn’t know what he was doing. And
                when he testifies, yeah, I took this and that’s the last thing I
                remember. And didn’t even mention any of these drugs and
                the doctor hasn’t even mentioned any of the two that he
                testified to. That bothers the [c]ourt. So it’s his day in court,
                it’s his expert witness.

When the jury returned to the courtroom, Doctor Diaz testified as he had during the jury-
out hearing.

              On appeal, the defendant argues that this prior bad act evidence was
admissible through one of two avenues, either through Tennessee Rule of Evidence
608(b) or Rule 404(b), and that the evidence at issue did not qualify for admission under
either rule.1 The State responds that the evidence was properly admitted for
impeachment under Rule 608(b) and that, in any event, the evidence at issue was
probative of the defendant’s motive and intent under Rule 404(b).



1
          In circumscribing the issue of admitting the testimony in question, the defendant did not mention
fact contradiction as a theory for admission, and the State did not advance such a theory in support of
admission. We note, however, that the trial court articulated the defendant’s credibility as the target for
Doctor Diaz’s testimony. The court’s language bespeaks contradiction of fact as the operative
mechanism for impeachment of the defendant. “Through fact contradiction, a cross-examining party
inquires about facts that conflict with the witness’s testimony to show indirectly that the witness is
untruthful.” State v. Jeremy Sims and Sherry Brookshire, No. W2013-01253-CCA-R3-CD, slip op. at 20
(Tenn. Crim. App., Jackson, Sept. 25, 2015). Fact contradiction is a long-standing impeachment device
that is indigenous to cross-examination and enjoys implied currency in our rules of evidence; it emanates
simply from the power to attack a witness’s credibility as expressed in Tennessee Rule of Evidence 607.
Id.; see Neil P. Cohen et al., Tennessee Law of Evidence § 6.07[4][a] (6th ed. 2011). An obvious
problem in using a fact-contradiction theory is that the defendant did not testify that he did not use
cocaine or marijuana prior to the overdose on June 3; rather, the trial court was bothered merely by the
defendant’s failure to acknowledge this drug usage. The trial court apparently believed that evidence of
this drug usage contradicted the defendant’s omission of fact. We are not convinced that this situation
justified admission of the evidence as a matter of fact contradiction. At any rate, this avenue to
impeachment was not raised by the parties on appeal, and we determine that any such claim is waived.
                                                     -6-
              Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity with the character trait.” The rationale underlying the general
rule is that admission of such evidence carries with it the inherent risk of the jury’s
convicting the defendant of a crime based upon his bad character or propensity to commit
a crime, rather than upon the strength of the evidence. State v. Thacker, 164 S.W.3d 208,
239 (Tenn. 2005).

              Notwithstanding the general rule, evidence of a defendant’s prior crimes,
wrongs, or acts may be admissible when it is probative of material issues other than
conduct conforming with a character trait. Tenn. R. Evid. 404(b). Thus, evidence of a
defendant’s character may become admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. Id.; Thacker, 164 S.W.3d at
239. To admit such evidence, the rule specifies four prerequisites:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine whether that a material issue
              exists other than conduct conforming with a character trait
              and must upon request state on the record the material issue,
              the ruling, and the reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or
              act to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value
              is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

               In reviewing a trial court’s decision to admit or exclude evidence under
Rule 404, an appellate court may disturb the trial court’s ruling only if there has been an
abuse of discretion. Thacker, 164 S.W.3d at 240. The trial court’s determination is
entitled to deference when it has substantially complied with the procedural requisites of
Rule 404(b). See State v. DuBose, 953 S.W.2d 649,652 (Tenn. 1997). If, however, the
strict requirements of the rule are not substantially observed, the reviewing court gives
the trial court’s decision no deference. Id.

              Tennessee Rule of Evidence 608 provides, in pertinent part, as follows:

                                           -7-
Specific instances of conduct of a witness for the purpose of
attacking or supporting the witness’s character for
truthfulness, other than convictions of crime as provided in
Rule 609, may not be proved by extrinsic evidence. They
may, however, if probative of truthfulness or untruthfulness
and under the following conditions, be inquired into on cross-
examination of the witness concerning the witness’s character
for truthfulness or untruthfulness or concerning the character
for truthfulness or untruthfulness of another witness as to
which the character witness being cross-examined has
testified. The conditions which must be satisfied before
allowing inquiry on cross-examination about such conduct
probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the
jury’s presence and must determine that the alleged conduct
has probative value and that a reasonable factual basis exists
for the inquiry;

(2) The conduct must have occurred no more than ten years
before commencement of the action or prosecution, but
evidence of a specific instance of conduct not qualifying
under this paragraph (2) is admissible if the proponent gives
to the adverse party sufficient advance notice of intent to use
such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence and the court
determines in the interests of justice that the probative value
of that evidence, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect;
and

(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable
written notice of the impeaching conduct before trial, and the
court upon request must determine that the conduct’s
probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues. The court may rule on the
admissibility of such proof prior to the trial but in any event
shall rule prior to the testimony of the accused. If the court
makes a final determination that such proof is admissible for
impeachment purposes, the accused need not actually testify
                             -8-
              at the trial to later challenge the propriety of the
              determination.

                     The giving of testimony, whether by an accused or by
              any other witness, does not operate as a waiver of the
              witness’s privilege against self-incrimination when examined
              with respect to matters which relate only to character for
              truthfulness.

Tenn. R. Evid. 608(b).

               In the instant case, the trial court, although finding that the evidence of the
defendant’s use of cocaine and marijuana prior to his June 3 overdose was admissible on
the issue of credibility, failed to find that the probative value of the evidence outweighed
the danger of unfair prejudice. Moreover, the State failed to give the defendant pretrial
written notice of its intent to use the evidence, and the issue was not, as required by Rule
608, addressed “prior to the testimony of the accused.” Tenn. R. Evid. 608(b)(3). In fact,
the defendant was never asked if he had taken any additional drugs prior to his June 3
overdose. Finally, and perhaps most importantly, extrinsic evidence of the defendant’s
drug use offered through the testimony of Doctor Diaz was clearly inadmissible under
Rule 608. Because the conditions of Rule 608 were not satisfied, the evidence of the
defendant’s cocaine and marijuana use was not properly admitted as impeachment
evidence under that rule.

               With respect to admission of the drug evidence under Rule 404(b),
credibility is not one of the identified “other purposes” in the rule. See Tenn. R. Evid.
404(b); Thacker, 164 S.W.3d at 239-40. Furthermore, the trial court failed to make the
requisite finding that the evidence of the defendant’s illegal drug use was “clear and
convincing.” Tenn. R. Evid. 404(b)(3). The requirements of Rule 404(b), like those of
Rule 608(b), were therefore not substantially observed, and the trial court abused its
discretion in admitting into evidence Doctor Diaz’s testimony regarding the presence of
cocaine and marijuana in the defendant’s system.

               That said, considering the defendant’s claim of voluntary intoxication and
lack of awareness or memory of inflicting the assault, the admission of this evidence of
additional drug use was just as likely to have influenced the jury’s decision to convict the
defendant of the lesser included offense of reckless aggravated assault, and given the
substantial proof of the defendant’s guilt, as will be discussed more fully herein, any error
attendant to the admission of this evidence was harmless. See Tenn. R. App. P. 36(b).



                                             -9-
                               II. Prosecutorial Misconduct

              The defendant next contends that the prosecutor committed misconduct
during closing argument by stating that an acquittal of the defendant “would have the
effect of shutting the courtroom down.” The State responds that the prosecutor was
simply “emphasiz[ing] the self-serving and flimsy quality of the defendant’s claim of
memory loss.”

              During closing argument, the prosecutor made the following statements:

              You know, just because [the defendant] doesn’t remember
              doesn’t mean that he’s not guilty. If the defense of “I don’t
              remember” was a good defense, we could shut this courtroom
              down because from this day forward it’s “I just don’t
              remember.” That’s not a defense. The defense is what
              happened and what was the proof.

At that point, defense counsel requested a bench conference, whereupon he objected to
the prosecutor’s use of the phrase “shut this courtroom down.” The prosecutor responded
that he was merely arguing that such a lack of memory in defendants “would mitigate the
entire justice system.” The trial court noted but overruled the defendant’s objection, and
closing arguments continued without further objection.

              Despite the discretion afforded trial courts in determining the propriety of
closing argument, judges must nevertheless take care to restrict improper argument. State
v. Hill, 333 S.W.3d 106, 130-31 (Tenn. Crim. App. 2010) (citing Sparks v. State, 563
S.W.2d 564, 569-70 (Tenn. Crim. App. 1978)). Because of the State’s unique role in a
criminal case, the State, in particular, “must refrain from argument designed to inflame
the jury and should restrict its commentary to matters in evidence or issues at trial.” Hill,
333 S.W.3d at 131. We have consistently held that closing argument for both parties
“‘must be temperate, must be predicated on evidence introduced during the trial of the
case, and must be pertinent to the issues being tried.’” Id. (quoting State v. Sutton, 562
S.W.2d 820, 823 (Tenn. 1978)). Even inappropriate closing argument will not warrant a
new trial unless it was so inflammatory or improper as to affect the verdict. Hill, 333
S.W.2d at 131 (quoting Harrington v. State, 385 S.W.2d 758, 759 (1965)). An appellate
court considering the propriety of closing argument examines the following factors:

              (1) The conduct complained of viewed in the context and in
              light of the facts and circumstances of the case[;]

              (2) [t]he curative measures undertaken by the court and the
                                            - 10 -
              prosecution[;]

              (3) [t]he intent of the prosecutor in making the improper
              statements[;]

              (4) [t]he cumulative effect of the improper conduct and any
              other errors in the record [; and]

              (5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

               Applying these factors to the instant case, we conclude that, in viewing the
conduct of the prosecutor in the context of the closing arguments, the prosecutor was not,
as advanced by the defendant, improperly “injecting issues broader than the guilt or
innocence of the accused under the controlling law,” see State v. Goltz, 111 S.W.3d 1, 6
(Tenn. Crim. App. 2003); rather, the prosecutor was simply commenting on the lack of
weight that a defense based on lack of memory carries. With respect to curative
measures, the trial court overruled the defendant’s objection, finding that the prosecutor’s
argument was not inappropriate, thus obviating any need for curative measures, and the
prosecutor made no further references to the defendant’s lack of memory. The third
factor, that of the prosecutor’s intent, weighs in favor of the State. We discern no malice
in the prosecutor’s statements. The cumulative effect of the conduct was fleeting.
Finally, when viewing the prosecutor’s statement against the strength of the case, we
conclude that the evidence against the defendant was extremely strong and that the issue
forming the basis of the defendant’s complaint was not a central part of the defense.

             Taking all of these factors together, we find that the defendant has failed to
demonstrate that the prosecutor engaged in any misconduct.

                                      III. Sufficiency

              Next, the defendant asserts that the evidence adduced at trial is insufficient
to support his conviction of reckless aggravated assault. We disagree.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
                                            - 11 -
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State 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.
Id.

              “A person commits aggravated assault who . . . [r]ecklessly commits an
assault as defined in § 39-13-101(a)(1), and the assault . . . [r]esults in serious bodily
injury to another.” T.C.A. § 39-13-102(a)(1)(B)(i). Code section 39-13-101(a)(1)
provides that a “person commits assault who . . . [i]ntentionally, knowingly or recklessly
causes bodily injury to another.” Id. § 39-13-101(a)(1). “Serious bodily injury” includes
“bodily injury that involves . . . [e]xtreme physical pain . . . [or] . . . [p]rotracted loss or
substantial impairment of a function of a bodily member.” Id. § 39-11-106(a)(34)(C),
(E). Finally, “reckless” is defined as follows:

              [A] person acts recklessly with respect to circumstances
              surrounding the conduct or the result of the conduct when the
              person is aware of, but consciously disregards a substantial
              and unjustifiable risk that the circumstances exist or the result
              will occur. The risk must be of such a nature and degree that
              its disregard constitutes a gross deviation from the standard of
              care that an ordinary person would exercise under all the
              circumstances as viewed from the accused person’s
              standpoint.

Id. § 39-11-106(a)(31).

                Here, the proof adduced at trial established that the defendant, while being
repositioned in his hospital bed, looked the victim directly in the eye, lifted both legs, and
kicked her beneath her chin. The force of the impact caused the victim to go airborne and
land on the floor outside the defendant’s hospital room. The victim immediately felt
“excruciating pain” and initially believed she had been paralyzed. Doctor O’Brien
testified that the victim had broken her pelvis in three places and had torn her abductor
tendon, injuries which are “usually quite painful.” The victim was out of work for four
months before returning to light duty for two months. Both Ms. McDowell and Officer
                                             - 12 -
Smith testified that the defendant had stated that he had intended to kick the male nurse
rather than the victim. Although the defendant denied remembering anything that had
occurred during his time in the ICU, such matters of witness credibility and evidentiary
weight are within the exclusive province of the trier of fact, and this court will not
reweigh such evidence. See Dorantes, 331 S.W.3d at 379.

              Viewing this evidence in the light most favorable to the prosecution, we
hold that the evidence adduced at trial sufficiently established that the defendant was
aware of but consciously disregarded the substantial and unjustifiable risk that the victim
would be seriously injured. Accordingly, the evidence strongly supports the defendant’s
conviction of the lesser included offense of reckless aggravated assault.

                                      IV. Sentencing

             Next, the defendant contends that the trial court abused its discretion by
imposing the maximum available sentence. Again, we disagree.

               Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

              The imposition of a four-year sentence in this case mandated the trial
court’s consideration of probation as a sentencing option. See T.C.A. § 40-35-303(a),
(b). Traditionally, the defendant has borne the burden of establishing his “suitability for
full probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A.
§ 40-35-303(b). Such a showing required the defendant to demonstrate that full
probation would “‘subserve the ends of justice and the best interest[s] of both the public
and the defendant.’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)
(quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds
by State v Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). The supreme court later expanded
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the holding in Bise to the trial court’s decision regarding probation eligibility, ruling “that
the abuse of discretion standard, accompanied by a presumption of reasonableness,
applies to within-range sentences that reflect a decision based upon the purposes and
principles of sentencing, including the questions related to probation or any other
alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

              When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:

              (1) Sentences involving confinement should be based on the
              following considerations:

              (A) Confinement is necessary to protect society by restraining
              a defendant who has a long history of criminal conduct;

              (B) Confinement 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) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant; . . . .

Id.

              At the conclusion of the sentencing hearing, the trial court issued its ruling
from the bench, basing its decision on consideration of the evidence adduced at trial and
at the sentencing hearing, the presentence report, evidence of enhancing and mitigating
factors, and the defendant’s potential for rehabilitation. The court determined that only
one mitigating factor applied: “that the defendant, though guilty, committed the offense
under such unusual circumstances that it was unlikely that a sustained intent to violate the
law motivated the criminal conduct.” See T.C.A. § 40-35-113(11). The court, however,
gave this mitigating factor “very little weight.” With respect to enhancement factors, the
court found that the defendant had a previous history of criminal convictions and
appeared to find that the defendant had previously failed to comply with the conditions of
a sentence involving release into the community. See T.C.A. § 40-35-114(1), (8). The
court emphasized that the defendant’s criminal history indicated that he would “not
follow state law” or “[c]ourt orders.” Because the trial court considered all relevant

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principles associated with sentencing, no error attends the imposition of this within-range
sentence.

               With respect to the defendant’s desire for probation, the court stated that the
defendant had “the most convictions that” the court had ever seen “for a defendant asking
for probation.” Although the trial court counted 22 convictions in the defendant’s
criminal history, we find a total of 19 prior convictions, including two prior violations of
probation, spanning nearly 25 years and beginning when the defendant was 18 years of
age. The trial court also noted that the defendant had violated his probation and served
90 days in jail during the time period in which he was released on bond in the present
case pending trial. The trial court further found that the defendant “either cannot comply
with the order[s] of the [c]ourt or will not comply with the orders of the [c]ourt” and that,
as a result, the defendant is “a threat to society.” Given the defendant’s lengthy criminal
history and the court’s concerns about the defendant’s failure to comply with court
orders, the trial court did not abuse its discretion by ordering a fully-incarcerative
sentence.

                                   V. Cumulative Error

              Finally, the defendant contends that the cumulative effect of the errors at
trial deprived him of the right to a fair trial. Having considered each of the defendant’s
issues on appeal and having found nonreversible error in only one issue with no other
existing errors to compound it, we need not consider the cumulative effect of the alleged
errors. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant assessment under
the cumulative error doctrine, there must have been more than one actual error
committed.”).

                                         Conclusion

              Based upon the foregoing analysis, we affirm the judgment of the trial
court.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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