        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2012

           STATE OF TENNESSEE v. LATICIA GAIL CAMPBELL

              Direct Appeal from the Circuit Court for Warren County
                     No. F-12425    Larry B. Stanley, Jr., Judge




              No. M2011-01261-CCA-R3-CD - Filed September 24, 2012


A Warren County Jury convicted Defendant, Laticia Gail Campbell, of reckless aggravated
assault. She received a sentence of three years, with split confinement, to serve 364 days and
the balance on probation, including twenty-four hours of public service work. On appeal,
Defendant argues: (1) that the evidence was insufficient to support her conviction; and (2)
that the trial court improperly sentenced her. After a thorough review, we affirm the
judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
PJ., and N ORMA M CG EE O GLE, J., joined.

Dan T. Bryant, District Public Defender; and Trenena G. Wilcher, Assistant Public Defender,
McMinnville, Tennessee, (on appeal); and Robert Peters, Winchester, Tennessee, (at trial),
for the appellant, Laticia Gail Campbell.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Lisa S. Zavogiannis, District Attorney General; Thomas J. Miner and Taffy Wilson,
Assistant District Attorneys General; for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       The victim, Joseph Lowery, testified that he and Defendant had been living together
approximately six months when they began having problems, and he asked her to move out
of the residence. Defendant did not move out of the residence but moved to a separate
bedroom. The victim testified that he kept a knife in a sheath under the mattress on his side
of the bed and that he also kept his cell phone in the bedroom. He said that Defendant would
try to sneak in the bedroom on her hands and knees in the dark to get his cell phone. She
used it to call his friends and “cuss them and want to know where [he] was all the time.” The
victim testified that he then began hiding his cell phone in his truck.

        The victim testified that on New Year’s Eve, December 31, 2009, he and his brother
planned to go out with some friends. They went to “Jack’s,” and while there, the victim
received phone calls from Defendant. He said, “She called me so much my battery went
dead.” The victim testified that Defendant was screaming “all kinds of stuff” and cursing.
The victim testified that he left Jack’s on January 1, 2010, and went to his brother’s house
where he passed out. He left his brother’s house between 8:00 to 9:00 a.m. and went home
to lie down because he was feeling sick. The victim testified that Defendant was cursing him
when he got home, and he went to bed. He said that Defendant was screaming and hollering
when he lay down, and “then she jerked the mattress and [threw] [him] and the mattress [off]
of the bed.” The victim said that he got up and put the mattress back on the bed and lay
down, and Defendant threw him and the mattress off the bed a second time. The victim again
placed the mattress back on the bed. He felt the mattress move a third time, and Defendant
stabbed him with the knife that he kept under the mattress.

       The victim testified that he raised his shirt and “there was blood coming everywhere.”
He went downstairs to his truck to get his cell phone to call 911, but the battery was dead.
The victim testified that he then went to his neighbor, Sheila Myers’, apartment to use her
phone. He said that Ms. Myers was scared and called 911 for him. The victim was still
bleeding, and he felt sick and weak. He was eventually transported to the hospital, and his
laceration was sewn up. The victim testified that he was supposed to receive additional x-
rays of the wound, and it would hurt and burn very badly when he worked. He said that he
was placed on pain medication.

        Sheila Myers testified that the victim had blood running down him when he showed
up at her door. He raised his shirt and said, “she stabbed me.” Ms. Myers called 911, and
while she was on the phone, Defendant walked to the top of the stairs. She told Defendant
to go back inside her apartment, and Defendant said, “I didn’t mean to hurt him. I just want
to see if he’s okay.” Defendant then went back inside the apartment. Ms. Myers told her
daughter to get a towel, and Ms. Myers held pressure on Defendant’s wound until an
ambulance arrived. Ms. Myers testified that Defendant appeared to be “panicked a little bit,”
and he broke out in a sweat and turned “ashy looking.” She also said that the blood soaked
through Defendant’s shirt, ran down his body, and dripped from the toe of his boots.




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        Deputy John Bratton of the Warren County Sheriff’s Department testified that he was
dispatched to the Lakewood Apartments at approximately 9:35 a.m. He arrived and found
the victim, who was being assisted by Ms. Myers, sitting on the bottom steps “holding his
chest and a great deal of blood on the ground and in front of him.” The victim said that his
girlfriend had stabbed him. After an ambulance and another officer arrived, Deputy Bratton
walked upstairs to the victim’s and Defendant’s apartment to speak with Defendant. Deputy
Bratton testified that when he went in, Defendant walked out of a side room and “blurted out
I stabbed him, but I didn’t mean it.” Defendant then directed Deputy Bratton to a knife in
a sheath that was “stuck between the mattresses at the foot of the bed” in a bedroom on the
left. Deputy Bratton recovered the knife and took Defendant into custody. He then
transported her to jail, and she gave a written statement, which was not introduced into
evidence at trial.

        Defendant testified that she and the victim began dating in January of 2008, and she
moved in with him in October of 2008. She said that the victim’s name was on the lease for
their apartment, and she paid half of the rent. She also paid for groceries and the utilities.
Defendant testified the victim was an alcoholic, and his behavior changed when he drank.
She said that she and the victim slept in the same bed until the week before the assault.
Defendant admitted that the victim’s behavior had changed in that he was staying out all
night, was being secretive, and hiding his cell phone. She denied taking his phone or calling
his friends. Defendant testified that she and the victim discussed going out together on New
Year’s Eve, but he was already gone when she arrived home from work that evening. She
admitted that she called the victim several times, and he finally called her back at 12:01 a.m.
to say “[H]appy New Year.”

       Defendant testified that she went to bed in the spare bedroom, and the victim came
home the next morning at approximately 8:30 to 9:00 a.m. and slammed the door waking her
up. Defendant testified that she was upset, and the victim went into the bedroom and
attempted to take his pants off over his boots. She said that she and the victim began arguing,
and he pulled his pants back up, “went to the kitchen, got a cigarette, went back to smoking,
went and laid back on the bed then.” Defendant testified she and the victim continued
arguing, and he grabbed himself and said, “suck this, bitch.” She said:

       I was just frustrated at the situation at hand. [The victim] was laying on the
       bed, I was standing beside it leaned up against the wall with my hands. When
       he said suck this, I went to grab his phone. And I only thought the phone was
       under the mattress because that was [the victim’s] routine. When he gets
       undressed he always put the phone under the headboard of the bed where his
       knife was. My intentions were to grab that phone and tell him to call whoever



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       he had been with the night before because that’s all he kept saying is [sic]
       grabbing himself. He was laying this way. When I went - - may I stand up?

       * * *

       When I went to bend down - - he’s like this. When I went (inaudible) he
       reached over with both his arms and grabbed me by this arm. When I went to
       grab the knife, thinking it was still in the cover, to pull up to stand back he had
       me, he was pulling. He went from a lay-down position to standing fully in
       front of me and then he fell back on the bed I guess realizing that he had been
       cut. He had me like this, keep in mind. I tried to stand up. He was grazed by
       the knife. By no means did I deliberately or intentionally rare back with a
       knife and stab this gentleman. I care for him. I’m not that kind of person.

       Defendant denied flipping the mattress with the victim on it. She said that she placed
the knife back in the sheath, and she guessed the victim ran out the door. Defendant said that
she put some clothes on, stepped outside, and saw the victim sitting at the bottom of the steps
with Ms. Myers. She denied telling Ms. Myers that she stabbed the victim or that she was
sorry for stabbing him. She claimed that she told Ms. Myers that she was sorry for the
“situation at hand for what it was.” Defendant testified that she grabbed the knife because
she did not know if the victim was “going to force [her] to give him oral sex.” She said that
the victim had acted with “force and violence” in the past, and she had reason to fear him.

II. Analysis

       I.      Sufficiency of the Evidence

       Defendant challenges the sufficiency of the evidence for her reckless aggravated
assault conviction. She argues that the State did not prove that she “consciously disregarded
an unjustifiable risk when she brandished the knife [the victim] kept beneath his mattress.”
When an accused challenges the sufficiency of the convicting evidence, our standard of
review is whether, after reviewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979). The trier of fact, not this Court, resolves questions concerning the credibility of
the witnesses, and the weight and value to be given the evidence as well as all factual issues
raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor
may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn.1978). On appeal, the State is entitled to the strongest legitimate view of the evidence
and all inferences therefrom. Id. Because a verdict of guilt removes the presumption of

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innocence and replaces it with a presumption of guilt, the accused has the burden in this
Court of illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and
circumstantial evidence should be treated the same when weighing the sufficiency of [the]
evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

       As relevant to the case sub judice, a person commits the offense of reckless
aggravated assault when he or she recklessly commits an assault as defined in Tennessee
Code Annotated § 39-13-101(a)(1) with the use of a deadly weapon. T.C.A. § 39-13-
102(a)(2)(B). A person commits an assault who “intentionally, knowingly or recklessly
causes bodily injury to another.” Id. § 39-13-101(a)(1). “Bodily injury” includes an abrasion
or bruise. Id. § 39-11-106(a)(2). The term “reckless” refers to a person:

       who 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. § 39-11-302(c).

        Viewing the evidence in a light most favorable to the State, the proof showed that the
victim and Defendant had been in a troubled relationship, and on the morning of January 1,
2010, Defendant was angry because the victim had been out all night. The two argued when
the victim got home, and the victim went to bed. The victim testified Defendant continued
arguing with him after he went to bed, and she flipped the mattress off the bed two times
causing him to fall to the floor. Each time, he placed the mattress back on the bed. The
victim testified that he felt the mattress move a third time, and Defendant grabbed a knife
that he kept under the mattress and stabbed him in the chest. The victim raised his shirt and
saw “blood coming everywhere.” He was eventually transported to the hospital, and the
laceration was sewn up. Defendant admitted to Sheila Myers and Deputy Bratton that she
stabbed the victim but did not intend to hurt him.

      Based on our review of the evidence, we conclude that the evidence was sufficient to
support beyond a reasonable doubt Defendant’s conviction for reckless aggravated assault.
Defendant is not entitled to relief on this issue.

       II. Sentencing

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       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a Defendant
challenges the length, range, or manner of service of a sentence, it is the duty of this Court
to conduct a de novo review on the record with a presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This
presumption of correctness, however, “‘is conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,
254 S.W.3d at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004); State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)).

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

       Length of Sentence

         A trial court is mandated by the Sentencing Act to “impose a sentence within the
range of punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required
to begin with a presumptive sentence subject to increase and decrease on the basis of
enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate
court is “bound by a trial court’s decision as to the length of the sentence imposed so long
as it is imposed in a manner consistent with the purposes and principles set out in sections-
102 and-103 of the Sentencing Act.” Id.

       In Carter, the Tennessee Supreme Court clarified the 2005 changes in Tennessee
sentencing law and stated:




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       [A] trial court’s weighing of various mitigating and enhancement factors has
       been left to the trial court’s sound discretion. Since the Sentencing Act has
       been revised to render these factors merely advisory, that discretion has been
       broadened. Thus, even if a trial court recognizes and enunciates several
       applicable enhancement factors, it does not abuse its discretion if it does not
       increase the sentence beyond the minimum on the basis of those factors.
       Similarly, if the trial court recognizes and enunciates several applicable
       mitigating factors, it does not abuse its discretion if it does not reduce the
       sentence from the maximum on the basis of those factors. The appellate courts
       are therefore left with a narrower set of circumstances in which they might find
       that a trial court has abused its discretion in setting the length of a defendant’s
       sentence.

Carter, 254 S.W.3d at 345-46.

       Thus, a trial court’s “fail[ure] to appropriately adjust” a sentence in light of applicable,
but merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for
appellate review. Id., 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007) (noting that “[t]he 2005
amendment [to the Sentencing Act] deleted appellate review of the weighing of the
enhancement and mitigating factors, as it rendered the enhancement and mitigating factors
merely advisory, not binding, on the trial courts”).

       Defendant was convicted of reckless aggravated assault, a Class D felony. As a
Range I offender, she was subject to a sentence between two and four years. T.C.A. § 40-35-
112 (a)(4). The trial court applied the following enhancement factor: the Defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range. Tenn.Code Ann. § 40-35-114 (1). The trial court also
applied one mitigating factor: the defendant acted under strong provocation. Tenn. Code
Ann. § 40-35-113 (2).

       Defendant argues that “if this court determines that the trial court did give weight to
the enhancement factor suggested by the State - the mitigating factor that was specifically
given weight by the trial court should have cancelled out the enhancement factor.”
Concerning mitigating factors, the trial court stated:

       Having said that, the defense has submitted mitigating factors that the
       defendant acted under strong provocation. I would give that a little weight.
       There was some conflict going on although the use of the knife and stabbing
       was certainly over the top and not necessary. There was an argument going on

                                                -7-
       at the time. I don’t know that substantial grounds exist tending to excuse or
       justify her criminal conduct. She was convicted of a lesser offense and
       acquitted of the offense of aggravated assault, however, I don’t think that’s a
       mitigating factor in the sentencing under reckless aggravated assault.

       I disagree with number four that it is unlikely that a sustained intent to violate
       the law motivated the conduct and I don’t think she acted under duress or the
       domination of another person in conducting this activity.

       So having considered the pre-sentence report, the entirety of the pre-sentence
       report, her history socially, her work record, prior criminal activity, and the
       mitigating factors, the defendant’s sentence is set at 3 years.

       The trial court in this case obviously gave weight to enhancement factor (1) since it
set Defendant’s sentence at one year above the minimum sentence of two years. We also
point out that any argument about the weight assigned by the trial court to the enhancement
and mitigating factors is no longer grounds for appeal. Carter, 254 S.W.3d at 344. The
record clearly shows that the trial court followed the statutory sentencing procedure, made
findings of facts that are adequately supported in the record, and gave due consideration to
the principles that are relevant to sentencing. Based on our review, we conclude that the
record supports the trial court’s discretionary decision to impose a sentence of three years for
reckless aggravated assault. Defendant is not entitled to relief on this issue.

       Manner of Service

        Defendant also contends that she should have been sentenced to full probation instead
of being ordered to serve 364 days of her three-year sentence in confinement. A defendant
is no longer entitled to a presumption that he or she is a favorable candidate for probation.
Carter, 254 S.W.3d at 347. Our sentencing law, however, provides that a defendant who
does not possess a criminal history showing a clear disregard for society’s laws and morals,
who has not failed past rehabilitation efforts, and who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary. T.C.A. § 40-35-
102(5), (6). Additionally, a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. Id. § 40-35-102(6)(D). We note that “the determination of
whether the [defendant] is entitled to an alternative sentence and whether the [defendant] is
entitled to full probation are different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn.
Crim. App. 1996). The defendant has the burden of establishing his or her suitability for full
probation, even if the defendant should be considered a favorable candidate for alternative
sentencing. T.C.A. § 40-35-303(b); Boggs, 932 S.W.2d at 477. In determining whether to

                                              -8-
grant probation, the court must consider the nature and circumstances of the offense; the
defendant’s criminal record; his or her background and social history; his or her present
condition, both physical and mental; the deterrent effect on the defendant; and the
defendant’s potential for rehabilitation or treatment. State v. Souder, 105 S.W.3d 602, 607
(Tenn. Crim. App. 2002).

       In determining whether incarceration is appropriate, the trial court must consider if:

       (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....

T.C.A. § 40-35-103(1); see also Carter, 254 S.W.3d at 347.

      Defendant was an eligible candidate for probation. See T.C.A. § 40-35-303(a). In
considering Defendant’s sentence, the trial court said:

       Now having been sentenced to 3 years [Defendant] is entitled to be considered
       for alternative sentencing and/or probation and as I said, in considering that
       I’ve considered the pre-sentence report, the defendant’s social history, her
       physical condition and so forth, the circumstances involving this offense, the
       conduct that was involved, the prior criminal history as I mentioned before and
       I think Ms. Wilson brought up whether or not she could reasonably be
       expected to be rehabilitated. It is disturbing what happened and with prior
       drug use that certainly puts that into question. The defendant has not abided
       by the terms of probation on a couple of occasions in the past. I think the
       interest of society in being protected from possible future criminal conduct are
       serious and great. Anyone that would take a knife and stab another individual
       is - - gives you pause as to whether or not you would feel safe with this person
       in the future.

       If the sentence of full probation would unduly depreciate the seriousness of the
       offense. I think certainly full probation would depreciate the seriousness of
       the offense. If confinement is suited to provide an effective deterrent likely

                                             -9-
       [sic] to commit similar offenses. I think that is certainly true. I don’t think it
       sends a good message to say you can stab someone out of anger and simply
       walk away from it without repercussions of being incarcerated and whether the
       offense is particularly enormous, gross, or heinous. I don’t know that it was
       particularly gross or heinous other than being a reckless assault, a reckless
       aggravated assault.

       So having said all that I think the defendant should be sentenced to 3 years as
       a range one offender. She will serve 364 days of that sentence with the
       balance on probation and she will perform 24 hours of pubic service work.

        In addition to the present offense, the presentence report shows that Defendant has
prior convictions for traffic offenses, theft under $500, and worthless checks. According to
the presentence report, while Defendant was on probation for theft under $500, she failed a
drug screen for marijuana in May of 2005, and she failed a drug screen for methamphetamine
in June of 2005. In June of 2005 she was then furloughed to the 31st Judicial Drug Court
Program. She violated the drug court program by failing a third drug screen for
methamphetamine in July of 2005, and she failed to comply with house arrest in August of
2005. After serving sixty days in the Warren County Jail, Defendant re-entered the drug
court program and again failed a drug screen for methamphetamine in January of 2006.
Defendant, on January 27, 2006,was sentenced to serve six months in the Warren County
Jail, and she was to re-enter the drug court program. After serving five months in the Warren
County Jail, Defendant was transferred to the Davidson County Drug Court on June 7, 2006,
and she finally completed the program on June 24, 2008.

        We conclude there is no error in the trial court’s judgment as to the manner of service
of the sentence. Under a sentence of split confinement a defendant may be required to serve
up to one year in the local jail or workhouse. T.C.A. § 40-35-306(a).

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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