         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 18, 2003

           STATE OF TENNESSEE v. GARY ALLEN LARKINS, JR.

                     Appeal from the Criminal Court for Sullivan County
                          No. S45,880    Phyllis H. Miller, Judge



                               No. E2003-00404-CCA-MR3-CD
                                      January 20, 2004

A Sullivan County Criminal Court jury convicted the defendant, Gary Allen Larkins, Jr., of
attempted aggravated assault, a Class D felony; resisting arrest, a Class B misdemeanor; and
disorderly conduct, a Class C misdemeanor, and the trial court sentenced him to concurrent sentences
of seven years, six months, and thirty days, respectively. The defendant appeals, claiming that the
evidence is insufficient to support his convictions. We affirm the defendant’s convictions but
remand the case for entry of a corrected judgment for the attempted aggravated assault.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,
                                    Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Stephen M. Wallace, District Public Defender, and William A. Kennedy, Assistant Public Defender,
for the appellant, Gary Allen Larkins, Jr.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the defendant’s swinging a yard rake at a police officer. Officer Joe
Stewart of the Sullivan County Sheriff’s Department testified that about 10:00 p.m. on November
16, 2001, he was dispatched to a trailer park at 1184 Moreland Drive. He said that according to the
dispatcher, someone was knocking on the door of the trailer on Lot 12 and possibly had a knife.
When Officer Stewart arrived, he saw the defendant standing at the trailer’s door. As he got out of
his patrol car, the defendant came down the steps from the trailer and picked up a yard rake. Officer
Stewart told the defendant not to pick up the rake, but the defendant ignored him.
         Officer Stewart testified that he approached the defendant and identified himself. He said
that at some point, he took his pistol out of its holster but that he never pointed it at the defendant.
He said the defendant was angry, gritting his teeth, told Officer Stewart to “come on,” and
threatened to kill him. He said the defendant began swinging the rake at him like he was swinging
a baseball bat. At some point during the altercation, Officer Stewart put his gun back into its holster
and took out his metal baton. He said that he and the defendant were about fifteen to twenty feet
apart during the altercation and that the defendant repeatedly swung the rake at him. Officer Stewart
tried talking to the defendant and, after two or three minutes, shined his flashlight into the
defendant’s face, blinding him. Officer Stewart then hit the defendant in the forearm and upper leg
with his baton. The defendant dropped the rake and tried to run. Officer Stewart caught the
defendant, but the defendant refused to let Officer Stewart handcuff him. Officer Stewart and the
defendant struggled to the ground, and Officer Stewart sprayed the defendant with pepper spray. He
then held the defendant until another officer arrived, handcuffed the defendant, and took the
defendant to Holston Valley Medical Center, where the defendant was treated for severe bruises.
Officer Stewart acknowledged that he was afraid of being injured during the altercation.

        On cross-examination, Officer Stewart testified that he never saw the defendant with a knife.
He said that the defendant was intoxicated but acknowledged that he did not know if the defendant
had consumed alcohol or drugs. He acknowledged that he had extensive training on how to control
dangerous people and that he put his pistol back into its holster because he thought he could subdue
the defendant with the metal baton. Although the defendant had been charged with aggravated
assault, the jury convicted him of the lesser included offense of attempted aggravated assault. It also
convicted the defendant of resisting arrest and disorderly conduct.

         The defendant appealed his convictions, but his brief only assails his attempted aggravated
assault conviction. He contends that the state failed to prove Officer Stewart had a reasonable fear
of imminent bodily injury. In support of his argument, he notes that the officer was well-trained,
well-armed, and reholstered his gun during the altercation. The state claims that the evidence is
sufficient because in order to prove the defendant committed attempted aggravated assault, it only
had to show that the defendant intended to cause Officer Stewart reasonably to fear imminent bodily
injury. The state also argues that, in any event, the evidence is sufficient because Officer Stewart
testified that he feared being injured during the altercation. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).




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        As charged in the indictment, aggravated assault occurs when a person “[i]ntentionally or
knowingly commits an assault as defined in § 39-13-101 and . . . [u]ses or displays a deadly
weapon[.]” T.C.A. § 39-13-102(a)(1). An assault occurs when one “[i]ntentionally or knowingly
causes another to reasonably fear imminent bodily injury[.]” T.C.A. § 39-13-301(a)(2). Criminal
attempt requires that one act “with the kind of culpability otherwise required for the offense . . . [and]
with intent to cause a result that is an element of the offense, and believes the conduct will cause the
result without further conduct on the person’s part.” T.C.A. § 39-12-101(a)(2).

        The state correctly argues that in order to prove attempted aggravated assault, it only was
required to show that the defendant acted with the intent to cause Officer Stewart reasonably to fear
imminent bodily injury. Viewed in the light most favorable to the state, the evidence shows that as
soon as Officer Stewart arrived at the scene, the defendant picked up the rake, began swinging it at
the officer, and told the officer that he was going to kill him. Obviously, the defendant intended to
cause Officer Stewart to fear imminent bodily injury. In any event, Officer Stewart acknowledged
that he feared being injured during the altercation. Moreover, during his direct testimony, Officer
Stewart stated,

                       Oh, he’d take steps forward and then he would take steps
                backwards. He never, he never came all the way to me, you know.
                In the midst of us talking, I came closer to where I could make
                contact with him and, you know, take care of it before I ---- me or
                somebody else got hurt . . . .

The evidence shows that the defendant caused Officer Stewart reasonably to fear imminent bodily
injury and is sufficient to support the conviction.

         Based upon the foregoing and the record as a whole, we affirm the defendant’s convictions.
We note that the sentencing hearing transcript reflects that the trial court sentenced the defendant to
seven years as a Range II, multiple offender for the attempted aggravated assault. However, the
judgment form reflects that he was sentenced as a Range I, standard offender. We believe that a
clerical error was made on the judgment and remand the case for entry of a corrected judgment to
reflect that the defendant was sentenced as a Range II, multiple offender.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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