           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                              Assigned on Briefs August 15, 2001

                  STATE OF TENNESSEE v. TIMOTHY D. GROVE

                   Direct Appeal from the Criminal Court for Davidson County
                             No. 99-C-1945 Steve R. Dozier, Judge



                      No. M2000-02288-CCA-R3-CD - Filed October 3, 2001



The defendant, Timothy D. Grove, appeals his conviction for aggravated assault and ten-year Range
II sentence in the Department of Correction. Specifically, the defendant contends evidence presented
against him at trial was insufficient to support his conviction, and his sentence was excessive. After
a thorough review of the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES CURWOOD
WITT, JR., JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Timothy D. Grove.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Derrick L. Scretchen and Michelle H. Thompson,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                              OPINION

        On May 16, 1999, the defendant's mother and stepfather, Susan and Michael Naegley, and their
friend, Crystal Roache, were “having a little party” with, and at the residence of, the 65-year-old
victim, Teddy Farrell Layne. Michael Naegley left and later the 20-year-old defendant went to Layne's
house to retrieve his mother, who was nude and intoxicated. The defendant assaulted Layne, who was
seriously injured. The defendant was indicted and tried for aggravated assault causing serious bodily
injury.

         At trial, Layne testified that after Michael Naegley left the party, Naegley made repeated phone
calls to Susan Naegley, who had remained at Layne's house. Susan Naegley, who had been drinking,
began to dance and shed her clothes. Layne, who denied being naked and said he had on his “swim
shorts,” was not surprised at Susan Naegley’s actions because it was a “well-known fact that she gets
naked every time she gets drunk. . . [and] always danced when she got naked.” Layne was “as sure
as [he] can be” that Crystal Roache was not naked but had on a “little bathing suit.” Although Layne
had a pool, there is no indication that any of the party participants actually went swimming.

        According to Layne, the defendant came to his home along with a "fellow named Kevin" and
another man whom Layne did not know. Layne testified the three men were on his porch when Kevin
tore the screen on the door, opened it, and entered the house. Layne then went into a bedroom to get
a gun.

        Layne said that while he was trying to load his weapon, the defendant entered the bedroom.
Layne tried to hit the defendant with the gun, although he was unsure as to whether he actually struck
the defendant. Layne stated the defendant and his companions then beat him and, as a result, Layne
lost consciousness. When Layne awoke in the hospital, he was in terrible pain. His injuries required
two surgeries. Bones in his face were fractured during the assault, and he lost several teeth.

        Elizabeth Scudder, Layne's daughter, testified she visited her father in intensive care after the
assault. She described him as “a big bloody pulp from the neck up.” After she left the hospital, she
went to Layne's home to take photographs. She noticed a large hole in his screen door. As she entered
the home, she found blood on the carpet, furniture, and walls. She noticed holes in a bedroom door,
as if someone had tried to kick down the door. Blood was on the floor in the bedroom. No blood was
on the porch. Scudder identified photographs showing blood on a chair, the floor, and the wall.

         Dr. Jennifer Gordon-Maloney, an oral and maxillofacial surgery resident at Meharry Medical
College, testified she treated Layne during his hospital stay. She stated his injuries included multiple
facial lacerations, swollen and bruised eyes, and multiple facial fractures. She said the defendant had
endured a severe trauma to his head and neck and opined that his injuries could have been life-
threatening without medical treatment.

        Amanda Kelton, the mother of the defendant’s child, and her friend, Holly Spain, testified for
the defense. Both of them stated that they went to Layne’s home with the defendant and Will Harness.
They denied that Kevin, an apparent friend of the defendant’s, was with them. They testified the
defendant knocked on the door, and his mother let him in the house while they remained on the porch
with Harness.

         According to Spain, the defendant was talking at the door with his mother when Layne, naked
and highly intoxicated, cursed at the defendant and told him to leave. Spain testified the defendant
replied that he would leave as soon as his mother left with him. Spain and Kelton both testified that
Susan Naegley told her son she did not want to leave. Then, Layne brought out a gun. Spain said all
of them ran back to the car, and Layne stood on the porch where he pointed a gun at them. She further
testified that the defendant got out of the car and hit Layne, who fell down in the doorway. She also
stated that other people were telling the defendant to get off of Layne.



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        Kelton testified that when Layne brought out the weapon, the defendant remained behind while
the rest of them fled. Kelton said Susan Naegley told the defendant to leave. According to Kelton,
the defendant pushed Layne, knocking the gun from his hands. Kelton stated the defendant would not
let Layne get back up, but the fight lasted only two to three minutes.

        Based on this evidence, the jury convicted the defendant of aggravated assault.


                               SUFFICIENCY OF THE EVIDENCE

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial
judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This court
will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant
demonstrates that the facts contained in the record and the inferences which may be drawn therefrom
are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a
reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the
appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was
sufficient for any rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       A person commits aggravated assault if he intentionally or knowingly commits an assault as
defined in § 39-13-101 and causes serious bodily injury to another. Tenn. Code Ann. § 39-13-
102(1)(A). Tenn. Code Ann. § 39-13-101(a)(1) defines assault, in part, as intentionally, knowingly
or recklessly causing bodily injury.

        The defendant contends the state’s proof was insufficient to establish he acted intentionally or
knowingly. He argues that, instead, the evidence established he acted as the result of impulse and
sudden heat of passion produced by adequate provocation. He, therefore, contends he did not act
intentionally or knowingly. We disagree. By analogy, voluntary manslaughter is the “intentional or
knowing killing of another in a state of passion produced by adequate provocation.” Tenn. Code Ann.
§ 39-13-211(a). Thus, our code contemplates that one can still act intentionally or knowingly even
though provoked and in a state of passion.

         The proof presented by the state established that the defendant forced his way into the victim’s
residence and severely beat the victim. Even the testimony of the defendant’s witnesses indicated he
intended to strike the victim, and people were trying to get defendant off of the victim. Further, the
state’s proof established that the victim suffered serious physical injuries which could have been life
threatening absent medical intervention. We find that the proof was sufficient for a rational trier of
fact to find beyond a reasonable doubt the defendant committed aggravated assault.


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                                             SENTENCING

       The defendant next contends his 10-year sentence is excessive because the trial court
improperly applied an enhancement factor and failed to apply mitigating factors. We respectfully
disagree.

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review is de novo. State
v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

         If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence for a Class C felony shall be the minimum sentence
within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should
start at the minimum sentence, enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. §
40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight given to
each factor is left to the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record. State v. Moss, 727
S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see
Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should there be no
mitigating factors, but enhancement factors are present, a trial court may set the sentence above the
minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967 S.W.2d at 806; Manning
v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

       The defendant does not dispute that he was properly classified as a Range II multiple offender.
See Tenn. Code Ann. § 40-35-106(a). Therefore, the range of punishment for the Class C felony of
aggravated assault is not less than six years nor more than ten years. Tenn. Code Ann. § 40-35-
112(b)(3). Defendant received the maximum sentence.

        The trial court found four enhancement factors to apply; namely, factors (1) ( a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range); (6) (the personal injuries to the victim were particularly great); (8) (a previous history of
unwillingness to comply with the conditions of a sentence involving release); and (13) (this felony
was committed while defendant was on felony probation). Tenn. Code Ann. § 40-35-114(1), (6), (8),
(13). The record reveals that defendant had six prior felony convictions and three prior misdemeanor
convictions. He had previously committed criminal offenses while on probation and, at the time of
the present offense, was on probation for prior felony offenses. The trial court found no mitigating
factors were applicable. The trial court, giving great weight to the fact that the defendant was on


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separate probations at the time the offense was committed, sentenced the defendant to ten years in the
Department of Correction.

        The defendant contends, and the state concedes, that the trial court erred in applying
enhancement factor (6) (the personal injuries inflicted upon the victim were particularly great) since
the extent of the victim’s personal injuries is an element of the offense of aggravated assault. Since
factor (6) is an essential element of aggravated assault for which the defendant was convicted, it cannot
be used to enhance the sentence. State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). The defendant
does not contest the application of the remaining enhancement factors applied by the trial court.

        The defendant also argues the trial court should have applied mitigating factors (2) (the
defendant acted under strong provocation); (3) (substantial grounds exist tending to excuse or justify
the defendant’s criminal conduct, though failing to establish a defense); (6) (the defendant, because
of his youth, lacked substantial judgment in committing the offense); and (11) (the defendant, although
guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated his conduct). Tenn. Code Ann. § 40-35-113(2), (3), (6),
(11).

        Three of these proffered mitigating factors relate to the bizarre activities involving the
defendant’s mother on the evening of the offense. Defendant has convinced us that discovering one’s
mother nude, dancing, and in the presence of a 65-year-old man, not her husband, who was either nude
or wearing only “swim shorts,” was indeed an “unusual set of circumstances.” However, we are
reluctant to disturb the trial court’s finding that the defendant was not provoked into assaulting the
victim. We also concur that neither mitigating factor (3) nor factor (11) was applicable. We also
conclude the trial court correctly refused to apply mitigating factor (6) relating to defendant’s youth.
At the time of this offense the defendant was 20 years old, but he had six prior felony convictions. See
State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993) (noting this mitigating factor is not determined
simply by chronological age); State v. Elder, 982 S.W.2d 871, 879 (Tenn. Crim. App. 1998).

        While the trial court erred in applying enhancement factor (6), it is clear that it did not give
great weight to that factor. Instead, it gave great weight to the three enhancement factors that are
applicable. The sentence of ten years imposed upon the defendant is adequately supported by the
record and in conformity with the purposes and principles of the sentencing act. Therefore, we decline
to disturb the sentence imposed by the trial court.


                                       CONCLUSION

       After a thorough examination of the record, we affirm the judgment of the trial court.

                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE



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