        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville April 23, 2014

              STATE OF TENNESSEE v. JACOB AARON ERVIN

                  Appeal from the Circuit Court for Marshall County
                       No. 2013-CR-53      Lee Russell, Judge


                 No. M2013-01921-CCA-R3-CD - Filed June 27, 2014


The defendant, Jacob Aaron Ervin, was convicted by a Marshall County jury of simple
assault, a Class A misdemeanor, and was sentenced by the trial court to eleven months,
twenty-nine days in jail at 75%. On appeal, he challenges the sufficiency of the evidence and
argues that the trial court imposed an excessive sentence. Following our review, we affirm
the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OGER A. P AGE, JJ., joined.

Donna O. Hargrove, District Public Defender; and William J. Harold, Assistant Public
Defender, for the appellant, Jacob Aaron Ervin.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Robert James Carter, District Attorney General; and Weakley E. Barnard and William B.
Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       According to the State’s proof at trial, the defendant spent the afternoon and evening
of March 17, 2013, drinking alcohol and playing a card game with his friend, John Wesley
Richards, Richards’ fiancée, Lauren Dumsoer, and Dumsoer’s friend, Kristy Tadajewski, in
Richards’ Lewisburg home. Late in the evening, the defendant lost his temper, threw his
cards down on the floor, slapped Richards in the face, and retreated to the upper floor of the
home, where he had been living temporarily following his recent move back to Tennessee.
When Richards later started upstairs to talk with him, the defendant aimed the laser sight of
a handgun at Richards’ face and threatened to kill him if he came upstairs. Richards and the
two women responded by fleeing the home and calling 911. The defendant was subsequently
indicted by the Marshall County Grand Jury with the aggravated assault of Richards and the
reckless endangerment of Richards, Tadajewski, and Dumsoer. The jury convicted him of
the lesser-included offense of simple assault of Richards and acquitted him of the three
reckless endangerment counts of the indictment.

       At the defendant’s trial, Richards testified that the defendant was a childhood friend
who had recently moved back to Tennessee from Arizona. He said he had invited the
defendant to stay with him and his fiancée, Lauren Dumsoer, in his Lewisburg home and that
the defendant had been living on the second floor of the home for approximately three weeks
when the incident occurred. On that day, he, Dumsoer, and the defendant returned home at
about 1:30 or 2:00 p.m. after going to church and then dining out with Dumsoer’s family.
A couple of hours later, Dumsoer’s friend, Kristy Tadajewski, came over and the four of
them began playing spades. Richards testified that he had one mixed alcoholic drink and that
the women each had one or two beers but that the defendant drank heavily throughout the
afternoon and evening and was intoxicated when the incident occurred. He said he and the
defendant were partnered and were winning the card game when the defendant, for no
obvious reason, became upset and slammed his cards down on the table, causing them to fall
behind Richards. The defendant demanded that he pick up the cards, at the same time calling
him names. He refused and the defendant stood up, began picking up the cards, and then
suddenly slapped him hard on the face, called him more names, and “stormed off” to his
upstairs living quarters.

        Richards testified that he and the women went upstairs to talk to the defendant, who
remained upset and kept threatening to leave. After about twenty minutes, he and
Tadajewski left while Dumsoer stayed behind to talk to the defendant alone. When she came
back downstairs, he decided to go back upstairs to try to talk to the defendant again.
However, as soon as he opened the door to the stairway, a red laser sight from the
defendant’s handgun was pointed on his face, and the defendant said, “You come up here,
you will die.” Richards testified that he responded by quickly closing the door and telling
the women that the defendant had a gun and the three of them needed to leave the house. He
said he was aware that the defendant possessed guns but had not been aware, before that
time, that the defendant had them in the house, as he had instructed him not to bring them
into his home. He stated that Tadajewski dialed 911 on her cell phone and handed the phone
to him as they exited the home. He said he was on the porch talking with the 911 operator
when he saw the defendant come downstairs with a gun in his hand. He told the women what
he had seen and instructed them to run, and all three of them fled from the home.



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        At the request of the State, Richards read aloud a letter of apology he had received
from the defendant following the incident. In the letter, the defendant asked for forgiveness
from Richards and Dumsoer, said that a lot of things had happened to him in the past and that
he had wrongly taken them out on Richards that night, claimed that he was just shining the
laser down the hall to prevent Richards from coming upstairs because he was afraid Richards
would beat him up, and requested that Richards drop the charges against him. On cross- and
recross-examination, Richards denied that he fought with the defendant or threw him down
that night. He insisted that when he opened the door to the stairway, he saw the defendant
holding a handgun with the red dot from the laser sight trained on his face, although he
conceded he did not mention seeing the gun in his statement to police. Finally, he
acknowledged he had been convicted of the sale of a Schedule II controlled substance and
of the sale of morphine in a Drug-Free School Zone.

        Lauren Dumsoer, Richards’ fiancée, testified that Tadajewski, who had never met the
defendant before, arrived at the house at about 6:00 or 6:30 p.m. on March 17, 2013. She
said all four of them were drinking that night but that she, Richards, and Tadajewski each had
only one to two mixed drinks and began limiting their alcohol intake as the evening wore on.
The defendant, however, continued to drink and became obviously intoxicated by the end of
their first card game. Dumsoer said that there had been no disagreement or unpleasantness
among the group at the time that she excused herself to the restroom at the end of the
evening. When she came out, Tadajewski informed her that the men were arguing upstairs
and that they needed to stop them. She and Tadajewski then went upstairs, where she found
the men arguing and shoving each other. She and Tadajewski separated them, and
Tadajewski talked Richards into going back downstairs with her while she remained upstairs
to talk with the defendant. During their conversation, the defendant revealed that he was
upset because he had been sexually molested in the past by someone “very close to him.” On
cross-examination, Dumsoer testified that the person the defendant named as his molester
was Richards’ father.

       Dumsoer testified that she was distraught by the defendant’s revelation and went
downstairs to divulge what she had learned to Richards and Tadajewski. She and Richards
discussed their course of action and ultimately decided that they would ask the defendant to
leave their home the next morning. She described Richards as “heartbroken,” rather than
angry, and said that he decided to go back upstairs to talk to the defendant about his
allegations. She testified that Richards walked to the stairway door, pulled it open, and then
“very calmly shut the door,” turned to her and Tadajewski, and said, “Girls, he’s got a gun.
You need to get out of the house.” She stated that as they were moving toward the front
door, Tadajewski dialed 911 on her cell phone and handed the phone to Richards. All three
of them were on the front porch by the time Richards was talking with the 911 dispatcher.
At that point, Richards told her and Tadajewski that the defendant was coming down the

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stairs, and the three of them “scattered and ran.” On cross-examination, she testified that she
never saw the defendant with a gun that night.

        Kristy Tadajewski testified that there had been no conflict between the two men
during the card game but that the defendant, who had been drinking all night, suddenly threw
his cards at Richards. She said that Richards asked the defendant to pick up the cards and
that the defendant told Richards to do it. Finally, the defendant got up, picked up the cards,
leaned across the table, and delivered a forceful slap to Richards’ face. Richards and the
defendant began arguing, and Richards told the defendant to go upstairs, which he did.
Dumsoer came out of the restroom, and all three of them went upstairs to talk to the
defendant. They were unsuccessful in their attempts to calm the defendant down, so she and
Richards went back downstairs, leaving Dumsoer alone upstairs with the defendant. Ten or
twelve minutes later, Dumsoer came back downstairs and divulged to Richards what the
defendant had just told her. After waiting about five minutes, Richards walked over and
opened the door to the stairs but then quickly closed it, saying that the defendant had a gun.
Tadajewski testified that, during the time that Richards had the door open, she overheard the
defendant say that if Richards came up the stairs, he would die. She said she got up, dialed
911, and handed the phone to Richards as she, Dumsoer, and Richards exited the house. She
stated that the three of them stood together on the front porch for a second until Richards said
that he saw the defendant coming out, at which point the three of them fled.

        Sergeant Kevin Patin of the Lewisburg Police Department testified that he responded
to the scene at approximately 11:45 p.m., approached the house with gun drawn, and through
the closed front door ordered the defendant, whom he could see walking around inside, to
show him his hands and come toward him. The defendant complied by raising his hands and
approaching the front door. Sergeant Patin said he lost sight of the defendant briefly as he
was opening the front door. When he was able to see him again, he observed the defendant
dropping his right hand to his back and then throwing a handgun onto the couch. At that
point, he grabbed the defendant and took him to the ground, where his fellow officers
assisted in handcuffing him. Afterwards, Officer Davis patted down the defendant and found
a second handgun in the defendant’s front waistband. Sergeant Patin testified that the
weapon the defendant threw onto the couch was a .40 caliber Smith and Wesson with an
attached laser dot scope. The weapon had a fully loaded magazine but no round chambered
into the barrel. The weapon found in the defendant’s front waistband was a .357 Glock that
was loaded and with one round chambered into the barrel, making it, according to Sergeant
Patin’s terminology, “cocked and locked and ready to rock.” On cross-examination, he
testified that the Smith and Wesson handgun had a “grip-mounted” laser sight that, to the
best of his knowledge, could not be removed from the weapon.




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       Officer John Michael Davis of the Lewisburg Police Department identified the .357
caliber Glock 32 handgun that he recovered from the defendant’s front waistband. On cross-
examination, he acknowledged that the defendant informed him that he had the gun in his
waistband as he was performing his pat down.

      Officer Clint Newbill of the Lewisburg Police Department identified the .40 caliber
Smith and Wesson handgun that he had recovered from the couch.

        The defendant testified that after lunch he played upstairs with Richards’ cats by using
the laser sight from his handgun, which he had removed from the weapon. According to the
defendant, the laser sight was easily detachable. Later that afternoon, Tadajewski arrived and
the four of them began playing cards. The defendant said that he had a total of three beers
and about half of one mixed drink at the time the incident occurred. He stated that he was
not angry when he threw his cards down on the table at the end of a hand. He said a few of
the cards dropped on the floor on Richards’ side of the table, which seemed to make
Richards, who was drunk, angry. Richards told him that he needed to come pick up the
cards, and he responded that they were closer to Richards and asked what was the big deal.
When Richards insisted, he told Richards he did not care and would leave the cards on the
floor. He then started upstairs to retrieve his cell phone charger. As he was walking past
Richards, he saw Richards bent over picking up the cards, which amused him. He, therefore,
playfully tapped Richards on the face and jokingly called him “a little name,” before
continuing on his way upstairs.

        The defendant testified that he heard Richards threatening to “kick [his] butt” as he
was walking up the stairs. He said he did not believe that Richards was serious, but as soon
as he turned the corner at the top of the stairs, Richards hit him from behind, sending him
flying into a recliner. As he was getting up, Richards knocked him down again and began
hitting him with his fists. After Richards had knocked him down a third time, the women
came upstairs and separated them. The defendant testified that he was very upset and at that
moment divulged to Richards that Richards’ father had sexually molested him. He said he
wanted to leave Richards’ home right then, but Richards was blocking his exit. Tadajewski
finally talked Richards into going downstairs, and Dumsoer stayed upstairs to talk to him for
about five minutes before she, too, went downstairs. Next, he heard Richards from
downstairs say to the women that he was going back upstairs. Afraid that Richards would
assault him again, he picked up his laser sight, which was still detached from the gun, yelled
to Richards not to come up and that he would kill him if he did, and then shined the laser
sight in Richards’ eye when he opened the door to the stairway.

       The defendant testified that he remained upstairs until he heard sounds that made him
believe that Richards and the women had left the house. Seizing the opportunity to exit

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himself, he grabbed his two weapons, put the laser sight back onto his Smith and Wesson,
removed all the ammunition from the Glock, placed both guns in his front waistband, went
downstairs, and headed for the front door. When he saw the police officer, he threw his
Glock onto the couch because it was an unregistered weapon and he thought he would get
into trouble for having it. After the officers had handcuffed him and were about to put him
in the patrol car, he informed them that he had the Smith and Wesson in his front waistband.

       On cross-examination, the defendant claimed that every one of the State’s witnesses,
including the police officers, were lying in their testimony.

       Following deliberations, the jury convicted the defendant of the lesser-included
offense of the misdemeanor assault of Richards, finding that the State had failed to prove
beyond a reasonable doubt that the assault was accomplished with a deadly weapon. The jury
acquitted the defendant of the reckless endangerment counts of the indictment. At the
conclusion of a sentencing hearing, the trial court found one applicable enhancement factor
– the defendant’s previous history of criminal convictions – and no applicable mitigating
factors and sentenced the defendant to the maximum term of eleven months, twenty-nine
days at 75%.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

        The defendant contends that the evidence is insufficient to sustain his conviction for
simple assault, arguing that there was no evidence that he caused any injury to Richards,
intended Richards to fear imminent bodily injury, or that a reasonable person in Richards’
situation would have found the playful tap he delivered to his face offensive. The State
disagrees, arguing that there is ample evidence that the defendant both intentionally and
knowingly caused Richards to fear imminent bodily injury. We agree with the State.

       In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of

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fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       A person commits misdemeanor assault who:

       (1) Intentionally, knowingly or recklessly causes bodily injury to another;

       (2) Intentionally or knowingly causes another to reasonably fear imminent
       bodily injury; or

       (3) Intentionally or knowingly causes physical contact with another and a
       reasonable person would regard the contact as extremely offensive or
       provocative.

Tenn. Code Ann. § 39-13-101(a) (2010).

        In this case, the defendant was charged with knowingly or intentionally committing
an assault against Richards by causing Richards to reasonably fear imminent bodily injury.
“‘Intentional’ means that a person acts intentionally with respect to the nature of the conduct
or to a result of the conduct when it is the person’s conscious objective or desire to engage
in the conduct or cause the result[.]” Id. § 39-11-106(18). “‘Knowing’ means that a person
acts knowingly with respect to the conduct or to circumstances surrounding the conduct when
the person is aware of the nature of the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person’s conduct when the person is aware that

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the conduct is reasonably certain to cause the result[.]” Id. § 39-11-106(20).

       Viewed in the light most favorable to the State, the evidence is more than sufficient
to show that the defendant both intentionally and knowingly caused Richards to reasonably
fear imminent bodily injury by aiming the laser sight of his handgun at Richards’ face and
threatening to kill him. We conclude, therefore, that the evidence is sufficient to sustain the
defendant’s conviction for misdemeanor assault.

                                       II. Sentencing

       The defendant contends that his eleven-month-twenty-nine-day sentence for his
misdemeanor assault conviction is excessive and contrary to law, arguing that the trial court’s
imposition of the maximum sentence after finding only one enhancement factor was “clearly
excessive based on the facts at hand.” We respectfully disagree.

       Appellate review of misdemeanor sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. §§
40-35-401(d), -402(d). This presumption of correctness is conditioned upon the affirmative
showing that the trial court considered the relevant facts, circumstances, and sentencing
principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the
appealing party to show that the sentence is improper. See Tenn. Code Ann. § 40-35-401(d),
Sentencing Commission Cmts.

        The trial court is afforded considerable latitude in misdemeanor sentencing. See, e.g.,
State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). When imposing a
misdemeanor sentence, the trial court is not required to conduct a sentencing hearing, but it
must afford the parties a reasonable opportunity to address the length and manner of service
of the sentence. Tenn. Code Ann. § 40-35-302(a). Moreover, the trial court is not required
to place specific findings on the record, State v. Troutman, 979 S.W.2d 271, 274 (Tenn.
1998), but must consider the principles of sentencing and the appropriate enhancement and
mitigating factors in determining the percentage of the sentence to be served in actual
confinement. Tenn. Code Ann. § 40-35-302(d).

      A trial court may deny alternative sentencing and sentence a defendant to confinement
based on any one of 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

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       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. § 40-35-103(1).

       The defendant has failed to show that the sentence imposed by the trial court is
improper. The trial court reached its sentencing conclusion based on the defendant’s prior
history of two misdemeanor convictions, which the court found serious, and the facts and
circumstances surrounding the instant offense, including the fact that the defendant was in
possession of two loaded guns at the time of his arrest. Based on our review, we cannot
conclude that the trial court erred in sentencing the defendant to the maximum term for his
misdemeanor conviction.

                                      CONCLUSION

       Based on our review, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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