        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 23, 2014

             STATE OF TENNESSEE v. JAMES CRAIG THOMAS

                  Appeal from the Criminal Court for Johnson County
                      No. 5890     Jon Kerry Blackwood, Judge


                   No. E2013-02196-CCA-R3-CD - Filed May 15, 2014


Appellant, James Craig Thomas, was convicted by a Maury County jury of aggravated
assault, a Class C felony. The trial court sentenced him to serve twelve years in the
Tennessee Department of Correction as a persistent offender. On appeal, appellant argues
that the evidence was insufficient to support his conviction, that the assistant district attorney
general committed prosecutorial misconduct during his closing argument, and that the trial
court’s sentencing was inappropriate. Following our review, we affirm the judgment of the
trial court.

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

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

David L. Robbins, Johnson City, Tennessee, for the appellant, James Craig Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Anthony Wade Clark, District Attorney General; and Matthew Edward Roark,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                             I. Facts

        This case concerns the May 3, 2011 aggravated assault of the victim, Lawrence Ray
Beam, by appellant at the victim’s home. At appellant’s trial, the victim’s wife, Kathy Beam,
testified that she met appellant through her sister-in-law, Melinda Garland, who is the
victim’s sister. Appellant and Ms. Garland had been in a relationship in 2008. Ms. Beam
explained that at the time, she and the victim had custody of Ms. Garland’s three children and
that Ms. Garland had been in arrears on child support payments owed to them in an amount
greater than $15,000. In May 2008, the Johnson County Chancery Court issued an
attachment against Ms. Garland and set a $1000 cash bond. Ms. Garland was arrested, and
appellant paid her bond. Ms. Beam testified that of the $1000, $500 went to the State and
$500 went to her and the victim for the support of the children. Ms. Beam said that appellant
told the victim that he wanted the $1000 back and accused the victim of stealing it.

         The victim testified that after appellant paid Ms. Garland’s bond, appellant called the
victim and accused him of stealing $1000. The victim said that appellant threatened to cut
his throat during that telephone call. The victim had no further contact with appellant until
May 3, 2011. On that day, the victim was surveying his property for damage caused by a
tornado when he saw a car pull into his driveway and drive all the way to the house. The
victim could not see who was driving the car at that point but later saw that appellant was
driving. The victim explained that his driveway was one hundred yards long, and there was
a garage approximately halfway between his house and the main road. The victim said that
he began walking towards his house but that appellant left before he got to it. He observed
appellant drive down the main road, turn around, and return to his driveway. In the
meantime, the victim walked down to his garage. Appellant parked at the bottom of his
driveway, exited the car, and began screaming at the victim. The victim estimated that they
were approximately fifty yards apart at that time. Appellant screamed that the victim was a
thief and accused him of stealing money and tools. The victim testified that appellant
threatened to “whoop [his] a**” and “cut [his] throat.” The victim said that he went into his
garage and called 9-1-1 on his cellular telephone. While he was on the telephone, appellant
“started running up the driveway.” The victim said that appellant had a pocket knife and a
stick. The victim described the blade of the knife as two to two and a half inches long. He
estimated that the stick was two to two and a half feet long and was similar to a “tobacco
stick.” The victim testified that appellant said that “he was going to kill” him. When asked
how appellant’s actions made him feel, the victim stated, “[I]t kind of puts the fear of God
in you, I mean, it scares you . . . .” The victim explained that he believed appellant was going
to kill him. When asked how far away appellant was from him while appellant had the knife
and stick, the victim replied that appellant was “fifteen, twenty yards” away and “never . .
. [came] closer than ten feet.”

       The victim further testified that appellant returned to his car and that he “was down
there cussing and a hollering and -- and then he come [sic] back.” When appellant
approached him the second time, the victim could no longer see the knife and stick in his
hands. Appellant again threatened to kill him. The victim said that he informed appellant
that he had called the police, and appellant responded that if he went to jail, “whenever he
got out[,] he’d be back to finish the job.” The victim testified that his nephew came over
from across the street and tried to get appellant to calm down. Appellant’s girlfriend, who

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had been in appellant’s car, also tried to calm him down. The victim’s nephew was standing
between appellant and the victim when appellant reached around the victim’s nephew and
slapped the victim in the face. Appellant returned to his car and left.

       Angelina Snyder testified that she was a 9-1-1 dispatcher for Johnson County on May
3, 2011. While she did not specifically remember answering the victim’s 9-1-1 call that day,
she identified the complaint card that she filled out regarding the call. She testified that the
victim reported that appellant “was on his property threatening, cussing him.” Her notes
indicated that she heard appellant “in the background screaming that he was going to kill”
the victim. The victim advised her that appellant had a knife and stick and had “smacked
him in the face.”

       Johnson County Sheriff’s Department Investigator John Stout testified that he
responded to the victim’s address on May 3, 2011. When he arrived, the victim described
appellant’s vehicle, so Investigator Stout left the victim’s property to look for appellant.
When he could not find appellant, he returned to the victim’s property so that the victim
could give him more information. Investigator Stout described the victim as being “shaken
up” and “really upset.”

       Following Investigator Stout’s testimony, the State rested its case.          Appellant
presented no proof. The jury found appellant guilty of aggravated assault.

       The trial court held a sentencing hearing, at which both appellant and the State
presented witnesses. The State moved into evidence appellant’s presentence report. The
report showed that appellant had twenty-seven felony and misdemeanor convictions, not
including traffic offenses. He had his probation revoked at least three times and had
absconded from probation once.

       Appellant testified that he was forty-four years old at the time of the sentencing
hearing. He said that he had worked as a millwright, building turbines, for many years but
had been welding for the previous three years. He was a member of Cobbs Creek Baptist
Church. Appellant testified that he had been diagnosed with Hepatitis C and was awaiting
treatment, which had been delayed due to court proceedings. Appellant said that he would
live with his mother if granted probation. Appellant said that he had been on probation since
he was eighteen years old and had “done well.” According to him, he had paid his fines and
had never failed a drug test.

      On cross-examination, the State questioned appellant about the number of his
convictions and his history of supervision, but appellant had difficulty remembering exact
information.

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       On appellant’s behalf, Deana Jenkins testified that she had been dating appellant for
the year prior to the sentencing hearing. She said that she had “never seen him do anything
wrong.” He did not drink alcohol, and he got “along with everybody.”

        The State called appellant’s probation officer, Tim Tapp, to testify. Mr. Tapp said that
he had supervised appellant from May 2011 until December 2011. He testified that appellant
made some payments and reported, although there were a few times that he missed reporting.
Appellant had a good attitude but always blamed his trouble on someone else. Mr. Tapp said
that another probation officer who had supervised appellant recorded the number of times
that appellant “had been revoked and reinstated.” Mr. Tapp said that “[h]e was in and out
of jail while he was on probation[,] so he could never seem to get the probation term
finished.”

       The parties agreed that appellant was a Range III, persistent offender. The trial court
found that the following enhancement factors applied to appellant’s sentencing: appellant had
a prior history of criminal convictions beyond that necessary to establish his range, Tenn.
Code Ann. § 40-35-114(1); that appellant had previously failed to comply with the conditions
of a sentence involving release into the community, id. § 40-35-114(8); and that appellant
had committed the offense while on probation, id. § 40-35-114(13)(C). The trial court
sentenced appellant to twelve years. The trial court also found that appellant had an
extensive history of criminal activity, id. § 40-35-115(b)(2), and ruled that appellant’s
sentence would run consecutively to the sentence he was serving for a prior conviction.
Appellant now appeals from the judgment of the trial court.

                                         II. Analysis

                               A. Sufficiency of the Evidence

       Appellant contends that the evidence was insufficient to support his conviction for
aggravated assault. He asserts that the victim could not have reasonably been in fear of
imminent bodily injury because of the distance between them, citing the “zone of danger”
doctrine associated with reckless endangerment. The State responds that the zone of danger
doctrine is inapplicable to aggravated assault and that the evidence was sufficient to support
appellant’s conviction. We agree with the State.

       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

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S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       As charged by the indictment in this case, to support appellant’s conviction, the State
had to show beyond a reasonable doubt that appellant intentionally or knowingly caused the
victim to reasonably fear imminent bodily injury and that a deadly weapon was involved. See
Tenn. Code Ann. § 39-13-101(a)(1)(2); -102(a)(1)(A)(iii). “Imminent danger is an
immediate, real threat to one’s safety.” State v. Bobby Joe Young, Jr., No. M2010-01531-
CCA-R3-CD, 2011 WL 6291813, at *7 (Tenn. Crim. App. Dec. 14, 2011), perm. app. denied
(Tenn. Apr. 20, 2012) (citing Black’s Law Dictionary (8th ed. 2004)).

       Appellant contends that the victim could not have reasonably feared imminent bodily
injury because he was not in the zone of danger. However, “this court has declined to apply
a zone of danger approach to aggravated assault.” Bobby Joe Young, Jr., 2011 WL 6291813,
at *7 (citing State v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010 WL
3565761, at *6 (Tenn. Crim. App. Sept. 15, 2010)). In James Paris Johnson, this court
reasoned that the zone of danger doctrine applied to the offense of reckless endangerment
did not apply to aggravated assault because with aggravated assault “[t]he point at issue is

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not whether the victim was within a certain physical area within which he might be harmed
even if he was unaware of the danger, but whether his fear of imminent bodily injury was
reasonable.” James Paris Johnson, 2010 WL 3565761, at *6. Appellant attempted to
distinguish the facts in the James Paris Johnson case from this case, but his argument is
inapposite because the reasoning in James Paris Johnson was a matter of interpreting the
law, not applying the facts.

        Viewed in the light most favorable to the State, the evidence presented at trial showed
that appellant drove to the victim’s house, approached the victim while holding a knife and
a stick, and threatened the victim’s life. The victim responded by calling 9-1-1. The victim
testified that he was scared and that he believed appellant would follow through on his threat
to kill him. The responding law enforcement officer confirmed that the victim was still
“shaken up” when the officer arrived. The 9-1-1 dispatcher testified that she heard someone
threatening to kill the victim while she was on the line with him. In addition, appellant had
threatened the victim in the past.

        Appellant clearly had at least one deadly weapon and was acting intentionally, based
on his verbal threats. The issue set forth on appeal by appellant is whether the victim
reasonably feared imminent bodily injury. Our supreme court has accepted the Black’s Law
Dictionary definition of “imminent,” part of which states, “‘Something which is threatening
to happen at once[.]’” State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999) (quoting Black’s Law
Dictionary (6th ed. 1990)). In addition, “[t]he element of “fear” is satisfied if the
circumstances of the incident, within reason and common experience, are of such a nature
as to cause a person to reasonably fear imminent bodily injury.” State v. Gregory Whitfield,
No. 02C01-9706-CR-00226, 1998 WL 227776, at *2 (Tenn. Crim. App. May 8, 1998).
Appellant approached the victim while wielding a knife and stick and threatening to kill him,
and the victim testified that he believed appellant would follow through on his threat. Under
these facts, it was reasonable for the victim to fear that appellant would cause him bodily
injury, as he was “‘threatening to do at once.’” Payne, 7 S.W.3d at 28 (quoting Black’s Law
Dictionary (6th ed. 1990)). We conclude that a jury could have found beyond a reasonable
doubt that appellant intentionally or knowingly caused the victim to reasonably fear imminent
bodily injury and that a deadly weapon was involved. Therefore, the evidence was sufficient
to support appellant’s conviction.




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                                    B. Prosecutorial Misconduct

       Appellant contends that the State improperly commented on his right not to testify
during its closing arguments.1 The State responds that the State merely commented that the
victim’s testimony was uncontroverted and as such was not error. We agree with the State.

       Both the federal and state constitutions protect a defendant’s right to remain silent.
See U.S. Const. Amend. 5; Tenn. Const. Art. 1, § 9. “It is never proper for a prosecuting
attorney to comment upon a defendant’s decision not to testify.” State v. Thornton, 10
S.W.3d 229, 235 (Tenn. Crim. App. 1999) (citing Griffin v. California, 380 U.S. 609 (1965)).
Such comments constitute reversible error unless this court concludes that the error was
harmless beyond a reasonable doubt. State v. Hale, 672 S.W.2d 201, 202-03 (Tenn. 1984).

        In this case, the record shows that the State, in its closing arguments, stated, “[The
victim’s] testimony is not controverted. Nobody is arguing with him. Nobody is here saying,
[‘][W]ell, it didn’t happen that way . . . .[’]” Appellant objected, and the trial court enjoined
the State not to say more than that the victim’s testimony was not contradicted. Then, the
State moved on to reviewing the evidence presented in the case. “Generally, mere argument
by the [S]tate that its proof is unrefuted or uncontradicted is not an improper comment upon
a defendant’s failure to testify.” State v. Rice, 638 S.W.2d 424, 427 (Tenn. Crim. App. 1982)
(citing Taylor v. State, 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979); State v. Livingston, 607
S.W.2d 489 (Tenn. Crim. App. 1980)); see also Thornton, 10 S.W.3d at 235. We note that
in this case, there were two eyewitnesses to the incident who did not testify at trial. While
it would have been better for the State to have stopped its argument at stating that the proof
was uncontroverted, due to the fact that witnesses might have testified other than appellant,
we cannot construe the State’s argument as a comment on appellant’s right not to testify. In
our view, the State’s comments were not improper and did not violate the prohibition against
commenting on a defendant’s failure to testify. Therefore, appellant is without relief as to
this issue.

                                             C. Sentencing

        Appellant’s only argument with regard to sentencing is that the trial court “failed to
cite any mitigating factors or enhancement factors in the record.” The State responds that
the trial court found three enhancement factors applicable to appellant’s sentencing and did
not abuse its sentencing discretion.


        1
          Appellant also contends that the State falsely stated during the sentencing hearing that appellant
was arrested in Chattanooga. However, appellant did not object to the statement. Therefore, he has waived
plenary review of this issue. See Tenn. R. App. P. 36(a).

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        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4).

       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. §§ 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “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.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

        When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said
error will not remove the presumption of reasonableness from its sentencing determination.
Bise, 380 S.W.3d at 709. This court will uphold the trial court’s sentencing decision “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 709-10.
Moreover, under such circumstances, appellate courts may not disturb the sentence even if
we had preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging

                                               -8-
the sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

        Appellant is a Range III, persistent offender. As such, he was subject to a sentence
of ten to fifteen years. See Tenn. Code Ann. § 40-35-112(c)(3). The trial court sentenced
him to twelve years after finding three enhancement factors: appellant had a prior history of
criminal convictions beyond that necessary to establish his range, Tenn. Code Ann. § 40-35-
114(1); appellant had previously failed to comply with the conditions of a sentence involving
release into the community, id. § 40-35-114(8); and appellant had committed the offense
while on probation, id. § 40-35-114(13)(C). The record supports the trial court’s findings
because the presentence report reveals that appellant had twenty-seven various felony and
misdemeanor convictions (other than traffic offenses), had his probation revoked three times
prior to this case, had absconded from probation once, and was on probation when he
committed the instant offense. Thus, the trial court sentenced appellant to a within-range
sentence supported by the record. We conclude that the trial court did not abuse its
discretion, and appellant is without relief as to this issue.

                                      CONCLUSION

       Based on our review of the record, the applicable law, and the briefs of the parties, we
affirm the judgment of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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