                                                                                       10/04/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 24, 2019

           STATE OF TENNESSEE v. RONNIE THOMAS BAKER

               Appeal from the Criminal Court for Davidson County
               No. 2017-B-1381 Angelita Blackshear Dalton, Judge
                     ___________________________________

                          No. M2018-02221-CCA-R3-CD
                      ___________________________________


Defendant, Ronnie T. Baker, was convicted by a jury of aggravated assault, domestic
assault, and interference with a 911 call. The trial court sentenced Defendant to a total
effective sentence of ten years, eleven months, and twenty-nine days. On appeal,
Defendant argues that (1) the evidence was insufficient to sustain his conviction of
aggravated assault; (2) the trial court erred in admitting the victim’s prior consistent
statements; (3) the trial court erred in admitting testimony and photos concerning the
interior of the victim’s residence that showed destruction of the property by the
Defendant; (4) the trial court erred by failing to merge the convictions for aggravated
assault and domestic assault; and (5) the trial court erred in imposing the maximum
sentence and by imposing partial consecutive sentencing. After conducting a full review
of the record, we affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Martesha Johnson, District Public Defender; Jeffrey A. DeVasher (on appeal), Patrick
Hakes and Stella Yarbrough (at trial), Assistant District Public Defenders, for the
appellant, Ronnie Thomas Baker.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Glenn Funk, District Attorney General; and Amy M. Hunter, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
        On June 19, 2017, the Davidson County Grand Jury returned a five-count
indictment against Defendant, charging him with aggravated burglary (Count 1),
aggravated assault for intentionally or knowingly causing serious bodily injury (Count 2),
domestic assault for intentionally, knowingly, or recklessly causing bodily injury (Count
3), vandalism valued $1000 or less (Count 4), and interfering with a 911 call (Count 5).
At trial, the following facts were adduced.

        Defendant and Lisa Williams had been in an on-again, off-again relationship for
approximately twelve years and had lived together until Defendant left Ms. Williams’s
residence about two months prior to March 2017. On March 20, 2017, Ms. Williams was
at home cooking dinner. She heard a car pull up outside and went to the door. Ms.
Williams saw Defendant get out of the car. She asked Defendant what he wanted.
Defendant “jerked the door out of [Ms. Williams’s] hand and walked on in the house.”
Defendant asked about his belongings. Ms. Williams told Defendant they were “all in the
washroom.” Defendant became upset and began demanding other items, specifically
clothing he gave to Ms. Williams, saying “another bitch can wear that.” Defendant began
cursing, screaming, throwing things out of Ms. Williams’s closet and drawers, and
throwing items of clothing at her. Defendant poured a can of grape soda onto Ms.
Williams’s bed. Defendant then ransacked Ms. Williams’s kitchen. Ms. Williams
testified that Defendant was “just cussing, just going off.” She stated that Defendant
“called me a bunch of bitches, hoes, . . . [t]old me I was messing around with somebody.”

       Attempting to distance herself from the situation, Ms. Williams stepped outside so
that Defendant could “have room to leave.” Instead of leaving, Defendant went outside,
“got off the porch and came down there where [Ms. Williams] was[,] and he just started
beating” her. Defendant punched Ms. Williams with his fists, pulled her hair, and
scratched her. Ms. Williams attempted to call 911, but Defendant took her phone and
smashed it on the ground twice, rendering it useless.

       “[A]s that round got through,” Ms. Williams stood up and headed towards her
house. She was fearful that Defendant was coming up behind her, so Ms. Williams
picked up a “stick,” which was actually a porch rail. Ms. Williams swung the “stick” to
keep Defendant from hitting her again, “slightly hit[ting] him in his head.” Defendant,
unfazed by the strike, took the “stick” from Ms. Williams, threw her down, and hit her in
the eye with the “stick.” Defendant then left in the car in which he arrived.

       Ms. Williams’s daughter arrived about five minutes after Defendant left and called
911. When Officer Kevin Reynolds from the Metropolitan Nashville Police Department
arrived at Ms. Williams’s residence, he spoke to Ms. Williams, took photographs, and
collected evidence. Officer Reynolds testified that Ms. Williams was crying and very
emotional. He observed that she had a laceration to her eye and a swollen face. Officer
Reynolds stated that the interior of Ms. Williams’s home “was a wreck.”
                                           -2-
       The paramedics eventually transported Ms. Williams to the hospital. As a result
of the assault, Ms. Williams suffered a broken nose, a broken eye socket, and various
cuts, scratches, and bruises. Photographs of Ms. Williams’s injuries were entered into
evidence and showed a cut above Ms. Williams’s left eye, a swollen shut left eye that was
also black, and a cut on her neck. Ms. Williams’s medical records were also entered into
evidence. Ms. Williams described her level of pain as a ten out of ten. She was given
multiple doses of Hydrocodone while at the hospital, and she was given a prescription for
Hydrocodone to take as needed once she was discharged. Ms. Williams testified that she
was still suffering from blurred vision due to the assault at the time of trial.

       The State introduced photographs of the “stick” used in the assault and Ms.
Williams’s damaged cell phone. The State also introduced photographs of the damage
done to the interior of Ms. Williams’s home, which included pictures of clothes thrown
about, food thrown out of cabinets, the trash can turned over, and a soda spilled on the
bed. The trial court denied the introduction of a photograph that showed blood on the
floor. During cross-examination, Ms. Williams admitted that there was no permanent
damage done to the interior of her home.

       Defense counsel read from the preliminary hearing transcript to point out several
prior inconsistent statements that Ms. Williams had made in order to impeach her and
attack her credibility. The prior inconsistent statements pertained to the timing of the
incident, whether Ms. Williams was going to contact the police, whether Ms. Williams
was going back into the house when she picked up the stick, and whether Defendant hit
Ms. Williams with the stick or with his fist. The State, in an attempt to rehabilitate Ms.
Williams’s credulity, read at length from the same preliminary hearing transcript on re-
direct examination to point out prior consistent statements and asked Ms. Williams if the
statements made at the trial were consistent with those she made at the preliminary
hearing. Defendant objected to the State’s use of prior consistent statements. The State
argued that prior consistent statements could be used to rehabilitate a witness once a
witness has been impeached. The trial court overruled the objection.

       At the end of the State’s re-direct, Defendant moved for a mistrial. Defendant
argued that the State improperly entered into evidence the entirety of the preliminary
hearing transcript, which was hearsay that did not fall under any of the hearsay
exceptions. The State responded that Defendant opened the door by admitting prior
inconsistent statements and that the State is permitted to use prior consistent statements to
rehabilitate a witness. The trial court denied the motion for mistrial. Defendant then
asked the trial court to give the jury a limiting instruction. The following instruction was
given to the jury:


                                            -3-
             The contents of the prior inconsistent statement are not to be
      considered as proof in the trial. However, immaterial discrepancies or
      differences in the statements of witnesses do not affect their credibility.

             If a witness is thus impeached, the jury has the right to disregard his
      or her evidence, and treat it as untrue, except where it is corroborated by
      other credible testimony, or by the facts and circumstance proved on the
      trial.

             Prior consistent statements are admissible to rehabilitate a witness or
      to respond to impeachment by a prior inconsistent statement. The prior
      consistent statements cannot be considered by the jury as substantive
      evidence and [are] to be used only in assessing the credibility of the
      witness. Any prior consistent statements can be used only as corroboration
      of the in court testimony of the witness after impeachment by opposing
      counsel.

       Defendant did not testify at trial and offered no proof. The jury found Defendant
guilty of aggravated assault in Count 2, domestic assault in Count 3, and interference
with a 911 call in Count 5. Count 1, aggravated burglary, and Count 4, vandalism for the
destruction of Ms. Williams’s phone, were dismissed because the jury could not reach a
verdict.

       At the sentencing hearing, the trial court found Defendant had a total of four prior
qualifying convictions and sentenced him as a Range II, multiple offender. The trial
court sentenced Defendant to ten years on Count 2 for aggravated assault and eleven
months, twenty-nine days each for Count 3, domestic assault, and Count 5, interference
with an emergency call. The trial court also found that Counts 3 and 5 should be served
concurrently with each other but consecutively to Count 2, giving Defendant an effective
sentence of ten years, eleven months, and twenty-nine days.

       The trial court further found that confinement was necessary, denying any form of
alternative sentencing. The trial court found that the facts were “particularly egregious.”
Although Defendant was not indicted for vandalizing Ms. Williams’s home, the trial
court found credible testimony that Defendant violated the space where Ms. Williams
should have felt safe. The trial court found that Defendant created a disturbance that
resulted in Ms. Williams’s fearing continued aggressive actions. The trial court also
noted that less restrictive measures had been unsuccessfully used in the past. The trial
court found all these factors to weigh in favor of confinement.




                                           -4-
       On October 15, 2018, Defendant filed a motion for a new trial, which was denied
by the trial court. It is from the denial of the motion for new trial that Defendant now
appeals.

                                              Analysis

                                  I. Sufficiency of the Evidence

       Defendant argues that the evidence is insufficient to support the aggravated assault
conviction.1 Specifically, Defendant contends that the State failed to prove the element
of serious bodily injury because the evidence failed to prove extreme physical pain or the
protracted loss or substantial impairment of a function of a bodily member, organ, or
mental faculty. The State, on the other hand, insists that the evidence was sufficient to
show both extreme physical pain and the protracted loss or substantial impairment of a
function of a bodily member.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). “‘A guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution’s theory.’” Id. (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997)). Therefore, the prosecution is entitled to the “‘strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.’”
State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the proof are
matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d 289, 297
(Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). It is not
the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).


       1
         Defendant does not challenge the sufficiency of the evidence related to his convictions on the
other counts.
                                                 -5-
       As charged in this case, a person commits aggravated assault by intentionally or
knowingly committing an assault that results in serious bodily injury to another. T.C.A.
§§ 39-13-101(a)(1), -102(a)(1)(A)(i). A person acts intentionally “when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-
11-302(a). A person acts knowingly “when the person is aware of the nature of the
conduct or that the circumstances [surrounding the conduct] exist” or “when the person is
aware that the conduct is reasonably certain to cause the result.” Id. at (b). Serious
bodily injury includes bodily injury that involves “[e]xtreme physical pain” or a
“[p]rotracted loss or substantial impairment of a function of a bodily member. . . .”
T.C.A. § 39-11-106(a)(34)(C), (E). “In contrast, ‘bodily injury,’ an element of the
misdemeanor offense of assault, includes ‘a cut, abrasion, bruise, burn or disfigurement;
physical pain or temporary illness or impairment of the function of a bodily member,
organ or mental faculty.’” State v. Barnes, 954 S.W.2d 760, 765 (Tenn. Crim. App.
1997) (citing T.C.A. §§ 39-13-101(a)(1); 39-11-106(a)(2)). As this Court has explained:

       While the phrase “serious bodily injury,” an essential element of the
       offense of aggravated assault, is not susceptible to precise legal definition,
       it must describe an injury of a greater and more serious character than that
       involved in a simple assault. The distinction between ‘bodily injury’ and
       ‘serious bodily injury’ is generally a question of fact for the jury and not
       one of law.

Id. at 765-766.

        Defendant relies on State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995), State
v. Farmer, 380 S.W.3d 96 (Tenn. 2012), and State v. Eddie Leroy Rowlett, No. M2011-
00485-CCA-R3-CD, 2013 WL 749502 (Tenn. Crim. App. Feb. 26, 2014) no perm. app.
filed, to support his argument that the State failed to prove serious bodily injury. In Sims,
this Court held that the evidence of the victim’s injuries was insufficient as a matter of
law to support a finding of serious bodily injury based on extreme physical pain. Sims,
909 S.W.2d at 48-49. The victim was struck in the face with a pistol one time. Id. As a
result, she had a broken and swollen nose, a bruised cheekbone, two black eyes, and a cut
across the bridge of her nose. Id. The victim testified that she experienced extreme
physical pain on her face and nose. However, the victim was in the hospital less than two
hours and was prescribed no pain medication. Id. In Farmer, the victim was shot in the
leg. Farmer, 380 S.W.3d at 98. “[T]he wound required minimal medical treatment and
did not cause the victim to suffer a loss of consciousness, extreme pain, disfigurement, or
impairment.” Id. The supreme court reduced the conviction from especially aggravated
robbery to aggravated robbery because the victim did not suffer a serious bodily injury.
Id. In Eddie Leroy Rowlett, the defendant hit the victim in the eye with “some type [of]
item wrapped around his hand.” 2013 WL 749502 at *6-7. The victim’s eye was
swollen, and he lost vision for one night. Id. This Court reduced the defendant’s
                                            -6-
conviction of aggravated assault to assault because there was no proof of serious bodily
injury or protracted loss or substantial impairment. Id.

        Each of the cases relied upon by Defendant can be distinguished from the instant
case. Here, Ms. Williams stated that Defendant hit her in the eye with a piece of a porch
rail. The medical records showed that Ms. Williams suffered from a broken nose and a
fractured orbital bone and was given multiple doses of pain medication during her eight-
hour hospital stay. Ms. Williams testified that her pain level was at a ten out of ten for a
two-week period and that she had to take pain medication to keep the pain from coming
back. See State v. Jason C. Carter, No. M1998-00798-CCA-R3-CD, 2000 WL 515930,
at *7 (Tenn. Crim. App. Apr. 27, 2000) (finding sufficient evidence for serious bodily
injury where pain medication was prescribed for blows to the head and bruising), perm.
app. denied (Tenn. Nov. 20, 2000). This Court has held that the subjective nature of pain
is a fact to be determined by the trier of fact. State v. Eric A. Dedmon, No. M2005-
00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App. Feb. 23, 2006), no perm.
app. filed. Additionally, a photograph showed Ms. Williams’s eye was swollen shut, and
Ms. Williams testified that she still suffered from blurred vision. See State v. Antonio
Howard, No. W2014-02488-CCA-R3-CD, 2016 WL 3131515 at *7 (Tenn. Crim. App.
May 26, 2016) (finding the evidence sufficient to establish serious bodily injury where
the victim suffered loss of vision), no perm. app. filed.

        After reviewing the evidence in the light most favorable to the State, we conclude
that a rational trier of fact could have found beyond a reasonable doubt that Ms. Williams
was in “extreme physical pain” and that her blurred vision constituted a “[p]rotracted loss
or substantial impairment of a function of a bodily member.” Thus, there was sufficient
evidence of “serious bodily injury” to support Defendant’s conviction for aggravated
assault. Defendant has not challenged whether he acted intentionally or knowingly.
Accordingly, Defendant’s conviction for aggravated assault is affirmed.

                           II. Trial Court’s Evidentiary Rulings

                                  A. Standard of Review

       The admissibility of evidence rests within the trial court’s sound discretion, and
this Court will not overturn a trial court’s decision regarding the admissibility of the
evidence absent an abuse of that discretion. State v. Clayton, 535 S.W.3d 829, 859
(Tenn. 2017) “A court abuses its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” State v. Quintis McCaleb, __ S.W.3d __, No. E2017-01381-
SC-R11-CD, 2019 WL 394092, *5 (Tenn. Aug. 21, 2019). (quoting Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)) (citations omitted). “[R]eviewing courts
                                            -7-
should review a [trial] court’s discretionary decision to determine (1) whether the factual
basis for the decision is properly supported by evidence in the record, (2) whether the
[trial] court properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the [trial] court’s decision was within the
range of acceptable alternative dispositions. Id. “[T]he abuse of discretion standard of
review does not permit an appellate court to substitute its judgment for that of the trial
court.” Id. at *6 (quoting State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018)).

                                  B. Prior Consistent Statement

       Defendant argues that the trial court erred in allowing portions of Ms. Williams’s
preliminary hearing testimony to be admitted as prior consistent statements because her
preliminary hearing testimony did not involve matters about which she testified on direct
examination. Defendant also contends that Ms. Williams’s prior consistent statements
exceeded the scope of cross-examination and served only to improperly bolster her
testimony. The State argues that the prior consistent statements were used to rehabilitate
Ms. Williams’s credibility after Defendant used prior inconsistent statements from the
preliminary hearing testimony to attack it.2

       Prior consistent statements are generally not admissible to bolster the testimony of
a witness. State v. Herron, 461 S.W.3d 890, 904-905 (citations omitted). Allowing prior
consistent statements to bolster a witness’s testimony would pose a danger of the jury
deciding the case on the repetitive nature of the statements instead of on the testimony
given under oath, in court. Id. at 905.

       One exception to this general rule allows the admission of prior consistent
statements to “rehabilitate a witness whose testimony is attacked on cross-examination as
a ‘recent fabrication’ or ‘deliberate falsehood.’” Id. This exception allows the prior
consistent statement to be used as a means to show the witness’s trial testimony is
consistent with statements made before an improper influence existed. Id. Before a prior
consistent statement may be admitted, the witness’s testimony must have been seriously
questioned to the extent that the witness’s credibility needs shoring up. Id. Prior
consistent statements admitted under this exception are not to be used as substantive
evidence but only to rehabilitate the witness’s credibility. Upon request, the trial court
should instruct the jury as to the limited purpose for which the prior consistent statement
has been admitted. Id.



        2
           The State also argues that Tennessee Rule of Evidence 106, the rule of completeness, would
also allow admission of the prior consistent statements. However, we need not address that issue because,
as discussed further below, we conclude that the statements were admissible to rehabilitate the witness’s
credibility.
                                                   -8-
       On cross-examination, Defendant used portions of Ms. Williams’s preliminary
hearing testimony that were inconsistent with her trial testimony to impeach her
credibility. The trial court found that Defendant had sufficiently questioned Ms.
Williams’s credibility as to allow the State to use prior consistent statements, from the
same preliminary hearing testimony, to bolster Ms. Williams’s credibility. Defendant
asked for a limiting instruction to the jury, and the trial court agreed. The trial court
instructed the jury that the prior consistent statements were “to be used only in assessing
the credibility of the witness.” The jury is presumed to follow the instructions of the trial
court. State v. Reid, 164 S.W.3d 286, 323 (Tenn. 2005). Defendant has failed to
establish that the trial court abused its discretion in admitting the prior consistent
statements, and he is not entitled to relief on appeal.

       C. Admission of Testimony and Photographs from the Interior of the House

        Defendant argues that the trial court erred in admitting testimony and photographs
concerning Defendant’s destruction and throwing of food and drink inside Ms.
Williams’s residence. Defendant argues the evidence is irrelevant under Tennessee Rules
of Evidence 401 and 402 because he was indicted for vandalism only with respect to the
destruction of Ms. Williams’s phone. Additionally, Defendant argues that under
Tennessee Rule of Evidence 403, the probative value of the evidence is outweighed by
the danger of unfair prejudice. Finally, Defendant argues that the evidence should be
excluded as improper character evidence under Tennessee Rules of Evidence 404(a).
The State argues that the evidence was relevant to establish the circumstances
surrounding the events as well as both Defendant’s and Ms. Williams’s states of mind.
The State further argues that Defendant has failed to show that the trial court abused its
discretion in determining that the probative value was not substantially outweighed by the
risk of unfair prejudice. The State also argues that Defendant has waived any arguments
under Tennessee Rules of Evidence 404(a) for not including the argument in his motion
for a new trial.

        Evidence must be relevant to be admissible. Tenn. R. Evid. 402. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice
is generally defined as “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947,
951 (Tenn. 1978); see State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (“Prejudice
becomes unfair when the primary purpose of the evidence at issue is to elicit emotions of
‘bias, sympathy, hatred, contempt, retribution, or horror.’”) (internal citation omitted).
                                            -9-
       “A trial court has broad discretion regarding the admissibility of photographs.”
State v. Davidson, 509 S.W.3d 156, 198 (Tenn. 2016). Before a photograph is
admissible, it must be verified and shown to be relevant, and the trial court must weigh its
probative value against the danger of unfair prejudice. Id. A relevant photograph
“maybe excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” Id. at 198-199.

        The trial court found that the photographic “proof was relevant to the totality of
the circumstances of establishing the Defendant’s state of mind during the entirety of
events.” The trial court also found that Defendant’s destruction of items in Ms.
Williams’s home related to his course of conduct that led to Ms. Williams’s fear and
going outside. The trial court reviewed the photographs and excluded a photograph
showing blood on the floor. The trial court determined that the photographs and
testimony related to Defendant’s course of conduct, and as such, the prejudicial effect did
not outweigh the probative value. Defendant waived his argument that the photographs
and testimony should have been excluded as improper character evidence under
Tennessee Rule of Evidence 404(a) by failing to object on that basis at trial and in his
motion for new trial. See Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 3(e). Defendant has
failed to establish that the trial court abused its discretion in admitting the testimony and
photographs regarding his destruction of items inside Ms. Williams’s residence, and he is
not entitled to relief on appeal.

         III. Separate Convictions for Aggravated Assault and Domestic Assault

        While admitting that he failed to raise the issue in the trial court, Defendant argues
that his convictions for aggravated assault and domestic assault violate the constitutional
protections against double jeopardy because they arose from the same act or transaction.
Defendant also argues that domestic assault is a lesser-included offense of aggravated
assault. Defendant asserts the dual convictions constitute plain error. The State argues
that because Defendant failed to argue that his convictions violated double jeopardy in
his motion for a new trial, he has waived this argument. Additionally, the State argues
that the two offenses did not arise from the same act or transaction and, thus, dual
convictions do not violate double jeopardy.

        In order to preserve the double jeopardy issue for review, Defendant needed to
first raise the issue in his motion for new trial and again in his appellate brief. State v.
Harbison, 539 S.W.3d 149, 164 (Tenn. 2018) (citing State v. Bishop, 431 S.W.3d 22, 43
(Tenn. 2014); State v. Martinos Derring, No. W2017-02290-CCA-R3-CD, 2019 WL
244471 at *6 (Tenn. Crim. App. Jan. 16, 2019), perm. app. denied (Tenn. May 17, 2019).
When a defendant raises an issue in a motion for new trial, the trial court is able to
consider the issue and make a ruling. Harbison, 539 S.W.3d at 164. Under Tennessee
                                            - 10 -
Rule of Appellate Procedure 36(a), a court need not grant relief to a party “who fail[s] to
take whatever action [is] reasonably available to prevent or nullify the harmful effect of
an error.” An appellate court may decline to consider issues that a party failed to
properly raise. Bishop, 431 S.W.3d at 43 (citing State ex rel. D’Amore v. Melton, 212
S.W.2d 375, 376 (Tenn. 1948).

        However, Tennessee Rule of Appellate Procedure 36(b) allows this Court to take
notice of plain errors that were not raised in the trial court. State v. Smith, 24 S.W.3d
274, 282 (Tenn. 2000). Issues not raised at trial may be reviewed in the discretion of the
appellate court for plain error when these five factors are established: (a) the record
clearly establishes what occurred in the trial court; (b) a clear and unequivocal rule of law
was breached; (c) a substantial right of the accused was adversely affected; (d) the
defendant did not waive the issue for tactical reasons; and (e) consideration of the error is
necessary to do substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016).
In this case, Defendant admittedly raised the issues for the first time on appeal, thereby
waiving plenary review. Consequently, we will look to see if the trial court’s failure to
merge the convictions constitutes plain error.

       The Double Jeopardy Clause of both the United States and the Tennessee
Constitution’s guarantee that no person shall be twice put in jeopardy of life or limb for
the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The Double Jeopardy
Clause provides three separate protections: (1) protection against a second prosecution
for the same offense after acquittal; (2) protection against a second prosecution for the
same offense after conviction; and (3) protection against multiple punishments for the
same offense. State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012) (citing North
Carolina v. Pearce, 395 U.S. 711, 717 (1969), abrogated on other grounds by Alabama
v. Smith, 490 U.S. 794 (1989)). Whether multiple convictions violate the protection
against double jeopardy is a mixed question of law and fact, which this Court will review
de novo without any presumption of correctness. State v. Smith, 436 S.W.3d 751, 766
(Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).

       Defendant contends that the trial court’s failure to merge his convictions
implicates the third type of double jeopardy protection: protection against multiple
punishments for the same offense. The Tennessee Supreme Court has divided such
claims into two categories: (1) unit-of-prosecution claims, “when a defendant who has
been convicted of multiple violations of the same statute asserts that the multiple
convictions are for the same offense”; and (2) multiple description claims, “when a
defendant who has been convicted of multiple criminal offenses under different statutes
alleges that the statutes punish the same offense.” Id. (citing Watkins, 362 S.W.3d at
543-44). Defendant’s claim is a multiple description claim. To address a multiple
description claim, we must apply the two-pronged test laid out in Blockburger v. United

                                            - 11 -
States, 284 U.S. 299, 304 (1932). See Smith, 436 S.W.3d at 767; Watkins, 362 S.W.3d at
556.

       In a Blockburger analysis, our primary focus is whether the General
       Assembly expressed an intent to permit or preclude multiple punishments.
       If either intent has been expressed, no further analysis is required. When
       the legislative intent is unclear, however, we must apply the “same
       elements test” from Blockburger. Under this test, the first step is to
       determine whether the convictions arise from the same act or transaction.
       The second step is to determine whether the elements of the offenses are the
       same. If each offense contains an element that the other offense does not,
       the statutes do not violate double jeopardy.

Smith, 436 S.W.3d at 767 (internal citations omitted).

       In the first step of the Blockburger analysis, we must determine whether the
convictions arise from the same act or transaction. To determine whether the offenses
resulted from the same transaction or occurrence, we consider the following factors: (1)
whether the acts occur at or near the same time; (2) whether the acts occur at the same
location; (3) whether there is a causal relationship between the acts, in particular whether
there was an intervening event; and (4) whether there is a fresh impulse motivating some
of the conduct. Martinos Derring, 2019 WL 244471 at *9 (quoting State v. Itzol-Deleon,
537 S.W.3d 434, 450 (Tenn. 2017)).

       Here, the State argues that there were separate acts. The first “round” was
domestic assault committed by Defendant’s punching, pulling hair, and scratching Ms.
Williams, which resulted in scratches, bruising and a broken nose. The second “round”
was Defendant’s taking the stick from Ms. Williams and hitting her with it after she had
turned to go back into the house, picked up the stick, and hit Defendant with it to defend
herself from further attack. The State argues that Ms. Williams’s use of the stick was an
intervening event and a fresh impulse motivating the subsequent aggravated assault that
resulted in her fractured eye-socket and continued blurred vision. We agree with the
State’s conclusion. Because the actions were not part of the same act or transaction, there
was no breach of a clear and unequivocal law and consideration of the issue is not
necessary to do substantial justice. Thus, Defendant is not entitled to plain error relief.

        However, even if we were to determine that the convictions arose from the same
act or transaction, we would still determine that the trial court did not breach a clear and
unequivocal rule of law. The second step of the Blockburger test is to determine whether
the elements of the offenses are the same. If each offense contains an element that the
other offense does not, the statutes do not violate double jeopardy. As described above,
aggravated assault is an assault that results in serious bodily injury. T.C.A. § 39-13-
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102(a)(1)(A)(i). On the other hand, domestic assault is defined as an assault against a
“domestic abuse victim,” which includes adults “who have lived together” or “who have
dated.” T.C.A. § 39-13-111(a)(2), (3), (b). In our view, a comparison of the two offenses
reveals different elements in each – one requiring a specific degree of injury and the other
requiring a specific type of victim. Based on the above analysis and the facts of this case,
we conclude Defendant’s convictions for both aggravated assault and domestic assault do
not violate a clear and unequivocal rule of law. Consequently, Defendant is not entitled
to plain error relief.

                                       IV. Sentencing

       Defendant argues that the trial court erred in imposing the maximum sentence
allowable by law for aggravated assault. Defendant also contends that the trial court
erred in imposing partial consecutive sentencing. The State argues that the trial court
properly exercised its discretion when it imposed a within-range sentence for the
aggravated assault or when it ordered a partially consecutive sentence.

                                    A. Sentence Length

        When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard
does not permit an appellate court to substitute its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.

        In reaching its decision, the 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 enhancement and mitigating 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 by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
                                            - 13 -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and “should be the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4). The weighing of various enhancement and
mitigating factors is within the sound discretion of the trial court. State v. Carter, 254
S.W.3d 335, 345 (Tenn. 2008). This Court will uphold the sentence “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.” Bise, 380 S.W.3d at 709.

       In sentencing the Defendant for aggravated assault, the trial court “considered all
of the pertinent testimony and proof offered at trial and the sentencing hearing, including
the testimony presented on behalf of the State and the Defendant, as well as the
Defendant’s allocution.” The trial court also reviewed Defendant’s presentence report.
The trial court found Defendant to be a Range II, multiple offender, which has a
sentencing range between six and ten years for the Class C felony of aggravated assault.
T.C.A. § 40-35-112(b)(3). In determining the length of the sentence within the multiple
offender range, the court found no mitigating factors pursuant to Tennessee Code
Annotated section 40-35-113 and found the following two enhancement factors pursuant
to Tennessee Code Annotated section 40-35-114: (1) that Defendant had a previous
criminal history in addition to those necessary to establish the appropriate range and (2)
that “Defendant possessed or employed a deadly weapon during the commission of the
offense, in that the evidence at trial showed that he struck [Ms. Williams] on the head
with a wooden stick.” Defendant had convictions for aggravated assault, aggravated
robbery, evading arrest, criminal impersonation, harassment, resisting arrest, and a
weapons related offense. The trial court also stated that it was “extremely concerned
about the Defendant’s history of criminal behavior, including convictions for domestic
violence related offenses, especially considering the instant case involves a domestic
violence related offense.” The trial court was concerned that Defendant lacked “an
appreciation for his accountability for his actions and the impact of his criminal behavior
on others.” The trial court sentenced Defendant to ten years on the aggravated assault
charge.

       The trial court followed the proper sentencing procedure and sentenced Defendant
to a sentence within the range for each conviction. The trial court did not abuse its
discretion in sentencing Defendant to the maximum possible sentence for each
conviction. Therefore, Defendant is not entitled to relief.

                               B. Consecutive Sentencing

      Defendant argues that the trial court erred in imposing partial consecutive
sentences. Defendant contends that the imposition of consecutive sentences “is an
aggregate sentence that is greater than that deserved for the offenses committed, and is
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not the least severe measure to achieve the purposes for which the sentence was
imposed.” Defendant argues that the sentence violates the principles in Tennessee Code
Annotated sections 40-35-103(2) and (4). The State argues that the trial court properly
exercised its discretion in imposing partially consecutive sentences.

        In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court
expanded its holding in Bise to also apply to decisions by trial courts regarding
consecutive sentencing. Id. at 859. This Court must give “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” Id. at 861. “Any one of [the] grounds [listed in
section 40-35-115(b)] is a sufficient basis for the imposition of consecutive sentences.”
Id. at 862 (citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)). As relevant to this
case, the trial court may order sentences to run consecutively if it finds by a
preponderance of the evidence that “[t]he defendant is an offender whose record of
criminal activity is extensive” or that “[t]he defendant is a dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high.” T.C.A. § 40-35-115(b)(2), (4).

       Here, the trial court found by a preponderance of the evidence that the two factors
above applied. Based on these factors, the trial court found that “consecutive sentencing
is appropriate and necessary to protect the public against further criminal conduct by the
Defendant and relates to the severity of the offenses committed.” See State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995). The trial court found “that [C]ounts 3 and 5 shall be
served concurrently with each other, and that [C]ounts 3 and 5 shall be served
consecutively to [C]ount 2.” Defendant’s aggregate sentence was ten years, eleven
months, and twenty-nine days. We find that the trial court did not abuse its discretion by
ordering Defendant to serve the sentence for Count 2 consecutively with Counts 3 and 5.
Defendant is not entitled to relief.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.

                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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