            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                          OCTOBER 1997 SESSION
                                                        January 8, 1998

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,               *     C.C.A. # 03C01-9611-CR-00397

      Appellee,                   *     SULLIVAN COUNTY

VS.                               *     Hon. Frank L. Slaughter, Judge

MICHAEL A. CRAWFORD,              *     (Aggravated Assault)

      Appellant.                  *




For Appellant:                    For Appellee:

Gregory D. Smith                  John Knox Walkup
Attorney                          Attorney General and Reporter
One Public Square, Ste. 321
Clarksville, TN 37040             Georgia Blythe Felner
(on appeal)                       Counsel for the State
                                  450 James Robertson Parkway
Richard Tate                      Nashville, TN 37243-0493
Asst. Public Defender
266 Blountville Bypass            H. Greeley Wells, Jr.
Blountville, TN 37617             District Attorney General
(at trial)                        and
                                  Barry Staubus
                                  Assistant District Attorney General
                                  140 Blountville Bypass
                                  Blountville, TN 37617




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                              OPINION

                The defendant, Michael Anthony Crawford, was indicted for attempted

second degree murder. Tenn. Code Ann. § 39-13-210.1 The jury returned a verdict

of guilt for the lesser included offense of aggravated assault, a Class C felony.

Tenn. Code Ann. § 39-13-102. The trial court imposed a Range II, ten-year

sentence. There was a fine of $10,000.00.



                In addition to his challenge to the sufficiency of the evidence, the

defendant complains that the sentence and the fine were excessive. We find no

error and affirm the judgment of the trial court.



                On the morning of September 11, 1995, the defendant, who had just

been released from a four-month jail term on an unrelated matter, returned to a

Kingsport apartment he shared with his girlfriend of approximately five years, Gail

Christian. Both Ms. Christian and her daughter, Tina Smith, were present when the

defendant arrived. Shortly thereafter, Ms. Smith left to do the laundry. During her

absence, the defendant and Ms. Christian, the victim in this case, engaged in sex.

At some point, the victim informed the defendant that she "had met someone else."



                Only a few minutes after the victim left the bedroom, the defendant, in

her words, went into "a rage." She testified at trial that he "started throwing things

around through the house" and "took a ... leg from the table and started hitting [her]

in the head with it" as she sat on the couch. She recalled that she attempted to

leave the apartment but that the defendant forced her return and threatened to kill

her as he continued to strike her in the head, arm, and back. She remembered that


        1
          The original indictment cited Tenn. Code Ann. § 39-13-202, the statute defining first degree
murder. Premeditation was not alleged, however, and a notation on the original indictment changes
the statuto ry referenc e to Ten n. Code Ann. § 39 -13-210 , which de fines se cond d egree m urder.

                                                   2
the defendant ordered her to the back bedroom where he continued to threaten to

kill her, stabbed her in the ribs with a knife, and cut her face, finger, and arm. Both

the table leg and the knife were made exhibits at trial. Several photographs were

admitted to depict the nature of the injuries. The victim testified that the assault

lasted an hour and a half until her daughter returned to the apartment.



              Ms. Smith testified that when she returned, the apartment windows

were broken; her mother was covered with blood. She recalled that the defendant

threatened to kill the victim the "next time." Ms. Smith then drove her mother to the

Holston Valley Hospital. Officer Bobby Lawson of the Kingsport Police Department

was dispatched to the hospital about 4:30 P.M., interviewed the victim, and arrested

the defendant. He described the defendant as smelling of alcohol but not

intoxicated. He recalled seeing dried blood around his fingernails, marks and

bruises on his forearms, and a small cut on his finger.



              Detective Glenn Martin of the Kingsport Police searched the

apartment. He observed broken furniture, blood in every room except the bathroom,

and a coffee table with a leg missing. He found a bloody table leg and a blue-

handled knife in a blood-covered white porcelain sink.



              The defense presented no proof.



              An assault occurs when a person (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.


                                            3
There is a Class C aggravated assault when the person charged (1) intentionally or

knowingly commits an assault as defined in § 39-13-101 and: (A) causes serious

bodily injury to another; or (B) uses or displays a deadly weapon. Tenn. Code Ann.

§ 39-13-102(a)(1). The defendant claims that the evidence, which showed he was

in a rage, was insufficient to establish the requisite intent (either intentional or

knowing) necessary for an aggravated assault.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). This court may not re-evaluate the

evidence nor substitute its inferences for those drawn by the jury. Farmer v. State,

574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Graves, 493 S.W.2d 474

(Tenn. 1973). A conviction may be set aside only when the reviewing court finds

that the "evidence is insufficient to support the finding by the trier of fact of guilt

beyond a reasonable doubt." Tenn. R. App. P. 13 (e).



              Other than the single reference to the defendant's being "in a rage,"

there is nothing in this record that would possibly imply that the defendant did not

act knowingly and intentionally. The proof was that the assault went largely

uninterrupted for one and one-half hours before the victim's daughter arrived at the

scene. While the defendant appeared to have been drinking some form of an

alcohol beverage, there was no testimony that he was intoxicated. That one acted

in a rage does not mean that there was no intent. In our view, the jury acted within

its prerogative in rejecting any notion that the defendant acted without knowledge or


                                             4
intent. Clearly, the evidence was sufficient.



              Next, the defendant complains that the trial court erred by imposing a

ten-year sentence, the maximum possible for a Range II offender. See Tenn. Code

Ann. § 40-35-112(b)(3). The defendant insists that the fines should be waived as

excessive due to his indigency. He submits that the trial court failed to properly

consider two mitigating factors: (1) that the defendant acted under strong

provocation; and (2) that the defendant, although guilty of the crime, committed the

offense under such unusual circumstances that it is unlikely that a sustained intent

to violate the law motivated his conduct. Tenn. Code Ann. § 40-35-113(2), (11).



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).


                                           5
              The trial court found no mitigating factors. None were filed on behalf

of the defendant. The presentence report failed to cite any. The trial court found

several enhancement factors:

              (1) that the defendant had a previous history of criminal
              convictions or criminal behavior in addition to those
              necessary to establish the appropriate range;

              (2) that the defendant treated or allowed the victim to be
              treated with exceptional cruelty during the commission of
              the offense;

              (3) that the defendant has a previous history of
              unwillingness to comply with the conditions of a sentence
              involving a release in the community; and

              (4) that the defendant had no hesitation about
              committing a crime when the risk to human life was high.

Tenn. Code Ann. § 40-35-114(1), (5), (8), and (10). The trial court placed particular

emphasis on the nature and circumstances of the crime and the extent of the

personal injuries inflicted upon the victim. See Tenn. Code Ann. § 40-35-114(6).



              The defendant, who was born in 1956, has a long history of criminal

behavior, both misdemeanor and felony. Many of the offenses involved terms of

incarceration. In 1985, his probation was revoked on a Florida sentence. W hile

characterizing his mental status as fair, the defendant has a history of alcohol abuse

and describes his physical health as poor. He acknowledges a history of heroin,

cocaine, and unprescribed drug usage. The defendant has been married and

divorced three times. He has no contact with three of his five children, whose ages

range from five to twenty, from those marriages. The defendant has little education

and a sporadic work record. His primary source of income is social security

disability.



              It is not inconceivable that the defendant was provoked by the

discovery that the victim had not been entirely faithful during his four-month

                                           6
incarceration. Even if we were to concede that point, however, the ten-year

sentence was warranted under all of the circumstances. In our view, little weight

should be given provocation as a mitigating factor. No weight should be given to the

defense claim that "it is unlikely that a sustained intent to violate the law motivated

[the defendant's] conduct." Tenn. Code Ann. § 40-35-113(11). The defendant

makes no argument that the enhancement factors do not apply. Like the trial court,

we also conclude that the applicable enhancements are entitled to enough weight to

justify the maximum sentence.



              Our constitution prohibits fines over $50.00 unless approved by the

jury. Tenn. Const. art. VI, § 14. A fine imposed by the trial court may not exceed

that fixed by the jury. State v. Mahoney, 874 S.W.2d 627, 630 (Tenn. Crim. App.

1993). There are no exceptions to these guidelines unless the defendant waives

the constitutional protections or his right to a trial by jury. State v. Martin, 940

S.W.2d 567 (Tenn. 1997); State v. Durso, 645 S.W.2d 753, 754 (Tenn. 1983). This

court has jurisdiction to review a fine because it is part of the sentence.    See State

v. Bryant, 805 S.W.2d 762, 763 (Tenn. 1991). Our review is de novo with a

presumption that the determinations made by the trial court are correct. State v.

Byrd, 861 S.W.2d 377 (Tenn. Crim. App. 1993).



              Here, the jury imposed a $10,000 fine, which was within the

permissible range for a Class C felony. See Tenn. Code Ann. § 40-35-111(b)(3). It

is, of course, well settled that the power to declare the appropriate punishment for a

crime falls within the authority of the legislature. Woods v. State, 169 S.W. 558

(Tenn. 1914). The imposition of a fine, within the limits set by the jury, is to be

based on the factors provided by the 1989 Sentencing Act; the trial court must

consider the defendant's ability to pay the fine, the evidence from the trial, the


                                             7
sentencing hearing proof in regard to the defendant's ability to pay, and other factors

of judgment involved in the setting of the total sentence. Bryant, 805 S.W.2d at 766;

see Tenn. Code Ann. § 40-35-207(7); see also State v. Marshall, 870 S.W.2d 532,

542 (Tenn. Crim. App. 1993) (stating that a defendant's ability to pay "is not

necessarily a controlling [factor]"); State v. Michael Westley Portzer, No. 01C01-

9208-CC-00252 (Tenn. Crim. App., at Nashville, Aug. 12, 1993).



              Here, the trial court did not establish a record to indicate that it

considered factors other than the nature of the offense in approving the fine.

Section 40-35-301(b), Tenn. Code Ann., provides that "[w]hen imposing sentence ...

the court shall impose a fine, if any, not to exceed the fine imposed by the jury."

The trial court is "obligated to evaluate the fine ... [and] may not simply impose the

fine as fixed by the jury." State v. Michael Wilson, No. 01C01-9602-CC-00073, slip

op. at 16 (Tenn. Crim. App., at Nashville, July 31, 1997), app. filed, Sept. 29, 1997.

Thus, this court is not bound by the presumption of correctness on appeal. State v.

Donald Eric Williams, No. 01C01-9405-CR-00165 (Tenn. Crim. App., at Nashville,

Dec. 22, 1994).



              As in Williams, the defendant was declared indigent and appointed

counsel. From that, we speculate that he is probably unable to pay a $10,000.00

fine. Otherwise, there is hardly anything pertinent to the issue for this court to

review. The only other information available from the record is that the defendant

has few assets, no outstanding debts, and a disability income of $464.00 per month.

The issue of the fine was not addressed in the motion for new trial or the hearing on

the motion.



              A declaration of indigency, standing alone, does not immunize the


                                            8
defendant from fines. It is merely one factor to be taken into account. Because the

record does not establish why the fines are excessive and because the defendant

has the burden to provide an adequate record on the issue for a proper review, we

must defer to the trial court in its acceptance of the $10,000.00 fine as

recommended by the jury. See State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim.

App. 1987). The seriousness of the offense supports the punitive nature of the fine

assessed. See State v. Harold Franklin Jones, No. 03C01-9110-CR-00330 (Tenn.

Crim. App., at Knoxville, July 8, 1992) (holding that a fine of $50,000.00 for

conviction of second degree murder was not excessive even though the defendant

claimed to be an indigent).



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Jerry L. Smith, Judge




                                           9
