                                                                                        07/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs May 22, 2018

         STATE OF TENNESSEE v. MATTHEW TYRONE SISSON

                Appeal from the Criminal Court for Hamilton County
                 No. 297817, No. 297143 Barry A. Steelman, Judge
                      ___________________________________

                           No. E2017-01721-CCA-R3-CD
                       ___________________________________


The Defendant, Matthew Tyrone Sisson, entered a guilty plea to two counts of
aggravated assault. After a sentencing hearing, the trial court sentenced the Defendant as
a Range II, multiple offender to ten years and eight years for the two convictions and
ordered the sentences to run consecutively, for an effective sentence of eighteen years.
On appeal, the Defendant argues that the trial court erred in admitting hearsay during the
hearing, giving too much weight to enhancement factors, failing to apply additional
mitigating factors, and running the sentences consecutively. After a thorough review of
the record and applicable law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and ROBERT W. WEDEMEYER, JJ., joined.

Chris Dixon, Chattanooga, Tennessee, for the appellant, Matthew Tyrone Sisson.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Lance Pope (at
sentencing) and Jason Demastus (at plea hearing), Assistant District Attorneys General,
for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

      The Defendant was indicted for one count of attempted first degree murder and
one count of aggravated assault in case number 297817 and for one count of aggravated
assault in case number 297143. Pursuant to a plea agreement, the Defendant pleaded
guilty to two counts of aggravated assault and agreed to be sentenced as a Range II,
multiple offender with the sentence length and manner of service to be determined by the
trial court. The attempted murder charge was dismissed as part of the plea agreement.

       At the guilty plea hearing, the State proffered the factual basis for the Defendant’s
guilty pleas. In case number 297817, the State asserted that on September 28, 2015,
Chattanooga Police Department officers responded to a report of a stabbing and found the
victim with multiple life-threatening stab wounds, which required immediate surgery.
Several witnesses observed the victim and the Defendant speaking with one another
while standing near a gas pump when the Defendant suddenly began stabbing the victim
before fleeing on foot. The victim told officers that the altercation began “with some
type of interaction” with the Defendant’s girlfriend, who was present when the stabbing
occurred, fled on foot with the Defendant, and was observed throwing a knife behind a
garbage can near her residence.

       In case number 297143, the State asserted that on October 1, 2015, the Defendant
was inside a Family Dollar store, where the store manager observed the Defendant using
a box cutter to remove security tags from store merchandise. The manager confronted
the Defendant, who “stood up and brandished the knife as he walked out of the aisle.”
The police were called, and video surveillance showed the Defendant “slightly swinging
his arms around with [a] box cutter” in his hand.

        At the subsequent sentencing hearing, a presentence report, prepared by Ms.
Michelina Ralston of the probation department, was entered into evidence. Ms. Ralston
testified that the Defendant had nineteen prior convictions, including multiple felonies,
and that the Defendant previously had been sentenced to probation and then violated the
terms of the probation. Ms. Ralston reported that the Board of Information and Parole
conducted a “Strong-R assessment,” which is a tool used to identify areas for
improvement to assist in lowering the recidivism rate. The Defendant’s assessment
showed that he was at “a high risk for recidivism when compared to others with similar
histories of offenses.” She agreed on cross-examination that the Defendant was only
eighteen years old when eight of his convictions occurred.

       Ms. Joy Williams, the Family Dollar manager whom the Defendant assaulted in
case number 297143, testified that she observed the Defendant “popping the security tags
off of clothing.” When Ms. Williams approached to ask what he was doing, the
Defendant appeared “erratic.” He had damaged some of the clothes and had thrown them
on the floor. Ms. Williams gathered the clothing from the floor and asked the Defendant
to leave. The Defendant told Ms. Williams that he could not pay for the items he had
damaged. As they approached the front exit, the Defendant went “back and forth” while
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holding a knife. The Defendant pulled it out of his pocket, returned it to his pocket,
pulled it back out, and then waved it in the air “in a Zorro style.” Ms. Williams was
standing “about three feet” from the Defendant; two other customers were five to six feet
behind him. Ms. Williams used her cellular telephone to call 9-1-1 while the Defendant
“kept pacing back and forth” and stepping in and out of the doorway. When Ms.
Williams gave a description of the Defendant to the 9-1-1 operator, the Defendant
corrected her regarding his weight and height. The Defendant told Ms. Williams he
would wait for the police to arrive but left as soon as Ms. Williams got off the telephone.
On cross-examination, Ms. Williams testified that the Defendant was talking to himself
and “bouncing around” while removing the security tags from the clothing, that he did
not make any verbal threats, and that nobody was injured.

       Ms. Debbie Hall testified that her brother, Mr. James Gann, was the victim in case
number 297817. She stated that Mr. Gann was incarcerated at the time of the hearing.
She explained that prior to the stabbing in 2015, Mr. Gann had prostate cancer, a heart
condition, and a limp from where he had some broken bones that did not heal properly.
Ms. Hall estimated that Mr. Gann was six feet tall and weighed around 160 to 170 pounds
in 2015. She testified that she was unaware of any connection between Mr. Gann and the
Defendant other than the stabbing itself.

       On the night of the stabbing, Ms. Hall went to the hospital where Mr. Gann had
been taken for surgery. She stated that medical personnel told her that “they didn’t know
if they could help [Mr. Gann].” The defense objected on the grounds of hearsay. The
State argued that the statement was offered to prove Ms. Hall’s state of mind after
receiving the information, or alternatively, that the hearsay was reliable. The trial court
overruled the objection and held that the statement was offered to prove the effect on the
listener rather than the truth of the matter asserted. Ms. Hall continued to explain that the
medical staff informed her that Mr. Gann had lost a lot of blood and that they did not
know whether they could sew the stab wound in his neck back together. Mr. Gann
underwent several hours of surgery to sew a vein back together to stop the bleeding. Mr.
Gann was transferred to the intensive care unit following the surgery and remained
hospitalized for a week. Ms. Hall stated that Mr. Gann’s speech was affected by his
injury and that he had difficulty swallowing.

        A video recording was introduced into evidence that showed a bystander at the
scene of the stabbing holding a rag on Mr. Gann’s neck to stop the bleeding. Ms. Hall
explained that the responding paramedics told her that if not for the bystander’s actions
that night, “[Mr. Gann] would have bled to death in the parking lot.”

      Mr. Jason Sisson, the Defendant’s brother, testified on behalf of the defense that
the Defendant had a “normal” childhood. He stated that the Defendant did not have a
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substance abuse problem when he got into trouble at age eighteen. He considered the
Defendant to be “a very hard worker,” who had worked construction and masonry jobs in
the past. Upon questioning from the trial court, Mr. Jason Sisson testified that the
Defendant’s demeanor has been different since his arrest for these offenses and that the
Defendant appeared to realize that the incident “could have been a lot worse.”

       Mr. Stan Sisson, the Defendant’s father, testified that he divorced the Defendant’s
mother when the Defendant was either ten or twelve years old and that he was “gone
most of that time afterwards.” He reconnected with the Defendant in 2003, and the
Defendant worked for him as a carpenter for three or four years. Mr. Stan Sisson
described the Defendant as a good employee, but he fired the Defendant for failing to
come to work. After the Defendant was fired, he went through a divorce, “ran with the
wrong woman,” and began abusing drugs. He stated that the Defendant was prescribed
Ritalin while in grade school. He also recalled the Defendant having medical issues after
ingesting lead paint.

       Mr. Joshua Steffon, also the Defendant’s brother, testified that he considered
himself to be a “caretaker” of the Defendant. He explained that the Defendant often
came to him for money and companionship. He was aware of the Defendant’s prior drug
abuse but did not recall whether the Defendant had any prior history of mental health
issues. He explained that he saw the Defendant the night of the incident at the Family
Dollar and believed the Defendant was “messed up on drugs” that night because of the
“way he talk[ed].” He described the Defendant overall as “a good guy when he’s not
drinking or doing drugs.” Upon questioning by the trial court, Mr. Steffon further
explained that the Defendant stabbed Mr. Gann because he had learned that his girlfriend
had been sleeping with Mr. Gann in exchange for drugs.

       Mr. Eric Griffey of the Mental Health Cooperative testified that the Defendant had
applied for the mental health court program. Mr. Griffey stated that an assessment was
performed while the Defendant was incarcerated in March 2016, which showed that the
Defendant suffered from post-traumatic stress disorder and depression.

        The Defendant presented an allocution in which he explained that he grew up in a
single-parent household, that his mother was incarcerated for a period while he was
twelve years old, that he began experimenting with drugs and alcohol while in high
school, that he dropped out of school and ran away from home, and that his addiction
began when he was eighteen years old. He stated that he was diagnosed with attention
deficit hyperactivity disorder, bipolar disorder, and post-traumatic stress disorder but that
he was never given any treatment for his disorders. He maintained that he wished to
change his life, learn new trade skills, and further his education. He explained that on
September 28, 2015, he “had been up for seven days on meth.” A few days later, he was
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“finally coming down … [he] took two Xanax bars” and “blacked out” while he was at
the Family Dollar. He expressed his remorse and desire to be “a husband, father, and a
son [that his] family needs.”

        The trial court noted that the nature and characteristics of the Defendant’s
behavior were “disturbing, aggressive, and vicious.” The court was particularly
concerned with the fact that both of the incidents occurred in public places where the
general public conducts its business. The trial court applied enhancement factors (1) and
(8), that the Defendant had a previous history of criminal behavior and that the Defendant
had previously failed to comply with conditions of a sentence involving release into the
community, to both of the Defendant’s convictions. See T.C.A. § 40-35-114(1), (8). The
court also applied enhancement factor (10), that the Defendant “had no hesitation about
committing a crime when the risk to human life was high,” to the conviction relating to
the stabbing of Mr. Gann, noting that “[t]o stab another individual in the torso creates one
of the highest risks to human life. It’s where the lungs are located, it’s where the heart is
located, it’s the center of the being, physically.” See T.C.A. § 40-35-114(10). The trial
court considered the Defendant’s family support under mitigating factor (13), the catch-
all factor, but gave “substantially more weight” to the applicable enhancement factors.
See T.C.A. § 40-35-113(13). The trial court sentenced the Defendant, as a Range II,
multiple offender to ten years for the stabbing of Mr. Gann in case number 297817 and to
eight years for wielding a knife at the Family Dollar in case number 297143.

       In determining that the Defendant’s sentences would run consecutively, the trial
court found that the Defendant’s criminal record was extensive and that the Defendant
was “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.” See
T.C.A. § 40-35-115(b)(2), (4). The court specifically noted its concern that the
Defendant “brandish[ed] a knife again just a matter of days after he ha[d] stabbed and left
Mr. Gann for possible death in a public parking lot at a gas station,” which the court
considered “indicative of his behavior.” The court also voiced concerns about the
Defendant’s brandishing a knife “in legitimate businesses where anybody from a child to
a grandmother could have been.”

                                       ANALYSIS

       On appeal, the Defendant challenges the admission of Ms. Hall’s testimony
regarding Mr. Gann’s injuries following the stabbing. He also argues that the trial court
erred in not applying certain mitigating factors, giving too much weight to the applicable
enhancement factors, and giving too little weight to the mitigating factor that was
applied. He finally asserts that the trial court erred in running his sentences
consecutively.
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                                        I. Hearsay

       The Defendant asserts that the trial court erred in admitting Ms. Hall’s testimony
regarding Mr. Gann’s resulting injuries and medical condition. He argues that the trial
court considered the improper testimony in enhancing the Defendant’s sentence. The
State responds that the trial court properly held that the testimony was not hearsay, and
alternatively, that any error was harmless.

        Tennessee Rule of Evidence 801(c) defines hearsay as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Hearsay evidence is generally inadmissible unless it
falls under an exception. Tenn. R. Evid. 801. However, “reliable hearsay, including, but
not limited to, certified copies of convictions or documents” may be admitted in a
sentencing hearing, so long as “the opposing party is accorded a fair opportunity to rebut”
such evidence and the admission of such evidence does not violate the United States or
Tennessee constitutions. T.C.A. § 40-35-209(b).

       The defense objected to Ms. Hall’s testimony regarding Mr. Gann’s injuries on the
grounds of hearsay. The State responded that the statement was offered to show the
effect this information had on Ms. Hall, or alternatively, that the hearsay was reliable.
The trial court determined that the statement was offered to prove the effect the
information had on Ms. Hall rather than to prove that Mr. Gann had actually suffered the
injuries described. The trial court did not err in considering the testimony for a non-
hearsay purpose. See State v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980)
(noting that a victim’s statement was not hearsay when offered to prove its effect on the
listener).

        Moreover, the Defendant acknowledged at the plea hearing that the victim
sustained multiple life-threatening stab wounds which required immediate surgery.
Furthermore, the defense did not object to the admission of the presentence report, which
included the information that the Defendant was stabbed in the neck, hitting a main
artery; that he was stabbed multiple times in the abdomen; and that he was “rushed into
surgery due to the life-threatening injuries.” See State v. Jamie Paul Click, No. E2015-
01769-CCA-R3-CD, 2017 WL 1189750, at *19 (Tenn. Crim. App. Mar. 30, 2017) (“It is
well established that reliable hearsay, such as a presentence report, is admissible during
sentencing.”), perm. app. denied (Tenn. Aug. 16, 2017); see also T.C.A. § 40-35-
210(b)(2) (requiring the trial court to consider the presentence report before imposing a
sentence). There is nothing in the record to suggest that the trial court’s conclusion that
Mr. Gann was left “for possible death” was based on Ms. Hall’s testimony rather than

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other evidence admitted during the plea and sentencing hearings. The Defendant is not
entitled to relief.

                                  II. Sentence Length

       The Defendant argues that the trial court erred in failing to consider additional
mitigating factors, in applying too much weight to the applicable enhancement factors,
and in applying too little weight to the mitigating factor that was applied. The State
responds that the trial court did not abuse its discretion. We agree with the State.

       In his brief, the Defendant cites State v. Bise, 380 S.W.3d 682 (Tenn. 2012), for
the contention that this court should review a trial court’s sentencing determinations de
novo. However, our supreme court’s decision in Bise clearly held that we review such
decisions for abuse of discretion, with a presumption of reasonableness granted to within-
range sentences that reflect a proper application of the purposes and principles of
sentencing. Id. at 707-08. A trial court abuses its discretion when it applies an incorrect
legal standard, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the party
complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015). The 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 709-10. The trial court is “to be guided
by – but not bound by – any applicable enhancement or mitigating factors when adjusting
the length of a sentence.” Id. at 706. The “misapplication of an enhancement or
mitigating factor does not invalidate the sentence imposed unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Id. A sentence imposed by the trial
court that is within the appropriate range should be upheld “[s]o long as there are other
reasons consistent with the purposes and principles of sentencing, as provided by statute.”
Id. The appealing party has the burden to show that the sentence was improper. State v.
Cooper, 336 S.W.3d 522, 525 (Tenn. 2011).

       In determining the sentence, the trial court must consider: (1) any evidence
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) the evidence and information offered
by the parties on the applicable 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 wishes to make in the
defendant’s own behalf about sentencing; and (8) the result of the validated risk and
needs assessment contained in the presentence report. T.C.A. § 40-35-210(b). “The
sentence imposed should be the least severe measure necessary to achieve the purposes
                                           -7-
for which the sentence is imposed,” and “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4), (5).

        The Defendant maintains that the trial court erred in failing to apply mitigating
factor (11), which provides, “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 the criminal conduct.” He points to his admitted drug use
combined with his mental health issues to support his argument that the facts of the
Family Dollar incident were so unusual that they show he lacked the intent to violate the
law. The trial court rejected this argument and determined that factor (11) would not
apply to the facts established “even if he does have mental health problems.” Even if the
trial court had erred in rejecting the Defendant’s argument, misapplication of a mitigating
factor does not invalidate a sentence otherwise properly imposed under the amended
sentencing act. See Bise, 380 S.W.3d at 706.

        The Defendant further asserts that the trial court failed to consider multiple facts
under the catch-all factor, mitigating factor (13). First, he argues the court failed to
consider the Defendant’s mental health diagnoses; however, the trial court specifically
considered his mental health and rejected the Defendant’s argument that such mental
health issues affected his culpability under mitigating factor (8). He further asserts that
the court should have considered his lack of gang affiliation, but that information was
included in the presentence report, which was considered by the trial court. See T.C.A. §
40-35-210(b)(2). He argues that the court failed to consider the fact that the Defendant
called an officer to explain his version of the facts; however, there is no mention of this
fact anywhere in the record. He maintains that the court erred in not considering the
Defendant’s remorse and acceptance of responsibility, yet the record shows that the trial
court considered the Defendant’s allocution and even remarked, “I think it’s sad that
people like [the Defendant] fall through the cracks or don’t get attention, and then as a
result of that, end up in a place where their liberty is restrained.” He finally argues that
the trial court failed to consider the fact that nobody was injured in the Family Dollar
incident and that the entire incident only lasted a few minutes, but the court specifically
stated that it considered the nature and characteristics of the incidents in making its
sentencing determination. See T.C.A. § 40-35-210(b)(4).

      The Defendant also asserts in one portion of his brief that the trial court failed to
consider the Defendant’s family members who testified that they would support him. In
another portion of his brief, he acknowledges that the trial court considered his family
support under mitigating factor (13) but asserts that the court gave the factor too little
weight. The record establishes that the trial court did consider the Defendant’s family

                                           -8-
support under factor (13), and we will not reweigh the application of such factor. See
Bise, 70 S.W.3d at 699.

       The Defendant finally argues that the court erred in giving too much weight to the
applicable enhancement factors and too little weight to the applicable mitigating factor.
As noted above, however, this court may not reweigh a trial court’s application of
enhancement and mitigating factors. See id. Accordingly, the trial court did not abuse its
discretion in determining the within-range sentence lengths. See T.C.A. §§ 39-13-
102(e)(1)(A)(ii); 40-35-112(b)(3).

                              III. Consecutive Sentencing

      The Defendant argues that the trial court erred in running his sentences
consecutively because he had no recent history of violent criminal activity, because he
had “demonstrated that he can remain a productive member of society,” and because “an
extended sentence is not justly deserved in relation to the seriousness of the offenses.”

        The decision to impose consecutive sentences rests within the sound discretion of
the trial court. State v. Hayes, 337 S.W.3d 235, 266 (Tenn. Crim. App. 2010). The
standard of review for consecutive sentencing is abuse of discretion with a presumption
of reasonableness. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). “So long as a
trial court properly articulates reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id. at 862.
Consecutive sentencing is “guided by the general sentencing principles providing that the
length of a sentence be ‘justly deserved in relation to the seriousness of the offense’ and
‘no greater than that deserved for the offense committed.’” Imfeld, 70 S.W.3d at 708
(citing T.C.A. §§ 40-35-102(1), -103(2)).

        To impose consecutive sentencing, the trial court must find by a preponderance of
the evidence at least one of seven factors listed in Tennessee Code Annotated section 40-
35-115(a), which includes that “[t]he defendant is an offender whose record of criminal
activity is extensive” and 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). The trial court need
only find one of the criteria listed in the statute to properly impose a consecutive
sentence. State v. Alder, 71 S.W.3d 299, 307 (Tenn. Crim. App. 2001).

        The trial court determined that the Defendant had an extensive record of criminal
activity. See T.C.A. § 40-35-115(b)(2). The Defendant’s nineteen prior convictions,
which include multiple felony convictions, support this conclusion. The trial court
                                           -9-
additionally determined that the Defendant was a dangerous offender. See T.C.A. § 40-
35-115(b)(4). When basing its consecutive sentencing determination on the “dangerous
offender classification, the trial court must conclude that the evidence has established that
the aggregate sentence is ‘reasonably related to the severity of the offenses’ and
‘necessary in order to protect the public from further criminal acts.’” Pollard, 432
S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). Our
review of the record shows that the trial court made the requisite findings and that such
findings are supported by the record.

        The Defendant specifically asserts that the extended sentence was not justly
related to the seriousness of the offenses. The trial court, in imposing the sentence,
considered that the Defendant committed two separate, unrelated, violent offenses within
a short span of time. The trial court noted that the offenses took place where the general
public might have been endangered. The Defendant was initially charged with attempted
first degree murder but was permitted to plead guilty to a lesser offense pursuant to a plea
agreement. The trial court considered the circumstances of the offenses in concluding
that the sentences were justly related to the seriousness of the crimes. Furthermore, the
trial court properly determined that consecutive sentencing could be imposed because of
the Defendant’s extensive criminal history, and alternatively, because the Defendant was
a dangerous offender. We determine that the trial court did not abuse its discretion in
running his sentences consecutively. See T.C.A. § 40-35-115(b)(2), (4).

                                     CONCLUSION

       Based on the foregoing reasons, we affirm the judgments of the trial court.




                                  _____________________________________________
                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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