         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 8, 2007

                STATE OF TENNESSEE v. SZUMANSKI STROUD

                      Appeal from the Criminal Court for Shelby County
                             No. 05-06225   Chris Craft, Judge



                   No. W2006-01945-CCA-R3-CD - Filed October 29, 2007



The defendant, Szumanski Stroud, appeals from his Shelby County Criminal Court jury trial
convictions of two counts of aggravated assault, Class C felonies, for which he received seven-year
and six-month sentences, to be served consecutively in the Department of Correction as a Range II
offender. In this appeal, he claims (1) that the evidence is not sufficient to support his convictions,
(2) that the trial court erroneously instructed the jury on the definition of “intentionally” and
“knowingly” mental states, and (3) that he was excessively sentenced. We affirm the judgments of
the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

Robert Wilson Jones, District Public Defender, and Trent Hall (at trial) and Phyllis L. Aluko (on
appeal), Assistant Public Defenders, for the appellant, Szumanski Stroud.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle L. Kimbril-Parks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

         Randy Smothers testified for the state that his fiancee, Denita Harvey, was the defendant’s
sister and that he had known the defendant for about three or four years. He said that on May 26,
2005, at about 3:00 or 4:00 p.m., he was driving Ms. Harvey’s car, with her as a passenger. He said
that as he approached a four-way stop, he saw a “newer type” white truck occupied by two men, one
of whom had a white towel or cloth tied around his mouth and nose. He said the truck was on the
opposite side of the road coming toward him. He said he could see the masked person’s eyes and
recognized him as the defendant. He said he told the defendant’s sister to recline in her seat because
he thought he saw her brother and “ain’t no telling what he might do.” He said that no words were
exchanged between him and the defendant, that “[t]hey proceeded to pull off,” and that he made a
U-turn and sped away. He said he was afraid the defendant was coming to retaliate against him
because of an altercation that had taken place two days earlier. He said that after he sped off, the
truck caught up to him. He said that the defendant was in the passenger seat and hung out the
window with a gun pointed at the witness. He said that at least four or five shots were fired and that
none of them hit the car he was driving. He said he swerved in the street to avoid being shot and
sped around the neighborhood in order to get away. He said that he did not recognize the driver and
that he did not see the driver with a gun. Smothers said he reported the incident to the police and
that he identified the defendant from a photograph lineup on June 8.

        Mr. Smothers testified that he and the defendant had an altercation on May 24 because the
defendant was upset that Smothers had not given the defendant bail money to get the defendant’s
younger brother out of jail. He said he had received a series of irate voice mail messages at about
4:00 a.m. from the defendant and that he had returned the call and attempted to discuss the situation
with the defendant. After the calls, the defendant came to the home Smothers shared with Ms.
Harvey. He said the defendant banged on the door and was admitted by Ms. Harvey. He said the
defendant ran inside and hit him in the mouth. He said they “tussled around for a minute” until
Smothers stabbed the defendant “about two times.” He said the defendant ran outside, took a
wooden log from a flower bed, charged into the house, and threw it into the path of Smothers’
daughter. He said that he stabbed the defendant another time and that the defendant ran away. He
said that during the incident, the defendant said little other than cursing him, although as he left, the
defendant said that he would be back. Smothers said he reported the incident to the police. He said
he did not have any contact with the defendant between the incident at his house on May 24 and the
time he saw the defendant on the road on May 26.

         Mr. Smothers testified that he had saved the voice mail messages from the defendant and had
let the police listen to them but that they had automatically deleted from his cellular telephone after
a few days. He said that he received additional threats by voice mail and had taken his family to stay
in a hotel after the May 24 altercation.

         Mr. Smothers acknowledged that he had been convicted of burglary of a motor vehicle and
theft of property valued at more than $500. He said, however, that he was telling the truth about the
defendant’s actions.

       Denita Harvey testified that Randy Smothers was the father of her two children and that the
defendant was her oldest brother. She said she had been asked to give money for her youngest
brother’s bail but that she refused because she did not have the money. She said that the defendant
wanted Mr. Smothers to contribute money but that Smothers refused and the defendant became
angry. She said the defendant expressed his anger with Mr. Smothers in a telephone call to her.

       She said that Smothers and the defendant got into an altercation on May 24, 2005, at the
house in which she and Smothers lived. She said her children were present in the home at the time.


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She said that she heard banging on the door and that she opened the door for the defendant. She said
that the defendant and Smothers began fighting and that she could not recall what was said. She said
that after Smothers stabbed the defendant, the defendant left the house. She said that the defendant
was not armed when he arrived but that he had thrown a stick before Smothers stabbed him. She
said that she called the defendant immediately afterward to check on his condition, that he was not
okay, and that she had heard he required treatment at the hospital. She said the police were called
about an hour after the altercation.

        Ms. Harvey testified that on May 26, 2005, at about 2:00 or 3:00 p.m., she was a passenger
in her 2000 Pontiac Grand Prix, which Smothers was driving. She said she saw a person whom she
could not positively identify as the defendant in a white truck. She said that the person had
something over the lower part of his face and that she did not recognize the driver. She said
Smothers told her to get down and that she got on the floorboard. She said that while she was on the
floorboard, shots were fired and the car was twisting around. She said that she did not see someone
with a weapon but that she heard gunshots. She said she and Smothers talked to the police that day.
Ms. Harvey acknowledged she had told the police on May 26 that the defendant was the person who
was responsible. She said, however, that she could not positively identify him and that she had
assumed he was responsible because of the altercation.

        Officer Daniel Miller of the Memphis Police Department testified that he was working the
Bravo shift, which is from 7:00 a.m. until 3:30 p.m, on May 24, 2005. He said he responded to a
“fight call” and spoke with Randy Smothers. He said Smothers told him he had gotten into an
altercation with the defendant. He said Smothers reported that the altercation was over money that
the defendant believed was owed him. He said that Denita Harvey was on the scene, as well and that
he spoke with her briefly. He said he was not told that someone had been stabbed.

         Officer Tristan Brown of the Memphis Police Department testified that he was working the
Delta shift, which is from 5:00 p.m. until 1:00 a.m., on May 26, 2005. He said he responded to an
aggravated assault call at 6:35 p.m. that day. He said that Smothers was upset and reported that he
had been in an altercation with his “brother” in which his brother came by in a car and shot at him
because of an earlier incident. He said Smothers reported that he had stabbed his brother in an
earlier incident. He said he also spoke with Denita Harvey, who advised him that the shooter had
been the “victim’s brother.” He said that Smothers and Harvey identified the shooter by name as the
defendant. Officer Brown said that he was advised of telephone calls that the defendant had placed
and that he listened to some telephone messages but that he could not remember exactly what was
said.

           The defendant did not offer any proof. The jury found him guilty of two counts of aggravated
assault.




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                                                   I

         The defendant challenges the sufficiency of the convicting evidence. Our standard of review
when the sufficiency of the evidence is questioned on appeal 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, 99 S.
Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in
favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and
the weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997).

       The defendant was convicted of aggravated assault of Randy Smothers and Denita Harvey.
As relevant to this appeal, that offense is defined as follows:

                (a)    A person commits aggravated assault who:
                       (1)     Intentionally or knowingly commits an assault as
                defined in § 39-13-101 and:
                ...
                               (B)     Uses or displays a deadly weapon[.]

T.C.A. § 39-13-102(a)(1)(B). Assault, as pertinent to this appeal, is committed by one who
“[i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury[.]” T.C.A.
§ 39-13-101(a)(2).

        The defendant argues that the state’s proof was deficient because neither Randy Smothers
nor Denita Harvey testified that they were in fear of imminent bodily injury. This court has held that
proof of a victim’s fear may be inferred from circumstantial evidence. See, e.g., State v. Larry Allen
Whited and William Henry Rutherford, No. M2005-00167-CCA-R3-CD, Sumner County (Tenn.
Crim. App. Mar. 7, 2006), app. denied (Tenn. Aug. 28, 2006). In the present case, there was proof
that Smothers had taken his family to a hotel after a violent altercation with the defendant in
Smothers’ and Harvey’s home. There was evidence that when Smothers saw the defendant on May
26, he made a U-turn and sped away because he was “afraid that he was coming back for retaliation,”
that the defendant pointed a gun at Smothers, that the defendant fired four or five shots, and that
Smothers “was swerving in the street trying to prevent from getting shot.” There was proof that
Harvey got on the floorboard of the car and remained there for several minutes during the attack and
that she heard the shots and felt the car swerving. In the light most favorable to the state, this proof
sufficiently establishes that the victims were in reasonable fear of imminent bodily injury from the
defendant’s attack.

       The defendant also argues that the proof of his identity was insufficient. He claims that both
victims were predisposed to believe he was the shooter because of the prior altercation, that the


                                                  -4-
shooter’s face was partially concealed, and that the victims’ opportunity to observe the shooter was
minimal. He also argues that Harvey was unable to identify him with certainty at trial and that
Smothers’ testimony was that he told Harvey he “thought” he saw her brother, thereby qualifying
his earlier positive identification of the defendant as the shooter. The jury had before it evidence that
both Smothers and Harvey identified the defendant to the police at the scene as their attacker, that
Smothers identified the defendant as the attacker from a photograph lineup he viewed several days
after the crimes, and that Smothers identified the defendant as his attacker at trial. The jury’s verdict
reflects that it accredited this evidence, as was its province as the trier of fact. This evidence is
sufficient to support the defendant’s convictions.

                                                   II

        The defendant contends that the trial court erred by defining in its jury instructions that
“intentionally” and “knowingly” included both “nature of conduct” and “result of conduct.” The
defendant did not object to the jury instructions at trial or raise the issue in his motion for new trial.
However, he urges us to review it as a matter of plain error, although he has failed to make any
argument demonstrating that the matter qualifies for plain error review.

        The trial court gave the following instruction:

                        Any person who commits the offense of Aggravated Assault
                is guilty of a crime.

                       For you to find the defendant guilty of this offense, the state
                must have proven beyond a reasonable doubt the existence of the
                following essential elements:

                        (1)     that the defendant intentionally or knowingly
                                caused the alleged victim in that particular
                                Count to reasonably fear imminent bodily
                                injury;

                                                   and

                        (2)     that the defendant used or displayed a deadly
                                weapon.

                        “Intentionally” means that a person acts intentionally with
                respect to the nature of the conduct or to a result of the conduct when
                it is the person’s conscious objective or desire to engage in the
                conduct or cause the result.




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                       “Knowingly” means that a person acts knowingly with respect
               to the conduct or to circumstances surrounding the conduct when the
               person is aware of the nature of the conduct or that the circumstances
               exist. A person acts knowingly with respect to a result of the person’s
               conduct when the person is aware that the conduct is reasonably
               certain to cause the result.

                      The requirement of “knowingly” is also established if it is
               shown that the defendant acted intentionally.

                       [Definition of “Deadly Weapon” omitted.]

        The defendant argues that aggravated assault is a result of conduct crime and that the trial
court erroneously included the nature of conduct language. The state argues that the instruction was
not erroneous because the elements of aggravated assault include both a nature of conduct element,
intentional or knowing use or display of a deadly weapon, and a result of conduct element, causing
a victim to have reasonable fear of imminent bodily injury. See generally State v. Howard, 926
S.W.2d 579, 586 (Tenn. Crim. App. 1996) (“When an offense has different mens rea for separate
elements, the trial court must set forth the mental state for each element clearly so that the jury can
determine whether the state has met its burden of proof.”), overruled on other grounds by State v.
Williams, 977 S.W.2d 101 (Tenn. 1998).

        Both parties argue that their respective positions are supported by an unreported decision of
this court, State v. Michael P. Healy, No. W1999-01510-CCA-R3-CD, Shelby County (Tenn. Crim.
App. June 26, 2001), a case which involved a claim of failure to instruct on lesser included offenses
of aggravated assault. In analyzing whether reckless endangerment is a lesser included offense of
aggravated assault, the court in Michael P. Healy said that aggravated assault “‘has a result-of-
conduct aspect in that it focuses on the victim being placed in fear of imminent bodily injury[.]’” Id.,
slip op. at 4 (quoting State v. Ralph Dewayne Moore, No. E1999-02743-CCA-R3-CD, Roane
County (Tenn. Crim. App. Oct. 30, 2001) (Tipton, J., dissenting), rev’d on other grounds, 77 S.W.3d
132 (Tenn. 2001)). The defendant argues that Healy is authority for his argument that only the
“result of conduct” definition was appropriate, while the state argues that Healy’s statement that
aggravated assault has a “result of conduct” element means by inference that the crime has a “nature
of conduct” element, as well. Upon consideration, we accept Healy for the proposition that the
victim being placed in fear of imminent bodily injury is a “result of conduct” element and decline
to draw any inference from that case regarding modes of conduct of other aspects of the offense.

        Thus, we consider the state’s argument that intentionally or knowingly using or displaying
a deadly weapon is a “nature of conduct” element. In doing so, we are guided by our supreme
court’s decision in State v. Ducker, 27 S.W.3d 889 (Tenn. 2000). In that case, the court said

                       A result-of-conduct offense requires that the culpable mental
               state accompany the result as opposed to the nature of the conduct.


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                  See generally Wallace v. State, 763 S.W.2d 628 (Tex. Ct. App. 1989).
                  The focus is on whether the actor possessed the required culpability
                  to effectuate the result that the legislature has specified. Generally,
                  an offense may be classified as a result-of-conduct offense when the
                  result of the conduct is the only element contained in the offense.

                          An example of a result-of-conduct offense is second degree
                  murder, which is defined as a “knowing killing of another.” Tenn.
                  Code Ann. § 39-13-210(a)(1). In second degree murder, the result of
                  the conduct is the sole element of the offense. The “nature of the
                  conduct” that causes death or the manner in which one is killed is
                  inconsequential under the second degree murder statute. The statute
                  focuses purely on the result and punishes an actor who knowingly
                  causes another’s death. The intent to engage in conduct is not an
                  explicit element of the state’s case in second degree murder.
                  Accordingly, a result-of-conduct crime does not require as an element
                  that an actor engage in a specified course of conduct to accomplish
                  the specified result.

Ducker, 27 S.W.3d at 896. With these principles in mind, we hold that the element of intentionally
or knowingly using or displaying a deadly weapon focuses on the nature of conduct because that
element focuses on the defendant’s conduct of using or displaying a weapon, rather than the result
from that conduct. We therefore reject the defendant’s claim of instructional error in the inclusion
of “nature of conduct” language.

                                                          III

        The defendant argues that he received excessive sentences of seven years and six months for
each of his convictions and that the trial court erroneously imposed consecutive sentencing, yielding
an effective fifteen-year sentence. The trial court determined that the defendant was a Range II
offender.

        When a defendant appeals the length or manner of service of a sentence imposed by the trial
court, this court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d).1 However, the presumption of correctness 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.


         1
           W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal. The defendant was sentenced after the change in the sentencing laws took effect,
but the record does not reflect that the defendant signed a waiver of his ex post facto protections to be sentenced under
the amended provisions. See T.C.A. § 40-35-210, Compiler’s Notes.

                                                          -7-
1991). The burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sent’g Comm’n Cmts. This means if the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately supported in the record, and gave due
consideration and proper weight to the factors and principles relevant to sentencing under the 1989
Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and 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,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -
210; see Ashby, 823 S.W.2d at 168.

        As a Range II offender, the defendant faced a sentence of six to ten years for each of his Class
C felonies. T.C.A. § 40-35-112(b)(3). The trial court found on the basis of certified copies of
judgments of the defendant’s prior convictions that the defendant had sufficient prior convictions
to qualify him as a Range II offender, and it noted as well from the presentence report that he had
an additional, extensive history of criminal behavior, which the court found should enhance the
defendant’s sentences. See T.C.A. § 40-35-114(2) (2003) (providing for enhancement of sentence
based upon finding of “previous criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range”). The court stated that the defendant was “oblivious”
to the law and “just does what he wants, drives when he wants, drugs when he wants, assault[s]
people when he wants.” The defendant does not contest the findings relative to his criminal history
on appeal. Rather, he argues that the trial court erred in declining to apply mitigating weight to the
fact that he committed the shooting under strong provocation by the victim from the previous
altercation in which the defendant was stabbed. See T.C.A. § 40-35-113(2). However, the
defendant’s argument fails to account for the fact that the shooting was two days after the stabbing,
that the stabbing occurred when the defendant attacked the victim in the victim’s home, that the
victim was fleeing when the defendant fired shots at him, and that his actions were more fairly
characterized as retaliation, rather than action under strong provocation. The trial court did not err
in declining to apply mitigating weight for this factor.

        The trial court found on the basis of the prior criminal history enhancement factor that the
appropriate sentence for the individual convictions was ten years each. However, the court later
reduced the sentences to seven years and six months each based upon its finding that consecutive
sentences were warranted but that an effective twenty-year sentence did not reasonably relate to the
severity of the offense. Upon de novo review, we hold that the defendant has not demonstrated that
these determinations were improper.

       Further, we note that the trial court acknowledged that it was required to consider probation
because the defendant’s individual sentences were eight years or less. See T.C.A. § 40-35-303(a)
(2003) (amended 2005). The court found that the defendant’s criminal history and character


                                                  -8-
reflected extremely poorly on his prospects for rehabilitation and denied probation. The record
supports this determination.

         The defendant also claims that the trial court erred in imposing consecutive sentences.
Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which states
in pertinent part that the court may order sentences to run consecutively if it finds by a preponderance
of the evidence that the defendant is an “offender whose record of criminal activity is extensive” or
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).
 For dangerous offenders, “consecutive sentences cannot be imposed unless the terms reasonably
relate to the severity of the offenses committed and are necessary in order to protect the public from
further serious criminal conduct by the defendant.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.
1995); see State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Rule 32(c)(1) of the Tennessee Rules of
Criminal Procedure requires that the trial court “specifically recite the reasons” behind its imposition
of a consecutive sentence. See State v. Donnie Thompson, No. M2002-01499-CCA-R3-CD, Maury
County, slip op. at 5 (Tenn. Crim. App. Mar. 3, 2003) (reversing the trial court’s imposition of
consecutive sentencing because it failed to make a finding under Tennessee Code Annotated section
40-35-115(b) and the record did not support a conclusion that the defendant met the consecutive
sentencing prerequisites).

        The court found that the defendant was an offender with an extensive record of criminal
activity and that he was a dangerous offender whose behavior indicated little or no regard for human
life and no hesitation to commit a crime when the risk to human life was high. See T.C.A. § 40-35-
115(b)(2), (4). With respect to the latter finding, the court noted that the defendant opened fire on
the streets of a populous city. The court also found that the circumstances of the offense were
aggravated and that extended confinement was “necessary to protect society from [the defendant’s]
unwillingness to lead a productive life and his resort to criminal activity in furtherance of an
antisocietal lifestyle.” The court found, however, that given that no one was injured in the crimes,
a twenty-year effective sentence did not reasonably relate to severity of the offense. Thus, the court
reduced the ten-year sentences to seven years and six months each and imposed them consecutively,
for an effective fifteen-year sentence. These findings are supported by the record, and we may not
disturb the trial court’s sentencing. The defendant has failed to demonstrate error.

        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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