         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                      SEPTEMBER 1997 SESSION
                                                      FILED
                                                       October 2, 1997

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )                Appellate C ourt Clerk
                                     )   NO. 02C01-9612-CC-00453
      Appellee,                      )
                                     )   OBION COUNTY
VS.                                  )
                                     )   HON. WILLIAM B. ACREE, JR.
COLLIS PAUL LANCASTER, JR.,          )   JUDGE
                                     )
      Appellant.                     )   (Aggravated Assault)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JOSEPH P. ATNIP (trial and appeal)       JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter

JAMES DAVID KENDALL (sentencing)         GEORGIA BLYTHE FELNER
Assistant District Public Defender       Assistant Attorney General
111 Main Street                          450 James Robertson Parkway
P.O. Box 734                             Nashville, TN 37243-0493
Dresden, TN 38225
                                         THOMAS A. THOMAS
                                         District Attorney General

                                         JAMES T. CANNON
                                         Assistant District Attorney General
                                         414 S. Fourth
                                         P.O. Box 218
                                         Union City, TN 38261-0218




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                           OPINION



        The defendant, Collis Paul Lancaster, Jr., was indicted for the offense of

attempt to commit second degree murder. An Obion County jury found him guilty

of the lesser offense of aggravated assault. He was sentenced as a Range II,

Multiple Offender, to ten (10) years in the Tennessee Department of Correction. On

appeal, he presents the following issues for our review: (1) whether the evidence

is sufficient to support the verdict of guilt, and (2) whether the trial court erred in

refusing to consider a mitigating factor in determining his sentence.                 After a

thorough review of the record, we affirm the judgment of the trial court.



                                            FACTS



        The state’s proof at trial showed that on January 15, 1996, defendant and co-

defendant, Reginold1 Weaver, were incarcerated in the Obion County jail. Around

mealtime, defendant and B.J. Shaw, another inmate, began fighting over a

disagreement concerning Shaw’s dinner tray. After the fight, defendant told Shaw

that he would be waiting for Shaw when he returned his dinner tray so that they

could “finish what [they] had started off.”

        In an effort to avoid any further altercation with defendant, Shaw asked

Michael Cloar to return his dinner tray to the front. Cloar agreed.

        Subsequently, defendant and Weaver approached Shaw to determine where

Shaw’s dinner tray was. Cloar explained that he had taken it to the front of the cell.

This angered defendant, and he began hitting Cloar. Somehow, Cloar fell to the

floor.2 Defendant and Weaver then kicked Cloar repeatedly and “stomped” on his

head.



        1
            This spelling is used in the indictment.
        2
          The testimony varies as to how Cloar actually fell. Witnesses testified that
defendant knocked him down with his [defendant’s] feet, that Weaver knocked him down,
that Cloar passed out, and that Cloar lost his footing and fell. However, Weaver testified that
Cloar fell after Weaver punched him.

                                                2
       Cloar was admitted to the Jackson-Madison County General Hospital. Dr.

John Neblett, Cloar’s attending physician, diagnosed him with acute subdural

hematoma, a basilar skull fracture and a broken jaw. Cloar also sustained two black

eyes and scrapes to the back of the head. As a result of the injury to the base of

the skull, Cloar also suffered from diminished hearing in his right ear.

       Defendant testified at trial. His version of the incident was remarkably similar

to that of the state’s witnesses. However, he testified that he never intended to hurt

Cloar. He stated that he did not “stomp” on Cloar’s head, but that W eaver did

instead. He also claimed that he and Weaver did not conspire to hurt Cloar.3

       The jury returned a verdict of guilty of aggravated assault. The trial court

imposed the maximum Range II ten (10) year sentence for this Class C felony. The

court ordered that the sentence was to be served consecutively to the sentence he

was then serving. From the conviction and sentence, defendant brings this appeal.



                         SUFFICIENCY OF THE EVIDENCE



       In his first issue, defendant challenges the sufficiency of the convicting

evidence. Where sufficiency of the evidence is challenged, the relevant question

for an appellate court 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 or crimes beyond a reasonable doubt. Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

       A jury verdict accredits the state's witnesses and resolves all conflicts in favor

of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover,


       3
         Weaver also testified. He claimed that he only hit Cloar because he thought that
Cloar would hit him first. He testified that he accidentally jumped on Cloar’s head when he
was trying to jump over Cloar.

                                            3
a guilty verdict removes the presumption of innocence which the appellant enjoyed

at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973).        The appellant has the burden of overcoming this

presumption of guilt. Id.

                                          A.

          Defendant argues that there is “no credible evidence” that he was

responsible for inflicting any of the injuries sustained by the victim since all of

Cloar’s injuries were confined to his head. He claims that Weaver was solely

responsible for “stomping” on Cloar’s head, causing serious bodily injury.

Therefore, because the state did not prove that he inflicted “serious bodily injury” on

the victim, he maintains he is merely guilty of simple assault. See Tenn. Code Ann.

§§ 39-13-101(a)(1), 39-13-102(a)(1)(A).

          The proof at trial was somewhat conflicting. However, Shaw testified that

defendant and Weaver started beating Cloar in the face and stomped him in the

head. Another inmate who witnessed the incident testified that defendant was

responsible for knocking Cloar to the ground. Although defendant does not find this

testimony to be credible, the weight and credibility of the witnesses’ testimony are

matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.

App. 1996). We find that this evidence is sufficient for a rational trier of fact to

conclude that defendant directly participated in inflicting serious bodily injury on the

victim.

                                          B.

          Defendant further claims that there is insufficient evidence that he was

criminally responsible for the actions of W eaver.         An accused is criminally

responsible for an offense committed by the conduct of another if “acting with intent

to promote or assist the commission of the offense, or to benefit in the proceeds or

results of the offense, the person solicits, directs, aids, or attempts to aid another

person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). The defendant’s

criminal intent may be inferred by circumstantial evidence surrounding the offense.



                                           4
State v. McBee, 644 S.W.2d 429, 428-29 (Tenn. Crim. App. 1982).

       In addition to finding sufficient evidence of defendant’s direct participation in

the aggravated assault, we also find that there is sufficient evidence that defendant

aided Weaver in the commission of this offense. Defendant admitted that he

started the altercation with Cloar. He testified that he continued to kick Cloar’s body

while Cloar was on the ground. Simultaneously, Weaver jumped on Cloar’s head.

Defendant and Weaver acted in concert to inflict serious bodily injury on the victim.

This issue has no merit.



                                   SENTENCING



       Defendant contends that the trial court did not credit an appropriate mitigating

factor in determining his sentence. He asserts that the trial court should have

considered that he played a minor role in the commission of the offense. Tenn.

Code Ann. § 40-35-113(4). Therefore, he claims that his sentence should be

reduced accordingly.

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       In determining defendant’s sentence, the trial court considered five



                                           5
enhancement factors and no mitigating factors.          In rejecting the defendant’s

proffered mitigating factor that he played a minor role in the commission of the

offense, the court found that “he played a very major role. In fact, of the culpability

of the two defendants, he played a greater role and I think should have a greater

responsibility.”

       We agree with the learned trial judge that there is no support in the record

for the application of this mitigating factor. Defendant admitted at trial that he was

the instigator of the altercation. He was an active participant in the assault on this

victim. The trial court properly refused to consider this mitigating factor. This issue

is without merit.



                                   CONCLUSION



       There is sufficient evidence in the record to support a finding that defendant

directly participated in the aggravated assault and that defendant was criminally

responsible for the actions of Weaver. Furthermore, the trial court did not err in its

sentencing determinations. Accordingly, the judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE




                                          6
CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




                                7
