           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE              FILED
                         JUNE 1998 SESSION
                                                      October 6, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 03C01-9707-CR-00305
           Appellee,            )
                                )    BLOUNT COUNTY
VS.                             )
                                )    HON. PHYLLIS MILLER,
RICHARD T. SMILEY,              )    JUDGE
                                )
           Appellant.           )    (Assault)



FOR THE APPELLANT:                   FOR THE APPELLEE:


KEVIN W. SHEPHERD                    JOHN KNOX WALKUP
404 Ellis Ave.                       Attorney General & Reporter
Maryville, TN 37804
                                     TODD R. KELLEY
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     JERRY N. ESTES
                                     District Attorney General

                                     DORIS MATTHEWS
                                     Asst. District Attorney General
                                     220 Carson St.
                                     Madisonville, TN 37354-1130



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                               OPINION



                      The defendant was indicted for aggravated assault. A jury found the

defendant guilty of simple assault. Following a sentencing hearing, the trial court

imposed an eleven month and twenty-nine day sentence, ordering the defendant to serve

ten weekend days in jail with the balance on probation. In this appeal as of right, the

defendant argues that the trial court improperly sentenced him and improperly instructed

the jury. Finding no merit to the defendant’s arguments, we affirm.



                      The fifty-four-year-old defendant had worked with Teresa Gourley as a

painter, painting houses, barns, and other buildings. The defendant maintained that he

and Gourley had an ongoing sexual affair, despite both of them being married to other

people for a significant period of time. The victim, W. F. Bivens, is a truck driver. On

November 21, 1995, he was at a C & G Market in Monroe County unloading fuel from his

truck when Gourley, who was acting scared and was crying, ran to his truck. The victim

knew Gourley; she had painted his barn on a previous occasion. Gourley sought refuge

with him because the defendant had chased her and hit her with his van, knocking her

to the ground.1



                      The victim drove Gourley to his next delivery point in Blount County, where

they intended to call Gourley’s husband. However, the defendant followed them, blocking

Gourley’s access to a telephone with his van. The defendant also circled the parking lot

in his van, taking pictures of the victim and Gourley. The defendant demanded three

hundred dollars ($300) in return for the photographs he had taken and said he was going

to Wal-Mart to have the film developed.



           1
               These events apparently resulted in reckless endangerment and assault charges in Monroe
Cou nty.

                                                       2
              The victim testified that the defendant had finally stopped his van at the rear

of his (victim’s) truck. He then walked to the back of his truck, believing that the

defendant wanted to talk. Instead, the defendant jumped out of his vehicle and stabbed

the victim’s left-hand ring finger with a knife and drove away. After wrapping his finger

in a rag, the victim retrieved his personal pick-up truck to drive to the hospital. On the

way to the hospital, he stopped by Wal-Mart, where he spotted the defendant’s van. He

reported the stabbing to a police officer there. Later, the victim sought medical treatment

at the hospital, where the injury to his finger required surgery because an artery had been

severed.



              The defendant’s version of the events differ as to where and how the

stabbing occurred. According to the defendant, he had seen Gourley and the victim

together on a previous occasion and was jealous. He admitted taking pictures of them,

but claims that Gourley offered him three hundred dollars ($300) for the film. He told

Gourley he was going to Wal-Mart to have the film developed and then left. He drove to

Wal-Mart, parked his van, and went inside the store to drop off the film and purchase

other items. While he waited in his van for the film to be developed, Gourley and Bivens

approached his van, hit his window with a pistol, and began threatening him. When

Bivens grabbed his window, the defendant became scared and stuck his knife up to the

window, cutting Bivens’ hand.



              The defendant was indicted for aggravated assault by using a deadly

weapon to knowingly cause bodily injury, but after hearing the evidence, a jury found the

defendant guilty of simple assault and fixed a fine of two thousand five hundred dollars

($2500). A sentencing hearing followed, at which neither side presented additional

evidence. The trial court found that the defendant’s lack of candor regarding how the

stabbing occurred indicated he was a poor candidate for rehabilitation. The trial court


                                             3
also found that the defendant and the public would benefit from some form of

incarceration and that a sentence without incarceration would depreciate the seriousness

of the offense. Further, the trial court noted that the defendant’s actions involved a

deadly weapon, affected more than one victim, and created a high risk to human life. The

trial court also noted that the defendant’s lack of prior criminal conduct was a mitigating

factor. Considering all of this, the trial court imposed a sentence of eleven months and

twenty-nine days, ordering the defendant to serve ten days in county jail with the balance

on probation. The trial court also imposed a fine of two thousand five hundred dollars

($2500) and ordered the defendant to pay restitution. The defendant now appeals.



                                             I.

              In his first issue on appeal, the defendant contends that the trial court erred

in sentencing him. When a defendant complains of his or her sentence, we must conduct

a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). This

presumption, however, “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 burden of showing that the

sentence is improper is upon the defendant, as the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments.



              In misdemeanor sentencing under the Sentencing Reform Act of 1989, trial

judges must adhere to three principles. First, all misdemeanor offenders must be

sentenced in accordance with the purposes, goals, and principles of the Criminal

Sentencing Reform Act of 1989. T.C.A. § 40-35-302(b); see State v. Palmer, 902 S.W.2d

391, 393 (Tenn. 1995). Second, while a separate sentencing hearing is not mandatory,

trial courts are required to allow the parties a reasonable opportunity to be heard on the

question of the length of the sentence and the manner in which it is to be served. T.C.A.


                                             4
§ 40-35-302(a); see Palmer, 902 S.W.2d at 393. Third, trial judges must set a release

eligibility percentage not greater than 75%, or alternatively, “grant probation immediately

or after a period of split or continuous confinement.” Id. In the instant case, the

defendant does not challenge the fact he was provided a reasonable opportunity to be

heard on the length and manner of service of his sentence. Rather, the defendant argues

that the trial court erred by failing to adhere to the principles, goals and purposes of the

Sentencing Reform Act and by failing to set a release eligibility percentage.



               The defendant contends that he was entitled to immediate probation and

that the trial court failed to follow the principles of the Sentencing Reform Act by ordering

him to serve ten days incarcerated. We disagree. Although he disputes the details of the

stabbing, the defendant admitted stabbing the victim and circling a parking lot several

times in his van while taking pictures of the victim and Gourley. Prior to this, the

defendant chased and hit Ms. Gourley with his van in the parking lot of the C & G Market

in Monroe County, resulting in reckless endangerment and assault charges. The trial

court specifically found that the defendant and the public would both be served by some

form of incarceration and that a sentence without incarceration would depreciate the

seriousness of the offense. The trial court also specifically found that the defendant

lacked candor, which is probative of the defendant’s potential for rehabilitation.

Considering all of this, the defendant has not shown how a ten-day period of incarceration

is improper.



               The defendant also argues that the trial court erred in failing to set a release

eligibility percentage. Here, the trial court imposed a sentence of eleven months and

twenty-nine days, ordering the defendant to serve ten days in confinement with the

balance on probation. Because of the trial court ordered probation following a period of

confinement, it did not need to set a release eligibility percentage. See Palmer, 902


                                              5
S.W.2d at 393.



              The defendant makes two other brief contentions. The defendant argues

that the trial court improperly considered his gender in sentencing him, thus violating the

sentencing principle stated in T.C.A. § 40-35-102(4) that sentencing must exclude

consideration of one’s gender. After a review of the record, we find no support for the

defendant’s contention; merely mentioning a defendant’s gender does not equate with

considering it as a factor in sentencing the defendant.



              The defendant also contends that the trial judge erred in following her

preference “to start in the mid range on a misdemeanor sentence.” The defendant

contends that by allowing each trial judge to follow his or her preference---whether that

be to start in the low-, mid-, or high-range---unjustified disparity between offenders’

sentences results, in violation of a stated purpose of the Sentencing Reform Act. See

T.C.A. § 40-35-102(2). The defendant’s argument assumes, however, that all judges

prefer to start at a different point in the range. There simply is no evidence to prove that

contention. Even so, in the instant case, the trial judge’s preference “to start in the mid

range” does not violate the Sentencing Reform Act. Unlike the felon, the misdemeanant

is not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d

829, 832 (Tenn. Crim. App. 1994). Moreover, nowhere in the Sentencing Reform Act

does the Legislature specify where in the appropriate sentencing range a trial judge

should begin the sentencing process on a misdemeanor charge, allowing a trial judge

certain discretion in sentencing misdemeanor offenders. This discretion allows trial

judges to begin anywhere in the appropriate sentencing range they choose, without

violating the purpose stated in § 40-35-102(2). Accordingly, the trial judge’s preference

in the instant case to begin in the mid-range of the applicable sentence was not error.




                                             6
                                                        II.

                  In his second issue on appeal, the defendant argues that the trial court

improperly instructed the jury. Following closing arguments, the trial court instructed the

jury on the offenses of knowing aggravated assault, reckless aggravated assault, reckless

endangerment, and simple assault.2 First, the defendant contends that he is entitled to

a reversal because the trial court failed to instruct the jury on all definitions of simple

assault.



                  Simple assault, a lesser grade offense of aggravated assault, is committed

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." T.C.A.

§ 39-13-101(a)(1)-(3). Simple assault committed by violating subsections (1) or (2) is a

Class A misdemeanor, but assault committed by violating subsection (3) is a Class B

misdemeanor. § 39-13-101(b). Here, the trial court instructed the jury as to simple

assault under subsection (1), but did not instruct the jury under subsections (2) and (3),

which the defendant claims was error. We disagree.



                  Defendants are entitled to jury instructions on all lesser included offenses

and on all offenses which are a lesser grade or class of the charged offense, but only if

the evidence would support a conviction for the offense. State v. Trusty, 919 S.W.2d

305, 311 (Tenn. 1996). Here, it is undisputed that the defendant stabbed the victim’s

hand, inflicting bodily injury on the victim. Neither party presented any evidence that the



        2
           The record contains a written copy of the jury instructions, but not a transcription of the
instruction s as rea d to the jury, wh ich this Co urt has re peated ly admo nished is genera lly necessa ry to
facilitate full appellate review of issues involving jury instructions. However, because there is no
apparent dispute in the instant case about what instructions were read to the jury, we will review the
issue presented.

                                                        7
defendant’s actions caused the victim to reasonably fear bodily injury or that the

defendant’s contact with the defendant was extremely offensive or provocative. See §

39-13-101(a)(2)-(3).      Thus, the defendant was not entitled to instructions on the

definitions of simple assault found in § 39-13-101(a)(2)-(3).



               The defendant also argues that the trial court erred in defining two terms

that were not explicitly mentioned in the indictment, specifically, the term “intentionally,”

which was defined in conjunction with the charge on knowing aggravated assault, and the

term “serious bodily injury,” which was defined in conjunction with the charge on reckless

endangerment.         The defendant contends that giving these two instructions were

misleading and confusing to the jury and thus, a reversal is warranted. We disagree.



               The indictment charges the defendant with “unlawfully and knowingly

caus[ing] bodily injury to W.F. Bivens by the use of a deadly weapon, to-wit: a knife, in

violation of Tennessee Code Annotated, Section 39-13-102.” We are convinced that the

indictment as written was sufficient to put the defendant on notice of the charges against

him. As such, we do not find error with the trial court instructing the jury on the definition

of “intentionally.”



               Moreover, we conclude that the instruction for “serious bodily injury” was not

error because the elements of reckless endangerment, a lesser grade offense of

aggravated assault, may be charged so long as there is evidence to support it. See

Trusty, 919 S.W.2d at 311. Here, there was evidence to support a finding of serious

bodily injury, which includes the protracted loss or substantial impairment of a function

of a bodily member, because the injury to the victim’s finger severed an artery and

required surgery. Even if charging the jury on serious bodily injury was error, we

conclude it was harmless beyond a reasonable doubt because the defendant was not


                                              8
found guilty of reckless endangerment.



             In sum, we find no merit in the defendant’s arguments on appeal.

Accordingly, the defendant’s conviction and sentence for assault is affirmed.




                                               _______________________________
                                               JOHN H. PEAY, Judge



CONCUR:




______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




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