         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE SESSION, 1999                 FILED
                                                           July 19, 1999
STATE OF TENNESSEE,           )    C.C.A. NO. 02C01-9810-CC-00330
                              )                          Cecil Crowson, Jr.
      Appellee,               )                         Appellate Court Clerk
                              )
                              )    OBION COUNTY
VS.                           )
                              )    HON. WILLIAM B. ACREE
FREDERICK BOYD ALLEN,         )    JUDGE
                              )
      Appe llant.             )    (Reck less Ag gravated Assau lt)


                ON APPEAL FROM THE JUDGMENT OF THE
                   CIRCUIT COURT OF OBION COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.            PAUL G. SUMMERS
On Appeal                          Attorney General and Reporter
113 North Court Squ are
Wa verly, TN 37185                 R. STEPHEN JOBE
                                   Assistant Attorney General
JOSE PH P . ATN IP                 425 Fifth Avenu e North
District Public Defender           Nashville, TN 37243

COLIN JOHNSON                      THOMAS A. THOMAS
Assistant Public Defender          District Attorney General
Dresden, TN 38225
                                   JIM CANNON
                                   Assistant District Attorney General
                                   P.O. Box 218
                                   Union City, TN 38261



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Frederick Boyd Allen, was indicted on a single count of

aggravated assault by use of a deadly weapon. On August 18, 1998, he was

tried before an Obion County jury and found guilty of the lesser included offense

of reck less ag grava ted as sault by use of a de adly weapon. He was sentenced

as a Range I standard offende r to three ye ars in con fineme nt, with his sentence

to run concurre ntly with a se ntenc e he w as the n servin g from a con viction in

General Sessions Court.          Pursuant to Rule 3 of the Tennessee Rules of

Appe llate Proced ure, the D efenda nt now a ppeals his convic tion and h is

sentence. He presents two issues for our review: (1) whether the evidence

presented at trial is sufficient to support his conviction; and (2) whether the trial

court properly s entenc ed the D efenda nt to three years in confinement, rather

than imposing a n alternative sentence involving split confinement. We affirm the

judgm ent of the tria l court.



                        EVIDENCE PRESENTED AT TRIAL

       The victim in this case, Amanda Hartsfield, a resident of Paducah,

Kentucky, testified that she was visiting her grandmother in South Fulton,

Tennessee with her two young children when the incident underlying the

Defenda nt’s conviction occurred. She testified that she had known the Defendant

since childho od an d that th ey had been friends for som e time .       The v ictim

recalled that she was cooking a meal for her children, her grandmother, and

herse lf shortly before midnight on the evening of March 27, 1988 w hen she h eard

a knock at the kitch en door.       She answered the knock and discovered the



                                         -2-
Defendant standing outside. She invited him into the house, and they conversed

norm ally for a while. During the conversation, the Defendant noticed a box of

cigars on the tab le and left the kitchen to ask the vic tim’s grand moth er, Ma ttie

Garm on, if he co uld have a cigar.



       The victim testified that the Defe ndant returne d three to five minutes later

and started “talk ing very cra zy abou t killing peop le and stu ff . . . and just basica lly

about bringing harm to people.” The victim stated that although she “didn’t re ally

feel like [she] was at harm,” she began to feel uneasy. She asked the Defendant

to leave, and wh en he refuse d, she called he r grandm other “to com e and rem ove

him.” The victim m aintain ed tha t as he r grand moth er cam e runn ing do wn the hall

to the kitchen, the Defendant grabbed the knife that the victim had been using

while cooking. She began to wrestle with the Defendant for the knife, holding

onto h is arm with both hands. She recalled that she had to kick her infant son,

who was at her feet on the kitchen floor, out of the way to prevent harm to him.

The victim claimed that during the struggle, the Defendant “was talking about he

could kill [her] because he’s hurt people before when he was in C alifornia, . . . he

was broug ht up th at way in California and don’t nobody know what he is or what

he’s capab le of.”



       At some point during the struggle, Garmon arrived in the kitchen and

began to beg the Defendant to put the knife down. According to the victim,

Garmon realized that the Defendant would not comply and therefore started

trying to wrest the knife out of his hand. The victim stated that the Defendant

event ually “eased up off the knife,” and she was able to take it from his hand.




                                            -3-
When the knife fell to the floor, the victim kicked it behind the garbage can. The

Defen dant the n turned and left the home “like nothing happe ned.”



      After the Defendant departed, the victim realized that she had received a

cut to the palm of her left ha nd. She stated that the wound “probably needed

stitches” but stated that she te nded th e cut her self. The victim maintained that

she did no t recall how or when she was cut. On cross-examination, she admitted

that she ma y have received the wound by grabbing the blade of the k nife wh ile

trying to recover it from the Defendant’s hand. She also testified that she was not

actually afraid of the Defendant until he grabbed the knife.



      Garmon testified that she was in her bedroom when the Defendant arrived

at her hom e. She s tated th at she heard him knock and enter the house, and then

she heard the Defendant and the victim conversing and laughing . She next

heard the Defendant come down the hall toward her bedroom and stop to use the

bathroom located next to her bedroom. According to Garmon, the Defendant

then went back to the kitchen, and she heard the victim calling for her to “put

Frederick out.” She jumped up and ran to the kitchen, where she saw the

Defendant holding “a knife up over [the victim’s] head, and they both was [sic]

wrestling with the knife at the same time.”        Garmon ran to the De fendan t,

grabbed his arm , and be gan to beg h im not to hurt her granddaughter. According

to Garmo n, the Defend ant respond ed, “I’m gonn a kill her.”



       While she was still holding the De fendan t’s arm, the victim ma naged to

take the knife out of the Defendant’s hand and kick it behind the garbage can.

Garmon testified that the Defe ndan t then b egan walkin g to the door, a ll the wh ile

                                         -4-
telling the victim, “I will get you. . . . I’m gonna get you. . . . I dare you to come out

in the street.” Garmon told him to stop threatening the victim and threatened to

call the police. Garmon testified that when the Defendant left, he go t into his

truck, backed very quickly out of the driveway, went up the street to ge t “a start,”

and then drove back.         However, on the way back toward the house, he

appa rently lost control of his truck and drove into a ditch. Garmon then called the

police.



        Officer Ben Duncan of the South Fulton Police Department answered the

call.   He testified that he was dispatched to an accident and observed the

Defe ndan t’s truck in a creek near Garm on’s home when he arrived. He stated

that no one was in the truck when he arrived. Duncan also testified that he spoke

with bo th the vic tim and Garm on and sa id that their testimony in co urt mirrored

what they had told him on the night of the incident. He described the victim as

“very upset and scared” when he arrived at Ga rmon ’s home and testified that he

noted the cut on her left palm. He also collected a knife, which he found on the

kitchen floor. In addition, Duncan reported that he and two other officers present

at the scene “heard a scuffle of someone getting into a fight down the street

about two doors down . . . , and it was [the Defen dant],” wh om the y then too k into

custody.



        The Defendant presented a different version of the events that occurred on

the night of March 27, 1998 and during the early morning hours of March 28,

1998. He testified that he stopped by Garmon’s house that evening and knocked

on the door. He stated that the victim answered the door, invited him in, and they

began to converse while she cooked. He testified that he noticed a pack of

                                           -5-
cigars on the kitchen table and went to ask Garmon if he could have one.

Howeve r, he claimed that as he headed to Garmon’s room, he changed his mind,

deciding that he did not want a cigar, and went back to the kitchen instead. He

denied stopping at Garm on’s bath room.



       The Defendant maintained that when he arrived back at the kitchen, “things

seemed to go haywire.” He claimed that he and the victim got into an argument

about something “stupid,” although h e could not rec all precisely why they we re

arguing. He testified that the victim then asked him to leave. He responded that

he did not have to leave because it was her grandmother’s house. He stated that

the second time the victim told him to leave, she grabbed a knife from the table,

held it in her raised hand , pointed it toward him, and approached him. He

reported that he did not believe that he could back away from her, so he grabbed

her by the w rist to de fend h imself. He te stified that the y struggle d for the kn ife

in the presence of Garmon. He claimed that the victim cut herself when she

attempted to transfer the knife fro m her rig ht hand to her left hand. He reported

that when she cut herself, she droppe d the knife . Accord ing to the D efenda nt,

when the victim dropped the knife, he backed away and left the house.



       The Defendant maintained that he never held th e knife in his hand, that he

never threatened the victim, and that he never had any intention of hurting the

victim. He stated, “I’m sorry that it ever happened . . . but, you know, it wasn’t my

fault.” The Defendant explained that when he left the house , he was ang ry and

upset and therefore drove too fast. He also explained that when he backed out

of the driveway, he was unable to turn his truck around, so he had to drive up the

street to reverse directions and then drive back by Garmon’s home. He claimed

                                          -6-
that because it was dark and he was driving fast, he couldn’t “get the truck to turn

and it locked up.”     T his cau sed h im to drive in to the creek.        On cross-

examination, the Defendant admitted that he had plea ded gu ilty to the crime of

burglary in 1996.



                             SENTENCING HEARING

      At the sentencing hearing, Dale Green of the Tennessee Department of

Corrections testified about the Defendant’s prior criminal record. He stated that

he had filed th e prese ntence report in th is case.       Green reported that the

Defendant had been previously convicted of burglary and second degree burglary

in California, both in 1996. The presentence report indicates that the second

degree burglary offense is a felony in California but was treated as a

misdemeanor for sen tencin g purp oses . The r eport a lso ind icates that “the re is

no question Defen dant wa s still on prob ation wh en the ins tant offens e occu rred.”

Furthermore, Green reported that the Defendant had also been convicted of both

assau lt, in 1998, and harassment, in 1997, in the Obion County General

Sessio ns Cou rt.



      Derrick Hayes , a lifelong frien d and fo rmer co worker o f the Defe ndant,

testified that the Defendant is a truthful and nonviolent person. However, Hayes

admitted on cross-examination that he was unaware the Defendant had been

recently convicted o f assault against D efendant’s fathe r.



      The Defendant testified on his own behalf at the sentencing hearing. He

testified that he was presently incarcerated for ninety da ys in the O bion Co unty

jail for assault against his father. He explained that he and his father “had an

                                          -7-
altercation .” The Defendant also testified that he had b een e mplo yed pr ior to his

incarceration and that he had a lways tried to maintain steady employment. He

claimed that he had abided by the terms of his probation for his California

conviction and had n ever been b rought into cou rt for a viola tion of h is probation.



       The Defendant further testified that he had advised his probation officer of

his move to Tennessee. However, on cross-examination, he conceded that

although he was req uired to report to his pro bation officer any new criminal

charges, convictions, or arrests, he had not reported this conviction as of the time

of sentencing. He blamed his failure to do so on losing the pro bation officer’s

business card.     W ith rega rd to his alterca tion with the victim, he stated he

“regret[ted ] that it ever ha ppene d.”



                      I. SUFFICIENCY OF THE EVIDENCE

       The Defendant first argues that the evidence presented at trial is

insufficient to suppo rt his convic tion. Althou gh the D efenda nt was ch arged w ith

aggravated assault, a C lass C fe lony, see Tenn. C ode Ann . § 39-13-102 (a)(1)(B),

(d), he was convicted of the lesser included offe nse of reckless aggravated

assa ult by use o f a dead ly weapo n, a Clas s D felon y. See Tenn . Code Ann . §

39-13-102 (a)(2), (d). In order to supp ort the D efend ant’s conviction for reckless

aggravated assa ult, the S tate m ust ha ve pro ven tha t the D efend ant rec klessly

caused bodily in jury to th e victim by use of a de adly weapo n. See Tenn. Code

Ann. § 39-13 -101(a)( 2)(B). “Bo dily injury” includ es a cut. Tenn . Code Ann. § 39-

11-106 (a)(2).




                                          -8-
       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt.” Tenn. R. App. P . 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       In this case, the State presented the tes timon y of two witnes ses, th e victim

and her grandmother, indicating that the Defendant picked up a knife and

threatened the victim with it. According to both the victim an d her grand mother,

the victim entered into a struggle, later accompan ied by he r grandm other, with

the Defendant for possession of the knife. The victim testified that she grappled

                                          -9-
for the knife in order to protect herself and her child, and that during the struggle,

she was cu t. This is clearly s ufficien t eviden ce from which a jury co uld conclude

that the Defendant was guilty of reckless aggravated assault by a use of dea dly

weapo n.



      Testimony by the Defendant indicating that he did not initiate the struggle,

threaten the victim, or actually hold the knife was also presented to the jury, and

apparently, the jury dismissed the Defendant’s testimony as dubious. We will not

disturb this conclusion on appeal.       Viewing the evidence in the light most

favorable to the State , we co nclud e that th e evide nce p resen ted at tria l is

sufficient to support the Defendant’s conviction.



                                 II. SENTENCING

      The Defendant next argues that his sentence of three years as a Range

I stand ard offe nder is impro per an d that th e trial court erre d by de nying h im

alternative sentencing in the form of split confinement. He contends that the use

of “shock incarcera tion” followed by “intensive probation” would have been a

more appropriate disposition of this case.



      When an accused challenges the length, range, or manner of service of a

sentence, this Cou rt has a du ty to conduct a de novo review of the senten ce with

a presumption that the determinations made by the trial cour t are corre ct. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).

                                        -10-
      When conducting a de novo review of a senten ce, this Co urt must

consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sen tence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      The Defendant concedes, and we agree, that the trial judge in this case

conducted on the record a thorough review of the facts and circumstances of the

case, an analysis of the enhancement and mitigating factors, and a review of the

principles of sentencing, thereby fulfilling his role in the sentencing process. Our

standard of review is thus de novo with a presumption of correctness.



      The trial judge noted that the Defendant, as a standard offender convicted

of a Class D felony, was presumed a favorable candidate for alternative

sentencing in absence of eviden ce to the c ontrary. See Tenn. Code Ann. § 40-

                                        -11-
35-102(5), (6). However, the trial judge also noted the sentencing considerations

codified at Tennessee Code Annotated § 40-35-103 and concluded that “the

State . . . proved [two of] these c onside rations. N umb er 1(A ), confin eme nt is

necessa ry to protect society by restraining a defendant who has a long history of

criminal conduct; and also 1(C), measures less restrictive than confinement have

been applied u nsucce ssfully to the defenda nt.” See Tenn. Code Ann. § 40-35-

103(1)(A), (C). In support of his conclusion, the judge pointed to the D efend ant’s

four previous convictions, all of which had occurred over the two years previous

to sentencing and two of which were crimes similar to this crime, assault and

harass ment. 1



      In cons idering the De fenda nt’s su itability for full probation, the trial judge

emphasized that in order to warrant such a sentence, a defendant must

dem onstra te that fu ll proba tion will serve the ends of justice in the best interest

of both th e pub lic and the Defen dant. The judge first considered the nature of the

crime, which he characte rized as “a n unpro voked a ttack upo n the victim , a

female, by the use of a knife.” The judge also emphasized that the Defendant

had previously received probation for prior convictions and stated that “the Co urt

would look to the prior efforts at rehab ilitation . . . , and tha t has not w orked.”

Therefore, the judge concluded that the Defen dant wa s not a pro per can didate

for alternative sentencing and not entitled to probation.



      Finally, after consideration of enhancement and mitigating factors, the trial

judge applied one e nhancem ent factor, “[t]he defend ant has a pre vious history




      1
          The Defendant was only twenty-one years old at the time of sentencing.

                                          -12-
of criminal convictions or crim inal beha vior in additio n to those neces sary to

establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1). The judge

denied application of all mitigating factors suggested by the defense. Therefore,

applying one enhancement factor, the judge increased the presumptive sentence

for the Defendant’s crime by one year, thus establishing a three year sentence.



      The trial court conducted an exemplary review of the facts and

circumstances of the case and consideration of the principles of sentencing.

Based upon our thorough review of the record and careful consideration of the

findings of the trial court, we conclude that the Defendan t has failed to

demo nstrate that the sente nce he received is improp er. W e therefore affirm the

sentence imposed.



      The jud gmen t of the trial cou rt is accord ingly affirme d.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




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