        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                        JANUARY SESSION, 1998            July 29, 1998

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9703-CR-00092
                              )
      Appellee,               )
                              )
                              )    JACKSON COUNTY
VS.                           )
                              )    HON. J.O. BOND
ROBERT FARLEY,                )    JUDGE
                              )
      Appe llant.             )    (Direct Appe al - Simple As sault)




FOR THE APPELLANT:                 FOR THE APPELLEE:

STEVEN A. CASSETTY                 JOHN KNOX WALKUP
P. O. Box 815                      Attorney General and Reporter
204B East Hull Avenue
Gainesboro, TN 38562               DARYL J. BRAND
                                   Assistant Attorney General
EDWIN SADLER                       425 Fifth Avenu e North
One S. Jefferson Avenue, Suite 1   Nashville, TN 37243
Cookeville, TN 38501
                                   TOM P. THOMPSON, JR.
                                   District Attorney General

                                   ROBERT HIBBETT
                                   Assistant District Attorney
                                   Lebanon, TN



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION
       On April 19, 1996, a J ackson C ounty jury found A ppellant, Robe rt Farley,

guilty of two counts of simp le assau lt, upon an indictme nt charg ing him w ith

aggravated rape, aggrava ted assa ult by use o f a deadly weapon, and aggravated

assa ult by cau sing se rious b odily injury. After a sentencing h earing, the trial court

sentenced Appellant to eleven months and twenty-nine days, ninety days of

which was to be served in jail and the remaining time to be served on supervised

probation. Appe llant ap peals both th e judg men t and th e sen tence , raising several

issues:

         1) whether the State presented sufficient evidence at trial to sustain the
conviction s on two counts o f simple a ssault;
         2) whether the trial court erroneously prevented Appellant from presenting
an alibi defense; and
         3) whether the trial court approp riately sentenced Appellant to nine ty days
in jail followed by probation.


       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        FACTS




       According to testimony presented at trial, Sharon Rayme r and Rob ert

Farley had an intimate relationship from about February 1994 until July 1994.

They lived tog ether in her trailer in Jackson County until approximately July 1994

after which they had a “on again, off again” relationship. Ms. Raymer stated that

by March of 1995, Mr. Farley was just bothering her when he came by her house,

and she d id not want him to visit her.




                                           -2-
       Ms. Raymer testified that on the night of March 25, 1995, Mr. Farley came

to her trailer, drunk. He accused her of having affairs with several men in the

neighborhood. Then he, “threw me on the ground and put his boot on my throat

and kicked me in the head. After that he tore my clothes off and raped and

sodom ized m e.” According to Ms. Raym er’s testimony, Mr. Fa rley ha d a gu n in

a holster, which he indicated he had brought with him in order to kill her. After

raping h er, Mr. Fa rley left.



       Ms. Raymer stated that she did not leave her trailer at all the following day

out of fear that Mr . Farley would kill her. S he sta ted tha t he ha d threa tened to kill

her if she told anyone of the preceding night’s events. A ne ighbor, Barba ra

McAvoy, stopped by to visit, and Ms. Raymer only admitted her into the trailer

after extracting a promise that she would not call the police. Ms. McAvoy

described that Ms. Raymer “had been bea t up or b ruised , or look ed tha t she’d

been b eat up, ba d.”



       Ms. Raymer testified that late on the night of Marc h 26, M r. Farle y again

came to her house. He damaged a sliding glass doo r to the trailer, and then went

to the front door and broke through that door. Mr. Farley dragged Ms. Raymer

from bed by the hair, pulled her arms, slapp ing, kicking and p unching he r.

Acco rding to Ms. Raymer, after beating her, he again tore off her clothes and

raped and sodom ized her.



       Ms. Raymer further testified that on the afternoon of March 27, Mr. Farley

returned to her residence a third time. Ms. Raymer admitted that she had drunk

a number of beers that afternoon, so that when he hurt her again she would not

                                            -3-
feel anything. Acc ording to Ms. R aymer, Mr. Farley again accused her of being

with other men , beat her, ripped her clothe s off and “had h is way” with her, raping

and sodomizing her. She also stated that he was armed, and that he patted the

gun an d said, “do n’t forget I go t this.”



       Ms. Raymer stated that after the assault, Mr. Farley went across the street

to Tommy Mansell’s house. He returned, bleeding from a stab wound. Ms.

Raymer ran across the street and asked Mr. C allahan, a neighbor, to call an

ambulance.



       Kenn eth Bean, an officer at the Jackson county Sheriff’s Department, went

to the scene of the stabbing on March 27, 1995. He found Mr. Farley at Mr.

Callah an’s house , bleeding from a wound in his arm. Officer Bean learned that

Mr. Farley had possessed a gun, and searched for the gun , checkin g the site of

the stabbing and following a trail of Mr. Farley’s blood back to M s. Ray mer’s

trailer. The gun was never found. Officer Bean observed Ms. Raymer at her

house and noted that she appeared to be intoxicated or on medication. He further

observed that she a ppeare d to have several bruises and scratches. Ms. Raymer

began to have s eizures a nd an a mbula nce wa s called.



       A registered nurse from Jackson County Hospital testified that he treated

Ms. Raymer when she arrived at the hospital on March 27. He had treated her

for seizures on two or three other occasions. The nurse noted that Ms. Raymer

suffered bruising on her arms and face and had an open wound on her face. She

also had “one fairly large bruise noted to the right lateral hip, just above th e belt.”

He opined that, judging from the coloration of the bruises, some were two to three

                                              -4-
days old, while others we re more recent. The nurse testified that on the previous

occasions when he had treated Ms. Raymer for seizures she had not had such

injuries.



       Donna Wis ehart tes tified that she was a g ood frien d of Mr. Fa rley’s and

remembered that he was with her at her work until pretty late in the evening of

March the 27th. The defense w as prevented from develop ing her testimony by

a ruling of the trial court excluding alibi testimony. The trial court stated on the

record that attorneys in his court did not follow the Rules of Criminal Procedure,

“I know what the notice says, and in this district you’ve always said you’ve got

open files with the district attorney and that the formal rules didn’t a pply in th is

district. Now, if you all want to go back to the formal rules and want to practice

under the formal rules, then we’ll do that.” The trial court stated that he refused

to admit testimony regarding where Appellant was on the nights of the alleged

incidents as alibi, because the defense counsel had not provided the State with

notice that it intend ed to re ly upon an alib i, stating that the State d id not have to

reques t notice of su ch an inte nt.




                          I. Sufficiency of the Evidence




       Appellant contends that the evidence introduced at trial was insu fficient to

convict Appellant of ass ault, arguing that the jury obviou sly did not accredit the

testimony of the alleged victim and other than her testimony there is no evidence

placing him at the scene of the incident. When an appellant challenges the

sufficiency of the evidence, this Court is obliged to review that challenge

                                           -5-
according to certain we ll-settled principles. A verd ict of guilty by the jury,

approved by the trial judge, accredits the testimony of the State’s witnesses and

resolves all conflicts in th e testimo ny in favor o f the State . State v. C azes, 875

S.W.2d 253, 259 (T enn. 19 94); State v. Harris, 839 S.W .2d 54, 75 (T enn. 1992 ).

Although an accu sed is o riginally cloaked with a p resump tion of innocenc e, a jury

verdict removes this presumptio n and re places it w ith one of g uilt. State v.

Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of

proof rests with Appellant to demonstrate the insufficiency of the convicting

evidence. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view

of the evide nce as well as all rea sonab le and leg itimate inferences that may be

drawn therefrom .” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978)). Where the sufficiency of the evidenc e is contested on appeal, the

relevant question for the reviewing court is whether any rational trier of fac t could

have found the accused guilty of every element of the offense beyond a

reaso nable doubt. Harris, 839 S.W.2d 54, 75; Jack son v. V irginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation

of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996); State v. Mathews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

Moreover, this Court may not substitute its own inferences “for those drawn by

the trier of fact from circum stantial evidence.” Id. at 779. Finally, the Tennessee

Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt in criminal

actions whethe r by the trial co urt or jury sha ll be set aside if the evid ence is

insufficient to support the finding s by the trier o f fact beyon d a reas onable doubt.”

See also State v. Mathews, 805 S.W.2d at 780.




                                           -6-
       In the ma tter sub judice, the jury con victed Ap pellant of s imple as sault,

crediting the victim’s testimony to some degree. The fact that the jury app arently

did not cred it her testim ony rega rding the rape do es not en title this Cou rt to

invade the provin ce of the ju ry in mak ing these distinctions. The weight and

credibility of the witnesses’ testimony are matters entrusted exclusively to the jury

as triers of fact. State v. She ffield, 676 S.W .2d 542 (Te nn. 1984); Byrge v. State,

575 S.W.2d 292 (Tenn. Crim. App. 1978 ). The re is no require men t in Tennessee

that jury verdicts be consiste nt. State v. Denson, 710 S.W.2d 524 (Tenn. Crim.

App. 1985) (citing Wig gins v. Sta te, 498 S.W.2d 92, 93 (Tenn. 1973)). It was

entirely proper fo r the jury to ex onerate Appella nt as to the rape charges and yet

credit the vic tim’s testim ony rega rding the assau lt. This issu e is withou t merit.



                                  II. Notice of Alibi




       Appella nt argues that the trial court improperly refused to allow alibi

testimony and misapplied Tennessee Ru les of Crim inal Proc edure R ule 12.1

when it enforced an unwritten local custom of requiring the defense to give the

State notice of intent to use an alibi even without a demand by the district

attorney. We agree. When Appellant attempted to elicit testimony from defense

witness Donn a W isehart reg arding A ppellant’s wherea bouts th e night of the

alleged crime, the trial court, sua sponte, interrupted the questioning to ask

whether the defense had filed a notice of alibi. The defense counsel asked if the

matter could be discussed outside the presence of the jury, a request the trial

court denied . The trial jud ge state d in the pre senc e of the jury that he wo uld

adm it the evidence, “except I’m not going to let it in for alibi.” After the witnesses’

testimony the defense attempted to create a record as to what the rule of

                                           -7-
procedure regarding alibi provides. Defense counsel said, “Your honor, now we

would at this time reques t again, if I could for the record , You honor- ” The trial

court again interrupted, berating the defense counsel for his reliance on the Rules

of Criminal Procedure. The diatribe culminated with defense counsel attempting

to point out that the rule specifies that notice need be given only upon written

request and the trial court interrupting “No, sir, You hush. Hush. Now, we’re not

going to get into tha t. I’ve ruled, an d if it’s in error, they ’ll reverse it. But if I’m not

in error, they ’ll let it go.”



        Tennessee Rules of Criminal Procedure, Rule 12.1 states:



        Upon written demand of the district attorney general
        stating the time, date, and place at which the alleged
        offense was committed, the defendant s hall se rve with in
        ten days, or at such different tim e as the c ourt ma y direct,
        upon the district attorney general a written notice of an
        intention to offer a defen se of a libi. Such notice by the
        defendant shall state the specific place or places at which
        the defendant claims to have been at the time of the
        alleged offense and the names and addresses of the
        witnesses upon w hom th e defen dant inten ds to rely to
        estab lish suc h alibi.


The rule further provides for the State to disclose, within ten days of receiving the

defense notice, the names and addresses of the witnesses upon whom the State

intends to rely to establish the defendant’s presence at the scene and any

witnesses upon whom the Sta te will rely to rebut the defendant’s alibi. Tenn. R.

Crim. P . 12.1(b).



        Tenn . R. Crim . P. 12.1(e ) allows the trial court, for good cause shown , to

grant an exception to any of the requirements of Rule 1 2.1. H owev er, her e it



                                              -8-
appears that the trial court was attempting to enforce an unwritten local custom

of wide open discovery on the part of all parties in a criminal case rather than

relying on Rule 12 .1(e). Indeed, the State in this appeal does not contest the

erroneous nature o f the trial court’s ruling, but argues that the error was

harmle ss.



      W e agree that the error was, in fact, harmless. Appellant stated on the

record he wished to show only that for part of the time Ms. Raymer claimed he

assau lted her, A ppellant w as elsew here. He was ab le to prese nt this evidence

to the jury. Fur ther, App ellant argu ed in his clo sing argu ment that the proof

showed that Ap pellant was elsewhe re for part of the time the offenses we re

alleged to have occurred and would not have had time to commit them as Ms.

Raymer alleged. Finally, nothing in this record or Appellant’s brief alleges that

he had o ther ev idenc e of alib i he was preven ted from pres enting to the jury.

Under these circumstances we find the trial court’s ruling to be harmless and that

reversal is not required . Tenn. R. A pp. P. 36(b).



                                  III. Sentencing




      Appellant also co ntend s that th e trial court erred in senten cing him for a

period of confinement in excess of the m inimu m tim e within the ap plicab le range.

When a defe ndan t com plains of his or her sentence, we must conduct a de novo

review with a presumption of correctn ess. Te nn. Co de Ann . § 40-35-401(d). The

burden of showing that the sentenc e is imprope r is upon the ap pealing party.

Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Commen ts. Th is

presumption, however, is conditioned upon an affirmative showing in the record

                                         -9-
that the trial court considered the senten cing princ iples and all the releva nt facts

and circu mstan ces. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



      The Sentencing Reform Act of 1989 established specific procedures which

must be follo wed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandated the court’s consideration of the following:



      (1) The evidence, if any, received at the trial and the
      sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he
      principles of senten cing and argum ents as to sentencing
      alternatives; (4) [t]he nature and characteristic 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 wishe s to m ake in his ow n beh alf
      about sentencing.


Tenn. Code Ann. § 40-35-210.



      Unlike felony sen tences , a misde mean or sente nce do es not carry with it

the presumption of a minimum senten ce. State v. Creasy, 885 S.W.2d 829, 832

(Tenn. Crim. App. 1994). In determining the portion of the sentence to be served

in confinement, the trial court must consider the enhancement and mitigating

factors, as well as the othe r purposes a nd principles of the S entencing R eform

Act. Id. at 833. The weight to be given each factor is left to the discretion of the

trial judge. State v. Shelton, 854 S.W .2d 116, 123 (Tenn. Crim . App. 1992 ).



      The Sentencing Reform Act also provides that the trial court shall place on

the record either orally or in writing w hat en hanc eme nt or m itigating factors , if




                                         -10-
any, it found. These findings are crucial for review of the trial court’s decision

upon appe al.



      In the matter sub judice, Appellant was c onvicte d on tw o cou nts of s imple

assau lt, a Class A misdemeanor. Tenn. Code Ann. 39-13-101(b). Appellant was

sentenced to an 11 month and 29 day sentence, but the trial court ordered that

all but 90 days o f the sentence be served on probation. The record of the

sentencing hearing demonstrates that the trial court observed the sentencing

principles and the factors and circumstances listed in Tennessee Code

Annotated § 40-35-21 0(b), acco rdingly we review the trial cour t’s senten ce with

a presumption of correctness. In light of the number of enhancement factors the

trial court found, including Appellant’s prior history of 12 misdemeanor

convictions, we find that the trial court properly imposed a sentence of 11 months

and 29 days. Th is issue is w ithout me rit.



      Therefore, for the re ason s state d abo ve, the ju dgm ent of th e trial co urt is

affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE




CONCUR:




                                         -11-
___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




                             -12-
