        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          MAY SESSION, 1999           September 9, 1999

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,            )                  Appellate Court Clerk
                                   C.C.A. NO. 01C01-9805-CC-00230
                               )
      Appellee,                )
                               )
                               )   MOORE COU NTY
VS.                            )
                               )   HON. CHARLES LEE
BETTY W. NORMAN,               )   JUDGE
                               )
      Appe llant.              )   (Direct Appeal - Class E Felony
                               )   & Class A M isdemean or)




FOR THE APPELLANT:                 FOR THE APPELLEE:

CLIFTON N. MILLER                  PAUL G. SUMMERS
Henry, McCord, Bean & Miller       Attorney General and Reporter
300 North Jackson Street
Tullahoma, TN 37388                KIM R. HELPER
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243-0493

                                   MIKE MCCOWEN
                                   District Attorney General

                                   CHARLES CRAWFORD
                                   Assistant District Attorney
                                   P. O. Box 878
                                   Fayetteville, TN 37334



OPINION FILED ________________________

CONVICTIONS FOR RECKLESS ENDANGERMENT COUNT ONE AND
TWO MERGED; AFFIRMED AS MODIFIED

JERRY L. SMITH, JUDGE
                                   OPINION


      The appellant, Betty W . Norman, was convicted by a Moore County jury of

two (2) counts of reckless endangerment, a Class E felony, and one (1) count of

harass ment, a Class A misdemeanor. The trial court sentenced the appellant as

a Range I offender to consecutive terms of one (1) year and three (3) months and

one (1) year and two (2) months for the reckle ss end angerm ent con victions. The

appellant received a concurrent sentence of six (6) months for her conviction for

harass ment. The tr ial cou rt orde red tha t the ap pellan t serve her se ntenc es in

confineme nt. On appeal, the appellant presents the following issues for our

review:

      (1) whether the trial court erred in limiting the appellant’s cross-
      examination of a state w itness reg arding th e trajectory of a bullet
      and by subseq uently instructing the jury to disre gard the witness’
      testimon y regardin g the trajec tory of the b ullet;

      (2) whether the trial cour t erred in failing to allow the appellan t to
      question the victim s, Robert and Loretta Norman, regarding any
      domestic problems between them;

      (3) whether the evidence was sufficient to supp ort the a ppella nt’s
      conviction s beyon d a reas onable doubt;

      (4) whether the trial court imposed excessive sentences;

      (5) whether the trial court erred in imposing consecutive sentences;
      and

      (6) whether the trial court erred in denying probation.

After a thorough review of the record before this Court, we conclude that the

appellant was erroneously convicted of two (2) co unts of reckless endangerment

arising out of the same course of conduct. Therefore, the appellant’s conviction

for reckless endangerment in Count One is merged with her conviction for




                                         -2-
reckless endangerment in Count Two.                    In all other respects, however, the

judgment of the trial court is affirmed.



                                              FACTS




        The appellant was previously married to the victim, Robert Norman, and

they had two (2) sons, Derrick, age thirteen (13) at the time o f trial, and Micha el,

eight (8) years o f age at the time of trial.              Since their divorce in 1992, the

appellant and Rob ert Norma n had app eared in Ch ancery Court on several

occasions as a result of disputes over custody of their children. In 1997, R obert

Norman had custody of the children, but the appellant h ad visitation every

Sunday.      In addition, Robert Norman had remarried, and the appellant and

Robert’s pres ent wife, Loretta, exhibited a n obvious dislike for o ne anothe r.1

        At approximately 1:30 a.m. on July 11, 19 97, Ro bert and Loretta Norman

were sleeping in their home when the telephone rang. Loretta answered the

phone, but hung up because there was no one on the other end of the line. The

phone rang a second time, but neither Robert nor Loretta answered it. When the

phone rang the third time, Loretta answered the phone and heard someone

saying, “what are you d oing now? ” Robert picked up anothe r extension of the

phone and heard a woman saying, “doing.” B oth Robert and Loretta identified

the caller as the appellant. Additionally, the Caller ID box attached to the

Normans’ telephone identified the phone number of the incoming calls. T he ca lls

came from the appellan t’s residen ce in Pe lham, T ennes see. However, only two



        1
          The animosity between the women had culminated into a previous incident whereby the
appellant struck Loretta in the head with a baseball bat. The appellant was convicted of simple assault as
a result. The appellant and Loretta had been ordered by the Chancery Court to have no contact with one
anothe r.

                                                 -3-
(2) telephon e calls reg istered on the Calle r ID box, one at 1:28 a.m. and the other

at 1:29 a.m .

       On Augus t 2, the appellant and the Normans were involved in a

confrontation which took place at Michael Norman’s baseball game in

Murfreesboro. Robert and Loretta brought De rrick and Micha el to Murfreesbo ro

for Michael’s game. The appellant arrived soon thereafter and attempted speak

with Derrick, b ut Derrick did not wis h to talk to his mother. The appellant

continued her efforts for several minutes, but Derrick continued to ignore her.

Robert looked at the appellant and stated, “[c]an’t you see that he does n’t want

to talk to you or see you?” The appellant then pointed at Loretta and proclaimed

in a loud vo ice, “I’m go ing to bea t the hell ou t of her.”

       After the game concluded, the appellant attempted to take pictures of

Micha el, but because Robert and Loretta wanted to go home, they would not

allow her to take pictures of her son. The appellant grabbed Michael’s arm and

stated, “he is coming with me.”            Loretta grabbed Michael’s other arm.

Eventually, the appellant released Michael’s arm but followed Robert, Loretta and

the boys as they walked to their car. The appellant’s actions frightened the

Normans, and they contacted security for a police escort from the baseball field.

       The next day, the appellant was scheduled to have visitation with her sons.

Howeve r, because Michael was limping due to a n injury susta ined a t the ba seba ll

game on the previous day and because D errick was expe riencing a seve re

headache, Robe rt decided it was not a good day for visitation.        W hen Rob ert

telephoned the appellant to inform her that he would not bring Derrick and

Michael for the weekly visitation, the appellant demanded that he bring them.

Robe rt refused .




                                           -4-
       Later that afternoon, at app roximately 4:15 p .m., Robert was re laxing in his

home when he he ard his dog barking. He heard the doorbell ring, and because

he was not dressed, walked into another room looking fo r clothes. L oretta

walked into the room and informed him that the ap pellant was at the fron t door.

Robert walked to the telephone and, as he passed by the front door, saw the

appellant standing at the door wearing a purple bathing s uit. Robert called 911,

and he and his sons went into th e closet o f the ma ster bed room. L oretta walked

into the kitchen to lock the door leading to the garage and heard the appellant

standing outsid e of this door yelling for Robert. As she turned to walk out of the

kitchen, Loretta heard a gunsho t. She ran into the b edroom , and Rob ert called

911 again. After th e police arrive d, the N orma ns ob serve d that th e dea dbolt lock

on the d oor lead ing to their kitc hen ha d been shot.

       The police did not collect any evidence on August 3, but the next day

Loretta discovered a red plastic shotgun shell casing in her garag e and gave it

to her husband.       Robert subsequently turned the shell casin g, along with the

dead bolt and bullet fragments, over to the police.                    However, the police

subsequently misplaced this evidence.

       The appellant was subsequently arrested and indic ted with two (2) co unts

of aggra vated assa ult 2 for the Au gust 3 incident and one (1) count of harassment

for the July 1 1 inciden t.

       At trial, the defe nse called David Vaughn of the Ben Lomand Rural

Telephone Co-op in McMinnville to testify. Vaughn produced copies of phone

bills from the residence of Gladys Sartain, the appellant’s mother, with whom the

appellant had been residing. The bills indicated only one call to the Norman



       2
         One count charged the appellant with the aggravated assault of Robert Norman on August 3,
and the other count charged her with the aggravated assault of Loretta Norman on August 3.

                                               -5-
residence on Ju ly 11, 199 7, at 1:29 a.m. Vaughn testified that every outgoing

long distance call that is answered is recorded on these records. However, he

acknowledged that if a phone call is not answere d, there is no reco rd of the c all

on the p hone b ill.

       The appellant attempted to establish an alibi for her whereabouts on the

afternoon of August 3. Wendee Partin, a clerk at a FINA station in Pelham,

testified that she was working on August 3 when the appellant came into the

service station between 3:00 p.m. and 4:00 p.m. When the appellant walked

through the door, she appeared as if she might faint. The appellant, who suffered

from seizur es, fell to the floo r and a sked Partin to call Da le Perr y, the ap pellan t’s

brother-in -law. Because she had other customers to attend, Partin summoned

her friend, Ch ris Davids on, to ass ist the app ellant. Davidson attempted to rouse

the appellant, and the appellant asked him to call Perry. Davidson complied, and

Perry arrived sh ortly therea fter. Perry he lped the a ppellant to his car an d then

drove her to h er resid ence . Perry s tayed with the appe llant for a pprox imate ly

thirty (30) minutes and returned home aroun d 6:00 p.m. T he ap pellan t’s mother,

Gladys Sartain, testified that she and the appellant remained at home for the rest

of the eve ning.

       Perry testified that, driv ing the spee d limit, it ta kes a pprox imate ly forty-six

(46) minutes to drive from the FINA station to Rob ert No rman ’s house in M oore

Coun ty.

       The jury returned guilty verdicts for the lesser offense of felony reckless

endangerment in Count One and Count Two. The jury also found the appellant

guilty of harassment as charged in Count Three of the indictment. Th e trial court

sentenced the appellant to consecutive terms of one (1) year and three (3)

months and one (1) year and two (2) months for the appellant’s convictions for

                                            -6-
reckless endan germe nt. These se ntences we re ordered to run con currently w ith

a six (6) month sentence for harassment. From her convictions and sentences,

the ap pellan t now b rings th is app eal.



             TESTIMONY CONCERNING BULLET TRAJECTORY




       In her first is sue, th e app ellant a rgues that the trial cou rt impro perly

restricted the cross-examination of Moore County Sheriff’s Deputy Michael

Blackburn regard ing the trajecto ry of the bullet in the de adbo lt lock. She further

claims that the trial court erred in subsequently instructing the jury to disreg ard

Officer Black burn’s testim ony co ncern ing the trajectory of the bullet.        The

appellant contends that the proposed testimony regarding the trajectory of the

bullet was admissible as lay testimony under Tenn. R. Evid. 701 because it was

based upon B lackburn ’s observ ations of th e bullet.

       During the state’s examination of Officer Blackburn, he testified that “the

person who shot the door knob had to be standing up on the porch because the

projectory [sic] of the bullet was kind of downward.” When defense counsel

attempted to cross-e xamine Officer Bla ckburn on this sta temen t, the state

objected. The trial court sustained the objection, finding that “the angle and

trajectory of a bullet normally requires expert opinion,” and because Officer

Blackburn was not qualified as an expert, his opinion regarding the trajectory of

the bullet w as inadm issible. When counsel attempted to resume questioning

Blackburn, the trial court interjected:

       Cou nsel fo r the de fense is partia lly correct. It would not be proper
       for the State to ask a person an opinion then object to that same
       opinion being as ked ab out. Consequently the Court is g oing to
       sustain the State’s objection. The jury shall disregard any
       statem ents this witness mad e abo ut any o pinion s concernin g this

                                             -7-
      bullet. He is not an expert. The Court will strike that testimony as
      offered by the State since the State is not objecting to the same
      testimony being offered. The jury will disregard and consider for no
      purpose this witness’s opinions concerning any trajectory evidence
      concerning this travel of b ullet. That is an opinion that only an
      expert can testify to and this p erson w as not qu alified as an expert.

      “Questions regard ing the adm issibility, qualifications, relevancy and

competency of expert testimon y are left to the discretion of the trial court, whose

ruling will not be overturned in the absence of abuse or arbitrary exercise of

discretion .” State v. Begley, 956 S.W.2d 471, 475 (Tenn. 1997). The admission

of expert testimony is governed by Tenn. R. Evid. 702, which provides:

             If scient ific, tech nical, o r other spec ialized know ledge will
      subs tantially assist the trier of fact to unde rstand th e eviden ce or to
      determine a fact in issue, a witness qualified as an expert by
      knowledge, skill, experience, training, or education may testify in the
      form of an opinion or otherwise.

Evidence is “scientific technical or other specialized knowledge” if “it concerns a

matter that ‘the average juror would not know, as a matter o f course. . . .’” State

v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997) (quoting State v. Bolin , 922

S.W .2d 870, 874 (Tenn. 199 6)).

      W e agree with the trial court that testimony concerning the trajectory of a

bullet ordinarily req uires exp ert testimo ny. See State v. Tiffany La fonzo B etts,

C.C.A. No. 02C01-9709-CC-00337, 1999 Tenn. Crim. App. LEXIS 73, at *4,

Madison County (Tenn. Crim. App. filed January 29, 1999, at Jackson) (holding

that testimony concerning the mechanics of a shotgun “would have been

approp riate only from an expe rt on firearm s”). Because Officer Blackburn was

not qualifie d as an expert in this regard, the trial court properly sustained the

state’s objection to this testimony on cross-examination. Furthermore, the trial

court properly instructed the jury to disregard Officer Blackburn’s statement on

direct examina tion concerning the bullet’s trajectory.



                                          -8-
       W e reject the a ppellant’s contention that the state’s objection to the

testimony on cross-exa mination wa s improper because the sta te effec tively

“opened the door” to such testimony by directly eliciting the trajectory testimony

on direct exam ination.      T he prosecutor asked Officer Blackburn, “[d]o you

remember seeing anything on top of the door facing on the outside --”. Blackburn

responded, “[n]ot tha t I reme mbe r. The only thing -- when I looked at the door

the person who shot the door knob had to be standing up on the porch because

the projectory [sic] of the bullet was kind of downward.” Clearly, the portion of

Black burn’s answer referring to the b ullet’s trajectory was not responsive to the

question posed by the prosecutor. Thus, we disagree with the appellant that the

state directly elicited this response from Blackburn.

       The testimony concerning the trajectory of the bullet required expert

testimony, and Blackburn was not qua lified as an e xpert to testify in this regard.

As such, the trial court acted properly in instructing the jury to disregard the

impro perly adm itted tes timon y and in refusing to allow any further testimony on

the sub ject.

       This issu e is withou t merit.



                       CRO SS EX AMIN ATION OF VIC TIMS




       In her next issue , the appe llant asse rts that the trial co urt erred in failing to

allow defense counsel to cross-examine Robert and Loretta Norman concerning

any domestic relations problems between them.                The appellant claims that

evidence of the Normans’ marital problems would indicate tha t the parties were

biased against her. Thus, she argue s that th e evide nce w as pro perly a dmis sible

under Tenn. R. Evid. 616. We must disagree.

                                            -9-
      Other than the app ellant’s allegations, there is no evidence in the reco rd

that Robert and Loretta, in fact, had martial problems. In any event, evidence

that Robert and Loretta Norman had marital difficulties does not indicate that they

were biased a gainst the appellan t. Furthermore, any domestic disputes between

the Normans are irrelevant to whether the appellant comm itted the instant

offense s. See Tenn . R. Evid. 40 1. The tria l court did a llow defen se cou nsel to

question both Robert and Loretta as to whether either o f them was re spon sible

for shoo ting the do or on Au gust 3.

      The adm issibility of testimony as well as the scope of direct and cross-

examination is a matter within the sound discretion of the trial court. See State

v. Barnard, 899 S.W .2d 617, 624 (Tenn. Crim . App. 1994 ). Furthermore, a trial

court’s determination of relevancy is subject to an abuse of discretion standard.

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). The trial court restricted

the appellant’s cross-examination of the victims in this regard because it found

the evidence to be irrelevant and unduly prejudicial and confusing to the jury.

See Tenn. R. Evid. 403. The trial court did not abuse its discretion by refusing

to allow the victims to be cross-examined regarding alleged martial difficulties.

      This issu e has n o merit.



                       SUFFICIENCY OF THE EVIDENCE




      The appellant challenges the sufficiency of the evidence for her

convictions. First, she claims that the evidence is insufficient to support her

convictions for reckless endangerment because no one observed her shooting

the door to the Norman residence and because she presented evidence of an

alibi on the afternoon of August 3. With respect to the harassment conviction she

                                        -10-
contends th at under State v. Hoxie , 963 S.W.2d 737 (Tenn. 1998), to establish

the offense o f harassm ent, the sta te is required to prove that she placed more

than one telephone call in a repetitious manner. As a result, she insists that

because the telephone records reveal that only one call was placed to the

Norman residence on the morning of July 11, the appellan t canno t be found guilty

of haras smen t.

                             A. Standard of Review

      When an accused challenges the sufficiency of the evide nce, this Cou rt

must review the record to determine if the evidence adduced during the trial was

sufficient “to support the findings by the trier of fact of guilt beyond a reaso nable

doubt.”   Tenn. R. Ap p. P. 13 (e). Th is rule is a pplica ble to fin dings of guilt

predicated upon direct evidence, circumstantial evidence or a combination of

direct and c ircum stantia l evidenc e. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.

Crim. App . 1996).

      It is well-settled that a criminal offense may be established exclusively by

circumstantial evidenc e. State v. Lequire, 634 S.W.2d 608, 614 (Tenn. Crim.

App. 1981); State v. Hailey, 658 S.W .2d 547 , 552 (Tenn. C rim. App. 198 3).

Further, to support a conviction based upon circumstantial evidence alone, the

facts and circumstances “must be so strong and cogent as to exclude every other

reasonab le hypothesis sa ve the guilt of the defen dant.” State v. Crawford, 225

Tenn. 47 8, 470 S.W .2d 610, 612 (1971).

      In determining the sufficiency of the e videnc e, this Court does not reweigh

or reevaluate the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier

of fact from circumstantial evidence. Liakas v. S tate, 199 Tenn. 298, 305, 286

S.W.2d 856, 859 (19 56). To the co ntrary, this Court is required to afford the state

                                         -11-
the strongest legitimate view of the evidence contained in the record as well as

all reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “A guilty verdict

by the jury, approved by the trial judge, accredits the testimony of the witnesses

for the State and resolves all conflicts in favor of the theory of the S tate.” State

v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).             Questions concerning the

credibility of the witnesses, the weight and value to be g iven the eviden ce as well

as all factual issues raised by the evidence are resolved by the jury as the trier

of fact. State v. Tuttle , 914 S.W.2d at 932.

       Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burd en in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tug gle, 639 S.W. 2d 913 , 914 (T enn. 19 82); State v.

Grace, 493 S.W.2d at 476.

                            B. Reckless Endangerment

       The appellan t contend s that the evidence was insufficient to sustain her

convictions of reckless endangerment because no one saw her shoot the door

to the Norman residence and none of the state’s witnesses saw her with a gun.

Furthermore, she argues that she presented more than substantial proof of an

alibi for the afte rnoon o f Augus t 3.

       An accused commits the offense of reckless endangerment when he or

she “recklessly engages in conduct which places or may place another person

in imminent danger of dea th or se rious b odily injury.” Tenn. Code Ann. § 39-13-

103(a). When reckless endangerment is committed with a deadly weapon, the

offense is a Clas s E felony. Ten n. Code A nn. § 39-13-1 03(b).




                                          -12-
      The evidence at trial showe d that the a ppellant w as obs erved by Robe rt,

Loretta, Derrick and Michael Norman ringing the doorbell at the Norman

residence on the afternoon of August 3. Due to th eir previou s confron tations with

the appellant, Robert Norman called 911 and took his sons into a bedroom

closet. Loretta walked into the kitchen to lock the door leading into the garage

and heard the ap pellant standing o utside of the d oor ye lling Ro bert N orma n’s

name. She testified that approximately 2 to 3 seconds after she heard the

appellan t’s voice, she heard a gunsh ot.

       Although no one actually observed the appellant shoot the door, a rational

trier of fact c ould conclude that the appellant was the shooter. By shooting the

door, the appellant recklessly engaged in conduct which place d the N orma ns in

imminent danger of de ath or serious bo dily injury. Moreover, while the appellant

presented evidence of an alibi, four witnesses testified that the appellant was at

the Norman residence on the afternoon of August 3. By their verdict o f guilt, the

jury obviously accredited the testimony of the state’s witnesses. It is well-settled

that the jury, as the trier of fact, resolves questions regarding the credibility of the

witnesses. State v. Maddox, 957 S.W.2d 547, 556 (Tenn. Crim. App. 1997). The

evidenc e was s ufficient to co nvict the ap pellant of re ckless e ndang ermen t.

      Although not raised by the appellant nor the State o f Ten ness ee, this Court

notes that the appellant has two (2) convictions for reckless endangerment as a

result of her shooting the door at the Norman residence. However, this Court has

held that the act of firing a single shot constitutes only one (1) act of reckless

endan germe nt, regardless of the num ber of victim s enda ngered . State v. Don nie

W ebb, C.C.A . No. 03C 01-911 2-CR -00414 , 1996 T enn. C rim. App . LEXIS 200,

at *1, Co cke C ounty (Ten n. Crim . App. filed March 29, 199 6, at Kno xville); see

also State v. Ramsey, 903 S.W .2d 709 , 713 (Tenn. Crim. App. 1995) (holding

                                          -13-
that one act of reckless driving does n ot justify multiple convictions for reckless

endangerment even th ough the de fenda nt end ange red m ultiple vic tims). In this

case, the appellant was convicted for firing a single shot into the door at the

Norman residence, and only one (1) conviction for reckless endangerment was,

therefore, proper.      As a result, the appellant’s conviction for reckless

endangerment in Count Two is vacated and merged into the appe llant’s

conviction for reckless endangerment in Count One.

                                  C. Harassment

      The appellan t also con tends tha t the evidence does not support her

conviction for haras smen t. She asserts that the Tennessee Supreme Court has

held that the offense of hara ssmen t requires proof of m ore than o ne ph one c all

in a repetitiou s man ner. See State v. Hoxie , supra. Because the telephone

records only indicate one phone call to the Norman residence on July 11, the

appellant argues that the evidence is insufficient to support the jury’s finding of

guilt for this offense. Furthermore, she claims that any phone call made to the

Norman residence was accidental; therefore, there is no evidence that the

appellant knowingly annoyed or alarmed the recipient of the phone calls.

      A perso n com mits th e offen se of h arass men t who in tentionally “[p]laces

one (1) or m ore tele phon e calls a nonym ously, or at an incon venien t hour, o r in

an offensively re petitious manner, or without a legitimate purpose of

communication, and by this action kn owingly a nnoys o r alarms the recipie nt.”

Tenn. C ode Ann . § 39-17-308 (a)(2).

      The appellant claims that und er State v. Hoxie , 963 S.W.2d 737 (Tenn.

1998), the state is required to p rove more than one te lephon e call in orde r to

establish the offense of harassment. However, the appellant’s reliance on Hoxie

is misplaced.

                                         -14-
         In Hoxie , the Supreme Court decide d the is sue w hethe r the sta te is

required to make an election o f offenses at the clos e of its proo f with regar d to

the offense o f stalking. Id. at 741 . The C ourt he ld that n o elec tion is required

due to the nature of the stalking offense as a “continuing course of conduct.” Id.

at 743. The Court further added, “[l]ikewise, the offense of telephone harassment

for which the defendant was convicted contemplates a continuing course of

condu ct. . . . The offense of ha rassmen t itself requires more than one telephone

call or telephone c alls in a repetitious ma nner.” Id.

         W e do not agree with the appellan t’s interpreta tion of Hoxie as requiring

the state to present evidence of more than one phone call to establish the offense

of harassment under Tenn. Code Ann. § 39-17-308. Although the Court’s opinion

states, “[t]he offense of harassment itself req uires m ore tha n one teleph one c all

or telephon e calls in a re petitious m anner,” th is statem ent con tradicts the clear

language of the statute. Under Tenn. Code Ann. § 39-17-308(a)(2), an accused

comm its the offense of harassment by placing “one (1) or more teleph one c alls

. . .”

         Moreover, in Hoxie , the Supreme Court was faced with the issue whether

the state is required to elect o ffenses for the offense of stalking. The issue of

election of offenses with regard to the offense of harassment was not before the

Court; therefore, the statemen t that harassment “requires more than one

telephone call” was only dicta and, as a result, not binding as pre cedent. “Cou rt

decisions must b e read w ith specia l reference to the que stions involved and

necessa ry to be d ecide d, and langu age u sed w hich is not decisive of the case or

decided therein is not binding as precede nt.” Shepherd Fleets, Inc. v. Opryland,

U.S.A., 759 S.W.2d 914, 921-22 (Tenn . Ct. App .), perm. to app. denied (Tenn.

1988).

                                         -15-
      In any event, we conclude that the state presented sufficient evidence that

the appellant placed one (1) or more telephone calls at an inconvenient hour and

in an offensively repetitious manner. Robert and Loretta Norman testified that the

telephone rang three (3) times at approximately 1:30 a.m. on July 11, 1997.

When Loretta answered the phone on the first ring, there was no one on the other

end of the line. The phon e rang a secon d time, bu t neither R obert no r Loretta

answered it. When th e phone ra ng the third time, Lore tta answered the phone

and heard someone saying, “what are you doing now?”             Robert picked up

another extension of the phone and heard a woma n saying , “doing.” B oth Robert

and Loretta identified the ca ller voice as that of the appellant. In addition, the

Caller ID box attached to the Norm an’s telephone identified the appellant’s phone

number as the origin of two (2) of the incoming calls.

      Although David Vaughn of the Ben Lomand Rural Telephone Co-op

testified that the phone records indicated only one (1) phone call to the Norman

residence on the morning of July 11, he acknowledged that the records would not

indicate a phone call that was not answered. It was a question for the jury, as

trier of fact, to resolve whether the appellant made multiple phone calls to the

Norman residence on July 11.

      The appellant further claims that there is no evidence that she “knowingly”

annoyed or alarmed the Normans because the evidence demonstrates that the

phone calls were accidental. To the contrary, there was no evidence presented

at trial that the appellant accidentally called the Norman residence multiple times

in the early morn ing hours of Ju ly 11. The evi dence demonstrated that the

appellant made telephone calls to the Norman residence at an hour in which they

would obviously be asleep. According to the Normans, she called three (3) times

within a two-minute period. After thoroughly reviewing the evidence presented

                                       -16-
at trial, we conclude tha t a rational trier of fact could have found that the appellant

placed one or more telephone calls to the Norman residence at an inconvenient

hour and in an offensively re petitious manner an d by he r action s kno wingly

anno yed or alarm ed the recipie nt of the teleph one c all.

         This issu e has n o merit.



                                     SENTENCING ISSUES




         The appellant claims that the trial court erred in imposing her sentences.

First, she claims that the trial court misapplied one enhancement factor and failed

to apply a mitigating factor in determining her sentence; as a result, she argues

that her sentences are excessive. She further asserts that the trial court erred

in imposing consecutive sentences.3 Finally, she contends that the trial court

erred in denying probation.

                                     A. Standard of Review

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

with a presu mption of correctn ess. Te nn. Co de Ann . § 40-35-401(d). Th is

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

judge considered the sentencin g principles and all relevant facts and

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

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.

1997).



         3
         The trial co urt im pos ed co nse cutive sent enc es as to Co unts One and T wo o nly. Be cau se th is
Court has determined that the appellant’s convictions for reckless endangerment in Counts One and Two
should m erge into o ne (1) co nviction, we need no t addres s the app ellant’s argu men t with regard to
consecutive sentencing.

                                                   -17-
      The burden is upon the appealing party to show that the sentenc e is

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

In conducting our review, we are required, pursua nt to Ten n. Cod e 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 pre senten ce repo rt;

      (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 the defen dant's
       own behalf about sentencing.

       Under the 1989 Sentencing Act, the presumptive sentence is the minimum

within the applicable range if no mitigating or enh ancem ent factors for sentencing

are present. Tenn. Code Ann. § 4 0-35-21 0(c); State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). How ever, if such factors do exist, a trial court

shou ld start at the m inimu m se ntenc e, enh ance the m inimu m se ntenc e within the

range for enhancement factors and then reduce the sentence within the range for

the mitigating factors. Tenn. C ode Ann . § 40-35-210 (e). No particular weight for

each factor is prescribed by the statute, as the weight give n to each factor is left

to the discretion of the trial court as long as its findings are supported by the

record. State v. Santiago, 914 S.W .2d 116 , 125 (T enn. C rim. App . 1995); see

Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.

                            B. Trial Court’s Findings




                                         -18-
      In determining the appellant’s sentence, the trial court found two (2)

enhancement factors would apply: (1) that the appellant had a previou s history

of criminal convictions, Tenn. Code Ann. § 40-35-114(1); and (2) that the

appellant committed the present offense while she was on probation, Tenn. Code

Ann. 40-35-1 14(13)(C ). In mitigation, the appellant presented evidence that she

suffered from seizures and proposed that these seizures constituted a “physical

condition that significantly reduced [her] culpability for th e offense .” Tenn. Code

Ann. § 40-35-113(8). However, the trial court rejected this mitigating factor due

to the lack of evidence that the offenses committed were related to her physical

condition. As a result, the trial court imposed sentences of one (1) year and three

(3) months and one (1) year and two (2) months for the appellant’s convictions

for reckless endan germe nt. The trial court further imposed a sentence of six (6)

month s for the ap pellant’s co nviction for h arassm ent.

      The trial court found that because the instant offenses were committed

while the appellant was on probation, her sentences for both counts of reckless

endangerment should ru n cons ecutively to one another. The court found that the

sentence for harassment should run concurrently with the appellant’s convictions

in Counts One and Two.

      With regard to alternative sentencing, the trial court noted that measures

less restrictive than confinement had been recently applied unsuccessfully to the

appellan t. Significantly, the court observed that the appellant was on probation

for an assault committed upon Loretta Norman, one of the victims in the instant

case. Furthermore, the trial court determined that granting proba tion wo uld

dimin ish the seriousne ss of the offense s comm itted. Therefore, the trial cou rt

denied probation and ordered that the ap pellan t serve her se ntenc es in

confinem ent.

                                         -19-
                                       C. Excessive Sentences

         The appellant contends that the trial court imposed excessive sentences

for her co nvictions for reckless endangerment in Counts One and Two. 4

Specifically, she argues that the trial court misapplied Tenn. Code Ann. § 40-35-

114(13) and failed to apply her prop osed m itigating factor. Thus, she claims that

she is entitled to the m inimum s entence of o ne (1) year for the C lass E felony.

                              1. Tenn. Code Ann. § 40-35-114(13)

         The appellant claims that the trial court misapplied Tenn. Code Ann. § 40-

35-114(13) because she was on probation for a misdemeanor, not a felony, at

the time the instant offenses were committed. We agree. Tenn. Code Ann. § 40-

35-114(13) specifically states that this enhancement factor is applicable if the

defendant commits an offense while on releas e statu s “if such release is from a

prior felony conviction.”                 Becaus e the appe llant was on prob ation for a

misdemeanor assault conviction, the trial court improper ly applie d this

enhance ment factor.

                               2. Tenn. Code Ann. § 40-35-113(8)

         The appellant also maintains that the trial cou rt erred in not applying as a

mitigating factor that she suffered from a physical condition, i.e., seizures, which

reduced her culpability for the offenses committed. Tenn. Code Ann. § 40-35-

113(8). At the sentencing hearing, the appellant testified that she had a seizure

on August 3 and suffered from a lapse of memory following the seizure.

         The trial court observed at sentencing,

         [t]he defendant wishes her cake and desires to eat it, too. She
         maintains her innocen ce before the jury and before the Court today


         4
           The appellant also mak es a conclusory allegation that the trial court impose d an excessive
senten ce with reg ard to he r harass men t conviction in Coun t Three . Becau se the ap pellant has failed to
sup port th is alleg ation with a rgum ent, th is Co urt will n ot ad dres s this issue on th e m erits. Ten n. Ct. Crim .
App. R. 10(b).

                                                        -20-
      even but says well, I could be wrong. I could have had a seizure.
      I could have had a seizure and it is somehow related to the offense
      and therefore it is a mitigating factor.

The trial court found that the appellant suffered from a physical condition which

caused her to have seizures, but rejected this as a mitigating factor because

there was no evidence in the record that the seizures reduced her culpability for

the offenses committed. We agree.

      Tenn. Code Ann. § 40-35-113 (8) is applicable only when the defendant can

establish that the mental or physical condition reduced his or her culpability for

the offenses committed. Therefore, there must be a causal connection between

the condition and the offense. See State v. John Walter Whitten, C.C.A. No.

01C01-9803-CR-00106, 1999 Tenn. Crim. App. LEXIS 164, at *2-3, Davidson

Coun ty (Tenn. Crim. App. filed February 24, 199 9, at Nas hville); State v.

Katherine Irene Warren, C.C.A. No. 01C01-9710-CC-00455, 1998 Tenn. Crim.

App. LEXIS 1123, at *5, Bedfo rd County (Tenn. Crim. App. filed October 28,

1998, at Nash ville); State v. Mark W. Rawlings, C.C.A. No. 02C01-9612-CR-

00475, 1998 Tenn. Crim. App. LEXIS, at *6, Shelby County (Tenn. Crim. App.

filed February 10, 1998, at Jackson). There is no evidence in the record that the

appe llant’s seizures are related to her com mitting the offense of reckless

endangerment on August 3. Indeed, at the sentencing hearing, defense counsel

acknowledged, “[d]id this physical cond ition play into the events of this crime?

I don’t know. W e don’t have an y proof conne cting those two.”

      The trial cou rt’s determination that Tenn. Code Ann. § 40-35-113(8) did not

apply in mitigation is fully supported by the record.




                                       -21-
                             3. Appropriate Length of Sentence

         Although the trial court misapplied Tenn. Code Ann. § 40-35-114(13), the

appellant is not nec essarily en titled to a red uction in h er sente nce.5 State v.

Lavender, 967 S.W .2d 803 , 809 (Tenn. 1998). The trial court did not consider

two enha ncem ent fac tors wh ich are clearly a pplica ble here. F irst, the a ppella nt’s

previous conviction for assault estabilshes a history of criminal convictions or

behavior above and beyond tha t necessary to establishe her standard offender

range. See. Tenn. Code Ann. S ec. 40-3 5-114(1 ). In addition , the use o f a

firearm justifies enhance ment of the a ppellant’s senten ce for reckless

endan germe nt. See, Tenn. Code Ann. Sec. 40-35-114 (9). Furthermo re, there

are no mitigating factors which are applicable to the appellant’s sentence for

reckless endangerment. For her conviction in Count One, the appellant received

a sentence of one (1) yea r and th ree (3) mon ths, a s enten ce wh ich is ba rely

above the minimum for a Class E felony.                          W e conclude that the trial court

imposed an appropriate sentence of one (1) year and three (3) mon ths for the

appellan t’s conviction for reckles s enda ngerm ent.

         This issu e is withou t merit.

                                              D. Probation

         In her final issue, the appellant contends that the trial court erred in

denyin g probation. She claims that because she has an insignificant criminal

history and was convicted of a Class E felony and a Class A m isdemea nor, she

is presumed to be a favorable candidate for alternative sentencing.




         5
           Although the trial court found that two (2) enhancement factors were applicable, it indicated that
it would be placing weight on only one (1) enhancement factor. The court stated, “if the law permits me,
I’m not s ure it does , to rely upon b oth of thos e enha ncing fa ctors, I’m only relying to a gre at part on o ne.
Makes no difference which one you choose because they are both present . . . But I place great weight
upon the enhan cing fac tor I’m relying upon.”

                                                      -22-
      An especially mitigated or standard offender convicted of a Class C, D or

E felony is presumed to be a favorable candidate for alternative sentencing in the

absence of eviden ce to the c ontrary. T enn. C ode Ann. § 40-35-102(6). A trial

court m ust presu me tha t a defend ant sen tenced to eight years or less and who

is not an offende r for whom inc arceration is a priority is subjec t to alternative

sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It

is further presumed that a sentence other than inca rcerat ion wo uld res ult in

successful rehabilitation unless rebutted by sufficient evidence in the record. Id.

at 380.

      Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations:

      (A) [c]onfinement is necessary to protect society by restraining a
      defend ant who has a lon g history of c riminal co nduct;

      (B) [c]onfinement is necessary to avoid depreciating the seriousness
      of the offense or confinement is particularly suited to provide an
      effective deterrence to others likely to commit similar offenses; or

      (C) [m]easures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.

Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston, 938 S.W.2d 435, 438 (Tenn.

Crim. App. 19 96). A trial co urt may consider the enhancement and mitigating

factors set forth in Tenn. Code Ann. §§ 40-35-113, 40-35-11 4 as they are

relevant to the § 40 -35-103 (1) cons iderations . State v. Boston, 938 S.W.2d at

438; State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The trial

court should also consider the defendant’s potential for rehabilitation when

determining whether a n alterna tive senten ce wou ld be app ropriate. State v.

Zeolia , 928 S.W.2d at 461.

      In determ ining w hethe r to gran t or den y prob ation, a trial court shou ld

consider the circumstances of the offense, the defendant’s criminal record, the

                                        -23-
defen dant's social history and present condition, the need for deterrence, and the

best interest of th e defen dant and the public. State v. Boyd, 925 S.W.2d 237,

244 (Tenn . Crim. A pp. 199 5); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.

App. 1995 ). The re is no math ema tical eq uation to be u tilized in determining

sentencing alternatives . Not only s hould the senten ce fit the offen se, but it

shou ld fit the offender as w ell. Tenn. Cod e Ann. § 40 -35-103(2); State v. Boggs,

932 S.W .2d 467, 476 -77 (Tenn . Crim. App. 19 96).

       The trial court found that incarceration was appropriate because measures

less restrictive than confin eme nt had recen tly been applied unsuccessfully to the

appellant. We agree.

       As a result of her striking Loretta Norman in the head with a baseb all bat,

the appellant was convicted in December 1996 with one (1) cou nt of sim ple

assa ult and rec eived eleven (11) months and twenty-nine (29) days probation.

Notwithstanding a court order to stay away from Loretta Norman, eight (8)

months later the appellant fired a s hotgun into the door at Robert and L oretta

Norm an’s residence. Obviously, measure s less res trictive than c onfinem ent have

proven unsuccessful, and this reflects poorly on the appellant’s rehabilitation

potential.

       After conside ring the circ umsta nces o f these offenses, along with the

appe llant’s recent unsu ccessful effort at rehabilitation, we conclude that the trial

court properly found sufficient “evidence to the contra ry” to reb ut the a ppella nt’s

presumption for alternative sentencing.6 The tr ial cou rt prop erly denied probation

in this case.

       This issue is meritless.



       6
         Because the appellant was convicted of reckless endangerment in violation of Tenn. Code Ann.
§ 39-13-103, she is ineligible for comm unity corrections under Tenn. Code A nn. § 40-36-106(2).

                                              -24-
                                   CONCLUSION




       Because the appellant was improperly convicted of two (2) counts of

reckless enda ngerm ent aris ing ou t of the s ame crimin al con duct, th e app ellant’s

conviction for reckless endan germe nt in Cou nt Two is vacated and m erged w ith

the appellan t’s conviction for reckless enda ngerme nt in Count O ne. Howe ver,

in all other respects, the judgment of the trial court is AFFIRMED.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                                          -25-
