         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 10, 2002

                STATE OF TENNESSEE v. LAKISHA S. THOMAS

                    Appeal from the Criminal Court for Davidson County
                       No. 2000-A-188     Cheryl Blackburn, Judge



                  No. M2001-01717-CCA-MR3-CD - Filed October 31, 2002


The defendant, Lakisha S. Thomas, was convicted by a Davidson County Criminal Court jury of
aggravated assault, a Class C felony, and reckless aggravated assault, a Class D felony. The trial
court sentenced her as a Range I, standard offender to concurrent sentences of five years for the
aggravated assault conviction and three years for the reckless aggravated assault conviction. The
defendant appeals, claiming that the evidence is insufficient to support her convictions and that the
trial court committed various sentencing errors. We affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Lakisha S. Thomas.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       This case relates to an altercation between the defendant and Tashia Hardin that resulted in
the shooting of Prevaka Briggs. Ms. Briggs testified that on September 17, 1997, she was living in
Preston Taylor Homes, a Nashville housing development. She said that earlier in the day, she had
attended her husband’s funeral and that in the evening, she went to Tashia Hardin’s apartment to play
cards. She said that as she was walking on the sidewalk to Ms. Hardin’s apartment, the defendant
and Tamela “Poo” Murphy were walking in front of her. She said that the three of them were
walking in the same direction and that as she went into Ms. Hardin’s apartment, the defendant and
Ms. Murphy went into another apartment that was two doors down. She said that later, she and Ms.
Hardin were standing on the sidewalk in front of Ms. Hardin’s apartment and that their friend
Shantonya Hyde was sitting on Ms. Hardin’s front porch. She said that she saw the defendant and
Ms. Murphy come out of the nearby apartment and walk on the sidewalk toward her and Ms. Hardin.
She said that two girls named “Allison” and “Winkie” were walking with the defendant and Ms.
Murphy.

         Ms. Briggs testified that the defendant was walking in front of Ms. Murphy and that the
defendant had one hand behind her body. She said that she saw Ms. Murphy hand something to the
defendant and that the defendant told Ms. Hardin, “You need to keep my name out of your mouth.”
She said that the defendant hit Ms. Hardin in the head with a small gun and that Ms. Hardin and the
defendant scuffled. She said that Ms. Hardin pulled out a gun and hit the defendant with it. She said
that during the altercation, she moved from the sidewalk onto Ms. Hardin’s front porch. She said
that the defendant backed away from Ms. Hardin and shot at Ms. Hardin. She said that Ms. Hardin
tried to shoot back at the defendant but that Ms. Hardin’s gun would not fire.

        Ms. Briggs testified that she stepped off the porch and felt dizzy. She said she felt something
hot running down her neck and realized that she had been shot. She said paramedics took her to
Vanderbilt Hospital where she was treated for a graze wound to her head that was caused by a small
caliber bullet. She said that Ms. Hardin’s gun never fired and that the defendant shot her. She said
that before the incident in question, she, Ms. Hardin, and Ms. Hyde had not had any arguments or
disagreements with the defendant or Ms. Murphy.

         On cross-examination, Ms. Briggs testified that before the shooting, she, Ms. Hardin, and Ms.
Hyde had been playing cards in Ms. Hardin’s backyard. She said that when they finished playing
cards, they went in front of Ms. Hardin’s apartment. She acknowledged that the shooting happened
in front of Ms. Hardin’s apartment about 10:45 p.m. She said that the sidewalk in front of Ms.
Hardin’s apartment was dark and that no lights were in the immediate area. At first, Ms. Briggs
testified that she did not leave Ms. Hardin’s apartment while the women were playing cards. Later,
she said that she did leave the apartment. She denied making up her testimony or giving Ms. Hardin
the gun that Ms. Hardin used in the altercation.

        Shantonya Hyde testified that before September 17, she had never witnessed Ms. Hardin or
Ms. Briggs argue with the defendant or Ms. Murphy. She said that before the shooting, she had been
playing cards with Ms. Briggs and Ms. Hardin in Ms. Hardin’s backyard. She said that while they
were playing cards, the defendant and Ms. Murphy kept driving by Ms. Hardin’s apartment and
calling them “bitches and stuff like that.” She said that after they finished playing cards, they sat on
Ms. Hardin’s front porch. She said that her oldest son and Ms. Hardin’s two children were outside
with them. She said she saw the defendant, Ms. Murphy, and a couple of other girls walking on the
sidewalk toward Ms. Hardin’s apartment. She said that the defendant was walking in front of Ms.
Murphy and that she saw Ms. Murphy hand a gun to the defendant. She said that she told Ms.
Hardin, “Watch out, Tashia, she got a gun.” She said that the defendant walked up to Ms. Hardin
and hit Ms. Hardin in the head with the gun. She said that the defendant and Ms. Hardin exchanged
words and scuffled. She said that the defendant took a couple of steps backward and fired in Ms.
Hardin’s and Ms. Briggs’ direction. She said that Ms. Hardin tried to shoot at the defendant but that



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the gun would not fire. She said that the defendant ran away and that she saw Ms. Briggs lying on
the ground.

        On cross-examination, Ms. Hyde acknowledged that she had prior convictions for passing
worthless checks, theft, and felonious possession of cocaine. She said that she was not living in
Preston Taylor Homes on September 17, but that she had gone there to play cards at Ms. Hardin’s
apartment. She said that they played cards for a couple of hours and that no one was drinking or
using drugs. She said that when it got dark, they quit playing and that Prevaka Briggs went back to
Ms. Briggs’ apartment. She said that she and Ms. Hardin went outside onto Ms. Hardin’s front porch
and that she saw Ms. Briggs walking back to Ms. Hardin’s apartment. She said that the defendant
and Ms. Murphy were walking in front of Ms. Briggs. She said that just before the shooting, she saw
the defendant and Ms. Murphy come out of Reneka Nichols’ apartment. She said that in 1996, she
had complained to the Metropolitan Development Housing Agency (MDHA) that Ms. Nichols had
been shooting at her. She said that she did not know whether her complaint resulted in the MDHA
evicting Ms. Nichols from Preston Taylor Homes.

         Tashia Hardin testified that on September 17, 1997, Prevaka Briggs and Shantonya Hyde
came to her apartment at 953 Presslor Drive in Preston Taylor Homes. She said that while they were
sitting in the backyard playing cards, she saw the defendant and Ms. Murphy driving through the
housing development. She said she had never had any arguments with the defendant. She said that
later that evening, she, Ms. Briggs, and Ms. Hyde were outside in front of her apartment. She said
that her seven- and five-year-old sons and Ms. Hyde’s young son also were outside. She said that
the defendant and Ms. Murphy were walking toward her but that she had her back to them. She
testified that Ms. Hyde said, “[Here] they come” and “[She’s] got a gun.” She said she turned around
and faced the defendant and Ms. Murphy. She said that the defendant told her to keep the
defendant’s name out of her mouth and that the defendant hit her in the head with the gun.

        Ms. Hardin testified that she and the defendant scuffled and that she pulled out her gun and
hit the defendant in the head with it. She said the defendant took a few steps back and started
shooting at her. She said that Ms. Briggs was standing behind her on the front porch and that the
defendant shot all of the bullets out of the defendant’s gun. She said that after the defendant stopped
shooting at her, she tried to shoot back at the defendant. She said that her gun’s safety latch was on
and that the gun would not fire.

        Ms. Hardin testified that she ran onto her porch and that Ms. Hyde was trying to get the
children inside the apartment. She said that after the shooting, the defendant and Ms. Murphy ran
away. She said that when the police arrived, she talked to Detective Clifford Man. She said that she
did not tell Detective Mann that she had pulled a gun on the defendant.

        On cross-examination, Ms. Hardin acknowledged that she had a previous felony conviction
for possessing cocaine. She said that on September 17, Reneka Nichols lived in the apartment that
was three doors down from her apartment. She said that she, Prevaka Briggs, and Shantonya Hyde
had not been drinking alcohol. She said that at some point, Ms. Briggs left Ms. Hardin’s apartment


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but that Ms. Briggs returned about ten minutes before the shooting occurred. She said that at the
time of the shooting, her front door was open and light from her apartment was shining into the front
yard.

        Ms. Hardin testified that her gun was a small .22 or .25 caliber automatic. She said that she
did not know what type of gun the defendant had but that the defendant fired about three shots. She
said that when the police arrived at the scene, Detective Mann came to her apartment and that Ms.
Hyde talked to him. She acknowledged knowing that it was a crime for a convicted felon to possess
a gun. She said the state promised not to prosecute her if she testified against the defendant.

         Officer Mark Burns of the Metro Police Department testified that about 10 p.m. on
September 17, 1997, he responded to a shooting at Preston Taylor Homes. He was the first officer
on the scene and people were screaming and yelling. It appeared that Ms. Briggs had been shot in
the head, and emergency personnel arrived and began working on her. When other officers arrived
at the crime scene, they looked for shell casings and found .25 caliber automatic shell casings in front
of apartment 951. On cross-examination, Officer Burns testified that the crime scene was fairly dark
and that he had to use his flashlight in order to look for evidence.

        Officer George Bowden of the Metro Police Department testified that at 10:35 p.m. on
September 17, he was called to the scene of a shooting at 953 Presslor Drive. When he arrived at
the scene, he took photographs and recovered evidence, including four .25 caliber shell casings.
Officers Bowden found the shell casings near apartment 953. On cross-examination, he said that all
of the shell casings were from the same caliber bullet but that two were manufactured by Winchester
and two were manufactured by Remington. According to his report, Prevaka Briggs appeared to
be the target of the assault. Although he did not recall lighting conditions at the crime scene, he
acknowledged that crime scene photographs showed that it was dark on the sidewalk in front of Ms.
Hardin’s apartment.

         Detective James Sledge of the Metro Police Department testified that he investigated the
shooting at Preston Taylor Homes. When he arrived at the housing development, the crime scene
had been secured, and he talked to Tashia Hardin. Detective Sledge also went to Vanderbilt Hospital
to interview Ms. Briggs. Although Ms. Briggs had received a grazing gunshot wound to the right
rear of her head, she was able to talk to Detective Sledge and give him the name “Poo.” As a result
of the interview and his investigation, Detective Sledge developed the defendant and Ms. Murphy
as suspects. He also delivered the four shell casings that the police had found at the crime scene to
the Tennessee Bureau of Investigation’s (TBI) Crime Lab. TBI specialists determined that two of
the casings were fired from the same gun. The results as to the other two casings were inconclusive.
According to Detective Sledge, it was not unusual to find shell casings on the ground in the area of
the shooting.

       On cross-examination, Detective Sledge testified that although the shell casings were
recovered in a well-lit area, police officers had to use their flashlights to find them. He did not recall
whether the streetlight near Ms. Hardin’s apartment was working on September 17. On September


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24, Detective Sledge had warrants issued against the defendant and Ms. Murphy for the aggravated
assault of Ms. Briggs. He did not have warrants issued for any offenses committed against Ms.
Hardin because she did not say she was a victim. He thought she was merely a witness to the
shooting. During Detective Sledge’s interview of Ms. Briggs, Ms. Briggs told him that the defendant
and Ms. Murphy had come to Preston Taylor Homes to look for her.

        Tamela Murphy testified that on September 17, 1997, she rode with the defendant to Preston
Taylor Homes. She said that she and the defendant were friends and that they went to the housing
development to visit relatives. She said that they arrived there about 3:00 p.m. and that as they drove
to her cousin’s apartment, they passed Ms. Hardin’s apartment. She said they did not see or speak
to Tashia Hardin, Shantonya Hyde, or Prevaka Briggs. She said that later, she and the defendant
were walking on the sidewalk and Ms. Briggs was walking behind them. She said Ms. Briggs went
into Ms. Briggs’ apartment for a brief time and then started walking behind them again. She said
that she and the defendant were walking toward Ms. Hardin’s apartment and that she noticed Ms.
Hardin and Ms. Hyde were on Ms. Hardin’s front porch.

       Ms. Murphy testified that as she and the defendant approached Ms. Hardin’s apartment, she
was walking beside, not behind, the defendant and that she did not hand anything to the defendant.
She said that Ms. Hardin said something to the defendant and that Ms. Hardin had a knife in her
hand. She said that the defendant grabbed the knife and that the two women scuffled. She said that
Ms. Hardin cut the defendant’s arm, pulled out a gun, and shot one time into the air.

        Ms. Murphy testified that the defendant also pulled out a gun and shot into the air. She said
she thought they were trying to scare each other. She said that after the incident, she and the
defendant walked back to the defendant’s car. She said that they did not know that anyone had been
hurt and that they did not call the police. She said the police did not contact her before a warrant was
issued for her arrest. She said she turned herself in to the police.

        On cross-examination, Ms. Murphy acknowledged having a prior conviction for theft of
property. She said that although she and the defendant arrived at Preston Taylor Homes about 3:00
p.m., they rode around for a couple of hours before they visited relatives. She said that after they
finished visiting family members, she and the defendant walked to a nearby store. She said that the
defendant’s car was still parked at Preston Taylor Homes and that in order to get back to the car, they
needed to walk by Ms. Hardin’s apartment.

        Ms. Murphy testified that earlier in the day, Reneka Nichols had told her and the defendant
that Ms. Hardin, Ms. Briggs, and Ms. Hyde were going to do something to them. She acknowledged
that despite this, she and the defendant decided to walk by Ms. Hardin’s apartment. She said that
she and the defendant had not had any run-ins with Ms. Hardin, Ms. Briggs, or Ms. Hyde before the
crimes in question. Unlike her direct testimony, Ms. Murphy testified that when she and the
defendant approached Ms. Hardin’s apartment, Ms. Hardin said something to the defendant, and the
defendant hit Ms. Hardin with her fist. She said that after the defendant hit Ms. Hardin, Ms. Hardin
pulled a knife on the defendant. She said that at some point, Ms. Hardin dropped the knife, pulled


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out a gun, and fired into the air. She said that the defendant pulled out a gun and also fired into the
air. Ms. Murphy testified on cross-examination that she had not known the defendant was carrying
a gun on September 17.

        The defendant testified that at the time of the offenses in question, she did not live in Preston
Taylor Homes but often went there on her days off work. She said that on September 17, she and
Ms. Murphy drove to the housing development, parked the defendant’s car, and visited Ms.
Murphy’s cousin. She said that at some point, Reneka Nichols called her on her cellular telephone
and told her that Ms. Hardin and Ms. Hardin’s friends were holding guns and standing outside. She
said she took her gun out of her car’s glove compartment and carried it for protection.

         The defendant testified that after she and Ms. Murphy visited Ms. Murphy’s cousin, they
walked to the store. She said that they started walking back to her car and that the quickest way to
get from the store to her car was to walk by Ms. Hardin’s apartment. She said that as they were
walking back to her car, Ms. Briggs passed them and went into Ms. Briggs’ apartment. She said Ms.
Briggs came out of the apartment and started walking behind them. She said that Ms. Hardin was
standing on the sidewalk in front of Ms. Hardin’s apartment and that as they approached Ms. Hardin,
Ms. Hardin said something to her. She said that she hit Ms. Hardin with her fist and that Ms. Hardin
pulled a knife. She said that she grabbed Ms. Hardin’s arm and that Ms. Hardin cut her arm. She
testified that she did not know Ms. Hardin had cut her until she got home. She said that her mother
put a Band Aid on the cut.

         The defendant testified that after Ms. Hardin cut her, Ms. Hardin pulled out a gun. She said
she let go of Ms. Hardin’s arm and ducked down. She said Ms. Hardin pointed the gun at her and
fired it. She said Ms. Hardin did not fire the gun into the air. She said that she did not know how
many times Ms. Hardin fired the weapon but that she pulled her own gun and fired it two or three
times into the air. She said that Ms. Hardin was standing directly in front of her and that she was just
trying to scare Ms. Hardin. She said that she did not intend to shoot anyone and that she was afraid
for her life. She said that when she left Preston Taylor Homes, she did not know that Ms. Briggs had
been shot. She denied that she walked in front of Ms. Hardin’s apartment intending to confront Ms.
Hardin.

        On cross-examination, the defendant testified that sometime before the altercation, someone
called her on her cellular telephone and told her that Ms. Hardin and Ms. Hardin’s friends had guns
and were waiting around the store for her. She said the person also told her that Prevaka Briggs gave
Ms. Hardin a gun in order for Ms. Hardin to shoot the defendant. She said that she did not take this
information seriously. She acknowledged that despite having heard that Ms. Hardin wanted to harm
her, she decided to walk toward Ms. Hardin’s apartment.

         The defendant acknowledged giving a statement to Sergeant Dwayne Phillips when she was
arrested. She said she told Sergeant Phillips that Ms. Hardin pulled a knife on her. She said, though,
that she did not tell him that Ms. Hardin cut her. She also acknowledged telling Sergeant Phillips
that a girl named Allison Martin was with her and Ms. Murphy at the time of the crimes in question.


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The defendant testified that she told Sergeant Phillips that she threw the gun away after the
altercation. She said she was positive that she did not shoot Prevaka Briggs.

        The jury convicted the defendant of aggravated assault against Tashia Hardin. Although the
jury found the defendant not guilty of aggravated assault with a deadly weapon against Prevaka
Briggs, it convicted her of the lesser included offense of reckless aggravated assault.

        First, the defendant contends that the evidence is insufficient to support her convictions.
Specifically, she claims that her testimony shows that Ms. Hardin came at her with a knife and that
she fired into the air to scare Ms. Hardin, who was uninjured. She also claims that the evidence is
insufficient to show that the she shot Prevaka Briggs. The state claims that the evidence is sufficient.
We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

         As charged in the indictment, a person commits Class C felony aggravated assault by
intentionally or knowingly causing another reasonably to fear imminent bodily injury while using
or displaying a deadly weapon. Tenn. Code Ann. §§ 39-13-101(a)(2); -102(a)(1)(B). Viewed in the
light most favorable to the state, the evidence shows that the defendant committed aggravated assault
against Tashia Hardin. The defendant walked up to Ms. Hardin and hit Ms. Hardin in the head with
a gun. Ms. Hardin scuffled with the defendant, the defendant took a few steps back, and the
defendant shot at Ms. Hardin. Ms. Hardin pulled out a gun and tried to shoot back at the defendant
but her gun would not fire. Although Ms. Hardin did not testify that she was afraid of the
defendant’s actions, we believe that a rational jury could infer that Ms. Hardin’s pulling out her gun
and attempting to shoot back at the defendant resulted from her fear of imminent bodily injury. See
Stinson v. State, 181 Tenn. 172, 178, 180 S.W.2d 883, 885 (1944) (noting the general rule that a
party may prove a material fact by direct or circumstantial evidence); see also State v. James Albert
Adams, No. M1998-00468-CCA-R3-CD, Davidson County (Tenn. Crim. App. Dec. 15, 1999)
(inferring the victim’s fear from the circumstances of the offense even though she did not testify that
she was afraid). The jury chose to believe the testimony of other witnesses over that of the
defendant, and that is its prerogative. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). The evidence is sufficient to support the defendant’s conviction for aggravated assault.

       We also believe that the evidence is sufficient to support the defendant’s conviction for
reckless aggravated assault against Prevaka Briggs. Ms. Briggs was standing on the sidewalk talking
to Ms. Hardin when the defendant approached Ms. Hardin and hit Ms. Hardin in the head. At some


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point, the defendant began shooting at Ms. Hardin. Ms. Briggs testified that during the altercation,
she left the sidewalk and went onto Ms. Hardin’s front porch. Ms. Hardin said that while the
defendant was shooting at her, Ms. Briggs was standing behind her on her front porch. Shantonya
Hyde also testified that the defendant was shooting in the direction of Ms. Hardin and Ms. Briggs.
Viewed in the light most favorable to the state, the evidence shows that the defendant was the only
person who fired a gun and, therefore, the only person who could have shot Ms. Briggs. The
evidence is sufficient to support the defendant’s conviction for reckless aggravated assault.

        We note that the defendant’s brief states that the prosecution presented no evidence that
Prevaka Briggs suffered serious bodily injury. Serious bodily injury, though, was not required in
order for the jury to convict the defendant of reckless aggravated assault as a lesser included offense
of aggravated assault as charged in the indictment. See Tenn. Code Ann. §§ 39-13-101(a)(1),
–102(a)(2)(B). The indictment alleges that the defendant committed aggravated assault by
intentionally or knowingly causing bodily injury to Ms. Briggs while using or displaying a deadly
weapon. See Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(1)(B). Therefore, serious bodily injury
is not an issue in this case, and the defendant is not entitled to relief.

        Finally, the defendant raises several sentencing issues, including that the trial court
improperly enhanced her sentence and that she was entitled to an alternative sentence. However, as
the state points out, the defendant has failed to include the sentencing hearing transcript in the record
on appeal. A trial court’s sentencing determinations are entitled to a presumption of correctness
upon review. See Tenn. Code Ann. § 40-35-401(d). The duty is now upon the defendant to show
what was incorrect about the sentencing process. In the absence of the sentencing hearing transcript,
which is essential for our review, we are to presume that the trial court’s rulings are correct, and we
are precluded from considering any sentencing issue in this case. See State v. Gibson, 973 S.W.2d
231, 244 (Tenn. Crim. App. 1997).

        Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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