            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs March 11, 2015

     STATE OF TENNESSEE v. CHRISTOPHER DEWAYNE HENSON

                       Appeal from the Circuit Court for Maury County
                         No. 21745     Stella L. Hargrove, Judge



                    No. M2013-01285-CCA-R3-CD – Filed June 2, 2015



The Defendant-Appellant, Christopher Dewayne Henson, was convicted by a Maury
County jury of reckless endangerment. The trial court sentenced the Defendant to 11
months and 29 days and ordered that he serve 45 days in confinement, with the remainder
of his sentence to be served on supervised probation. On appeal, the Defendant argues
that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in
admitting color photographs of the victim‟s injuries; and (3) the trial court abused its
discretion in sentencing the Defendant. Discerning no error, we affirm the judgment of
the trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and ROGER A. PAGE, JJ., joined.

William C. Barnes, Cordova, Tennessee, for the Defendant-Appellant, Christopher
Dewayne Henson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Mike Bottoms, District Attorney General; and Dan Runde, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

       On April 1, 2012, the victim, Jeff Roberts, became involved in an altercation with
his nephew, Dylan Henson.1 The altercation began as a verbal dispute between Dylan
        1
         Because several witnesses share the same last name, we will refer to them by their first names.
We intend no disrespect in doing so.
and the victim, but it eventually turned physical and involved several other family
members, including the Defendant. During this altercation, the victim was struck on the
head with an metal bar and had to receive stitches and staples in the top and side of his
head.

        At trial, the victim testified that on the evening of April 1, 2012, he and his
girlfriend, Yolanda Hill, were sitting on the front porch of her house when he saw Dylan
and several of his friends arrive in a pickup truck. The group of teenagers parked in a
field across the street from Ms. Hill‟s home and began throwing rocks in the field. The
victim did not want the teenagers to throw rocks in the field because he mowed the field
and feared the rocks would damage his lawn mower. When he asked Dylan to stop
throwing rocks, Dylan and his friends walked into the road and began cursing at and
threatening the victim. The victim‟s mother, Annie Spears, lived next door to Ms. Hill
along with the victim‟s sister, Kelly Henson; Kelly‟s husband, the Defendant; and the
Hensons‟ two children, Dylan and Casey. Upon hearing the verbal dispute between
Dylan and the victim, Ms. Spears came onto her porch and told Dylan to come home.
When he refused, Ms. Spears went inside her home and asked Kelly and the Defendant to
break up the dispute. Kelly tried to persuade Dylan to come home, and the victim left
Ms. Hill‟s porch and walked Dylan and Kelly back towards the road. When the victim
turned to walk back to Ms. Hill‟s porch, he saw Ms. Hill run past him and attack Kelly.
While the victim tried to break up the fight between the two women, Dylan hit him in the
face with a walking cane three or four times. The victim stumbled a few steps back and
saw the Defendant holding a metal bar in his hand. The Defendant told the victim to “get
[his] hands off his kid” and then hit the victim on the head twice.

        The victim identified the Defendant in court as the person who hit him with the
metal bar. He denied that he pulled out a knife during the altercation and insisted that he
did not threaten Dylan, Kelly, or the Defendant in any way before the Defendant hit him.
He agreed that after being hit by the Defendant, he retrieved a “shepherd‟s cane” from his
yard and swung it at the Defendant and Dylan to get them to leave Ms. Hill‟s property.
He was uncertain whether he hit the Defendant, although he acknowledged that it was
possible. The victim and Ms. Hill called 911 after the altercation. The police responded
to the scene that night, and the victim and Ms. Hill went to the police station the next day
to give a statement.

       Annie Spears, the victim‟s mother and the Defendant‟s mother-in-law, testified on
behalf of the Defendant. She agreed that a verbal altercation broke out between Dylan
and the victim because Dylan refused to stop throwing rocks in the field across the street.
According to Ms. Spears, the victim pulled a knife out of his pocket and Dylan retrieved
Ms. Spears‟s walking cane out of her car. She told the victim, “[Y]ou better not cut . . .
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one of my grandkids,” and he put the knife back in his pocket; however, Dylan continued
“backing [the victim] up” towards Ms. Hill‟s house so the victim retrieved a shepherd‟s
cane out of the yard. Ms. Spears observed Dylan hit the victim with the walking cane.
She testified that she sent Kelly and the Defendant to break up the altercation, and when
the Defendant walked into Ms. Hill‟s yard to make Dylan come home, “it just went
crazy.” Ms. Hill retrieved a metal bar from her house and walked into the yard, and the
victim continued to swing the shepherd‟s cane at Dylan and the Defendant. Ms. Spears
testified that a physical fight broke out between the Defendant and the victim after the
victim hit the Defendant with the shepherd‟s cane. Ms. Spears agreed that the Defendant
and the victim were “knuckling it out,” but she testified that she never saw the Defendant
hit the victim with a metal bar.

        On cross-examination, Ms. Spears acknowledged that the Defendant could have
hit the victim with a metal bar, but she did not see it happen. She agreed that she “really
[did not] know what the circumstances were, at the time, when [the victim] got hit with
the bar . . . [b]ecause there was so much confusion” and added, “It could have been
anybody that hit [the victim].” She also agreed that the victim showed her his head
injuries that night after the altercation.

       Joshua Braden, a police officer with the Mount Pleasant Police Department,
responded to the scene on April 1, 2012. According to Officer Braden‟s incident report,
Dylan reported that the victim had a knife in his hand at some point during the
altercation, but no other witnesses reported seeing a knife. He confirmed that Ms. Spears
never told him that she saw the victim with a knife that night. Officer Braden testified
that he observed several injuries to the victim‟s head and face, including a swollen eye
and a “big cut” on the top of his head. Officer Braden recovered a walking cane from
Ms. Spears after being informed by witnesses that it was used to hit the victim. The
victim told Officer Braden that the Defendant also hit him with a metal bar, which
Officer Braden found in a trailer attached to the Defendant‟s car. On cross-examination,
Officer Braden stated that the Defendant reported that the victim initially attacked him
with the metal bar and that he took it away and hit the victim with it. He conceded that
he could not recall whether he asked Ms. Spears if the victim had a knife during the
altercation.

       Following deliberations, the jury convicted the Defendant of reckless
endangerment as a lesser-included offense of aggravated assault. A sentencing hearing
was held on April 11, 2013, after which the trial court sentenced the Defendant to 11
months and 29 days and ordered him to serve 45 days in confinement with the remainder
of his sentence to be served on supervised probation. On April 18, 2013, the Defendant


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filed a timely motion for new trial, which was denied by the trial court on May 16, 2013.
Subsequently, the Defendant filed a timely notice of appeal.

                                               ANALYSIS

        On appeal, the Defendant challenges the sufficiency of the convicting evidence.
He also argues that the trial court abused its discretion in admitting color photographs of
the victim‟s injuries and in sentencing the Defendant. The State responds that the
evidence is sufficient to sustain the Defendant‟s conviction for reckless endangerment
and maintains that the trial court did not abuse its discretion in the admission of evidence
or in sentencing the Defendant. We agree with the State.

        I. Sufficiency of the Evidence. The Defendant argues that the evidence is
insufficient to sustain his conviction for reckless endangerment. He asserts that the
evidence establishes that the altercation was “mutual combat,” and given that he did not
start the altercation and was the last person involved in the fight, he is “clearly . . . the
least culpable.” The State responds that the evidence is sufficient to sustain the
Defendant‟s conviction.2

        When considering the sufficiency of the evidence on appeal, the State is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing
State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the
sufficiency of the evidence, the standard of review applied by this court is “whether, after
reviewing 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 (1979). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the finding by
the trier of fact of guilt beyond a reasonable doubt.” “Because a verdict of guilt removes
the presumption of innocence and raises a presumption of guilt, the criminal defendant

        2
           In addition to addressing the sufficiency of the evidence supporting the Defendant‟s conviction,
the State‟s brief also thoroughly addresses the trial court‟s role as the thirteenth juror. See Tenn. R. Crim.
Pro 33(d) (providing that the trial court “may grant a new trial following a verdict of guilty if it disagrees
with the jury about the weight of the evidence”). The Defendant‟s brief does not clearly challenge the
trial court‟s actions as thirteenth juror, although his argument appears to suggest that the jury‟s verdict is
against the weight of the evidence. In any event, the trial court properly fulfilled its role as the thirteenth
juror in this case, stating on the record, “As Thirteenth Juror, the [c]ourt accepts and approves the verdict
of this Jury.” Accordingly, this issue is not subject to appellate review, and our review is limited to the
sufficiency of the evidence. See State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995) (citing State v.
Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)).
                                                       -4-
bears the burden on appeal of showing that the evidence was legally insufficient to
sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses‟ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence and the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court shall not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Id.

        Here, the Defendant was charged with aggravated assault but was convicted of the
lesser-included offense of misdemeanor reckless endangerment. A person commits
reckless endangerment “who recklessly engages in conduct that places or may place
another person in imminent danger of death or serious bodily injury.” T.C.A. § 39-13-
103(a). A person acts recklessly “when the person is aware of but consciously disregards
a substantial and unjustifiable risk that the circumstances exist or the result will occur.”
Id. § 39-11-302(c). This “risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the accused person‟s standpoint.”
Id. Serious bodily injury includes bodily injury that involves a substantial risk of death,
protracted unconsciousness, extreme physical pain, or protracted or obvious
disfigurement. Id. § 39-11-106(34).

       In challenging the sufficiency of the evidence, the Defendant does not specifically
contest any elements of the offense of reckless endangerment; rather, he simply claims
that as the last person involved in the altercation, he was the “least culpable.” Even if
true, however, this fact has no bearing on the jury‟s finding that the Defendant‟s reckless
conduct placed the victim in imminent danger of death or serious bodily injury. Viewed
in the light most favorable to the State, the evidence at trial established that during an
altercation involving several family members, the Defendant struck the victim at least
                                            -5-
two times in the head with a metal bar. As a result, the victim sustained two large cuts to
his head that required stitches and staples. Although witnesses provided somewhat
conflicting accounts about the altercation, the jury‟s verdict of guilt resolved all conflicts
in the evidence in favor of the State‟s theory. See State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). We will not
reweigh or reevaluate this evidence on appeal. See Dorantes, 331 S.W.3d at 379. Based
upon the record, we conclude that a rational juror could find beyond a reasonable doubt
that the Defendant‟s reckless conduct placed the victim in imminent danger of death or
serious bodily injury. He is not entitled to relief on this issue.

       II. Admission of Color Photographs. The Defendant next asserts that the trial
court erred in admitting eight color photographs of the victim‟s injuries because they
were unfairly prejudicial. He argues that the color photographs were cumulative in
nature given that three black and white photographs of the victim‟s injuries had already
been introduced, and the only purpose in admitting the color photographs was to inflame
the jury. The State responds that the photographs were relevant to show the victim‟s
injuries and that the trial court did not abuse its discretion by allowing their admission.

        The admissibility of photographs lies within the sound discretion of the trial court,
and the court‟s ruling on admissibility will not be overturned on appeal absent a showing
that the trial court abused that discretion. State v. Odom, 336 S.W.3d 541, 565 (Tenn.
2011) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). To be admissible, a
photograph must be relevant to an issue in dispute. State v. Vann, 976 S.W.2d 93, 102
(Tenn. 1998) (citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564
S.W.2d at 951). Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
However, a relevant photograph “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined by the
Tennessee Supreme Court as “an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily an emotional one.” Banks, 564 S.W.2d at 951.
Photographs must never be used “solely to inflame the jury and prejudice them against
the defendant.” Id.

       After reviewing the photographs in the instant case, we conclude that they were
relevant to show the extent of the victim‟s injuries, and the probative value of the
photographs was not substantially outweighed by the danger of unfair prejudice. Initially
we note that “a relevant photograph is not rendered inadmissible merely because it is
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cumulative.” State v. Morris, 24 S.W.2d 788, 811 (Tenn. 2000); see also State v. Van
Tran, 864 S.W.2d 465, 477 (Tenn. 1993), cert. denied, 511 U.S. 1046 (1994) (color
photographs of deceased victims at crime scene were not unnecessarily cumulative or
prejudicial despite admission of color videotape showing victims‟ bodies as they were
found); State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992) (photographs of the victim‟s
body were admissible despite oral testimony graphically describing the victim‟s injuries).
Although three black and white photographs also showing the victim‟s injuries were
introduced, the color photographs more clearly depicted the extent of the victim‟s
injuries, which was essential to the State‟s case.3 See State v. Melissa J. Pewitt, No.
01C01-9706-CR-00229, 1998 WL 410883, at *5 (Tenn. Crim. App. July 23, 1998)
(photographs of victim‟s injuries were relevant in prosecution for especially aggravated
burglary because the State was required to prove the victim suffered “serious bodily
injury” and were not unnecessarily cumulative despite victim‟s display of the scars on her
body to the jury). Further, the photographs were not particularly gruesome or
inflamatory. Accordingly, we discern no abuse of discretion by the trial court in allowing
the photographs‟ admission.

        III. Sentencing. In his final issue on appeal, the Defendant argues that the trial
court imposed an excessive sentence. The Defendant again emphasizes that he “was the
last person to join into this fight” and maintains that “[j]ustice requires a different
outcome.” However, the Defendant failed to support this issue with sufficient argument
or citations to authority. As such, this issue is technically waived. See Tenn. Ct. Crim.
App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”); see also
Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record . . . relied on.”). Waiver
notwithstanding, we conclude that the trial court did not abuse its discretion in sentencing
the Defendant.

       Recently, the Tennessee Supreme Court concluded that a trial court‟s sentencing
determinations in felony cases should be reviewed under “an abuse of discretion standard
of review, granting a presumption of reasonableness to within-range sentencing decisions
that reflect a proper application of the purposes and principles of our Sentencing Act.”
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Shortly thereafter, the Tennessee
Supreme Court applied the abuse of discretion standard, accompanied by a presumption

        3
          Although the Defendant was convicted of reckless endangerment, which does not require proof
of bodily injury, the Defendant was indicted and tried for aggravated assault, which required the State to
prove that the victim suffered serious bodily injury. See T.C.A. § 39-13-102.
                                                     -7-
of reasonableness, to “questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). To date, the Tennessee Supreme
Court has not addressed whether the abuse of discretion standard with a presumption of
reasonableness applies to misdemeanor sentencing. Notwithstanding, the reasoning
espoused in State v. King, that Bise applies to “all sentencing decisions,” suggests that it
is the appropriate standard of review to apply to misdemeanor sentencing cases as well.
See King, 432 S.W.3d 316, 324 (Tenn. 2014) (emphasis added). Moreover, this court has
recently applied the Bise standard of review to misdemeanor sentencing cases. See State
v. Michael Glen Walsh, No. E2012-00805-CCA-R3-CD, 2013 WL 1636661, at *4 (Tenn.
Crim. App. Apr. 17, 2013); State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-
CD, 2013 WL 1088341, at *7 (Tenn. Crim. App. Mar. 14, 2013). Therefore, we will do
the same in this case.

       Pursuant to the 2005 amendments to the sentencing act, a trial court must consider
the following when determining a defendant's specific sentence and the appropriate
combination of sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;
       (2) The presentence report;
       (3) The principles of sentencing and arguments as to sentencing
       alternatives;
       (4) The nature and characteristics of the criminal conduct involved;
       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and
       (7) Any statement the defendant wishes to make in the defendant‟s own
       behalf about sentencing.

T.C.A. § 40-35-210(b) (2012). The defendant has the burden of showing the impropriety
of the sentence on appeal. Id. § 40-35-401(d) (2012), Sentencing Comm‟n Comments.

       Misdemeanor sentencing is governed by Tennessee Code Annotated section 40-
35-302, which provides, in part, that the trial court shall impose a specific sentence that is
consistent with the purposes and principles of the 1989 Sentencing Reform Act. See
T.C.A. § 40-25-302(b). The sentencing court is granted considerable latitude in
misdemeanor sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999)
(citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). The trial court must
consider the purposes and principles of sentencing and the appropriate enhancement and
mitigating factors, but the court is not required to place specific findings on the record.
                                             -8-
T.C.A. § 40-35-302(d); Troutman, 979 S.W.2d at 274. “Rather, the court must only
avoid arbitrarily imposing incarceration.” State v. Heath Baldwin, No. W2005-02906-
CCA-R3-CD, 2007 WL 845911, at *4 (Tenn. Crim. App. Mar. 21, 2007) (citing
Troutman, 979 S.W.2d at 274).

       Unlike felons, “misdemeanants are not given the presumption of a minimum
sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Further,
those convicted of a misdemeanor are not presumed eligible for alternative sentencing.
State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995) (citing Creasy, 885
S.W.2d at 832-33). The misdemeanor sentencing statute requires that the trial court
consider the purposes and principles of sentencing when calculating the percentage of the
sentence to be served in confinement prior to “consideration for work release, furlough,
trusty status and related rehabilitative programs.” T.C.A. § 40-35-302(b), (d) (2012).
However, there is no strict requirement that the trial court make findings on the record
regarding the percentage of the defendant‟s sentence to be served in confinement.
Troutman, 979 S.W.2d at 274.

        In the instant case, the trial court‟s oral sentencing findings show that it considered
the purposes and principles of the sentencing act and complied with the misdemeanor
sentencing statute in imposing the Defendant‟s sentence. The record establishes that the
court reviewed the presentence report and considered the victim‟s testimony and the
nature of the offense when determining the manner and length of the Defendant‟s
sentence. The court noted that the Defendant refused to take responsibility for his
conduct, and it emphasized the serious injuries suffered by the victim. Although the
court did not place its findings regarding its consideration of the applicable enhancement
and mitigating factors on the record, it was not required to do so in a misdemeanor
sentencing case. See Troutman, 979 S.W.2d at 274. The record reflects that the trial
court properly considered the sentencing principles and imposed a sentence that was not
arbitrary. Accordingly, we discern no abuse of discretion. The Defendant is not entitled
to relief.

                                          CONCLUSION

       Based on the foregoing authorities and analysis, the judgment of the trial court is
affirmed.

                                                    _________________________________
                                                    CAMILLE R. McMULLEN, JUDGE



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