             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                             NOVEMBER 1998 SESSION
                                                           February 9, 1999

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    C.C.A. NO. 01C01-9804-CC-00173
             Appellee,               )
                                     )    RUTHERFORD COUNTY
VS.                                  )
                                     )    HON. JAMES K. CLAYTON, JR.,
LA SOUTHAPHANH,                      )    JUDGE
                                     )
             Appellant.              )    (Aggravated Assault)



FOR THE APPELLANT:                        FOR THE APPELLEE:


GERALD L. MELTON                          JOHN KNOX WALKUP
District Public Defender                  Attorney General & Reporter

RUSSELL N. PERKINS                        KIM R. HELPER
Asst. District Public Defender            Asst. Attorney General
201 W. Main St., Suite 101                       -and-
Murfreesboro, TN 37130                    ERIK W. DAAB
                                          Legal Assistant
                                          John Sevier Bldg.
                                          425 Fifth Ave., North
                                          Nashville, TN 37243-0493

                                          WILLIAM WHITESELL
                                          District Attorney General

                                          JOHN W. PRICE
                                          Asst. District Attorney General
                                          Judicial Bldg., Suite 303
                                          Murfreesboro, TN 37130



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



              The defendant was charged by indictment with three counts of aggravated

assault.   At the close of the State’s evidence at trial, the trial court granted the

defendant’s motion for verdict of acquittal as to two of the counts. On the third count,

however, the defendant was convicted. Following a hearing, he was sentenced as a

Range II multiple offender to nine years incarceration. He now appeals, arguing that the

evidence is insufficient to sustain his conviction and that the imposed sentence is

excessive. Finding no merit to these arguments, we affirm the trial court’s judgment.



              The evidence at trial showed that in the early morning hours of February 27,

1996, Jeff Walker was wakened as several shots were fired at his house in LaVergne.

At the time, Mr. Walker’s wife was feeding their infant child on the bed in which Mr.

Walker was sleeping. Three of the shots struck the exterior of the house, but two

shattered the bedroom window and entered the bedroom, one hitting the bed upon which

the family was lying and the other hitting the far bedroom wall. Mr. Walker testified that

the two bullets that entered the bedroom window caused them concern because they

came within feet of hitting him, his wife, and their infant. Mr. Walker immediately called

the police. One of Mr. Walker’s neighbors testified that immediately after the gunshots

were fired, he saw a small, white import vehicle without headlights driving away from the

area and called the police, giving them a description of the vehicle he saw. According to

testimony from a police detective who investigated the case, the Walker home faced the

driver’s side of the vehicle as it drove past the home.



              Officer John Bell of the LaVergne Police Department testified that as he

received a report of the shooting and a description of the vehicle by radio broadcast, he



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passed a vehicle matching the description and initiated a stop. According to Officer Bell,

the defendant was driving the vehicle, a small, white import car, and three other

individuals were passengers in the car. Officer Bell stated that as the defendant opened

the car door and stepped out of the car, approximately one-half dozen unfired .22 caliber

bullets fell to the ground. Officer Bell testified he observed several other unfired .22

caliber bullets on the floorboard and the defendant’s seat. The .22 caliber gun involved

in the shooting was found on Somphong Sayvone, the frontseat passenger.



              Sayvone testified that he owned the .22 caliber gun involved in the shooting

and that he gave the gun to the defendant, who may have fired it. He also testified that

because he was intoxicated at the time of the shooting, he did not remember whether he

or the defendant shot at the Walker house. Phetphoutho Vongdaraxay, a backseat

passenger in the car that evening, testified that the defendant fired shots at the Walker

house and then Sayvone fired shots at another house down the street.



              After the shooting, several .22 caliber shell casings were found in front of

the Walker house. A firearms examiner for the Tennessee Bureau of Investigation

testified that all of the casings recovered from the Walker house were fired from the .22

caliber gun found in the defendant’s vehicle. Moreover, the results of a gunshot residue

test administered to the defendant were positive, meaning that the defendant could have

fired, handled, or been near a gun when fired. Vongdaraxay’s gunshot residue test

results were also positive, and Sayvone’s test results were inconclusive.



              Based on this evidence, the jury found the defendant guilty of aggravated

assault. A sentencing hearing was held, after which the trial court sentenced the

defendant as a Range II multiple offender to nine years incarceration.



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              The defendant first challenges his conviction, arguing that the evidence is

insufficient to support his conviction because there was no independent corroboration of

the accomplice testimony in this case that would actually place the gun in the defendant’s

hands at the time of the shooting. When a defendant challenges the sufficiency of the

convicting evidence, we must review the evidence in the light most favorable to the

prosecution in determining whether “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); see State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We do

not reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the proof. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning witnesses’ credibility, the weight and value

given to evidence, and all factual issues raised by the evidence are resolved by the trier

of fact, not this Court. Id.



              Here, Sayvone and Vongdaraxay both testified that they and the defendant

were involved in the shooting at the Walker home. Sayvone testified he gave the

defendant a .22 caliber gun to use in the shooting. Although Sayvone claimed to be too

intoxicated at the time of the shooting to later remember whether he or the defendant

fired the shots at the Walker home, Vongdaraxay testified that the defendant fired the

shots. Sufficient evidence in the record corroborates this testimony. The defendant was

stopped shortly after the shooting while driving a car that matched the description of the

car at the scene of the shooting. As the defendant exited the car, .22 caliber bullets fell

from him and several bullets were in the driver’s area of the car. The defendant’s hands

were covered with gunshot residue, and the .22 caliber gun recovered from the

defendant’s car was identified as the gun involved in the shooting.



                                            4
              The defendant complains that there is no “independent corroborative

evidence” that actually places the .22 caliber gun in the defendant’s hands at the time of

the shooting, but such evidence is not necessary.             Evidence corroborating an

accomplice’s testimony need not be sufficient to support a conviction by itself. Henley

v. State, 489 S.W.2d 53, 56 (Tenn. Crim. App. 1972). Rather, it is enough that the

accomplice testimony is corroborated as to any fact that “tend[s] to connect the defendant

with the commission of a crime.” Clapp v. State, 94 Tenn. 186, 30 S.W. 214, 217 (1895).

Here, the corroborative evidence sufficiently connects the defendant to the shooting at

the Walker home.      As such, the evidence is sufficient to support the defendant’s

conviction, and the defendant’s challenge must fail.



              The defendant also challenges his sentence. He argues that the imposed

sentence of nine years incarceration, just one year short of the maximum Range II

sentence for this offense, is excessive because the trial court erroneously refused to

apply certain mitigation factors and thus did not appropriately weigh all pertinent

considerations when sentencing the defendant. The evidence shows otherwise.



              The defendant, a Range II multiple offender convicted of a Class C felony,

faced a possible sentence of six to ten years. T.C.A. §§ 40-35-112(b)(3), 39-13-

102(a)(1)(B). In sentencing the defendant, the trial court specifically applied several

enhancing factors, including that the defendant has a history of criminal convictions or

criminal behavior in addition to those necessary to establish the appropriate range, T.C.A.

§ 40-35-114(1); that the offense involved more than one victim, T.C.A. § 40-35-114(3);

and that the defendant was a leader in the commission of the offense, T.C.A. § 40-35-

114(2). The defendant offered several mitigation factors for the trial court to consider,

including the following: that the defendant played a minor role in the offense, T.C.A. § 40-



                                             5
35-113(4); that the offense was committed under such unusual circumstances that it is

unlikely a sustained intent to violate the law motivated his conduct, T.C.A. § 40-35-

113(11); that the defendant was highly intoxicated and did not know what was happening

at the time of the offense; and that the defendant expressed remorse to the Walker

family. Based upon the record evidence, however, the trial court rejected these mitigation

factors and sentenced the defendant to nine years incarceration.1



                When a defendant challenges his sentence, we must review the sentence

de novo, with a presumption of correctness if the record affirmatively shows “that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing the sentence

is improper is upon the defendant, as the appealing party. T.C.A. § 40-35-401(d)

Sentencing Commission Comments. The weight afforded to existing enhancing or

mitigating factors is a matter of the trial court’s discretion. State v. Shelton, 854 S.W.2d

116, 123 (Tenn. Crim. App. 1992).



                Here, the record supports the imposed sentence. The defendant does not

challenge and we will not reweigh the enhancing factors applied in this case. Moreover,

we agree with the trial court that the mitigating factors presented to it were not applicable

in this case. The testimony showing that the defendant was a leader in this offense and

drove the car through a neighborhood while wielding a gun is inconsistent with defense

counsel’s notion that he played a minor role in the offense or did not have a sustained

intent to violate the law. As a matter of credibility, the trial court rejected the defendant’s

assertion that he was so intoxicated he could not appreciate his actions because there


        1
         The trial court ordered the nine-year sentence imposed in this case to run consecutively to a
three-year sentence incarceration for a forgery conviction, an offense for which the defendant was
arrested after he was arrested in the present cas e. The defendant doe s not challenge the consecutive
nature of the sentence received.

                                                   6
was no suggestion of intoxication by the arresting police officers and because the

defendant was not as oblivious to what was happening “if he was able to drive a vehicle.”

Further, because a sentencing court is not required to consider the defendant’s remorse

as a mitigation factor, it cannot be said that the trial court erred in failing to reduce the

defendant’s sentence because he expressed remorse. Considering all of this, a nine-

year sentence is appropriate.



              In sum, we find no merit to the defendant’s challenges to his conviction and

sentence. Accordingly, the judgment of the trial court is affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
JERRY L. SMITH, Judge




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