         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2007

                 STATE OF TENNESSEE v. JAMES TAYLOR, JR.

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 7964 Joseph H. Walker, III, Judge



                  No. W2006-02085-CCA-R3-CD - Filed November 14, 2007


The defendant, James Taylor, Jr., was found guilty by a Lauderdale County jury of aggravated assault
(Class C felony) and assault (Class A misdemeanor). He was sentenced to six years for his
aggravated assault conviction and to eleven months and twenty-nine days for his assault conviction.
On appeal, he contends that: (1) the evidence was insufficient to support either of his convictions;
(2) the trial court erred in failing to dismiss the aggravated assault indictment because it did not
allege the type of deadly weapon used by the defendant; (3) the trial court should have excluded
testimony that the defendant was the subject of a restraining order; and (4) his sentence was
improper. After review, we conclude that no reversible error exists and affirm the judgments from
the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Gary F. Antrican, District Public Defender, and Kari I. Weber, Assistant Public Defender, for the
appellant, James Taylor, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
Mike Dunavant, District Attorney General; and Tracey Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

         This case involves the defendant’s attack on a father and his daughter on December 30, 2005.
At trial, the father testified that, when the defendant arrived at his home, he asked the defendant to
leave before the defendant exited the vehicle he was driving. The father said that the defendant
pushed past him and entered his house. The defendant went to the room where the daughter was
located and began to argue with her. The defendant then came out of that room, again pushed the
father aside, retrieved a steak knife, and went outside where he attempted to start the daughter’s Jeep
with the knife. The father said that the defendant started cutting him with the knife when he tried
to take it away from him. The defendant also hit the father in the face with a lug wrench.

        The father testified the daughter was injured that night by the defendant. As a result, both
the father and daughter were hospitalized, and the father had no doubt that the defendant was
responsible for causing his injuries. The State introduced six photographs into evidence through this
witness. Three photographs depicted the injuries inflicted upon the father by the defendant, and three
photographs depicted the injuries inflicted upon his daughter as a result of the defendant’s attack.
During cross-examination, the father said the daughter asked him to call 9-1-1, but he was unable
to make the phone call because the defendant was holding the telephone. He said that his daughter
came out of the house carrying a lug wrench while the defendant was attempting to start the Jeep.
The father said that the defendant cut him with the knife each time he reached for the defendant. He
said the defendant grabbed the wrench from his daughter and hit him in the face with it.

        Next, the father’s sister testified that, when she arrived at the father’s residence, she found
the victims covered in blood and the police present. Both father and daughter told her that the
defendant had caused their injuries. She said the father had to spend approximately thirty days in
the hospital and the daughter had to have a plate put in her head.

        The next witness, the daughter, testified that she was hit in the head and that surgery was
required to repair her wounds. She could not recall who struck her. She only knew that she was hit
in the head and woke up on the couch. She thought she was injured immediately upon exiting her
car as she arrived at her father’s residence. She testified that she had been involved with the
defendant for a long time and acknowledged her love for the defendant. She believed that she and
the defendant had been “hanging out” earlier on the day of the incident, but she could not recall any
arguments between them. She testified that she left the defendant at his mother’s residence and
drove her Jeep to her father’s residence, which was approximately ten to fifteen minutes away.

        Next, the 9-1-1 operator testified that he received a call from the father’s residence at or
about 8:17 p.m. on the date of the incident and, in turn, advised law enforcement officers that an
assault had occurred at the residence. He said the call was placed by a hysterical female. The phone
call was disconnected, and he called the phone number back. At that time, the daughter answered
the telephone and indicated that she had been assaulted by the defendant. She said she was bleeding
heavily from the face and head area and was in need of an ambulance. Later in the call, the daughter
indicated that her father had also been assaulted and was in need of an ambulance.

        On cross-examination, the operator testified that he stayed on the phone with the daughter
until law enforcement arrived. He said he had as much of an ongoing conversation with her as
possible and indicated that the daughter said she had been drinking that evening. He said the
daughter also volunteered that she had taken three Hydrocodone. At the conclusion of the operator’s
testimony, the State rested its proof.




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        The defense called Officer Reed, a six-year veteran of the Lauderdale County Sheriff’s
Department and the first officer to arrive on the scene. Officer Reed testified that, on the night of
the incident, he spoke with the father who indicated that the defendant had assaulted him. The
officer said that was basically all the information he could get from the father. The officer also spoke
with the daughter. Officer Reed said he was responsible for writing out the affidavit of complaint
against the defendant and recalled that the father said the defendant took a knife from the house and
used it to pick a lock on a vehicle. The father also said that the defendant hit both victims with a
four-way lug wrench. The officer said that his affidavit of complaint contained no mention of the
defendant using the knife to cut the father. He said there was no mention of the knife in any of the
father’s prior statements. The knife, which was found on the porch at the residence, showed no trace
of blood or other remarkable feature. The officer also said that no blood was found on the lug
wrench but that it was not tested for blood or fingerprints.

       On cross-examination, Officer Reed said he was aware of prior altercations between the
defendant and the daughter. He said there was a “no contact” order for the defendant to be off of the
property. Officer Reed said both victims identified the defendant as the cause of their injuries.
Following the officer’s testimony, the defense concluded its proof.

       The jury found the defendant guilty as charged. Later, the trial court conducted a separate
sentencing hearing for the defendant.

        During the sentencing hearing, the father testified that his recommendation for the
defendant’s sentence was to “let him rot in hell, if you want to” and that the defendant should “be
stomped the way he stomped [him].” He further requested that the defendant be held responsible
for payment of medical bills stemming from the assault. During cross-examination, the father said
he was on medication prior to the assault and that he was on additional medication due to the injuries
he sustained in the assault.

       Next, the officer responsible for compiling the presentence report testified that the defendant
had prior felony convictions in Arkansas, but the officer did not have certified copies of those
judgments. Additionally, the defendant had misdemeanor convictions in Tennessee, including ten
convictions in Lauderdale County. He said the defendant tested positive for both cocaine and
marijuana when he was taken into custody but has had clean drug screens since that time. The
defendant advised the officer that, if he was released, he would have no contact with the victims.
The defendant had previously been hospitalized for mental health issues and received disability
payments.

        The final witness to testify during the sentencing hearing was the mother of the defendant.
She said that the defendant has to stay on his medicine or “he just goes off.” He has a history of
drinking and taking his medicine at the same time. She said that, if he was allowed to come back
and live with her, she would see that he took his medicine properly and go to counseling if necessary.




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         Following argument, the court found the defendant to be a Range I, standard offender with
multiple convictions in addition to what was necessary to establish the appropriate range. The court
found no mitigating factors, and the defendant inflicted serious bodily injury to his victims. The
court sentenced the defendant to six years for his conviction of aggravated assault and to eleven
months and twenty-nine days at seventy-five percent for his conviction of assault. The court found
that this was not a proper case to grant relief from incarceration, either through alternative sentencing
or probation.

                                                Analysis

        First, the defendant contends that the evidence was insufficient to sustain the convictions of
aggravated assault and assault. The crux of his argument is that the testimony of the father is not
credible. To support his position, he contends that the father gave conflicting statements and was
taking “various medications” at the time of the incidents. He argues that the victims’ proof of
identification was questionable and was not established beyond a reasonable doubt.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn from circumstantial evidence by the trier of fact. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
State 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. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[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 State.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        Tennessee Code Annotated section 39-13-102(a) states:


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       A person commits aggravated assault who:
          (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and:
              (A)     Causes serious bodily injury to another; or
              (B)     Uses or displays a deadly weapon[.]

       Tennessee Code Annotated section 39-13-101(a) provides:
       A person commits assault who:
              (1)   Intentionally, knowingly or recklessly causes bodily injury to another;
              (2)   Intentionally or knowingly causes another to reasonably fear
                    imminent bodily injury; or
              (3)   Intentionally or knowingly causes physical contact with another and
                    a reasonable person would regard the contact as extremely offensive
                    or provocative.

        Here, the evidence established that the defendant cut the father with the knife, injuring his
hand. The evidence further established that the defendant struck the father in the face with a lug
wrench, causing serious injury that required a hospital stay of approximately thirty days. The
testimony also established that, at the hands of the defendant, the daughter suffered injuries so severe
that surgery was necessary. The evidence is sufficient to support the jury’s findings that the
defendant committed an aggravated assault on the father and an assault on the daughter.

        Next, the defendant contends that the indictment against him was flawed because it did not
specifically state the deadly weapon he used in committing the aggravated assault against the father.
He argues that the absence of the specific weapon renders the indictment defective, and he asks this
court to dismiss the indictment with prejudice. An indictment is valid if it “provides sufficient
information (1) to enable the accused to know the accusation to which answer is required; (2) to
furnish the court with an adequate basis for the entry of a proper judgment, and (3) to protect the
accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
       The indictment must state the facts constituting the offense in ordinary and concise
       language, without prolixity or repetition, in a manner so as to enable a person of
       common understanding to know what is intended and with that degree of certainty
       which will enable the court, on conviction, to pronounce the proper judgment. In no
       case are the words “force and arms” or “contrary to the form of the statute”
       necessary.
Tenn. Code Ann. § 40-13-202.

        Our supreme court has previously stated that “indictments which achieve the overriding
purpose of notice to the accused will be considered sufficient to satisfy both the constitutional and
statutory requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). An indictment
satisfied the constitutional and statutory requirements and sufficiently charged the offense of
aggravated assault where all of the elements of the offense – intentional and knowing mens rea, the
commission of an assault, and the use or display of a deadly weapon – were alleged. Id. at 302. The

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court held that the State is not required “to specify in the indictment the precise means or theory by
which the State intends to establish each element of the offense.” Id. By alleging all of the elements
of aggravated assault, the indictment in Hammonds gave the defendant notice of the charges against
him. Here, the indictment contained the following language: “. . . that James Taylor, Jr. on or about
December 30, 2005, in Lauderdale County, Tennessee, and before the finding of this indictment, did
unlawfully, feloniously, and knowingly cause bodily injury to Bobby Haslip by the use of a deadly
weapon, in violation of [Tennessee Code Annotated section] 39-13-102 . . . .”

         Following Hammonds, we conclude that the indictment in the instant case was not defective.
The indictment alleged the elements of aggravated assault, provided the basis for a proper judgment,
listed a specific date and names of the victims, utilized language from the proper statute, and referred
to the statute. We conclude that the trial court did not err in refusing to dismiss the indictment.

        Next, the petitioner contends that the trial court erred in allowing testimony to be introduced
at trial regarding the existence of a restraining order against him, protecting the victims.
Specifically, he contends that the testimony constituted evidence of a prior bad act in violation of
Tennessee Rule of Evidence 404(b). To support his conclusion, the defendant notes that the trial
court instructed the defendant, prior to trial, that it would rule on the restraining order issue when
it was presented during the trial. When the testimony was elicited from the father, the defendant
objected and was subsequently overruled without conducting a hearing outside the jury’s presence.
The defendant argues that this constituted reversible error and deserves a remand.

        The language the defendant contests occurred during the direct examination of the father.
When counsel for the State asked the father how he knew the defendant, he replied, “He lives – he
was living with my daughter until we had to get a restraining order.” At which time, counsel for the
defendant objected and asked the court for permission to approach the bench. The court overruled
the objection without proceeding further.

        The State argues that the mere fact that the victims had a restraining order against the
defendant did not constitute evidence of a prior bad act on the defendant’s part, as contemplated by
Tennessee Rule of Evidence 404(b), because there was no mention of any bad act on the defendant’s
part. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with the character trait. Our review
of the record does not show that the State was trying to introduce evidence of the existence of the
restraining order. Therefore, any mention of the restraining order should be deemed harmless. The
record reflects that the State did not seek to introduce any circumstances relating to the restraining
order into evidence. In fact, the State did not ask the victim any questions about the restraining order
but, instead, focused only on the events that gave rise to the underlying charges. We find no
evidence in the record that the jury convicted the defendant of these crimes based on the passing
reference to a restraining order. Any error that may have resulted from the admission of the
witness’s brief statement about the existence of a restraining order has not been shown to have
affected the outcome of the case. Therefore, the defendant is not entitled to any relief on this issue.



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        Next, the defendant argues that the trial court improperly sentenced him to the maximum of
six years after determining that he had a previous history of criminal convictions. A defendant who
challenges his or her sentence has the burden of proving the sentence imposed by the trial court is
improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the length, range, or manner of service
of his or her sentence, it is this court’s duty to conduct a de novo review of the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
presumption of correctness is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances. State v. Pettus,
986 S.W.2d 540, 543-44 (Tenn. 1999).

        The weight given to each enhancement or mitigating factor is in the discretion of the trial
court, assuming that the trial court has complied with the purposes and principles of the sentencing
act and that its findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn.
Crim. App. 2002). The statutes prescribe no particular weight for an enhancement or mitigating
factor. State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001). “[A] defendant’s ‘sentence
is not determined by the mathematical process of adding the sum total of enhancing factors present
then subtracting from this figure the mitigating factors present for a net number of years.’” State v.
Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting State v. Boggs, 932 S.W.2d 467, 475
(Tenn. Crim. App. 1996)).

       The defendant had prior convictions, including four convictions for felony theft in Arkansas
from 1985 to 1987. He had prior assault convictions in Lauderdale County in 1999 and 2002. He
also had ten additional convictions from 1989 to 2005, eight of which occurred in Lauderdale
County.

        In general, the enhancement factor for a prior criminal record has been previously afforded
great weight by this court. Here, the defendant’s prior criminal record should be weighed heavily
because of both the nature and the number of his convictions. On two previous occasions, he had
been convicted of assault in the trial court from which the present convictions arise. This factor is
sufficient to elevate his sentence to the maximum ceiling and to firmly embed his sentence in the
ceiling. See State v. Braden, No. 01C01-9610-CC-00457, 1998 Tenn. Crim. App. LEXIS 213, at
*24 (Tenn. Crim. App. at Nashville, Feb. 18, 1998). Our review of the record reflects that the trial
court acted within its discretion in imposing the six-year sentence. Therefore, the defendant is not
entitled to relief on this issue.

        In the defendant’s final issue, he argues that the trial court improperly denied him probation.
Tennessee Code Annotated section 40-35-303(a) provides that a defendant is eligible for probation
if the actual sentence imposed is ten years or less and the offense for which the defendant is
sentenced is not specifically excluded by statute. The trial court is to automatically consider
probation as a sentencing alternative for an eligible defendant, but the defendant bears the burden
of proving his suitability for probation. Tenn. Code Ann. § 40-35-303(b). No criminal defendant



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is entitled to probation as a matter of law. Id., Sentencing Commission Comments; State v. Davis,
940 S.W.2d 558, 559 (Tenn. 1997).

       In considering whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record, background, social history, and present
condition; the deterrent effect on the defendant; and the defendant’s potential for rehabilitation or
treatment. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

        Here, the trial court imposed a sentence of six years, making the defendant eligible for
probation. The trial court did not state on the record its reasons for denying probation but merely
concluded that it was “not a proper case to grant relief from sentence at this time, either through
alternative sentencing or probation.” The State argues that the record demonstrates the defendant’s
failure to meet his burden of establishing suitability for probation. We agree. The sentencing
hearing revealed the defendant’s numerous prior convictions. The defendant was on medication and
continued to drink alcohol. The injuries suffered by both victims were severe enough to warrant
lengthy hospital stays and surgeries. The record fails to demonstrate the defendant to be a suitable
candidate for probation.

                                             Conclusion

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




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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