                                                                                       07/05/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 11, 2017

    STATE OF TENNESSEE v. FREDERIC JERMAINE ARMSTRONG

                Appeal from the Circuit Court for Hardeman County
                   No. 14-CR-80        J. Weber McCraw, Judge
                     ___________________________________

                          No. W2016-01944-CCA-R3-CD
                      ___________________________________


Defendant, Frederic Jermaine Armstrong, was convicted of aggravated assault for the
beating of a correctional officer. Defendant’s conviction was also subject to a criminal
gang enhancement pursuant to Tennessee Code Annotated section 40-35-121(b), which
was later vacated because of this Court’s ruling in State v. Bonds, 502 S.W.3d 118 (Tenn.
Crim. App. 2016). On appeal, Defendant challenges the sufficiency of the evidence and
whether he was properly sentenced to the maximum within the applicable range. Upon
review of the record, we affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Bo Burk, District Public Defender, and Shana Johnson, Assistant Public Defender, for the
appellant, Frederic Jermaine Armstrong.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                           Factual and Procedural Summary

       Defendant was indicted with one count of aggravated assault and one count of
criminal gang enhancement. A jury convicted him of aggravated assault at a bifurcated
trial. The jury also convicted Defendant of a criminal gang offense pursuant to
Tennessee Code Annotated Section 40-35-121. The criminal gang enhancement was
later vacated. The following facts were adduced at trial.

        On March 11, 2013, Correctional Officer Timothy Boyd, Sr., was on duty as a
floor officer at the Whiteville Correctional Facility in Hardeman County. As Officer
Boyd was holding open a door for inmates, he asked Defendant to tuck in his shirt, per
Tennessee Department of Correction’s rules. Later, when Defendant was reentering from
lunch or recreation, his shirttail remained untucked. Having completed his first floor
shift, Officer Boyd rotated to working inside “the bubble,” a secured area with views of
the nearby doors which contained locking mechanisms for those doors. Once there, he
wrote Defendant up for “refusing a direct order.”

       When Officer Boyd rotated back to working on the floor shift, Defendant
approached him and asked why he had received a write-up. Officer Boyd said it was
because of Defendant’s failure to tuck his shirt in after being told to do so, to which
Defendant said, “This is a bullshit write-up.” Officer Boyd responded, “No, it’s not. I
asked you to put your shirttail in and you didn’t.” According to Officer Boyd and video
recorded at the scene, Defendant then assaulted Officer Boyd by hitting and knocking
him down. Correctional Officer Margaret Brown witnessed the assault from the “bubble”
and called for assistance; she was unable to leave for any reason, including helping
Officer Boyd.1 Officer Boyd testified that he did not “antagonize” or “threaten”
Defendant prior to the assault.

        Joseph Shields, an assistant investigator with the Internal Affairs Department at
the Whiteville Correctional Facility, testified that when Officer Brown called for help,
“she was very frantic” and “sounded like she was actually herself being assaulted.”
Investigator Shields testified that Defendant hit Officer Boyd thirty-two times “in the
facial area.” Tazma Robertson, a family nurse practitioner at the prison who was a first
responder to the incident, testified that she considered Officer Boyd’s injuries to be
“severe” due to “his face appear[ing] to be wide open, bones depressed, eye hanging,
massive bleeding, and a severe deformity noted to the left side of his face.” Ms.
Robertson interpreted a CAT scan for the trial court and noted fractures to Officer Boyd’s
nose and the bones around the left eye, a depression of the bone under the left eye, torn
muscles around the eye, and a “displaced” palate.

       John Weaver, former director of Hardeman County Ambulance Service,
responded to the incident at the Whiteville prison. Mr. Weaver testified that the guards
employed nonstandard procedure when admitting his ambulance into the facility: guards
did not perform an expected search of the ambulance; rather than being “buzzed through
each individual section” of the prison, guards held doors open for the ambulance staff;

      1
          Officer Brown did not testify at trial.
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and the guards had cleared the hallways entirely. Mr. Weaver testified that this indicated
to him that whatever injury he was responding to was “something massively wrong.” Mr.
Weaver testified that Officer Boyd had “multiple fractures” on his face and head, and that
he was able to feel bones moving under Officer Boyd’s skin.

        Investigator Shields testified that he identified Defendant as the assailant by
reviewing security video footage. Investigator Shields tracked Defendant’s movement
across multiple cameras from the scene of the incident to his cell after identifying
Defendant by his clothing. Investigator Shields testified further that he searched
Defendant’s cell and found a blood stain on the wall under a hook where “inmates are
allowed to hang their towels, [and] washcloths.” Investigator Shields recovered a bloody
t-shirt that Defendant was “attempting to conceal under himself.” He also found a letter
addressed to Defendant with the cell number written on it.

        James Simons, former Maintenance Director at Whiteville Correctional Facility,
testified that he “[didn’t] remember exactly where it was at but [he] did see an article of
clothing with blood on it.” Mr. Simons was unable to confirm that the bloody item of
clothing was the t-shirt that had been entered into evidence. Mr. Simons stated that he
did not see an article of clothing with “some blood spots . . . taken physically off of
[Defendant].” Charles Dewayne Reese, another prison employee who helped restrain
Defendant, testified that the bloody t-shirt in evidence was the one retrieved from
Defendant’s cell.

       Investigator Shields photographed Defendant after the assault. Investigator
Shields looked at the photographs at trial and identified the left and right hands as
belonging to Defendant based on distinctive tattoos. While there were no “signs of an
altercation” on the left hand, Investigator Shields noted many abrasions, swelling, and
“open wounds . . . consistent with an offensive assault” on Defendant’s right hand.

       At trial, Officer Boyd testified he had had fifteen surgeries to his face, but doctors
told him he would need “three or four more.” Officer Boyd testified that he now walks
with a cane and has “constant headaches every day.” In his victim impact statement
admitted during the sentencing hearing, Officer Boyd stated that he suffers from PTSD,
depression, and insomnia as a result of the incident.

       Defendant did not testify or present any evidence at the initial portion of the trial
for aggravated assault.

       Defendant was convicted of aggravated assault. After the jury returned this
verdict, the court proceeded to the criminal gang enhancement portion of the trial. The
State presented evidence that Defendant was a member of the Five-Deuce (52) Hoover
Crips gang. Defendant denied being in any gang on the day of the incident and denied
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that the incident was gang-related. The jury convicted Defendant for criminal gang
enhancement on the aggravated assault charge.

        At the February 26, 2016 sentencing hearing, the trial court applied the criminal
gang enhancement to the aggravated assault charge and sentenced Defendant for a Class
B felony. The court considered as enhancement factors the severity of the injuries
inflicted on the victim, Defendant’s lack of hesitation in committing a crime “when the
risk to human life was high,” and Defendant’s previous criminal convictions. The court
concluded Defendant was a Range I offender and imposed a sentence of twelve years to
be served at thirty percent, the maximum allowable sentence within the range.
Defendant’s sentence was run consecutively with the twenty-five-year sentence he was
already serving for second-degree murder.

       Defendant filed a motion for new trial on March 24, 2016. On April 7, 2016, this
Court filed its decision in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016),
ruling that the gang enhancement statute in use at the time of Defendant’s sentencing was
unconstitutional due to a lack of a nexus requirement between the underlying offense and
the defendant’s gang membership. The trial court took Defendant’s motion for new trial
under advisement while the Attorney General considered appealing Bonds to the
Tennessee Supreme Court. When Bonds was not appealed, the trial court re-evaluated
Defendant’s sentence. On August 12, 2016, the court vacated the gang enhancement
verdict, reducing the aggravated assault conviction to a Class C felony, and imposed a
sentence of six years at thirty percent, the “top end” of the range for a Class C felony. At
that same hearing, the court denied Defendant’s motion for new trial. Defendant filed
timely notice of appeal.

                                          Analysis

                                A. Sufficiency of the Evidence

       Defendant challenges the sufficiency of evidence to sustain his conviction of
aggravated assault. The State contends that there is ample evidence of Defendant’s
identity as the assailant, the seriousness of the injuries inflicted, and Defendant’s intent.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973)). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
                                            -4-
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett,
788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘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 State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

       As relevant to this case, an assault is defined as “[i]ntentionally, knowingly or
recklessly caus[ing] bodily injury to another” or “[i]ntentionally or knowingly caus[ing]
another to reasonably fear imminent bodily injury.” T.C.A. § 39-13-101(a)(1)-(2).
Aggravated assault is further defined as “[i]ntentionally or knowingly commit[ting] an
assault [which] . . . [r]esults in serious bodily injury to another.” T.C.A. § 39-13-
102(a)(1)(A)(i). Serious bodily injury includes “[e]xtreme physical pain,” “[p]rotracted
or obvious disfigurement,” and “[p]rotracted loss or substantial impairment of a function
of a bodily member, organ, or mental faculty.” T.C.A. § 39-11-106(34)(C)-(E).

       An intentional act requires that the person have the desire to engage in the conduct
or cause the result. T.C.A. § 39-11-106(a)(18). “[A] person acts knowingly with respect
to the conduct or to circumstances surrounding the conduct when the person is aware of
the nature of the conduct or that the circumstances exist” or “with respect to a result of
the person’s conduct when the person is aware that the conduct is reasonably certain to
cause the result.” T.C.A. § 39-11-106(a)(20).

      While Defendant asserts that there was not enough evidence to satisfy “all
elements of the crime charged” beyond a reasonable doubt, Defendant does not present
an argument as to why the evidence is insufficient. On appeal, we consider all of the
evidence in the light most favorable to the State.

        The State’s evidence established that Defendant assaulted Officer Boyd by striking
him over thirty times “in the facial area.” Investigator Shields testified that he identified
Defendant in the security video and tracked Defendant’s movement across several rooms
from the scene of the assault back to Defendant’s cell. Investigator Shields further
testified that Defendant had cuts and abrasions on his right hand “consistent with an
                                            -5-
offensive assault.” Investigator Shields and other investigators found a bloody shirt in
Defendant’s cell, along with blood spot on the wall. There was also a letter addressed to
Defendant in the cell. All of this evidence is sufficient to identify Defendant as the
assailant.

        The proof powerfully established that Defendant’s attack on Officer Boyd resulted
in serious bodily injury. The medical testimony from Ms. Robertson and Mr. Weaver
indicated that the bones in Officer Boyd’s face had been severely broken. Officer Boyd
testified that he has had numerous surgeries on his face and still needs more to “get [the
left side of his] face halfway back like [his] right side.” Officer Boyd gets constant
headaches and now walks with a cane.

        Defendant assaulted Officer Boyd with intent and knowledge that his actions
would result in serious bodily injury. The number of hits Officer Boyd endured suggests
that Defendant either planned to inflict serious bodily injury or at least would have
known that his actions would leave Officer Boyd with a serious bodily injury. As such,
there was sufficient evidence to convict Defendant on aggravated assault, and we affirm
the trial court’s ruling. Defendant is not entitled to relief on his claim that the evidence
was insufficient.

                                        B. Sentencing

        Defendant also challenges his sentence, asserting it is “excessive in light of the
circumstances surrounding the offense.” Defendant argues that the trial court used the
prior conviction of second degree murder as an enhancement factor twice. The State
argues that the trial court did not abuse its discretion in sentencing Defendant to six years
at thirty percent.

        When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard
does not permit an appellate court to substitute its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.
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        In reaching its decision, the trial court must consider the following factors: (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 enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).

       This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The misapplication of an
enhancement or mitigating factor by the trial court “does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706.

        Defendant’s sentences are within the applicable range. Defendant was convicted
of a Class C felony as a Range I standard offender. As such, he was subject to a range of
punishment from three to six years on the aggravated assault offense. See T.C.A. § 40-
35-112(a)(3). While the court found no mitigating factors, it identified several
enhancement factors on the record and considered the principles and purposes of the
Sentencing Act. The trial court noted that Defendant had no hesitation about committing
a crime when the risk to human life was high because he attacked Officer Boyd in such a
manner that Officer Boyd’s life was in danger. See id. § 40-35-114(10). Accordingly,
the trial court placed “great emphasis” on the personal injuries Defendant inflicted on
Officer Boyd. See id. § 40-35-114(6). The trial court also applied enhancement factor
(1), that Defendant had a previous history of criminal convictions in addition to those
necessary to establish the appropriate range, because the presentence report indicated that
Defendant had at least seven prior criminal convictions. See id. § 40-35-114(1). Lastly,
the trial court highlighted the fact that Defendant was incarcerated in a penal institution
on a felony conviction for second degree murder at the time of the beating. See id. § 40-
35-114(13)(I). The trial court appropriately applied all enhancement factors, including
those relevant to the second degree murder charge. Defendant had criminal convictions
beyond the second degree murder which would establish a “history of criminal
convictions.”
                                             -7-
       With regard to consecutive sentencing, our supreme court has held that “the abuse
of discretion standard, accompanied by a presumption of reasonableness, applies to
consecutive sentencing determinations . . . . if [the trial court] has provided reasons on the
record establishing at least one of the seven grounds listed in Tennessee Code Annotated
section 40-35-115(b)[.]” State v. Pollard, 432 S.W.3d 851, 860-61 (Tenn. 2013). In
other words, the imposition of consecutive sentencing is subject to the general sentencing
principles that the overall sentence imposed “should be no greater than that deserved for
the offense committed” and that it “should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed[.]” T.C.A. § 40-35-103(2), (4).
Further, “[s]o long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will
be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard,
432 S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1)) (“The order [for consecutive
sentences] shall specify the reasons for this decision and is reviewable on appeal.”); see
also Bise, 380 S.W.3d at 705.

        In this case, the trial court determined consecutive sentences were necessary
because Defendant has a long criminal record and is a “dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life was great.” T.C.A. § 40-35-115(b)(2), (4). “Any
one of these grounds is a sufficient basis for the imposition of consecutive sentences.”
Pollard, 432 S.W.3d at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)).
However, when consecutive sentencing is imposed based upon the dangerous offender
classification, see T.C.A. § 40-35-115(b)(4), the record must also demonstrate that the
total sentence is “reasonably related to the severity of the offenses” and “necessary in
order to protect the public from further criminal acts” by the defendant. Pollard, 432
S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). “The
need for the additional findings before imposing consecutive sentencing on the basis of
the ‘dangerous offender’ provision arises, in part, from the fact that this category ‘is the
most subjective and hardest to apply.’” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002)
(quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999)).

        In our view, the trial court made the requisite Wilkerson findings to support its
determination that Defendant is a dangerous offender. The trial court found that
Defendant’s “tremendous beating” of Officer Boyd was “one of the most horrible
beatings the [c]ourt’s ever seen” and “indicates little or no regard for human life and no
hesitation about committing a crime where the risk to human life is great” because the
attack “did not appear that it was provoked in any way.” The trial court determined that
confinement was necessary to protect the public from further criminal acts and was
reasonably related to the severity of the offense. In addition, the trial court implicitly
recognized the significance of Defendant’s extensive criminal record by noting that
                                             -8-
Defendant was already incarcerated on a murder conviction. The trial court did not abuse
its discretion in sentencing Defendant to serve his time for the aggravated assault
conviction consecutively to his second-degree murder conviction.

       The trial court shall automatically consider probation as a sentencing alternative
for eligible defendants; however, the defendant bears the burden of proving his or her
suitability for probation. Id. § 40-35-303(b). In addition, “the defendant is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing
Comm’n Cmts. Rather, the defendant must demonstrate that probation would “‘serve the
ends of justice and the best interest of both the public and the defendant.’” State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d
354, 357 (Tenn. Crim. App. 1997)).

       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, the defendant’s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The principles of
sentencing also require the sentence to be “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4). In addition, “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed[,]” and “[t]he
length of a term of probation may reflect the length of a treatment or rehabilitation
program in which participation is a condition of the sentence[.]” Id. § 40-35-103(5).
Moreover, our supreme court has held that truthfulness is a factor which the court may
consider in deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d
158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App.
1981)).

       In light of the severity of the “brutal crime,” the trial court saw “no reason” to go
through probation considerations. The court noted that the “outrageous” crime was
committed while in custody. The pre-sentence report catalogued Defendant’s seven prior
criminal convictions and his revocation of probation on August 17, 2005. The record
shows that the trial court considered the relevant sentencing considerations, and
Defendant has not established that the trial court abused its discretion in denying
alternative sentencing or “otherwise overc[a]me the presumption of reasonableness
afforded sentences [that] reflect a proper application of the purposes and principles of our
statutory scheme.” See Caudle, 388 S.W.3d at 280.


                                            -9-
       The sentence imposed by the trial court was logical and well-reasoned. It does not
cause injustice to Defendant. It certainly is no greater than that deserved for such a brutal
attack. Defendant is not entitled to any sentencing relief in any manner.

                                        Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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