          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE            FILED
                          OCTOBER SESSION, 1998             March 17, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                  )    C.C.A. NO. 03C01-9801-CR-00005
                                     )
            Appellee,                )    KNOX COUNTY
                                     )
V.                                   )
                                     )    HON. RICHARD BAUMGARTNER,
LONNIE CANNON,                       )    JUDGE
                                     )
            Appe llant.              )    (AGGRAVATED ASSAULT)



FOR THE APPELLANT:                        FOR THE APPELLEE:

W. ZANE DANIEL                            JOHN KNOX WALKUP
DANIEL & OBERMAN                          Attorney General & Reporter
Nationsbank Building, Suite 950
550 West Main Avenue                      ELLEN H. POLLACK
Knoxville, TN 37902                       Assistant Attorney General
                                          2nd Floor, Cordell Hull Building
                                          425 Fifth Avenue North
                                          Nashville, TN 37243

                                          RANDALL E. NICHOLS
                                          District Attorney General

                                          MARSHA SELECMAN
                                          Assistant District Attorney General
                                          City-County Building
                                          Knoxville, TN 37902




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION

         The Defe ndan t, Lonn ie Can non, a ppea ls as of r ight follo wing h is conv iction

and sentencing in the Knox County C riminal Court. De fendant was charged in a six-

count indictme nt with offen ses ran ging from attempted murder to aggravated

assau lt.    The jury acquitted the Defendant of all charges except for reckless

aggravated assault. The trial court held a sentencing hearing and sentenced the

Defendant as a Ra nge I Sta ndard O ffender to serve a to tal senten ce of four (4)

years, served by split con fineme nt com prising nin e (9) mo nths in the Knox C ounty

Jail with the balance suspended on intensive probation. Defendant argues the

sentence imposed by the trial court was exc essive, with improp er applica tion of both

enhancement and m itigating factors. He also argues that he should have been

granted full probation . We affirm the ju dgme nt of the trial co urt.



         When an accused challenges the length, range or the manner of service of a

sentence, this co urt has the duty to conduct a de novo review of th e sente nce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upo n the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circums tances .” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).



         In conducting a de novo review of a sentence, this co urt must con sider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of senten cing and argum ents as to sentencing alternatives;



                                              -2-
(d) the nature and characteristics of the criminal conduct involved ; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-1 02, -103 , and -21 0; see State v. Smith , 735 S.W.2d

859, 863 (T enn. Crim. A pp. 1987).



       If our review reflects that the trial court followed the statutory sentencin g

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the reco rd, then w e may n ot mod ify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       A brief summary of the facts is helpful for our review. Defen dant, a twenty-

nine (2 9) yea r old lifelong resident of Knox County, went into the Tekoa Lounge at

appro ximate ly 10:30 p .m. While Defendant was apparently not intoxicated, he may

have been drinking. Defendant attempted to shoot pool for money, but he was

unab le to find anyone to play with and began to crea te a dis turban ce.               Th is

disturbance became very loud and obnoxious, eventu ally disrupting the patrons of

the establishment. The victim, the owner of the bar, advised the victim that “[he had]

had enoug h tonight . . . come back tom orrow. I will bu y you a be er . . . You ne ed to

leave,” and escorted the Defendant to the door. A s Defe ndan t was le aving, h e spit

on one of the customers in the bar with whom he previously had a confrontation

earlier that sa me e vening.      That same customer became angry and hit the

Defen dant.




                                             -3-
      Defendant got inside his vehicle parked directly outside the door of the bar

and backed it up. He drove back and forth in the parking lot several times, revving

his engine at a high speed. A witness who was in the rea r seat o f the D efend ant’s

car testified that he was being thrown around in the back seat of the vehicle. All the

testimony reflected that the victim then came out of the bar into the parking lot and

held up his hand in the a ir to indic ate tha t Defe ndan t shou ld stop. Defend ant drove

his vehicle in a line toward s the victim . His car hit th e victim, with the victim going

up over the hood, hitting the windshield, traveling over the top of the car and coming

to rest in the parking lot. Defendant’s testimony at the time of the trial and the

sentencing hearing was tha t he did no t know tha t he had hit anyon e. The trial court

reasoned that it would be difficult to hit an adult individual, “have them come across

your hood, h it your winds hield, and fly over the top of your car, and not know that

you hit anything.”



      After striking the victim, the Defendant drove out of th e park ing lot to wards his

home. Instead of driving home and parking his car, he drove to a nearby home

which was vacant and parked his car on the far side of an embankment. The

Defendant then walked home and went to bed. When Detective Mike Upchurch later

arrived at Defendant’s home, Defendant told him that he had n ot been to an y bar,

but had been home watching television that night and had been in bed for over four

(4) hours. The trial court stated “that goes to further show not only tha t [Defend ant]

was aware o f the fact tha t he had hit somebody u p at tha t bar, an d that h e was in

trouble, but he took active steps to conceal his conduct and lied to the police when

initially confronted with this revelation.”




                                              -4-
       The trial court first no ted that it was “compelled to follow the sentencing

statute,” and that the total range of punishme nt for a Clas s D felon y is two (2) to

twelve (12) years. Ten n. Code A nn. § 40-35-1 11(b)(4). As a R ange I Stan dard

Offender, the proper range of punishment is two (2) to four (4) years. Tenn. Code

Ann. § 40-35-112(a)(4). The trial court stated that it took into account the testimony

at trial, the statements of the victims and the Defendant at the sentencing hearing,

and the presenten ce report.        The only enhancem ent factors the trial court

determined as app ropriate w ere that the personal inju ries inflic ted up on the victim

were particularly great and that the Defendant used a dead ly weapon, his vehicle,

in the com mission of the offen se. Ten n. Cod e Ann. § 40-35-1 14 (6) an d (9).

       W hile the trial court agreed that aggravated assau lt involve s serio us bo dily

injury as an element of the offense, he based the application of factor (6) upon the

fact that proof showed the victim’s injuries were far in excess of those contemplated

by the statute defining “se rious bodily injury.” The trial co urt reaso ned tha t the fifty

(50) year old victim nearly died as a result of these injuries, and that as a result of

these injuries he had not only permanent physical impairment, but permanent

neurological deficits whic h serious ly limit his phys ical and m ental abilities .      In

applying factor (9), the trial court stated that this offense was committed by virtue of

Defe ndan t’s car. The trial court noted that if the Defendant had been found guilty of

aggravated assau lt by the u se of a dead ly weap on, his vehicle , then th is

enhancement factor would not apply because it would be “part and parcel of the

offense itself.” Howeve r, the Defendant was found guilty of reckless conduct causing

serious bodily injury, therefore the applica tion of e nhan cem ent fac tor nine (9) is

appropriate.




                                            -5-
      With regard to mitigating factors, the trial court found that the only prior

criminal conduct indicated on Defendant’s record was a charge of public intoxication.

This wa s the only m itigating facto r the trial cou rt deem ed app ropriate.



       As the State correctly concedes within its brief, the record supports the

application of one of the enhan ceme nt factors a pplied by th e trial court, but not both.

The trial court may not consider an element of the crime as an enhan cemen t factor.

State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). The aggravated assault offense

for which Defenda nt was convicte d occurs whene ver a pers on reck lessly com mits

an assault and causes serious bodily injury to another or uses or displays a dead ly

weapon. Tenn. Code Ann. § 39-13 -102(a)( 2). The jury found the Defe ndant g uilty

of recklessly causing bodily injury to another and that such bodily injury was serious

pursuant to the fifth cou nt of the ind ictment aga inst the Defendant. Thus, the

imposition of enha ncem ent factor (6 ) was ina ppropria te.       State v. Crowe, 914

S.W.2d 933, 940 (Tenn. Crim. App. 1995). The application of enhancement factor

(9), that the De fenda nt use d a de adly weapon during the commission of the offense,

was correctly im posed . A motor vehicle may properly be determ ined to be a d eadly

weapon. State v. Tate, 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995) (citations

omitted).



      While one enhancement factor was incorrectly applied, this court has reviewed

the evidence and finds that an additional enhancement factor should have been

applied. Testimony indicated that the victim’s wife was in the direct vicinity of the

victim when he was assaulted by the Defendant. In fact, she had to jump out of the

way of the oncoming ca r in order to escape serious injury. Therefore, as proof

established that there was risk to life to the victim’s wife, enhancement factor (10)

                                            -6-
applied as a person other than the victim was in the area and was potentially subject

to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995) (citations

omitted).



       Based upon the review of the applicable mitigating factors, this court finds no

error in the trial c ourt’s a pplica tion of o nly one (1) mitig ating fa ctor. T estim ony

reflected that it was the Defendant who began the disturbance at the bar that night

and continued the disturbance until he was ask ed to leave by the victim. On his way

out of the bar, th e Defe ndant s pit at anoth er custom er. W hen the Defen dant had

escaped the scene, he continued to cause the disturbance by revving his motor and

attempting to ram the victim’s b ar with his ve hicle. W hen the victim ask ed him to

stop, he drove his vehicle directly towards the victim, hitting him, and then fled the

scene. Even though some testimony indicated that Defendant was hit by a customer

of the ba r, there is not su fficient e videnc e to m itigate th e Def enda nt’s sentence due

to his own actions.



       Based upon the application of two (2) enhancement factors and one (1)

mitigating factor, a sentence of four (4) years is amply justified by the record. The

weight to be afforded each mitigating and enhancement factor is determined by the

trial court. There is no merit to Defendant’s argument regarding the length of the

sentence imposed.



       Defendant further argues that he was un justly denied any type of alternative

sentence.    Howe ver, as the record a nd judg ment a ptly reflect, the trial court

suspended all of the Defendant’s four (4) year sentence except for nine (9) months.

Defendant was therefore given an alterna tive sen tence involving split confinem ent.

                                             -7-
Convicted of a Clas s D felon y, Defen dant was entitled to the presumption that he

was a favorable can didate for alternative sentencing options in the absence of

evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). While the trial court was

required to automatically consider the Defendant for an alternative sentence,

including proba tion, the Defe ndan t bore th e burd en of e stablishing both his s uitability

and that an alternative to incarceration would “subserve the ends of justice and the

best interest of both the public and the defenda nt.” State v. Dykes, 803 S.W.2d 250,

259 (Tenn. Crim. App. 1990) (citations omitted). The Defendant bears the burden

of establish ing suitab ility for full probation . Tenn. C ode An n. § 40-3 5-303(b ).



       In deciding whe ther to grant or den y probation, a trial court should consider

the circumstances of the offense, the defendant’s potential or lack of potential for

rehabilitation, whether full probation will unduly depreciate the seriousness of the

offense, and wheth er a se ntenc e othe r than fu ll proba tion wo uld provide an effective

deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-35-

210(b)(4), -103(5), -1 03(1)(B ); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App. 1996). In determining that Defendant’s sentence would involve nine (9) months

of confineme nt, the trial court based his decision upon the fact that confinement was

necessa ry to avoid depreciating the seriousness of this offense. Tenn. Code Ann.

§ 40-35-103(1)(B). Also, the trial cou rt found that the Defendan t was n ot cred ible

and had tried to hide his crime. A lack of truthfu lness is indica tive of a d efend ant’s

lack of “potential for rehabilitation.” State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim.

App. 1993). In sentencing Defendant to serve nine (9) months, with the remainder

to be served on probation, the trial court reasoned that the injuries sustained by the

victim were e xtensiv e while the victim was merely trying to diffuse the situation.

Furthermore, the trial cou rt again relied u pon th e Def enda nt’s actions of attempting

                                             -8-
to conceal the car on the night of the offense and then refusing to accept any

respon sibility for his actio ns.



       W hile Defendant argues that he was denied alternative sentencing, that is not

correct. Defendant was given alternative sentencing in the form of probation for the

majority of his se ntenc e, with o nly nine (9) mo nths to be se rved in the co unty jail.

Sentencing must be determined on a case-by-case basis, with each sentence

tailored to that particular defendant based upon the facts and circumstances of that

defend ant. State v. Moss, 727 S.W.2d 229, 235 (T enn. 1986 ). The trial court

concluded that Defendant did not meet his burde n of estab lishing suita bility for full

probation, and our review of the trial court’s findings is de novo with a presumption

of correctn ess.     Boggs, 932 S.W.2 d at 476.           Based upon the nature and

circumstances of this offense and the Defendant’s lack of rehabilitative potential due

to his established lack of credibility, we c onclud e that De fendan t has failed to meet

his burde n of entitlem ent to total p robation .



       The Defenda nt also alludes to the argume nt that the trial court should h ave

sentenced him to the Com munity Altern atives to Prison Prog ram (C APP ), which is

the Com mun ity Corre ctions Prog ram e stablished pursuant to Tennessee Code

Annotated section 40-36-101 et seq in Knox Cou nty. From the record, it appears

that Defendant did not urge this alternative sentence to the trial court until after the

sentencing hearing was co mplete and the trial court ha d impo sed the senten ce. In

any event, the record ind icates tha t the eligibility criteria fo r CAP P, acco rding to its

own report concerning Defendant, requires for a defendant to be eligible, that there

be no serious bodily harm to the victim. Tenn. Code Ann. § 40-36-106(a)(3). For




                                             -9-
this reason and under the circ ums tance s of this case , the trial c ourt did not err in

declining to allow service of the sentence under the CAPP program.



       After a thorough review of the record, the briefs and the applicable law in this

case, we find no error in the D efendant’s sentence and affirm the judgment of the

trial court.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




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