        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               December 8, 2009 Session

                 STATE OF TENNESSEE v. CARL G. BOONE

               Direct Appeal from the Circuit Court for Maury County
                        No. 17278     Robert L. Jones, Judge


               No. M2009-00188-CCA-R3-CD - Filed February 8, 2010


The defendant, Carl G. Boone, was convicted by a Maury County jury of reckless
endangerment, a Class A misdemeanor, and aggravated assault, a Class C felony. The trial
court merged the reckless endangerment conviction into the aggravated assault conviction
and sentenced the defendant as a Range II, multiple offender to ten years at thirty-five
percent in the Department of Correction. On appeal, the defendant argues that the trial court
imposed an excessive sentence by misapplying enhancement factors and failing to apply
appropriate factors in mitigation. Following our review, we affirm the sentencing imposed
by the trial court. However, we remand for entry of corrected judgment forms to reflect that
the reckless endangerment count of the indictment merged into the aggravated assault count
and that the defendant was found not guilty of the aggravated rape count rather than not
guilty by reason of insanity, as marked on the judgment form.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                and Remanded for Entry of Corrected Judgments

A LAN E. G LENN, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Patrick T. McNally (on appeal) and Lorraine Wade (at trial), Nashville, Tennessee, for the
appellant, Carl G. Boone.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; T. Michael Bottoms, District Attorney General; and Patrick Butler, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS
        On September 25, 2007, the defendant was indicted by a Maury County Grand jury
for the August 10, 2007, attempted first degree murder, aggravated rape, and aggravated
assault of his estranged wife, Patricia Williams. The trial transcript is not included in the
record on appeal. However, the testimony of the victim and the comments of the trial court
and counsel at the sentencing hearing suggest that the State presented evidence at trial to
show that the defendant laid in wait in the bushes outside the victim’s home, knocked her
unconscious with a savage blow or blows to the head, dragged or carried her to a secluded
spot in the woods, raped her, and then left her alone and unconscious in the woods on a day
in which the outdoor temperature reached 104 degrees. At the conclusion of the trial, the
jury found the defendant guilty of aggravated assault, not guilty of aggravated rape, and
guilty of reckless endangerment as a lesser-included offense of attempted first degree murder.

       At the September 25, 2008, sentencing hearing, Maria Devore, the probation and
parole officer who prepared the defendant’s presentence report, identified certified copies
of judgments showing that the defendant had a 1993 conviction for aggravated robbery, a
1992 conviction for kidnapping, a 1992 conviction for aggravated burglary, a 1992
conviction for aggravated assault, and a 1992 conviction for spousal sexual battery. The
aggravated burglary and spousal sexual battery offenses occurred on the same day against
the same victim, Wendy Boone. Devore testified that the defendant was revoked from
probation on August 3, 1993, and she identified a certified copy of a judgment reflecting that
fact.

       Patricia Williams, the victim in the case at bar, testified that the altercation occurred
approximately two weeks before her divorce from the defendant became final. She said that
the defendant’s beating broke her nose and her face in four places, leaving her with
permanent tissue damage to her face. She added, however, that she was not scarred or
disfigured as a result. She stated that she was so terrified following the attack that she put
her house on the market and went into hiding. She said that she was unable to work for
months afterwards, continued to experience feelings of depression and anger, and had been
in counseling since the ordeal.

       The victim expressed frustration at the jury’s having found the defendant not guilty
of the rape charge, testifying that she was on the one hand glad that the defendant had
knocked her unconscious with the first blow so that she did not experience all of the terrible
pain of the attack but, on the other hand, wished she had been able to recount what the
defendant had done to her so that the jury would have found him guilty of the rape charge.
She stated that she knew the defendant had raped her both anally and vaginally because she
had a laceration in her vagina and severe swelling in her anus. The victim testified that she
was not the first woman victimized by the defendant, as evidenced by his prior convictions
in which his victim had been a former spouse, and she asked the court to impose the

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maximum possible sentence in order to protect other women from the defendant’s actions.

       In his allocution to the court, the defendant apologized to the victim and expressed his
hope that she would forgive him.

        At the conclusion of the hearing, the trial court classified the defendant as a multiple,
rather than persistent, offender because it was unable to determine whether bodily injury or
threatened bodily injury was an element of spousal sexual battery, which would allow it to
be counted as a separate offense for range classification purposes despite the fact that it
occurred on the same date as the aggravated burglary. See Tenn. Code Ann. § 40-35-107
(b)(4) (2006) (“Except for convictions for which the statutory elements include serious bodily
injury, bodily injury, threatened serious bodily injury, or threatened bodily injury . . .,
convictions for multiple felonies committed within the same twenty-four-hour period
constitute one (1) conviction for the purpose of determining prior convictions[.]”). The trial
court recognized that the affidavit of complaint connected to the offense stated that the
defendant had forced himself on the victim while threatening her life with a pair of scissors
held to her throat, but properly found that it could not assume merely from the affidavit that
threatened bodily injury had been an element of the offense of spousal sexual battery.

        The trial court therefore found three enhancement factors applicable: that the
defendant had a previous history of criminal convictions in addition to those necessary to
establish his range, based on the fact that only two of his prior convictions were required to
classify him as a Range II offender; that the defendant treated the victim with exceptional
cruelty during the commission of the offense, based on the proof at trial regarding the injuries
the victim sustained to her neck and vaginal area, which the trial court found occurred after
the initial blows that formed the basis for the aggravated assault conviction; and that the
defendant had exhibited a previous unwillingness to comply with the terms of a condition
involving release into the community, based on the proof of the violation of his probation.
See Tenn. Code Ann. § 40-35-114(1), (5), (8) (2006). Finding that the enhancement factors
were all “serious and undisputed,” and that there were no mitigating factors applicable, the
trial court enhanced the defendant’s sentence to the maximum ten-year sentence allowed in
the range.

                                         ANALYSIS

        The defendant contends on appeal that the trial court imposed an excessive sentence
by, among other things, considering irrelevant enhancement factors and failing to consider
evidence in mitigation. Specifically, the defendant argues that the exceptional cruelty
enhancement factor should not have been applied because the victim’s injuries were inherent
in the offense of aggravated assault. The defendant further argues that the trial court should

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not have applied the enhancement factor of his prior criminal convictions because it failed
to state for the record which prior convictions supported the application of this factor.
Finally, the defendant argues that the trial court failed to consider in mitigation his expressed
remorse and the fact that he committed the assault “under emotionally trying circumstances.”
The State argues that the trial court properly considered the sentencing criteria and explained
its reasons for imposing the maximum sentence within the applicable range. We agree with
the State.

        When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record “with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2006). This presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to the
determinations made by the trial court which are predicated upon uncontroverted facts. State
v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922,
929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App.
1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles
of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature
and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses, (h) any statements made by the accused in his own behalf, and
(i) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006), Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

       In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed,” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).



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       Neither the defendant nor the State challenges the trial court’s classification of the
defendant as a Range II offender. We begin our analysis, however, by noting that the trial
court could have properly classified the defendant as a Range III offender based on his five
prior felony convictions, as the offense of spousal sexual battery, as committed by the
defendant, included an element of threatened bodily injury. At the time of the offense,
Tennessee Code Annotated section 39-13-507 provided, in pertinent part, that spousal sexual
battery was the unlawful sexual contact by one spouse of another where “[t]he defendant is
armed with a weapon or any article used or fashioned in a manner to lead the victim to
reasonably believe it to be a weapon[.]” Tenn. Code Ann. § 39-13-507(c)(1)(A) (1991)
(repealed 2005).

       Had the defendant been classified as a Range III offender, he would have been subject
to a sentence ranging from ten to fifteen years. See Tenn. Code Ann. § 40-35-112(c)(3)
(2006). However, by erring on the safe side and classifying the defendant as a Range II
offender, the trial court was free to use the defendant’s additional convictions as prior
criminal history to enhance his sentence within the range. The trial court was not, as the
defendant claims, required to delineate for the record the specific convictions upon which it
was relying for the application of this factor.

         The defendant also contends that the trial court erred by applying the enhancement
factor that he treated the victim with exceptional cruelty and by not applying in mitigation the
fact that he expressed remorse and was acting under emotional distress at the time he
committed the offense because he had witnessed the victim having sexual intercourse with
another man. With respect to the exceptional cruelty enhancement factor, the defendant
asserts that the trial court “embarked on a fact finding odyssey about what the jury may have
been contemplating in reaching their verdict and the location where the injuries were inflicted
-- inside or outside the residence.” The State responds by arguing that this court must
presume that the trial court’s rulings were correct because the defendant failed to include the
trial transcript in the record on appeal. We agree with the State.

        In order to support a finding of exceptional cruelty, the record must demonstrate “a
culpability distinct from and appreciably greater than that incident to the crime.” State v.
Spratt, 31 S.W.3d 587, 607 (Tenn. Crim. App. 2000) (citing State v. Poole, 945 S.W.2d 93,
98 (Tenn. 1997) (internal quotations omitted)). At the sentencing hearing, the trial court
found that the injuries the defendant inflicted to the victim’s neck and vagina occurred at a
different place from the injuries that formed the basis for the aggravated assault and “were
[the] result of cruelty and vindictiveness on the part of the defendant, well beyond what was
necessary to constitute the aggravated assault.”

       “A sentence must be based on evidence in the record of the trial . . . .” Tenn. Code

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Ann. § 40-35-210(f) (2006). On appeal, the defendant has “a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). “Absent the necessary relevant material
in the record an appellate court cannot consider the merits of an issue.” Id. at 561. We,
therefore, presume that the trial court’s sentencing determinations in this case, including its
application of the exceptional cruelty enhancement factor, were correct. See State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988).

        Moreover, in our view, either the defendant’s previous criminal convictions or his
failure to comply with the conditions of a sentence involving release into the community,
standing alone, would have been enough to justify the maximum sentence imposed by the trial
court. We, therefore, affirm the defendant’s ten-year sentence for aggravated assault.

       We note that the trial court sentenced the defendant to concurrent terms of ten years
for the aggravated assault conviction and eleven months, twenty-nine days for the
misdemeanor reckless endangerment conviction but then stated that it was merging the
reckless endangerment conviction into the aggravated assault conviction. When a defendant’s
convictions for aggravated assault and reckless endangerment arise out of the same conduct
against the same victim, the reckless endangerment conviction must merge into the felony
offense to avoid a violation of double jeopardy principles. See State v. Denton, 938 S.W.2d
373, 378 (Tenn. 1996); State v. Adams, 973 S.W.2d 224, 229 (Tenn. Crim. App. 1997). The
judgment forms in this case, however, fail to reflect the merger and erroneously indicate that
the defendant was found not guilty by reason of insanity of the rape offense. We, therefore,
remand to the trial court for the entry of corrected judgments.

                                      CONCLUSION

      Based on our review, we affirm the sentencing determinations of the trial court.
However, we remand for entry of corrected judgments to reflect that the reckless
endangerment conviction was merged into the aggravated assault conviction and that the
defendant was found not guilty of the rape count of the indictment.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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