        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs June 19, 2012

      STATE OF TENNESSEE v. CHRISTOPHER SCOTT CHAPMAN

              Direct Appeal from the Criminal Court for Sumner County
                      No. 2008CR833      Dee David Gay, Judge




                 No. M2011-01670-CCA-R3-CD - Filed March 13, 2013


Defendant, Christopher Scott Chapman, was indicted by the Sumner County Grand Jury for
attempted first degree murder and possession of a firearm during the commission of a
dangerous felony. Following a jury trial, Defendant was convicted of aggravated assault,
charged to the jury as a lesser included offense of attempted first degree murder, and the
second count of the indictment was dismissed by the trial court. Defendant was sentenced
by the trial court to serve six years in the Tennessee Department of Correction. Defendant
appeals his conviction and sentence and asserts: 1) that the trial court erred by instructing the
jury as to the offense of aggravated assault as a lesser included offense of attempted first
degree murder; 2) that the trial court erred by not recusing itself; 3) that the trial court erred
by sentencing Defendant to the maximum sentence within the range; and 4) that the trial
court erred by ordering Defendant’s sentence to run consecutively to a prior sentence for
aggravated assault for which Defendant was on probation at the time he committed the
offense in this case. After a careful review of the record, we find no error and affirm the
judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.

Russell E. Edwards, Hendersonville, Tennessee, (on appeal), David R. Howard and David
Michael Carter, Gallatin, Tennessee, (at trial), for the appellee, Christopher Scott Chapman.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; Tara Wyllie, Assistant District
Attorney; C. Wayne Hyatt, Assistant District Attorney General; and Lytle Anthony James,
Assistant District Attorney General, for the appellee, the State of Tennessee.
                                        OPINION

Facts

       Sharon Markum Estes and Defendant met while they were in high school. They
parted ways and later began dating. She testified that their “relationship had been up and
down.” On the morning of August 7, 2008, Defendant and Ms. Estes “both had things to
do,” and they left Ms. Estes’ house. At approximately 4:00 p.m., Mrs. Estes went to
Defendant’s grandfather’s house. She left there to go to her sister’s house at approximately
5:30 p.m. She testified that when she left, things between Defendant and her were “pretty
normal.” Defendant had asked her to find some boxes for him to ship some items, but she
did not find any boxes so she did not return to Defendant’s grandfather’s house that evening.
She arrived home at approximately 8:30 p.m., and she spoke to Defendant on the phone at
approximately 9:30 p.m. Defendant “was upset with [her]” because she had not returned
with some boxes. She explained to Defendant that she did not find any and that “it was late,
and [she] . . ., wanted to stay home.” Defendant was angry, and he told Ms. Estes that he was
going to come get his printer that he had let her borrow the previous day. She testified that
Defendant threatened to end their relationship but that Defendant had made those threats
before, and it was not unusual. She testified that she “wasn’t really worried” about
Defendant coming over to retrieve his printer.

        Defendant arrived at Ms. Estes’ house at approximately 10:00 p.m. She testified that
he was “very angry.” Defendant “grabbed a cup off the table and got a glass of wine” and
“slammed” her VCR on the cabinet. Ms. Estes testified that she was frightened by
Defendant’s tone because he had “never used that tone with [her] ever.” She testified that
Defendant sounded “demonic.” Defendant was following her through the house and “yelling
and screaming and telling [her], [‘]why can’t you do what I ask you to do[?’]” She “grabbed
[her] cell phone” and “bolted out the back door.” Defendant chased her. Ms. Estes was
dialing 911 when Defendant grabbed her by the hair and she “saw the gun in [her] face.” She
testified that Defendant had a revolver. Defendant put the gun to Ms. Estes’ temple.
Defendant told Ms. Estes, “[g]ive me the phone you [f]-ing [b]itch.” She let go of the phone
and pulled away from Defendant. She felt the gun “slip,” and she heard a gunshot and “felt
the blood spray [her] in the face.” She fell to the ground and “jumped back up” and ran
screaming. Defendant threatened Ms. Estes, “you better keep running you [f]-ing [b]. I’m
going to kill you.” She heard another gunshot as she ran towards the neighbor’s house. She
testified that she fell running through a hedgerow between her house and the neighbor’s
house. When she fell, Defendant was standing over her with the gun to her side. She
testified that she was pleading with Defendant to “please, just stop,” and she heard another
gunshot. Defendant then went back around the bushes, and Ms. Estes ran to her neighbors’
houses until someone let her inside and gave her help.

                                             -2-
        Dr. Michael Johnson, an attending physician in the Emergency Department at
Vanderbilt Medical Center, treated Ms. Estes. He reviewed a CT scan and testified that Ms.
Estes had bullet fragments and injuries in her shoulder and upper torso. On cross-
examination, Dr. Johnson testified that Ms. Estes was brought by LifeFlight to Vanderbilt
due to “penetrating trauma to the torso.” Although Ms. Estes’ wounds qualified her to be
airlifted to the hospital, the wounds were not necessarily life threatening. Hospital records
showed that Ms. Estes arrived at the hospital at 11:26 p.m. and was discharged approximately
two hours later.

       David Anderson, Defendant’s grandfather, testified that in 2008, Defendant lived with
him. Mr. Anderson owned a .38 caliber revolver. He testified that the first chamber that
would fire was loaded with birdshot and the following chambers were loaded with .38 caliber
bullets. Mr. Anderson discovered that the revolver was missing after the incident.

       Robert Reese, the victim’s neighbor, testified that on August 7, 2008, he heard a
gunshot. He saw “a heavyset man with a ponytail” walk from his truck to the side of the
house and back to his truck again. Mr. Reese testified that “[n]othing seemed to be out of
the ordinary.” He testified that the man “was very calm.” Mr. Reese also testified that he
heard a scream. He testified that he heard only one gunshot that night.

        Kurt Hargrove lived beside Mr. Reese, two doors down from the victim’s house. He
testified that on August 7, 2008, at approximately 10:18 p.m., he heard “what sounded like
three shots.” He then heard “a loud knocking at the other end of the house.” He testified that
“there was knocking all around the house,” and that his wife saw someone standing outside.
He called the police, and when he looked outside, no one was there.

        Mr. Hargrove’s wife, Brenda Hargrove, testified that she walked outside through the
back door and looked towards the victim’s house. She saw a “white Dodge pickup truck with
the taillights on and it went into reverse quickly because it threw gravel and as it turned to
head out the driveway the [driver turned the] headlights . . . off.” It was the same truck that
had been at the victim’s house “every day” previously.

       Steven Carter lived three houses away from the victim. He testified that at
approximately 10:00 p.m., he heard a noise outside. He looked out the window and saw the
victim “banging on . . . the Hargroves[’] door.” The victim then ran toward Mr. Carter’s
house. He went to the front door and opened the door, and the victim “basically pried herself
in and fell in the front door.” Mr. Carter testified that the victim was “distraught, shaking,
upset,” and she “had blood on her.” Mr. Carter brought the victim into his house, locked the
doors, turned off the lights, and called 911.



                                              -3-
        Detective Dirk Witherow, of the Hendersonville Police Department, was called to the
scene to investigate the shooting. Detective Witherow took photographs of the scene. He
testified that he observed a trail of blood from the victim’s house to the neighbors’ houses.
Detective Witherow interviewed the victim in the early morning hours on the night of the
incident. He looked for the revolver used in the shooting but did not find it. He also testified
that a shell casing had been found at the crime scene.

        Doris Sandefur testified that she and Defendant’s mother had been best friends since
fifth grade and she had known Defendant since he was born. Ms. Sandefur saw Defendant
on August 7, 2008, at 11:26 p.m. She testified that her husband answered a knock at the
door, and she heard her husband say Defendant’s name. Defendant came inside. Ms.
Sandefur testified,

        And we started talking, I started talking to him. And he said, [“]Sharon and
        I got into a fight. I went down there to get my computer printer, we got in
        a fight and I shot at her.[”] And he said, [“]I just – I didn’t hit her. I didn’t
        try to kill her. I just shot at her.[”] [He s]aid, [“] I think I nicked her on the
        ear[,”] and he pulled the gun out of his pocket and he said, [“]you can look
        at it and count the bullets.[”] And I went, [“]I don’t want to. Put it back.[”]
        And I said, [“]we just don’t want to be a part of this. I don’t, you know, I
        think she’s trouble and I don’t want to be involved in it.[”]

        Defendant’s mother, Karen Chapman, testified that in August, 2008, she lived across
the street and four houses down from the victim. On August 7, 2008, Ms. Estes drove her
riding lawnmower to Ms. Chapman’s house for Ms. Chapman to use. Ms. Chapman testified
that Ms. Estes told her that she had given Defendant a Xanax for his headache.

Analysis

Jury Instructions

       Defendant asserts that the trial court erred by instructing the jury on the offense of
aggravated assault because, Defendant argues, aggravated assault is not a lesser included
offense of attempted first degree murder under State v. Burns, 6 S.W.3d 453 (Tenn. 1999).
The State concedes that aggravated assault is not a lesser included offense of attempted first
degree murder. In State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000
WL 262936, *2 (Tenn. Crim. App. at Nashville, filed March 9, 2000), perm. app denied
(Tenn., Sept. 10, 2001), this court examined this issue and determined that “assault and
aggravated assault are not lesser included offenses of attempted first degree murder.” See



                                               -4-
also State v. Joshua Lee Williams, No. W2000-01435-CCA-R3-CD, 2001 WL 721056, at *6
(Tenn. Crim. App. at Jackson, filed June 27, 2001), perm. app. denied (Tenn., Oct. 29, 2001).

        The State contends, however, that Defendant consented to an effective amendment
of the indictment to include the offense of aggravated assault when he specifically requested
a jury instruction on the offense. In Demonbreun v. Bell, 226 S.W.3d 321 (Tenn. 2007), the
Tennessee Supreme Court determined that where the defendant “actively sought” an
instruction on aggravated assault as a lesser included offense of attempted first degree
murder, his actions constituted consent to an effective amendment of the indictment. Id. at
326. Here, Defendant filed a pretrial motion requesting a jury instruction on the offense of
aggravated assault. The motion stated in part:

          That pursuant to established Tennessee law, the Defendant avers that, in
          addition to the jury charge of Attempted First Degree Murder, he is entitled
          to jury instructions as to all available lesser included offenses, [including]
          but not limited to: Attempted Second Degree Murder, Attempted Voluntary
          Manslaughter, Attempted Reckless Homicide, Attempted Criminally
          Negligent Homicide, and Aggravated Assault.

        In a written order, the trial court granted Defendant’s motion, but
“specifically reserved the right to charge the Jury on those Lesser included Offenses
believed relevant based upon the evidence presented at trial and, therefore, held
[Defendant’s request for specific jury instructions] under advisement until such time
it could make a proper determination.”

       We conclude that the trial court properly instructed the jury as to the offense of
aggravated assault based on Defendant’s specific request for such instruction. By requesting
the instruction, Defendant consented to an effective amendment of the indictment.
Defendant is not entitled to relief on this issue.

Recusal

       Defendant next asserts that the trial court should have recused itself from Defendant’s
case. Defendant cites several instances where he alleges the trial court showed personal
prejudice against him.

      At a pretrial hearing on November 19, 2009, one of Defendant’s previous trial counsel
(who was later allowed to withdraw) advised the court of disagreements between Defendant
and himself over his representation of Defendant. He stated the following to the court:



                                               -5-
         [DEFENSE COUNSEL]:            The difficulty that I’m having at this point and
                                       the difficulty that we need to make the Court
                                       aware of, the difficulty that we need to put on
                                       the record is that I am tasked to zealously
                                       represent my client and to effectively represent
                                       my client. It is my belief that no lawyer
                                       walking the face of the earth can effectively
                                       represent a client who has already made his
                                       mind up about what can be done and what the
                                       outcome of a jury trial is going to be and who
                                       refuses to participate or listen to his counsel.
                                       He and I may differ –

         [DEFENDANT]:                  That’s not true, Your Honor.

         THE COURT:                    Okay. Hold on a second.

         [DEFENSE COUNSEL]:            It is my view that [Defendant] has a deep
                                       desire to control the situation, that [Defendant]
                                       is manipulative; that [Defendant] is belligerent;
                                       that [Defendant] is insulting to his counsel.
                                       That being said, I’m not asking the Court to
                                       relieve me at this time. I’m just merely making
                                       the Court aware that it’s going to be very
                                       difficult for anyone to represent [Defendant]
                                       unless he has a change of heart.

         THE COURT:                    I understand.

        The trial court then placed Defendant under oath and explained that it wanted “to be
certain that all your constitutional rights are protected and I will do that as long as I live and
breath.” The trial court advised Defendant that he had “an obligation to work with any
attorney that [the trial court] appointed” to represent him, and the trial court stated, “I’m
getting concerned because this is the second attorney that I’ve appointed, the second attorney
that’s had problems.” Defendant expressed his dissatisfaction with his attorney’s services,
stating that his representation was “about as ineffective as it gets.” The following exchange
then occurred:




                                               -6-
[THE COURT]:             Well, that’s the same thing you said about
                         [your former attorney]. Do you think the
                         problem might be with you?

[DEFENDANT]:             Well, did you ever think –

[THE COURT]:             Did you ever think the problem might be with
                         you?

[DEFENDANT]:             Well –

[THE COURT]:             Hold on just a second. You have and will
                         reserve all your rights to appeal, and I will be
                         sure that all your rights are preserved for you.
                         My order is that you cooperate with Mr.
                         Sindle; that you-all prepare for your trial; that
                         you be cooperative and that you be respectful.

[DEFENDANT]:             I have a question for you, Your Honor.

[THE COURT]:             No.

[DEFENDANT]:             Okay. Well, I –

[THE COURT]:             No.

[DEFENDANT]:             – I’m going to ask it anyway.

THE COURT:               Well, get him out – hold on just a second –
                         hold on just a second. Get him out of court.

DEFENDANT:               How is it effectual –

THE COURT:               Get him out of court.

DEFENDANT:               How is it ethical to bring a state’s witness to
                         my meeting with my lawyer? How ethical is
                         that? It’s not ethical. That’s fine.

     (Defendant is escorted out of the courtroom.)

                                  -7-
        THE COURT:                   [Defense counsel], I don’t know how you
                                     cannot get along with him.

        [DEFENSE COUNSEL]:           Judge, I thank you for the Court’s indulgence.
                                     I think now the record will reflect the attitude
                                     of [Defendant], and I will continue to meet
                                     with him and try to prepare –

        THE COURT:                   That’s all you can do.

        [DEFENSE COUNSEL]:           I do want to make the Court aware of the
                                     situation that even though I go down and even
                                     though I attempt to meet with him, whatever I
                                     say, just as demonstrated by [Defendant], will
                                     be manipulated to attempt to place
                                     responsibility for his problems on someone
                                     other than himself.

        THE COURT:                   I understand. I understand.

        [DEFENSE COUNSEL]:           And until – I want this on the record. Until
                                     [Defendant] grows out of his boyhood, until he
                                     becomes a man and starts accepting
                                     responsibility for the consequences of his
                                     actions, he will always be before this or
                                     another court.

        THE COURT:                   And that’s unfortunate, . . . . That’s kind of the
                                     thing that we see here all the time, and that’s
                                     why we’re here, to protect people from this
                                     type of conduct.

        At another hearing on December 17, 2009, the trial court began the proceeding by
stating, “We’re back out here again. It looks like we’ve got the same problem we had the last
time we were in.” The trial court read a letter written by Defendant to his trial counsel, and
Defendant again expressed his dissatisfaction with his counsel’s representation, complaining
that counsel was “talking to various people not even associated with [his] case.” Defendant
indicated that he had filed complaints against his counsel with the Board of Professional
Responsibility, and the trial court found that it created “an unavoidable conflict” and
appointed new counsel to represent Defendant. The trial court commented, “[w]hat the

                                             -8-
problem is, is the relationship with you and your attorney in preparation for trial and so forth.
That’s the problem . . . It looks like you’re the one that’s having a problem because this is
the third attorney that I’ve appointed for you.”

        At a hearing on May 10, 2010, the trial court considered various pretrial motions,
including the State’s motion to transfer Defendant to the Tennessee Department of
Corrections from the Sumner County Jail. At the hearing, Sonya Troutt, the jail administrator
at the Sumner County Jail, testified about Defendant’s conduct at the jail as follows:

                Throwing trays through the pie hold, becoming irate and belligerent
        in the attorney-client booth with his attorney, making verbal threats towards
        officers. Most recently, he had – one of my newer officers who happened
        to be a seasoned police officer at one time, had an altercation where he
        would not obey verbal commands. Hands-on was necessary.

               And he also has taken some type of offense toward our medical
        contractors, who is Southern Health Partners, to the point that when he’s
        asked to come to medical, he will either lag and say he’s thinking about it
        or he becomes disrespectful with the officers.

               He seems – like I said, this has progressed in the last few months.
        And in my opinion I feel like that we’ve done everything we can to house
        him. I think he would better be served in another facility.

        Several specific instances of Defendant’s conduct as reflected in his jail file were also
testified to. At the conclusion of the hearing, the trial court granted the State’s motion and
stated,

               [Defendant], I read here what you told your attorney, . . . . I consider
        [him] to be a very good, competent attorney. Nobody should have to put up
        with that baloney, and they have a difficult job, and your anger, your
        personality, your ability to – or your narcissism about you’re the only one
        that means anything, it is requiring absolutely too much time and effort by
        our Sumner County Jail.

               You are a troublemaker. You say what you want to get what you
        want which is evidenced by today smiling, having a good time, taking it
        easy; everything is cool. And now when you talk about suing people, you
        talk about all this and all that, but when you come around to the issue today,
        now it’s okay for you to sit in the Sumner County Jail.

                                               -9-
               Well, I’m not going to put up with this baloney. I’m not going to ask
        the Sumner County Jail to put up with this baloney. They’ve done
        everything they can to safely house you.

                 I find the record is absolutely overwhelming that the Sumner County
        Jail is insufficient for your safekeeping and you will be transferred to the
        Tennessee Department of Correction.

        On November 10, 2010, Defendant filed a motion for recusal, and a hearing was
conducted on November 22, 2010. The trial court explained that it had made rulings on
Defendant’s motions and taken the necessary steps to maintain order in the courtroom. The
trial judge acknowledged that he had been “somewhat agitated” by Defendant, but stated that
he did not recall what he had said to Defendant in previous hearings. The trial court
continued:

                I can tell you this, [Defendant], I don’t know fact one about the facts
        of this particular case. I don’t know anything. Maybe if it’s been brought
        up here, but I don’t know anything about the facts. I don’t know anything
        about your history. I might have mentioned that in the proceedings before
        when they were brought up in evidence. But I tell you this, I’m not going
        to put up with any baloney and I’m not going to put up with any disrespect
        in this Court, and I’m not going to put up with any efforts to delay things.

               Now, I’m sure that I was pretty passionate and pointed in what I’ve
        said, but I can’t remember what I’ve said, but I’m not going to change one
        bit. And, secondly, there is no reason in this case why I can’t sit and
        continue to be fair and impartial. Like I stated, I don’t know anything about
        the facts of this case. I don’t remember specifically your background. I do
        know we had to send you to the penitentiary and I do know that we had
        problems with attorneys and we’ve had maybe some potential problems
        with your attitude in court that I’ve had to address.

                But, [Defendant], I’m a judge and that’s what I’ve been called to do
        now and there’s no reason why I can’t put aside any rulings that I’ve made
        any emotions that I’ve made in the past or exhibited in the past and preside
        in this trial. There is absolutely no reason that I can’t be fair and impartial
        in continuing to preside as judge in this trial and I respectfully deny the
        Motion to Recuse.




                                             -10-
        On December 28, 2010, Defendant filed a second motion for recusal, stating that he
had filed a pro se civil action in federal court naming the trial court as one of the defendants.
On the morning of the first day of trial, the trial court addressed the motion and denied it.

        It is a basic tenet of our jurisprudence that “‘[t]he right to a fair trial before an
impartial tribunal is a fundamental constitutional right.’” Bean v. Bailey, 280 S.W.3d 798,
803 (Tenn. 2009) (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)). A trial judge
should recuse himself or herself whenever the judge has any doubt as to his or her ability to
preside impartially or whenever his or her impartiality can reasonably be questioned. Pannell
v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley
v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). “Thus, while a trial judge should
grant a recusal whenever the judge has any doubts about his or her ability to preside
impartially, [citation omitted], recusal is also warranted when a person of ordinary prudence
in the judge’s position, knowing all of the facts known to the judge, would find a reasonable
basis for questioning the judge’s impartiality.” Id. The trial judge retains discretion over his
or her recusal. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995). Unless the
evidence in the record indicates that the trial judge clearly abused his discretion by not
disqualifying himself, this court will not interfere with his decision. State v. Hines, 919
S.W.2d 573, 578 (Tenn. 1995).

         Our review of the record in this case shows that the trial court did not abuse its
discretion in denying Defendant’s motions to recuse. On more than one occasion, the trial
court emphasized its duty to protect Defendant’s constitutional rights. While the trial court
made some disparaging comments about Defendant’s attitude and behavior in court and
towards his attorneys and the jail staff, those comments do not warrant recusal in this case.
None of the comments made by the trial judge suggest any prejudgment of the rights of
Defendant. The trial judge’s characterization of Defendant as “a menacing and destructive
force” at the hearing on the State’s motion to transfer Defendant from the Sumner County
Jail is supported in the record by several instances of Defendant’s unruly conduct.

        We note that the filing of a lawsuit against the trial judge is normally insufficient to
warrant recusal. See State v. Parton, 817 S.W.2d 28, 29–30 (Tenn. Crim. App. 1991). To
hold otherwise would mean that a litigant could automatically disqualify a judge by the filing
of a frivolous suit and would set a dangerous precedent inviting additional frivolous
litigation, manipulation of the judicial system, and forum shopping. State v. Michael W.
Parsons, W2010–02073–CCA–R3–CD, 2011 WL 6310456, at *23 (Tenn. Crim. App., at
Jackson, Dec. 15, 2011), perm. app. denied, (Tenn., May 23, 2012).

      We are unable to conclude that the trial court abused its discretion in denying
Defendant’s motion to recuse. Defendant is not entitled to relief on this issue.

                                              -11-
Sentencing

       Defendant asserts that the trial court erred by sentencing Defendant to the maximum
sentence within the range for the convicted offense of aggravated assault and ordering his
sentence in this case to run consecutively to a sentence Defendant was serving for a prior
conviction.

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682 (Tenn.
2012). This court will uphold the trial court’s sentencing decision “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.” Id. 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 (2010), Sentencing Comm’n Comments; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

       At the sentencing hearing, April Thomas, of the Tennessee Board of Probation and
Parole, testified that she prepared the presentence report which was admitted into evidence.
She testified that Defendant pleaded guilty to aggravated assault on August 26, 2005, and he
was sentenced to serve four years, and the sentence was suspended and he was placed on
probation. Therefore, Defendant was on probation for the prior offense at the time the
offense in this case was committed. On cross-examination, Ms. Thomas testified that
Defendant had been placed on minimum supervision probation.

       The trial court also admitted into evidence judgments showing that Defendant had
prior convictions for assault in 1992 with a sentence of 11 months and 29 days probation,
which was later revoked and the sentence was ordered to be served, and two 1993 judgments
for driving under the influence.

        David Anderson, Defendant’s grandfather, testified that Defendant lived with him
prior to Defendant’s arrest. Mr. Anderson was 91 years old at the time of the sentencing
hearing. He testified that Defendant’s responses to him had “always been respectful and
correct, mild. And I do know Chris, when he gets pushed hard he reacts very hard.”

       Defendant gave an unsworn statement in allocution. He expressed regret and remorse
over the incident and apologized to the victim and to his family for having caused them pain.
Defendant also stated, “I know in my heart, and I know people out there know that I’m not
the bad guy that everyone tries to paint me out to be.” Defendant further stated:



                                              -12-
        You know, nobody realizes – nobody talks about, you know, that I helped
        my grandfather, or, you know, that I help my mom, or I took care of Sharon
        and paid her bills and took care of her kids, or help my uncle build his
        cabin. You know, running seven days a week working, helping everybody
        around me, maybe getting four hours of sleep a night. Everybody just
        wanted to paint this bad picture of me, but nobody ever brought up anything
        good I did.

        At the conclusion of the sentencing hearing, the trial court stated that it had
considered the evidence at trial and at the sentencing hearing, the presentence report,
Defendant’s statement to the court, and his potential for rehabilitation. The trial court found
that “[t]here’s no doubt that [Defendant] is remorseful[;]” however, the trial court expressed
disappointment that Defendant had not explained “why things happened the way they did.
The record does not show that.”

        The trial court determined that Defendant was a Range I standard offender convicted
of a Class C felony offense, which carries a sentence of three to six years. The trial court
found that Defendant had a previous history of criminal behavior, that he “had no hesitation
about committing a crime when the risks to human [life was] high,” and that he was on
probation at the time he committed the offense in this case. The trial court considered “[t]he
imposition of a sentence justly deserved in relation to the seriousness of the offense” and
sentenced Defendant to six years, the maximum sentence within the applicable range. The
trial court also ordered Defendant’s sentence to run consecutively to the four-year sentence
he was already serving.

       On appeal, Defendant asserts that the enhancement factors considered by the trial
court “were not enough here to justify sentencing the Defendant to the maximum length
within his range” and that the trial court should have considered certain mitigating factors.
Unless a trial court “wholly depart[s] from the 1989 Act, as amended in 2005[,]”
misapplication of enhancement or mitigating factors does not invalidate a sentence. Thus,
a maximum sentence within the appropriate range, in the total absence of any applicable
enhancement factors, and even with the existence of applicable mitigating factors, should be
upheld as long as there are reasons consistent with the statutory purposes and principles of
sentencing. Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345–46 (“Similarly, if the trial
court recognizes and enunciates several applicable mitigating factors, it does not abuse its
discretion if it does not reduce the sentence from the maximum on the basis of those
factors.”) In this case, the trial court sentenced Defendant to six years for his conviction for
aggravated assault, a sentence consistent with the purposes and principles of sentencing and
within the appropriate range. Furthermore, the record shows that the trial court stated its
reasons for imposing the maximum sentence, followed the statutory sentencing procedure,

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made findings of fact that are adequately supported in the record, and gave due
considerations to the relevant sentencing principles. Based on our review, we conclude that
the trial court did not abuse its discretion in ordering the maximum sentencing within the
applicable range. Defendant is not entitled to relief on this issue.

        Defendant also asserts that the trial court erred by ordering consecutive sentencing.
The trial court stated its reasons for ordering Defendant’s sentence to run consecutively to
a prior sentence as follows:

        This is a very aggravated crime. It’s a very aggravating in the sense of
        rehabilitation and putting somebody on probation that was on probation
        when this occurred. I’m going to run the six years at 30 percent
        consecutively to the four years at 30 percent in Davidson County because
        the defendant is sentenced today for an offense committed while on
        probation. That is the reason for my consecutive sentence.

        Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115, which provides
that the trial court may order sentences to run consecutively if it finds by a preponderance of
the evidence that “[t]he defendant is sentenced for an offense committed while on
probation[.]” Tenn. Code Ann. § 40-35-115(b)(6). The trial court has the discretion to order
consecutive sentencing if it finds that one or more of the required statutory criteria exist.
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The presence of a single
factor is enough to justify the imposition of consecutive sentences. Id. We conclude that the
trial court properly ordered Defendant’s sentence to run consecutively to his prior sentence.
Defendant is not entitled to relief on this issue.

                                      CONCLUSION

       The judgment of the trial court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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