         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE

                           MARCH SESSION, l995
                                                                FILED
                                                                March 25, 2008

                                                                Cecil Crowson, Jr.
                                                                 Appellate Court Clerk
STATE OF TENNESSEE             )
                               )
            APPELLEE           )    NO. 01C01-9409-CC-00316
                               )
                               )    WILLIAMSON COUNTY
                               )
V.                             )    HON. CORNELIA A. CLARK, JUDGE
                               )
                               )    (Aggravated Assault)
                               )
RICHARD WAYNE OTEY             )
                               )
            APPELLANT          )



FOR THE APPELLANT:                  FOR THE APPELLEE:

John H. Henderson                   Charles W. Burson
District Public Defender            Attorney General
P.O. Box 68
Franklin, TN 37065-0068             Kimbra R. Spann
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Joseph D. Baugh, Jr.
                                    District Attorney General
                                    P.O. Box 937
                                    Franklin, TN 37064




AFFIRMED



OPINION FILED:______________________




JERRY SCOTT, PRESIDING JUDGE
                                     OPINION

       The appellant, Richard Wayne Otey, appeals as of right from a judgment

entered in the Circuit Court of Williamson County, finding him guilty of

aggravated assault in violation of Tenn. Code Ann. § 39-13-102(a). Following a

sentencing hearing, the trial judge sentenced the appellant to ten years in the

Department of Correction as a Range II, multiple offender, to be served

consecutively to a sentence for which the appellant was on parole at the time of

the offense at issue in this case.



       On appeal, the appellant raises two issues for consideration by this Court:

(a) whether the evidence presented at trial was sufficient to allow a rational jury

to find the appellant guilty beyond a reasonable doubt; and (b) whether the

sentence imposed by the trial court was excessive. There is no merit to either

contention.



                                      FACTS

       Barbara Derricks, a detective employed by the Franklin Police

Department, testified that on May 22, 1993, she responded to a call that a

stabbing had occurred at 126B Fowlkes Street in Franklin. She initially went to

the Williamson County Medical Center to see the victim, Michael Harrison, but

he was unconscious. While at the hospital, she observed and photographed

three wounds to the victim's body. He had been cut across his cheek and

stabbed in his left side and in his chest. The chest wound was the deepest and

most severe wound. The knife used to inflict the wounds to the victim was never

recovered.



       Investigation by Ms. Derricks revealed that six men, including the

appellant and the victim, were riding around in an automobile and drinking for

most of the morning and afternoon on the day of the offense. Specifically, the

                                         2
appellant was driving, David Reed's brother was in the front passenger seat,

George Robinson, the victim's brother, and David Reed were in the rear seat,

and the victim and Walter Baugh were in the hatch-back area. She testified that

as part of her investigation she interviewed Mr. Reed, Mr. Robinson, Mr. Baugh,

the victim, and the appellant.



       On May 27, 1994, the day the appellant was apprehended, he executed a

signed statement that was prepared by Ms. Derricks. In his confession, the

appellant stated:

      I was riding in the car with David Reed, Jr. (Walter) Baugh &
      Simp (George) Robertson. They was talking about my
      brother. They all had played cards with my brother some
      time in the past. They was talking about how he acted. I
      told them, they should know how he was. They are friend
      they should be able to get along better. We kept riding, we
      was near Hoad's Liquor store. Bear Belly slapped me. We
      continued on to my apt. on Foukles St. when I got out of the
      car, he slapped me again. He called me a bitch while we
      was riding. We started fighting in front of my house, that's
      when I cut him.



       David Reed testified that on the day of the offense all the men were riding

around and drinking. He described the atmosphere in the car as "playful." He

stated that at some point the vehicle stopped at or near the appellant's

residence. There, the victim engaged in an argument with Annette Walker in

which she slapped the victim and then the victim either slapped or choked her.

At that point, the appellant told the victim to leave the premises. He estimated

that these events transpired ten to fifteen minutes prior to the stabbing. He

stated that all of the men got back into the vehicle and began to ride around

again. He observed no physical contact between any of the passengers. He

stated that no one in the vehicle seemed angry and that the conversation was

ordinary. When the car stopped again, he did not witness the stabbing, but did

see the victim lying on the ground with blood spurting from his body.




                                        3
       The victim was the final witness for the prosecution. He testified that the

men were riding around drinking beer and that no one was angry. He admitted

that the slapping incident with Ms. Walker occurred. He did not recollect that the

appellant told him to leave the premises. Instead, he remembered the appellant

telling him that he should get in the car before he got in trouble. He and the

other men then got back into the vehicle and continued riding around. He

stated that he thought the incident with Ms. Walker was concluded and that no

one in the vehicle appeared angry.



       A few minutes later, the vehicle stopped again. The victim stated that the

appellant cut him across his left cheek with a knife just as he got out of the

hatch-back and began to turn around. The appellant proceeded to stab him in

the chest and then in the left side. The victim stated that he passed out almost

immediately, not regaining consciousness until he was in the hospital. He stated

that he never hit the appellant and that he never gave the appellant any reason

to be angry with him or to fear him. Due to the injuries he suffered in the

stabbing, the appellant had to be hospitalized for five days, three of which were

in the intensive care unit.



       The appellant chose to present no proof in his defense. Thereafter, the

jury found the appellant guilty as charged.



                                   DISCUSSION



       In his first assertion of error on appeal, the appellant contends that the

evidence of his guilt was insufficient. Specifically, he contends that the state

failed to prove that he had the requisite mental state to commit the offense.1


1
 In defining the offense of aggravated assault, T.P.I.--Crim. 6.02, provides that
the defendant must have "intentionally, knowingly or recklessly" inflicted bodily
injury on another. "Intentional" is defined in Tenn. Code Ann. § 39-11-
106(a)(18) as referring "to a person who acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the person's

                                         4
After a careful and thorough review of the record, we find that this issue is

without merit.



       The principles which govern this Court's review of a conviction by a jury

are settled. This Court must review the record to determine if the evidence

adduced at trial was sufficient "to support the finding of the trier of fact of guilt

beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to

determinations of guilt predicated upon direct evidence, circumstantial evidence,

or a combination thereof. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990).



       In examining the sufficiency of the evidence, this court does not

reevaluate the weight or credibility of the witnesses' testimony as those are

matters entrusted exclusively to the jury as the finders of fact. State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Wright, 836 S.W.2d 130, 134

(Tenn. Crim. App. 1992). Nor may this court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199

Tenn. 298, 305, 286 S.W.2d 856, 859 (1956).



       A jury verdict of guilty, approved by the trial judge, accredits the testimony

of the state's witnesses and resolves all conflicts in favor of the theory of the

state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett,



conscious objective or desire to engage in the conduct or cause the result."
"Knowing" is defined in Tenn. Code Ann. § 39-11-106(a)(20) as referring "to a
person who 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. A person acts knowingly 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." "Reckless" is defined in Tenn. Code Ann. § 39-11-
106(a)(31) as referring "to a person who acts recklessly with respect to
circumstances surrounding the conduct or the result of the conduct when the
person is aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist or the result will occur. The risk must be of such a
nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the
circumstances as viewed from the accused person's standpoint. See also:
Tenn. Code Ann. § 39-ll-302(a)(b) and (c).

                                           5
560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all reasonable and legitimate

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Moreover, a verdict against the appellant removes the

presumption of innocence and raises a presumption of guilt on appeal, State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973), which the appellant has the burden

of overcoming. State v. Brown, 551 S.W.2d 329, 330 (Tenn. 1977).



       Where the sufficiency of the evidence is at issue, the relevant question on

appeal is whether, after viewing the evidence in the light most favorable to the

state, any rational trier of fact could have determined that the essential elements

of the crime were established beyond a reasonable doubt. Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 314-324, 99 S. Ct. 2781, 2786-2792,

61 L. Ed. 2d 560 (1979). In addition, a conviction may be based entirely on

circumstantial evidence where the facts are "so clearly interwoven and

connected that the finger of guilt is pointed unerringly at the [appellant] and the

[appellant] alone." State v. Crawford, 225 Tenn. 478, 484, 470 S.W.2d 610, 612

(1971).



       The appellant emphasizes in his brief that the state has the burden of

proving each and every element of an offense beyond a reasonable doubt and

with moral certainty, citing State v. McLerran, 604 S.W.2d 841, 845 (Tenn.

1980); Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105, 107-8 (1962); State v.

Underwood, 614 S.W.2d 385, 386 (Tenn. Crim. App. 1980). We obviously

concur with that proposition, but find that the state has proven each and every

element of the offense in this case, including the intent of the appellant.



       It has been long established that a jury may infer a criminal defendant's

intent from the surrounding facts and circumstances. State v. Lowery, 667

S.W.2d 52, 57 (Tenn. 1984); Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973);



                                         6
Burns v. State, 591 S.W.2d 780, 784 (Tenn. Crim. App. 1979). Indeed, the

actions of a defendant constitute circumstantial evidence of his intent. State v.

Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993); State v. Barker, 642

S.W.2d 735, 737 (Tenn. Crim. App. 1982). Moreover, "[i]ntent may, and

necessarily must in most cases, be inferred from the facts; as from the fact that

a felony is actually committed or attempted . . . ." Holland, 860 S.W.2d at 59 n.

14, quoting Justin Miller, Criminal Law § 108, at 338 (1934).



       The circumstantial evidence introduced at trial supports an inference by

the jury that the appellant intended to stab the victim. First, it appears from the

evidence that after the victim slapped Ms. Walker the appellant either told the

victim to leave the premises or told him to get in the vehicle before he got in

trouble. Second, although controverted by other evidence, the appellant's

signed confession states that the victim slapped the appellant twice and called

the appellant a profane name prior to the stabbing. It also purports that the

appellant and the victim got into a fight which concluded in the stabbing. Finally,

and perhaps most significantly, evidence was presented to the effect that the

appellant, though unprovoked, approached the victim and stabbed the victim

three times, each time in a different area of the body.



       Based on this evidence, it is clear that the jury could properly infer that the

appellant "intentionally" assaulted the victim with the knife. Moreover, it is

difficult for this Court to even conceptualize a speculative theory, based on the

facts of this case, under which the appellant would not have committed the crime

in at least a "knowing" or "reckless" manner. Even assuming other reasonable

inferences could be drawn from the surrounding facts and circumstances, this

would not be a proper inquiry for this Court. The adoption or rejection of

potential inferences based on circumstantial evidence is a question almost

exclusively within the province of the jury, although "the mind of the [appellate]

Court must rest easy as to the certainty of guilt of the defendant." Crawford, 470



                                          7
S.W.2d at 612; Williams v. State, 520 S.W.2d 37l, 374 (Tenn.Crim.App. l974)

("(t) he inferences to be drawn from circumstantial evidence and the extent to

which the circumstances are consistent with guilt and inconsistent with

innocence are questions primarily for the jury"); State v. Boling, 840 S.W.2d 944,

947 (Tenn. Crim. App. 1992) ("(w)hether other reasonable inferences are

excluded by the circumstantial evidence is a question for the jury," citing

Crawford and Williams). This issue has no merit.



       In the appellant's other issue, he argues that the trial court's sentencing of

him to the maximum sentence of ten years was excessive. He requests that this

Court reduce the sentence to a term not in excess of eight years. Upon review

of the record of the sentencing hearing, we cannot agree with the appellant's

contention.



       In examining the propriety of a sentence rendered against a criminal

defendant, this court must conduct a de novo review based on the record. Tenn.

Code Ann. § 40-35-401(d). However, this court must presume that the

determinations made by the trial judge are correct. Id. Therefore, if our review

reveals that the trial judge imposed a lawful sentence pursuant to the Tennessee

Criminal Sentencing Reform Act of 1989 after having given proper consideration

and weight to the relevant sentencing factors under the Act and the sentence is

based on findings of fact which are adequately supported by the record, then we

must not disturb the sentence imposed by the trial court. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). Furthermore, the appellant has the

burden of establishing that the sentence rendered by the trial court was

erroneous. Tenn. Code Ann. § 40-35-401(d)(sentencing commission

comments); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v.

Anderson, 880 S.W.2d 720, 727 (Tenn. Crim. App. 1994).




                                         8
       Concerning the purposes of sentencing and what constitutes an

appropriate punishment, the Sentencing Reform Act provides that the sentence

imposed shall be one that is "justly deserved in relation to the seriousness of the

offense." Tenn. Code Ann. § 40-35-102(1). The Act also mandates that the

sentence be the least severe measure necessary to achieve the purpose of the

Act and that inequalities should be avoided. Tenn. Code Ann. §§ 40-35-

103(3),(4); see Ashby, 823 S.W.2d at 168.



       The portion of the Sentencing Reform Act of 1989, codified at Tenn. Code

Ann. § 40-35-210(b), established several specific procedures to be followed in

the sentencing process. This section mandates the trial court's consideration of

the following:

       (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 the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) Any statement the
       defendant wishes to make in his own behalf about sentencing.

See Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).



       The presumptive sentence shall be the minimum sentence in the range if

no enhancement or mitigating factors exist. Tenn. Code Ann. § 40-35-210(c). If

enhancement factors exist but there are no mitigating factors, then the trial court

may set the sentence above the minimum in that range but still within the range.

Id. at § 40-35-210(d). Should both enhancement and mitigating factors exist,

which is not the situation in the present case, the court must start at the

minimum sentence in the range and enhance the sentence within the range as

appropriate for the enhancement factors and then reduce the sentence within

the range as appropriate for the mitigating factors. Id., § 40-35-2l0(e); State v.

McMurry, No. 01C01-9311-CR-00405, 1994 WL 179776, at *1 (Tenn. Crim. App.

May 12, 1994).




                                          9
       In the present case, the appellant does not contend that the trial court

failed to properly follow any sentencing procedure. He simply proffers the

conclusory statement that the sentence imposed is excessive. We disagree.



       At the sentencing hearing, the appellant conceded and the trial judge

found that no mitigating factors were applicable. The trial judge also found that

five enhancement factors were applicable. First, the state introduced evidence

that the appellant had four prior felony and two misdemeanor convictions.

Therefore, the appellant's criminal history surpassed the requisite two felony

convictions, making the appellant a multiple offender and, therefore, the surplus

or additional convictions could be properly used as an enhancing factor. Tenn.

Code Ann. § 40-35-114(1). A second enhancement factor applied by the trial

court was that the personal injuries inflicted upon the victim were particularly

great. Id. at § 40-35-114(6). Given the fact that the victim was hospitalized for

several days, including three days in the intensive care unit, application of this

factor was clearly appropriate.



       The trial judge also found that the appellant has a history of unwillingness

to comply with the conditions of a sentence involving release in the community,

since he committed this offense while on parole and failed to report his arrest.

Tenn. Code Ann. § 40-35-ll4(8).



       The enhancement factor set forth at Tenn. Code Ann. § 40-35-

114(13)(B), was also properly applied since the appellant was on parole at the

time of the perpetration of the present offense. We note that the application of

this factor and factor (8) does not subject the appellant to double enhancement.

As this Court recently stated in State v. Brewer, "In our view, these [factors] have

been properly treated as separate enhancement factors. The defendant failed

to report as required by the conditions of his prior probation; obviously he

committed this [offense] during the time of that probation." 875 S.W.2d 298, 303



                                         10
(Tenn. Crim. App. 1993); see also State v. Strickland, 885 S.W.2d 85, 89 (Tenn.

Crim. App. 1993)(applying enhancement factor (8)). Although here the appellant

was on parole rather than probation, the analysis of Brewer is both apposite and

compelling. Furthermore, the fact that the appellant had only failed to report the

offense at issue, as opposed to multiple offenses while on parole, goes to the

weight factor (8) should be given, not to its applicability.



       We cannot, however, uphold the finding of the applicability of the fifth

enhancement factor which the trial court applied, namely, that the appellant had

no hesitation about committing the offense even though the risk to human life

was great. See Id. at § 40-35-114(10). We address this issue sua sponte as

part of our de novo review. In State v. Hill, this Court held:

       This factor is inherent in the offense of aggravated assault. State v.
       Tony Von Carruthers, Shelby County No. 02-C-01-9102-CR-00019,
       1991 WL 147946 (Tenn. Crim. App., Jackson, August 7, 1991). As
       this Court said in State v. Kevin L. Gaskell, Bradley County No 285,
       1991 WL 112275 (Tenn. Crim. App., Knoxville, June 26, 1991): "It
       is difficult to discern a situation in which an offense committed with
       a deadly weapon would not necessarily entail a risk to human life."
       Slip op. at 11.

885 S.W.2d 357, 363 (Tenn. Crim. App. 1994); see Strickland, 885 S.W.2d at

89. Thus, the trial court's application of this factor was error.



        In conclusion, four of the five enhancement factors relied upon by the

trial court were properly applied. We are of the opinion, however, that the

defendant has failed to meet his burden of showing why his sentence is

excessive. Ashby, 823 S.W.2d at 169; Anderson, 880 S.W.2d at 727. In other

words, despite the negation of one of the factors, we are satisfied that, absent

any mitigating factors, the four properly applied enhancement factors are of

sufficient weight to justify the sentence rendered by the trial court. This issue

has no merit.




                                          11
     Finding absolutely no merit to either issue, the judgment is affirmed.




                                       ______________________________
                                       JERRY SCOTT, PRESIDING JUDGE


CONCUR:



________________________________
JOSEPH M. TIPTON, JUDGE



________________________________
DAVID G. HAYES, JUDGE




                                      12
