          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE           FILED
                            FEBRUARY 1997 SESSION
                                                            April 3, 1997

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )
                    Appellee,         )     No. 01C01-9604-CC-00165
                                      )
vs.                                   )     Dickson County
                                      )
JAMES H. BURGESS,                     )     Honorable Allen Wallace, Judge
                                      )
             Appellant.               )
                                      )      (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:

SHIPP R. WEEMS                        CHARLES W. BURSON
District Public Defender              Attorney General & Reporter

CAREY J. THOMPSON                     KAREN M. YACUZZO
Assistant Public Defender             Assistant Attorney General
P. O. Box 160                         Criminal Justice Division
Charlotte, TN 37036                   450 James Robertson Parkway
(on appeal)                           Nashville, TN 37243-0493

STEPHEN L. HALE                       MITCHUM ALSOBROOKS
101 West Market Street                District Attorney General
P.O. Box 331
Bolivar, TN 38008                     SUZANNE LOCKERT
(at trial)                            Assistant District Attorney General
                                      P.O. Box 580
                                      Charlotte, TN 37036




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT,
JUDGE


                                  OPINION
              The defendant, James H. Burgess, pleaded guilty in Dickson

County Circuit Court to two counts of aggravated assault, a Class C felony. As a

Range I, standard offender, he received a five-year sentence for the assault of

Dorothy Lester Johnston and a concurrent three-year sentence for the assault of

Edwin Lester.1 In this direct appeal as of right, the defendant contends that the

five-year sentence is excessive and that the trial court erred by failing to suspend

his sentences.



              We affirm the judgment of the trial court.



              Both the state and the defendant presented considerable testimony

at the sentencing hearing. The victims testified that they went to "Tim II’s" on

February 3, 1995, to play some pool. During the evening, the defendant and Mr.

Lester had "a few words" about a couple of chairs that the Lesters thought the

defendant had appropriated wrongfully. According to Mr. Lester’s testimony, the

incident was brief and neither of the Lesters spoke to Mr. Burgess again. When

the Lesters left the bar, Mr. Lester saw the defendant walking directly towards

Jim Pantano, another patron, who had his back turned. Mr. Lester, who thought

that the defendant was about to assault Pantano, yelled and gave the defendant

a shove. The defendant swung around and slashed at both Lesters. Mr. Lester,

who originally thought he had been struck by a fist, was cut slightly just behind

the ear. Ms. Johnston, however, received a very serious cut to the throat that

required 174 stitches and 14 staples to close. She suffers from permanent nerve

damage which limits her activities and causes her serious pain.2 Jim Pantano,


       1
             Ms. Johnston is Edwin Lester’s ex-wife. She has remarried since
the date these offenses occurred.
       2
            The trial court ordered the defendant to pay restitution in the
amount of $10,334.11.

                                         2
who had spent a couple of hours drinking with the defendant that night, testified

that as he turned around he saw that the defendant had a knife with about an

inch of the blade protruding from his fist. The defendant testified that he was

angry because he had been manhandled by the "bouncers" and thrown out of

the bar. He had been slashing some tires to get even. When Mr. Lester

shoved him, he turned and slashed with the knife to defend himself. He did not

know who was behind him. He said that he cut the woman accidentally and that

he greatly regretted her injury. At the sentencing hearing, he offered to pay

$1,000 in restitution to Ms. Johnston and, in addition, to give her title to a mobile

home worth about $4,000. The rest he offered to pay back in monthly payments.

At the close of the hearing, the trial court denied the defendant’s request for

probation and sentenced the defendant to serve five years for the aggravated

assault of Dorothy Lester Johnston concurrent to the three-year sentence

imposed in the aggravated assault of Edwin Lester.



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

service of a sentence, it is the duty of this court to conduct a de novo review with

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

Code Ann. § 40-35-401(d)(1990 Repl.). 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).

In conducting our de novo review, we must consider the evidence at sentencing,

the presentence report, the sentencing principles, the arguments of counsel, the

statements of the defendant, the nature and characteristics of the offense, any

mitigating and enhancement factors, and the defendant’s amenability to




                                          3
rehabilitation. Tenn. Code Ann. § 40-35-210(b) (1990 Repl.); State v. Ashby,

823 S.W.2d at 168.



              The trial judge, in this instance, did not identify on the record those

enhancement factors on which he relied nor did he make any relevant factual

findings. First, the trial judge found that there were no applicable mitigating

factors. He found that the defendant’s actions that night were inexcusable and

incomprehensible and recommended to Ms. Johnston that she file a civil suit

against him. After sentencing the defendant to the minimum sentence of three

years on count two of the indictment, the trial court stated:


                     In count one of the indictment, assault upon
              Dorothy J. Lester, the Court finds that’s a much more
              serious case, and while -- and I want the Appellate
              Court, if they review this, to understand that I have
              considered the fact that the elements of the crime is
              bodily injury, serious bodily injury. However, this was
              such a reckless, unexcusable -- there’s just no
              excuse for it. There’s just none. This is just one of
              those things we hear on television sometime where
              people get killed or something that a rational human
              being can’t figure it out. I can’t figure this one out.

                    So I think that case requires a five year
              sentence in the Tennessee Department of
              Corrections.



Therefore, we undertake our review of the length of defendant’s sentence

without any presumption of correctness. This court, however, may affirm the

conviction based on enhancement factors found in our de novo review of the

record. See State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).



              The circumstances of this case create a somewhat unusual

situation. The indictment charged that the defendant unlawfully caused "serious



                                          4
bodily injury to Dorothy ‘Dody’ Lester by use of a deadly weapon, to-wit: a

knife...." Tennessee’s aggravated assault statute reads:

              (a) A person commits aggravated assault who:
              (1) Intentionally or knowingly commits an assault as
              defined in § 39-13-101 and:
              (A) Causes serious bodily injury to another; or
              (B) Uses or displays a deadly weapon.

Tenn. Code Ann. § 39-13-102 (a)(1)(A),(B) (1990 Repl.) (emphasis added). Only

one factor, either serious bodily injury or use of a deadly weapon, is required to

constitute aggravated assault. According to the 1989 Criminal Sentencing

Reform Act, causing particularly great personal injury and possessing or using a

deadly weapon in committing a crime may be used as enhancement factors in

appropriate cases in which they are not elements of the offense charged. Tenn.

Code Ann. § 40-35-114 (6), (9). Different enhancement factors apply depending

on which aggravator was used to support the conviction. See State v. DeWayne

Foster, No. 01C01-9506-CC-00186 (Tenn. Crim. App., Nashville, March 22,

1996). Because the defendant pleaded guilty to the indictment, we are unable to

determine from the record on which of the two elements the state relied for the

conviction.3 However, regardless of the theory chosen, either factor (6) or factor

(9) should be given weight in determining the appropriate sentence. State v.

DeWayne Foster, slip op. at 5.



              Facts contained in the record prove beyond a reasonable doubt

that the defendant has a previous history of criminal convictions and criminal

behavior in addition to those necessary to establish the appropriate sentencing



       3
               Since the Notice of Enhancement Factors includes factor (6) as a
factor, the state may have intended to rely upon the use of a deadly weapon as
the aggravating factor to raise the offense to aggravated assault. Certainly this
was true in the assault on Mr. Lester where no serious bodily injury was involved.
However, in his discussion of the attack on Ms. Johnston, the trial judge
specifically refers to serious bodily injury as an element of the offense.

                                         5
range. Tenn. Code Ann. § 40-35-114(1). The defendant admitted to having two

DUI convictions in Shelby County, a previous assault charge that was dismissed

when he paid restitution, and that he had been charged with criminal

impersonation, driving without a license, and giving false information to a police

officer. In addition, he acknowledged that he had slashed the tires on three

vehicles in the parking lot of Tim’s II on the night of the assaults. Factor (1) is

appropriately applied to enhance the defendant’s conviction.



              The state contends that factor (10), that the defendant had no

hesitation about committing a crime when the risk to human life was high, is an

appropriate enhancement factor in this case. We agree that the factor is not

limited to the victim’s life, and that, in suitable cases, the factor is appropriate

when the proof establishes that there was risk to the life of a person other than

the victim. State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993).

However, in this instance, the danger to others is not clearly established by the

record. The victims testified that others left the bar when they did but we do not

know where those people were when the defendant began to wield his knife.

Moreover, the state’s witness testified that the defendant’s knife point was

protruding by only an inch. The record does not establish beyond a reasonable

doubt that the defendant’s actions endangered anyone other than the two

victims.



              Based on our de novo review, we find that the record supports the

application of two enhancement factors: either factor (6) or factor (9) and factor

(1). We found no applicable mitigating factors.4 Aggravated assault is a class C


       4
            A good faith effort to compensate a victim is a mitigating factor if
the defendant makes the attempt before the crime is detected. Tenn. Code Ann.
§ 40-35-113(5). In this case, the defendant made no attempt to compensate Ms.

                                           6
felony for which a Range I sentence is not less than three nor more than six

years. Tenn. Code Ann. § 40-35-112(a)(3). On these facts, the imposition of a

five-year sentence is supported by the record and is in accord with the

sentencing principles set forth in Tennessee Code Annotated Sections 102 and

103. Therefore, we affirm defendant’s sentence of five years for the aggravated

assault of Dorothy Lester Johnson.



              Because the appellant was sentenced as a Class C felon to less

than eight years, he is presumably entitled to probation. Tenn. Code Ann. §§ 40-

35-102(6), -303(a). The trial court must presume that a defendant sentenced to

eight years or less and not an offender for whom incarceration is a priority is

subject to alternative sentencing and that a sentence other than incarceration

would result in successful rehabilitation unless sufficient evidence rebuts the

presumption. State v. Ashby, 827 S.W.2d 166, 168 (Tenn. 1991); State v. Byrd,

861 S.W.2d 377, 379-380 (Tenn. Crim. App. 1993).



              In this case, the trial court found that three factors rebutted the

presumption.5 First, the court emphasized the seriousness and extent of Ms.

Johnston’s injuries. Second, the court noted that the defendant had gone to the

bar looking for trouble that night and that the violent and senseless attack on Ms.

Johnston was the outcome.6      Third, the trial judge found that the defendant had

been less than candid with the court and chose to blame the circumstances

rather than accept responsibility for his conduct.


Johnston until the day of the sentencing hearing.
       5
            With respect to the issue of alternative sentencing, the trial court
made detailed findings on the record.
       6
              The trial judge characterized the defendant as "a time bomb waiting
to go off."

                                          7
              The seriousness of the injuries which resulted from the senseless

act of the defendant are part of the nature of the offense. The nature of the

offense is one of a number of considerations by which a court must be guided in

determining whether to grant or deny probation. Stiller v. State, 516 S.W.2d 617,

621 (Tenn. 1974). Before the nature of the offense alone warrants a denial of

probation, the act must be "especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or exaggerated degree." State v. Travis,

622 S.W.2d 529, 534 (Tenn. 1981); State v. Byrd, 861 S.W.2d at 380. This

factor must outweigh all factors which support a grant of probation. Id. In this

instance, the defendant, who was in a drunken rage, had just slashed the tires of

every vehicle left in the parking lot. Then, holding the knife in his hand, he

swung wildly at Mr. Lester who shoved him from behind and then slit from ear to

ear the throat of a woman whom he had never met. On these facts we cannot

say that the trial judge abused his discretion in denying probation on the basis of

the nature of the offense.



              However, even if the nature of the offense alone were not enough

to support the denial of a suspended sentence, the defendant’s lack of candor,

his inability to cope with his violent tendencies, and his refusal to accept direct

responsibility for his actions support the trial judge’s conclusion. A defendant’s

truthfulness is probative on the issue of amenability to rehabilitation and is a

factor which may be considered in determining the appropriateness of probation.

State v. Byrd, 861 S.W .2d at 380. The defendant has a history of acting in ways

that endanger the lives and property of others, 7 and is unlikely to rehabilitate

himself if left to his own devices. Incarceration is justified in this instance to



       7
              The record indicates that the defendant has two prior convictions
for driving under the influence and one for assault.

                                           8
avoid depreciating the seriousness of the offense and to protect the public from

further senseless acts of violence. Tenn. Code Ann. § 40-35-103(A),(B). We

affirm the trial court’s denial of probation.



              The trial court did not err in sentencing the defendant to serve five

years in the Tennessee Department of Corrections as a Range I, standard

offender. We affirm the judgment of the trial court.


                                            __________________________
                                            CURWOOD W ITT, Judge



CONCUR:

___________________________
GARY R. WADE, Judge

___________________________
DAVID G. HAYES, Judge




                                           9
