           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                             JANUARY 1997 SESSION
                                                        December 9, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk


STATE OF TENNESSEE                  )    NO. 03C01-9606-CC-00212
                                    )
     Appellee,                      )    SCOTT COUNTY
                                    )
v.                                  )    HON. LEE ASBURY, JUDGE
                                    )
TED D. NORRIS                       )    (Sentencing)
                                    )
     Appellant.                     )
                                    )



FOR THE APPELLANT                        FOR THE APPELLEE

Michael G. Hatmaker                      John Knox Walkup
P.O. Drawer 417                          Attorney General and Reporter
Jacksboro, Tennessee 37757               450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493

                                         Michael J. Fahey, II
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493

                                         Alfred C. Schmutzer, Jr.
                                         District Attorney General
                                         125 Court Avenue, Room 301-E
                                         Sevierville, Tennessee 37862




OPINION FILED:__________________

AFFIRMED AS MODIFIED

WILLIAM M. BARKER, JUDGE
                                                  OPINION

        The Appellant, Ted D. Norris, files his second direct appeal to this Court

challenging the sentences he received from convictions in the Criminal Court of Scott

County. After a trial by jury, the Appellant was convicted and sentenced on two

counts of assault with intent to commit first degree murder, two counts of armed

robbery, one count of aggravated kidnapping, and one count of grand larceny. He

argues on appeal that his sentences on the two counts of assault with intent to commit

first degree murder were excessive and that the trial court erred in ordering those

sentences to be served consecutively. 1

        After a careful review of the record, we affirm the Appellant’s sentences on the

two counts of assault with intent to commit first degree murder, as set under the 1989

Sentencing Reform Act. We find, however, that the trial court entered an improper

judgment against the Appellant on a second count of grand larceny and omitted a

judgment on the sentence for aggravated kidnapping. This error was not raised on

appeal; however, we find that it is plain on the face of the record.2 We, therefore,

affirm Appellant’s sentences but modify the judgments to include the fifteen (15) year

sentence for aggravated kidnapping and to remove the extra count of grand larceny.

                                      FACTUAL BACKGROUND

        This case has a long and tortured history. In 1990, the Appellant was convicted

by a jury and sentenced on two counts of assault with intent to commit first degree

murder, Class A felonies; two counts of armed robbery, Class B felonies; one count of

grand larceny, a Class D felony; and one count of aggravated kidnapping, a Class A

felony. The trial court sentenced the Appellant as a Range I standard offender under


        1
            The Appellant does not challenge the sentences or convictions on the other counts.

        2
          Ordinarily, the appellate courts in this State do not consider issues that are not raised in the trial
court. See State v. Pritc hett, 621 S.W.2d 127, 135 (Tenn. 1981). However, if the error is plain on the
face of the reco rd, it is a prope r consid eration for an appe llate court w hether p roperly ass igned or n ot.
See State v. Og le, 666 S.W .2d 58, 60 (Tenn . 1984); State v. Mackey, 553 S.W.2d 337, 340 (Tenn.
1977). Rule 52(b) of the Tennessee Rule of Criminal Procedure states that an error affecting “the
substantial rights of the accused” may be no ticed at any time “where necessary to do subs tantial justice.”



                                                       2
the Sentencing Reform Act of 1989 and ordered him to serve twenty five (25) years for

each count of assault with intent to commit first degree murder, eight (8) years for

each count of aggravated robbery, three (3) years for the count of grand larceny, and

fifteen (15) years for the count of aggravated kidnapping. 3 The Appellant was ordered

to serve each sentence concurrently, except for the sentences on the two counts of

assault with intent to commit first degree murder. Those sentences were ordered to

run consecutive to each other for a total effective sentence of fifty (50) years in the

Tennessee Department of Correction.

        The Appellant, thereafter, filed his first direct appeal to this Court challenging

both his convictions and sentences. The facts surrounding the charges against the

Appellant were set forth in the original appeal as follows:

               [O]n June 2, 1988, appellant was being held in the Scott County
        Jail on a parole revocation warrant after being arrested for D.U.I. During
        the late afternoon or early evening, appellant yelled out the window of
        his second floor cell and told the officers below that he was slashing his
        wrists. When Deputy Sheriff Danny Douglas reached appellant's cell, he
        discovered that appellant had made some shallow cuts in his wrists with
        an antenna he had broken off a small television set. After the officer
        administered first aid, appellant was moved to a third floor cell that was
        specially prepared for prisoners who attempted to harm themselves.
               Sometime around nine o'clock in the evening, appellant began
        kicking at the door and screaming that the sheriff had killed and chopped
        up his children and that his wife was having sex with the men in the cells
        across from him. After the deputy arrived, appellant became quiet and
        laid down on the floor of the cell. Within a short time, appellant once
        again began screaming and yelling that his entire family was dead. The
        jail administrator decided that appellant should be taken to a hospital for
        a mental evaluation.
               Officers James Massey, Jr. and David Beets were at their
        respective homes when they received the call to transport appellant to
        the Scott County Hospital so that a doctor could sign the appropriate
        order transferring appellant to the Lakeshore facility in Knoxville. When
        Massey and Beets went to the cell and opened the door, appellant came
        rushing at them. They pushed him back inside the cell, wrestled him to
        the floor, and finally managed to handcuff him. When the officers led

        3
          The Appellant was charged with aggravated kidnapping under Tennessee Code Annotated
section 3 9-2-301 (repeale d 1990 ). Under that provisio n, aggra vated k idnappin g was a Class A felony.
See Tenn . Code A nn. § 40- 35-118 (1990).

                                                     3
him from the cell, appellant was wild-eyed. He had a bruise and a knot
on his forehead, his hair was in disarray, and he was dressed only in his
undershorts. Appellant's shirt and trousers were lying on the floor of the
cell, and he and his clothing were soaking wet. Deputy Massey
described appellant's body as slick and slimy. Since he was wearing no
shirt, Deputy Beets grabbed him by the hair to steer him to the booking
room and the patrol car.
         During the scuffle with appellant, Deputy Beets ripped his pants.
In order to change his pants, the officers drove to the house where Beets
was living. Beets entered the house, changed his clothes, and returned
to the car.
         Upon arrival at the Scott County Hospital, Deputy Massey entered
and returned with Dr. Latell. Dr. Latell sat on the passenger side of the
front seat and partially opened the sliding window which separated the
front from the back seat. He spoke briefly with appellant and decided
that appellant's condition would not justify sending him to the Lakeshore
facility. Neither deputy was in the car during Dr. Latell's interview with
appellant. Deputy Massey was standing nearby, but Deputy Beets was
inside the building.
         After concluding that committing appellant to Lakeshore was not
necessary, Dr. Latell and Deputy Massey returned to the emergency
room to complete the paperwork. Deputy Beets met them and the three
men entered the hospital together. Appellant was left sitting in the patrol
car alone. The keys were in the ignition and a loaded shot gun was in
the rack.
         While Dr. Latell was at the desk filling out the required form,
appellant entered the emergency room. A handcuff was dangling from
one wrist. He was holding the shot gun in his other hand. He began
screaming that the rest of the deputies at the jail were dead and that now
it was their turn. In response to appellant's order, both deputies placed
their service revolvers on a counter. Appellant picked up the revolvers
and told the officers to sit. As soon as they complied, he began firing.
Unbeknownst to appellant, an emergency room nurse observed the
confrontation and described appellant as "mad." At this time Dr. Latell
left the room. Appellant shot Deputy Beets four times and Deputy
Massey three times. Appellant then left the emergency room carrying
the revolvers and drove the patrol car away.
         Appellant drove first to the home of his ex-brother-in-law. Finding
no one home, he left the patrol car parked there and crossed the fields
to the home of Jerry Terry. Appellant forced his way past Terry's two
sons and wife and into the Terry house. While assuring everyone that
he would not hurt them, appellant claimed he needed Terry as a hostage
to keep himself alive. He and Terry went to the back porch. According
to Terry's testimony, appellant was "all to pieces" and confused and
insisted that he had been gassed at the jail. Appellant told Terry that he
had taken off his clothes, soaked them, and stuffed them in the cracks to

                                     4
        prevent the gas from entering his cell. Eventually, appellant was
        persuaded to let a deputy enter and to let Terry leave the house.
                After speaking with Clifton Sexton, an assistant district attorney
        general in Scott County, who had known appellant for years, appellant
        made a statement to Charles Scott, a T.B.I. special agent. Agent Scott
        advised appellant of his rights, and appellant executed a waiver. In his
        statement, appellant said that Sheriff Laxton and the other officers were
        trying to kill him by pumping natural gas in his cell. He also said that an
        officer had scratched his arm with a broken television antenna.
        Appellant told Sexton that he knew the difference between right and
        wrong, was not crazy, and had shot the deputies because he did not
        want to be killed.

See State v. Ted. D. Norris, C.C.A. No. 03C01-9209-CR-00331 (Tenn. Crim. App.,
Knoxville, Apr. 24, 1994) (footnotes omitted).

        In the first appeal, we affirmed the Appellant’s convictions on all counts, but

were unable to review the sentencing issues due to an incomplete record.4 We,

therefore, remanded the case to the trial court for a new sentencing hearing. See

Norris, C.C.A. No. 03C01-9209-CR-00331.

        Shortly thereafter, we entered an order allowing the trial court to rely on the

original sentencing hearing transcript, if located and refiled, instead of conducting a

second hearing. The original transcript was subsequently filed with the trial court, and

on July 28, 1995, the trial court resentenced the Appellant without conducting a

second hearing. The trial court sentenced the Appellant as a Range I offender under

the Sentencing Act of 1982. The sentences were identical to those in the 1990

judgments, except that the trial court omitted the conviction for aggravated kidnapping

and included an extra count of grand larceny.

        The Appellant now appeals directly to this Court, for a second time, challenging

the length and consecutive nature of the sentences he received on the two counts of

assault with intent to commit first degree murder. He does not challenge the



        4
         During the first appeal, the final volume of the trial transcript which contained the sentencing
hearing was never received by this Court. The Appellant noted the missing transcript and attempted,
unsuccessfully, to rectify the error. Through no fault of the Appellant, the missing volume was either not
prepare d or not filed w ith the trial court c lerk until after the first app eal.

                                                    5
sentences he received from the other convictions. Consequently, upon correcting the

judgments to include the sentence for aggravated kidnapping and to remove the extra

count of grand larceny, those sentences are final.

                                               ANALYSIS

        Initially, we find that the trial court did not evaluate the Appellant’s sentences

under the guidelines set forth in State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993).

The Appellant was sentenced in 1990 for offenses he committed in 1988. Under

Pearson, the trial court was required to evaluate the Appellant’s sentences under both

the 1982 Sentencing Act and the 1989 Act and to impose the least onerous sentence.

See id. The record here reflects that the trial court relied upon the 1989 Act at the

sentencing hearing. However, there is no evidence that the trial court conducted the

proper Pearson analysis.

        Ordinarily, we would remand the case for a new sentencing hearing to correct

the trial court’s errors under Pearson.5 However, in the interest of judicial economy

and due to the extended procedural history in this case, we have elected to conduct a

Pearson analysis without remand to the trial court. From our de novo review, we have

compared the likely sentences that the Appellant could receive under both the 1982

Sentencing Act and the 1989 Act. We find that the 1989 Act provides the less

onerous sentences, and therefore, conclude that the trial court properly ordered the

Appellant’s sentences under that Act.6 Furthermore, we rely on the 1989 Act to

address the sentencing issues in this appeal.


        5
         See State v. Me lvin, 913 S.W .2d 195, 2 01 (Te nn. Crim . App. 199 5), per. app. denied (Tenn.
1995); State v. Go odw in, 909 S.W .2d 35, 45 (Tenn. Crim . App. 1995).

        6
           The record reflects that the trial court sentenced the Appellant and entered the original 1990
judg me nts u nde r the S ente ncin g Re form Act o f 198 9. Ho weve r, the a me nde d jud gm ents ente red in
1995 show that the trial court sentenced the Appellant under the 1982 Act. Nevertheless, we find that
the trial court did not change or otherwise alter the length or nature of Appellant’s sentences from the
original 1990 judgments. The only difference between the 1990 judgments and the 1995 judgments is
the trial court’s error in omitting the aggravated kidnapping conviction and including an extra count of
gran d larc eny. W e, thu s, co nclu de th at an y Pearson error concerning Appellant’s sentences is harmless
beyond a reasonable doubt. Furthermore, in this appeal, the Appellant does not challenge his sentences
on the counts of aggravated robbery, grand larceny, and aggravated kidnapping. Therefore, aside from
correcting the 1995 judgments to include the proper counts of grand larceny and aggravated kidnapping,
we limit ou r analysis to A ppellant’s s entenc es on the assau lt convictions .

                                                      6
                                                        I.

        The Appellant first contends that the trial court erred in imposing the maximum

sentences on the two counts of assault with intent to commit first degree murder. He

argues that the trial court misapplied two enhancement factors and failed to consider a

mitigating factor. Although we find that the trial court erred in applying enhancer (3) to

the assault convictions, we conclude that the remaining enhancers support the

maximum sentences for each conviction.

         When a defendant complains of his or her sentence, we must conduct a de

novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (1990). The

sentence imposed by the trial court is accompanied by a presumption of correctness

and the appealing party has the burden of showing that the sentence is improper.

See Tenn. Code Ann. § 40-35-401(Sentencing Commission Comments). That

presumption, however, is conditioned upon an affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and

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

        At the time of the Appellant’s offenses, the minimum sentence within the set

range was the presumptive sentence for Class A felonies. If there were enhancing

and mitigating factors, the trial court was required to start at the minimum sentence in

that range and enhance the sentence as appropriate for the enhancement factors and

then reduce the sentence as appropriate for the mitigating factors. If there were no

mitigating factors, the trial court could set the sentence above the minimum but still

within the range. See Tenn. Code Ann. § 40-35-210(d)-(e) (1990).

         The trial court sentenced the Appellant, as a Range I offender, to the maximum

twenty five (25) years for each count of assault with intent to commit first degree

murder.7 The trial court found the following enhancement factors: (1) The Appellant

has a previous history of criminal behavior; (3) The offenses involved more than one


        7
          For Ra nge I stan dard off enders , a Class A felony ca rries a se ntencing range o f fifteen (15 ) to
twenty five (25 ) years. See Tenn. Code A nn. § 40-35-112(a)(1)(1990).

                                                        7
victim; (8) The Appellant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; (9) The Appellant

possessed and employed a firearm during the commission of the offenses; and (14)

The felonies were committed on escape status or while incarcerated for a felony

conviction. See Tenn. Code Ann. § 40-35-114 (1), (3), (8), (9), and (14) (1990). The

trial court did not find any mitigating factors.

         The Appellant first challenges the application of enhancer (1) to his convictions

of assault with intent to commit first degree murder. Tenn. Code Ann. § 40-35-114(1).

He contends that the use of enhancer (1) was improper because his prior criminal

history consists solely of a 1986 felony conviction for passing a forged instrument and

witness testimony concerning prior criminal behavior.8 He argues that the non-violent

offense in 1986 coupled with mere allegations of prior criminal behavior is insufficient

to support the use of enhancer (1). If the trial court chose to accredit the testimony of

the witnesses regarding the Appellant’s prior assault upon his sister and his use of a

knife during a fight, then Appellant’s prior history of criminal behavior was

established.9 Obviously, the trial court accredited those witnesses.

         Moreover, we find additional evidence from the presentence report that the

Appellant has a long list of criminal convictions in Scott County. His prior criminal

history dates back to June 15, 1970, and includes public drunkenness, possession of

marijuana, contributing to the delinquency of a juvenile, criminal trespass, diversion of




         8
          Two witnesses at the sentencing hearing testified concerning the Appellant’s past criminal
behavior. Clifton H. Sexton testified that the Appellant had assaulted his own sister with a gun
approximately six years before Appellant’s trial. Another witness, Phillip L. Burchfield, testified that he
and the Appellant had been in a fight in which the Appellant attempted to slash him with a knife. That
incident occurred approximately twenty years before the trial. The police were never contacted
conce rning either incident.

         9
           The Appellant relies on State v. Ma rsha ll, 870 S.W .2d 532, 5 42 (Te nn. Crim . App. 199 3), to
assert th at the witne ss testim ony regar ding his pr ior crimin al behav ior should not have been us ed to
enhance his sentences. The Appellant’s reliance on Mar sha ll is misplaced. The rule in Mar sha ll
prohibits the use of a rrest rec ords to e nhanc e a defe ndant’s s entenc e. See id. In this case, however,
the te stim ony of the tw o witn ess es w ent fu rther than a m ere a rres t reco rd to d em ons trate the A ppe llant’s
prior crim inal behav ior. W e find that it wa s prope rly consider ed by the trial co urt.

                                                           8
electric power, and passing a bad check. That evidence demonstrates a previous

history of criminal behavior and supports the application of enhancer (1).

         The Appellant also challenges the application of the “multiple victims”

enhancer. Tenn. Code Ann. § 40-35-114(3) (1990). He contends that the use of

enhancer (3) was improper because he was charged and convicted for the felonious

assaults on each victim.10 We recognize that enhancer (3) is not applicable when the

defendant is convicted on separate counts for each victim. See State v. Freemon,

943 S.W.2d 25, 31 (Tenn. Crim. App. 1996). In this case, the Appellant was convicted

on two counts of assault with intent to commit first degree murder based upon his acts

against the two police officers. Accordingly, the application of enhancer (3) to the

assault convictions was improper.

         The Appellant next contends that the trial court erred in failing to apply a

mitigating factor to his assault convictions. He argues that during the commission of

the felonies, he was suffering from a diminished mental capacity. Tenn. Code Ann. §

40-35-113(8) (1990). We disagree. In this case, although there was evidence that the

Appellant experienced mental delusions before he shot the two officers, the only

medical testimony at trial revealed that he did not have a mental illness. Doctor Latell

testified that, before the shooting, the Appellant was free of any mental illness

sufficient to commit him to a mental hospital.

         The evidence shows that the Appellant had the clarity and presence of mind to

free himself from a police car and calculate his brutal attack upon the police officers.

We find that the Appellant has failed to prove that he suffered from a diminished

mental capacity sufficient to reduce his culpability for the criminal assaults. Moreover,

even if that mitigator applied, it would be greatly outweighed by the existing

enhancement factors.




         10
        In its b rief, th e Sta te faile d to a rgue why th e app licatio n of e nha nce r (3) w as pr ope r in this
case. Nevertheless, we fully address the issue in our de novo review.

                                                            9
         In summary, we find that although the trial court erred in applying enhancer (3)

to the assault convictions, the trial court properly applied enhancer (1). Furthermore,

the trial court relied on enhancement factors (8), (9), and (14) which have not been

challenged on appeal. Tenn. Code Ann. § 40-35-114 (8), (9), and (14) (1990).

Accordingly, we conclude that the weight of the applicable enhancers, coupled with a

lack of mitigating factors, supports the maximum twenty-five (25) year sentence on

each count of assault with intent to commit first degree murder.11

                                                          II.

         The Appellant next contends that the trial court erred in ordering him to serve

consecutive sentences on the two counts of assault with intent to commit first degree

murder. He argues that the trial court failed to properly articulate reasons for ordering

consecutive sentences. He further contends that the record fails to support his

consecutive sentences or show that they are necessary to protect the public from his

further criminal acts. This issue is without merit.

         The issue of consecutive sentencing is governed by Tennessee Code

Annotated section 40-35-115 (1990). If a defendant is convicted of more than one

criminal offense, the trial court may order the sentences to run consecutively if it finds

by a preponderance of the evidence that “[t]he defendant is a dangerous offender

whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” See Tenn. Code Ann. §

40-35-115 (4). Furthermore, under State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.

1995), the trial court must determine whether the consecutive sentences (1)

reasonably relate to the severity of the offenses committed; (2) serve to protect the




         11
            The State cont end s tha t enh anc ers ( 5), (6 ), and (10) s hou ld also apply to the A ppe llant’s
ass ault c onvic tions . Ten n. Co de A nn. § 40-3 5-11 4 (5), (6), a nd (1 0) (19 90). T hos e enh anc ers a pply in
circumstances where the defendant treats the victim[s] with exceptional cruelty, inflicts great personal
injuries, an d exhibits n o hesitation about co mm itting a crim e when the risk to h uma n life was h igh. See
id. Based upon our decision to affirm the maximum sentences, we need not address the application of
those e nhanc ers.

                                                         10
public from further criminal conduct by the defendant; and (3) are congruent with the

general principles of sentencing.

       In this case, the trial court found that the Appellant was a dangerous offender

who exhibited a very low regard for human life and a willingness to cause great risk to

human life. That finding is supported by undisputed evidence in the record that the

Appellant entered a hospital emergency room with a loaded shotgun and proceeded

to disarm two police officers and shoot them multiple times with their revolvers. The

Appellant not only attempted to brutally murder the two officers, but he also

jeopardized the lives of several hospital employees who were present in the

emergency ward. After the shooting, the Appellant stole a police car and thereafter

held a family hostage at gun point for several hours before he finally surrendered.

That evidence clearly supports the trial court’s finding that the Appellant is a

dangerous offender under Tennessee Code Annotated section 40-35-115 (4). The

Appellant demonstrated a low regard for human life and he showed no hesitation

about committing a crime in which the risk to human life was high.

       From our de novo review, we also find that the Appellant has a record of

extensive criminal activity pursuant to Tennessee Code Annotated section 40-35-115

(2) (1990). The Appellant’s presentence report indicates that he has several

convictions including diversion of electric power, public drunkenness, criminal

trespass, passing a bad check, possession of marijuana, and contribution to the

delinquency of a juvenile. Furthermore, there was testimony that the Appellant,

though not charged or convicted, had previously assaulted his sister with a gun and

had attempted to slash a man with a knife during a fight.

       Based upon evidence in the record, we affirm the trial court’s finding that the

Appellant is a “dangerous offender,” and we further find that he has a record of

extensive criminal activity. However, that alone is not enough to warrant consecutive

sentences. See Wilkerson, 905 S.W.2d at 938-39. We must also consider whether



                                            11
the consecutive sentences reasonably relate to the severity of the crimes, serve to

protect the public from further criminal acts by the defendant, and conform to the

general principles of sentencing. See id at 938-39.

      From our de novo review of the record, we find that the Wilkerson factors are

fully met in this case. The Appellant’s record shows a continuous history of criminal

behavior which has not been rehabilitated, but instead has become increasingly more

violent during his life. The assault offenses in this case were extremely brutal and

were committed while the Appellant was serving a sentence for a prior felony

conviction. Under those circumstances, the record supports a finding that the

consecutive sentences are necessary to protect the public from further criminal acts

by the Appellant. Moreover, the sentences reasonably relate to the severity of the

present offenses. Accordingly, we conclude that the consecutive sentences are

appropriate and congruent with the general principles of sentencing.

      Based upon the foregoing, Appellant’s consecutive sentences for the two

convictions of assault with intent to commit first degree murder are affirmed. The

judgments, however, are modified to include the fifteen (15) year sentence for

aggravated kidnapping and to remove the extra count of grand larceny.




                                                _____________________________
                                                WILLIAM M. BARKER, JUDGE


CONCUR:


____________________________
JOSEPH M. TIPTON, JUDGE


____________________________
CURWOOD WITT, JUDGE




                                           12
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE

                       JANUARY 1997 SESSION



STATE OF TENNESSEE             )        NO. 03C01-9606-CC-00212
                               )
     Appellee,                 )        Scott County No. 6231
                               )
v.                             )        HON. LEE ASBURY, JUDGE
                               )
TED D. NORRIS                  )        (Sentencing)

                                   13
                                         )
      Appellant.                         )      Affirmed as Modified


                                      JUDGMENT

      Came the Appellant, by and through counsel, and also came the attorney

general on behalf of the State, and this case was heard on the record on appeal from

the Criminal Court of Scott County; and upon consideration thereof, this Court is of the

opinion that the judgment of the trial court should be affirmed as modified.

      In accordance with the opinion filed herein, it is, therefore, ordered and

adjudged by this Court that the Appellant’s consecutive sentences of twenty five (25)

years for each count of assault with intent to commit first degree murder are affirmed;

but the judgments are modified to include the sentence of fifteen (15) years for

aggravated kidnapping and to remove the extra count of grand larceny. This case is

remanded to the Criminal Court of Scott County for further proceedings in accordance

with this Court’s opinion and for the collection of the costs accrued below.

      It appearing that the Appellant is indigent, the costs of this appeal will be paid

by the State of Tennessee.



                                         William M. Barker, Judge
                                         Joseph M. Tipton, Judge
                                         Curwood Witt, Judge
