            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE

                           FEBRUARY SESSION, 2000       FILED
                                                        March 23, 2000
STATE OF TENNESSEE,                 *
                                    *     No. M1998-00180-CCA-R3-CD
                                                  Cecil Crowson, Jr.
      Appellee,                     *           Appellate Court Clerk
                                    *     PUTNAM COUNTY
vs.                                 *
                                    *     Hon. Leon Burns, Jr., Judge
CHRISTOPHER MAX HALL,               *
                                    *     (Aggravated Assault and
      Appellant.                    *     Misdemeanor Stalking)


For the Appellant:                  For the Appellee:

H. Marshall Judd                    Paul G. Summers
Asst. Public Defender               Attorney General and Reporter
215 Reagan Street
Cookeville, TN 38501                David H. Findley
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
David Neal Brady                    2d Floor, Cordell Hull Building
District Public Defender            Nashville, TN 37243-0493


                                    William Edward Gibson
                                    District Attorney General

                                    Ben Fann
                                    Asst. District Attorney General
                                    1516A E. Spring Street
                                    Cookeville, TN 38506




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                             OPINION



        The appellant, Christopher Max Hall, was convicted by a Putnam County jury

of the offenses of aggravated assault and misdemeanor stalking. 1 For aggravated

assault, the trial court imposed a split confinement sentence of four years and six

months with one year of confinement in the jail followed by intensive probation for

the remainder of the sentence. For stalking, the court imposed a concurrent six

months sentence in the county jail. On appeal, the appellant challenges the

sufficiency of the evidence for each conviction and the denial of total probation.



        After our review, we affirm the judgment of the trial court.



                                         BACKGROUND

        After school dismissed on April 19, 1996, Jimmy Lyons and Amber Griffin,

high school students at Upperman High School in Baxter, walked toward the parking

lot to Jimmy’s vehicle. Jimmy and Amber, who had been dating for five months,

were met in the parking lot by the twenty-four year old appellant. The appellant had

been dating fourteen year old Amber “off and on” for several months. The appellant

began arguing with Amber, ordering her to get into his vehicle. When she refused,

the appellant threatened to “beat up” Jimmy if she did not get in the car. Amber got

into the appellant’s vehicle and told Jimmy that she would meet him a little later that

afternoon at “Crossroads” in Baxter.



        Amber rode with the appellant around Baxter as the two discussed their

troubled relationship. When she requested that he take her to”Crossroads,” he

refused and drove past the meeting point. The appellant “pulled a gun out and sat it

down on [her] seat and told [Amber] that he wanted [her] to shoot him.” Amber



        1
        The victim of the aggravated assault was Amber Griffin; the victim of the stalking offense
was Jim my Lyon s.

                                                2
began screaming hysterically, and the appellant said, “[N]o, I should shoot you.”

Then, the appellant threw the gun on the back seat.



       Afterwards, he took Amber back to “Crossroads” and left her with Jimmy. On

the drive to Amber’s home, the appellant sped past Jimmy and positioned his

vehicle so that Jimmy could not maneuver around him. The appellant got out of his

vehicle and told Amber that he was coming to her house that evening. When she

refused, he threw a cigarette butt at Amber and knocked the truck window “off the

track.” Then, the appellant followed Jimmy to Amber’s home.



       At trial, Jimmy testified that the appellant would follow him to school and then

follow him home; and on some occasions, the appellant would come into Lyons’

place of employment. The appellant continuously threatened to “beat him up”

because of his relationship with Amber. Jimmy testified that he feared the appellant

“because he was making threats and stalking [him].” He related that he ended his

relationship with Amber soon thereafter.



       At the conclusion of the proof, the jury returned guilty verdicts for aggravated

assault of Amber Griffin and stalking of Jimmy Lyons.




                        I. SUFFICIENCY OF THE EVIDENCE

       The relevant question upon a sufficiency review of a criminal conviction, be it

in the trial court or an appellate court, is whether, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). See also Tenn. R. App. P. 13(e);

Tenn. R. Crim. P. 29(a). A jury conviction removes the presumption of innocence

with which a defendant is initially cloaked and replaces it with one of guilt, so that on


                                          3
appeal, a convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the

sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



                                A. Aggravated Assault

       The appellant challenges the sufficiency of the evidence for his aggravated

assault conviction. Specifically, he argues with regard to the aggravated assault

charge that Amber “did not reasonably fear imminent bodily injury” because the

appellant never aimed the gun at her. He asserts the fact that their relationship

continued for nearly a year after this incident is proof that she did not reasonably

fear for her life. Furthermore, he contends that the State failed to prove the requisite

criminal intent citing State v. Wilson, 924 S.W.2d 648 (Tenn. 1996).



       To sustain a conviction for aggravated assault, the State must prove that the

appellant intentionally and knowingly caused “another to reasonably fear imminent

bodily injury” while using or displaying a deadly weapon. Tenn. Code Ann. §§ 39-

13-101(a)(2) (1991); 39-13-102(a)(1)(B) (Supp. 1996). A person acts intentionally

“with respect to the nature of the conduct or to a result of the conduct when it is the

person’s conscious objective or desire to engage in the conduct or cause the result.”

Tenn. Code Ann. § 39-11-302(a) (1991). One acts knowingly when “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.” Tenn. Code Ann. § 39-11-302(b).



       Although the appellant argues the victim’s fear was not reasonable because

of his failure to point the gun at the victim, the statute only requires that the gun be

displayed to the victim. Moreover, her relationship with the appellant following this

incident does not bear upon the relevance of this particular incident. The appellant’s

threat while displaying the weapon that “. . . I should shoot you” is sufficient to


                                          4
support a finding of “reasonable fear of imminent bodily injury.”2 Accordingly, we

find the proof legally sufficient to sustain his conviction for aggravated assault.



                                                    B. Stalking

         Although the appellant presents no argument for his stalking conviction

regarding the victim Jimmy Lyons, we conclude that the evidence was legally

sufficient to sustain the conviction. “A person commits the offense of stalking who

intentionally and repeatedly follows or harasses another person in such a manner as

would cause that person to be in reasonable fear of being assaulted, suffering bodily

injury or death.” Tenn. Code Ann. § 39-17-315 (Supp. 1996). The offense further

defines the term “follows” to mean “maintaining a visual or physical proximity over a

period of time to a specific person in such a manner as would cause a reasonable

person to have fear of an assault, bodily injury, or death.” Tenn. Code Ann. § 39-

17-315(a)(2)(A). While “harasses” is defined as “a course of conduct directed at a

specific person which would cause a reasonable person to fear an assault, bodily

injury, or death, including, but not limited to, verbal threats, written threats,

vandalism, or unconsented-to physical contact. Tenn. Code Ann. § 39-17-

315(a)(2)(B). “Repeatedly” is defined as “on two (2) or more separate occasions.”

Tenn. Code Ann. § 39-17-315(a)(2)(C). See, e.g., State v. Hoxie, 963 S.W.2d 737,

742-743 (Tenn. 1998).



         In the present case, the record reflects that the appellant repeatedly (1)

followed Jimmy to and from school; (2) repeatedly threatened to “beat up” Jimmy,

(3) threatened Jimmy at Jimmy’s place of employment; (4) swerved his vehicle so

that Jimmy was unable to pass; (5) threw cigarette butts into his vehicle; and (6)



         2
          The appellant’s reliance upon Wilson is misplaced. In Wilson, 924 S.W.2d at 651, the
supreme court reversed the defendant’s aggravated assault convictions based upon the lack of
proo f that t he de fend ant fir ed sh ots in to the resid enc e inte ntion ally or k now ingly. T he co urt he ld
that because there was no proof that the defendant knew that anyone was inside the residence
that the req uisite m ens rea was no t proven b y the State. Id. Here, the appellant intentionally or
kno wing ly displa yed th e gun in the p rese nce of the victim coup led w ith the threa t that h e “sh ould
sho ot” his victim .

                                                         5
damaged the window on Jimmy’s truck. All of these actions would cause a

reasonable person to fear an assault or bodily injury. The appellant’s actions did

achieve his intended results. Accordingly, the record contained sufficient evidence

from which a rational trier of fact could have found the appellant guilty beyond a

reasonable doubt.



                                         II. SENTENCING

        Although the appellant argues that the trial court erred in denying an

alternative sentence, in fact, the trial court imposed an alternative sentence of split

confinement.3 Nonetheless, because the appellant’s argument only relates to that of

total probation; our de novo review is limited to whether the appellant should have

been granted total probation. The appellant argues that the trial court failed to

consider:

        (1) his diagnosis of bi-polar disorder following these offenses;
        (2) his voluntary admission into Plateau Mental Health Center and
        Moccasin Bend Psychiatric Hospital;
        (3) his enrollment in courses at Tennessee Technical Institute;
        (4) his change of life since the incident.
        (5) his reputation in the community; and
        (6) his remorse.



        At the time of sentencing, the appellant, a twenty-six year old high school

graduate, testified that he had enrolled at Tennessee Technical Institute and was

taking seventeen hours of classes. Although he had a sporadic work history, he

was currently self-employed in the field of lawn-service and landscaping. The

appellant also served six years in the United States Air Force, receiving an

honorable discharge.



        The appellant admitted that he had pending charges for assault, violation of



        3
          In determining the length of the appellant’s sentence, the trial court applied applied two
enhancement factors: (1) prior criminal history and (8) failure to comply with conditions of release
into the co mm unity. See Tenn. Code Ann. § 40-35-114 (1997). The trial court applied one
mitigating factor, see Tenn. Code Ann. § 40-35-113(13), that the appellant was currently receiving
counseling and on medication.

                                                 6
an order of protection, theft of firearms, and vandalism. The presentence report

reflects that the appellant has prior convictions for contributing to the delinquency of

a minor4 and carrying a weapon. For these offenses, the appellant was placed on

two years pretrial diversion in March 1996. During his diversion period, the

appellant failed to report to the probation officer, failed to perform community service

and failed to pay his court costs. Subsequently, the appellant was arrested on the

instant charges and a motion was filed to terminate diversion. Following the present

offenses but prior to the sentencing hearing, the appellant entered guilty pleas to

misdemeanor drug possession and possession of drug paraphernalia. He received

a suspended sentence of eleven months and twenty-nine days.



         The appellant admitted that he had contemplated suicide and had voluntarily

checked into an in-patient mental health facility for treatment. He testified that he

was taking lithium carbonate which helps him control his anger. The accompanying

medical report reflects that the appellant’s problems include “depression, sleep

problems, change of activity level, suicidal thoughts, inability to concentrate,

irritability [sic], and grandiosity . . . . He appears to meet the criteria for . . . Bipoler

[sic] II. . . . he has severe disturbance of functioning in all areas of his life.”



         In the presentence report, the appellant stated,

         The charge of aggravated assault for which I was convicted did not
         happen. The charge is totally false. I have given Amber Griffith [sic] a
         ride from school. There was no argument and no gun. I was at the
         school, that’s Upperman High, to pick up Joe Fernandez, Amber’s
         cousin. The charge of stalking for which I was convicted is also totally
         false. I have no version of this charge because it just plain never
         happened.



         Although the appellant argues the trial court did not consider his diagnosis of

bipolar disorder and voluntary admission for treatment, the record reflects otherwise.

Moreover, the trial court considered the appellant’s college enrollment in

         4
         This conv iction aros e fro m th e app ellant ’s rela tions hip w ith the juven ile fem ale vic tim in
this case.

                                                        7
determining his sentence. In denying total probation, the trial court stated, “[U]nder

the circumstances of your condition, I’d give you some credit for that and maybe a

split confinement is more appropriate than Department of Corrections time, so one

year split confinement. We haven’t gotten the message to [the appellant].”



         Upon our de novo review of the record, we agree that the record reflects a

prior history of criminal convictions and that measures less restrictive than

confinement have recently been applied unsuccessfully. See Tenn. Code Ann. §

40-35-103(1)(A) and (C). See generally, Tenn. Code Ann. § 40-35-401(d)(1997).

When the record reflects that the trial court considered the relevant principles of

sentencing, the trial court’s determination is afforded the presumption of

correctness. Tenn. Code Ann. § 40-35-401(d); see also State v. Bingham, 910

S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). Moreover,

the appellant bears the burden of showing that the sentence imposed by the trial

court is improper and that of establishing his suitability for probation. See Tenn.

Code Ann. §§ 40-35-210(b)(3), -303(b). The appellant has failed to carry his

burden. This appellant continues to demonstrate behavior evincing a lack of

rehabilitative potential. See Tenn. Code Ann. § 40-35-210(b)(4). Additionally, the

appellant cannot demonstrate that probation will “subserve the ends of justice and

the best interest of both the public and the defendant.” Bingham, 910 S.W.2d at

456. Accordingly, he has failed to establish the impropriety of the trial court’s denial

of total probation.5



         The judgment of the trial court is affirmed.




         5
          The appellant frame s his issue of error within the context of denial of an alternative
sentence, specifically the denial of total probation. We further note that a community corrections
sen tenc e con stitute s neit her a prob ated nor s usp end ed se nten ce. T he ap pellan t is sta tutor ily
ineligible for community corrections for the following reasons: (1) he was convicted of aggravated
assault, a crime against the person; (2) he used a weapon in the commission of the aggravated
assault; and (3) he failed to demonstrate that the relevant offenses were causally connected to a
chronic of history alco hol abus e, drug a buse, o r men tal health pro blem s. See Tenn. Code Ann.
§§ 40-36-106(a)(2), (4), and -106(c).



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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_______________________________________
JERRY L. SMITH, Judge




_______________________________________
NORMA MCGEE OGLE, Judge




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