        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 21, 2001

                    STATE OF TENNESSEE v. JOHN D. PASS

                 Direct Appeal from the Criminal Court for Knox County
                      No. 67179 Richard R. Baumgartner, Judge



                               No. E2000-02266-CCA-R3-CD
                                    November 30, 2001

The defendant appeals from his conviction for aggravated assault and his sentence. We conclude
that there was sufficient evidence to support the conviction for aggravated assault. The
imposition of a six (6)-month jail term pursuant to a sentence of five (5) years in split
confinement is appropriate. We affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and ALAN E. GLENN, J., joined.

William C. Talman, Knoxville, Tennessee, for the appellant, John D. Pass.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Lauri Hays, Special
Prosecuting Attorney; and Marsha Selecman, Assistant District Attorney General, for the
appellee, State of Tennessee.


                                          OPINION

       The defendant, John D. Pass, was indicted for aggravated assault in three alternative
counts. Count One charged that the defendant caused serious bodily injury to the victim. Count
Two charged that the defendant caused bodily injury to the victim by use of a deadly weapon.
Count Three charged that the defendant caused the victim to fear imminent bodily injury by use
of a deadly weapon. A jury found the defendant guilty of causing bodily injury by use of a
deadly weapon, Count Two. The trial court sentenced the defendant as a Range I standard
offender to five (5) years, to be served in split confinement. The trial court ordered the
defendant to serve six (6) months in the county jail and to spend the remainder of the five (5)
years on probation. A timely motion for new trial was denied by the trial court. The defendant
filed a timely notice of appeal challenging the sufficiency of the evidence to sustain his
conviction for aggravated assault and the imposition of a six (6) -month jail term pursuant to a
sentence of split confinement.
                                               Facts

        The victim, James Daniel Davis, testified that he was drinking at Mary Jane’s Place, a
local bar in Knox County, when the defendant entered the bar. The defendant immediately
approached the victim, who was seated at the bar, and called him a “son of a *****.” Wishing
to avoid a scene in front of the other bar patrons, the victim asked the defendant to go outside the
bar so that they could talk privately. The victim believed that the defendant was angry with him
because of an incident that occurred a month earlier. The victim claimed to have overheard the
defendant making inappropriate comments to the bar owner’s eight-year-old granddaughter and
told the bar’s owner what he heard.

        Once outside, the defendant hit the victim in the head with a beer bottle. In response, the
victim hit the defendant in the nose and knocked him to the ground. The victim kicked the
defendant several times and told him to “stay down” and to leave him alone. The defendant told
the victim that he was going to kill him, and the victim walked back inside the bar. After about
ten minutes, the defendant also came back inside the bar. The victim told the bartender that he
thought that the defendant had a weapon. The bartender patted down the defendant and told the
victim that the defendant did not have anything.

        A few minutes later, the victim felt a pain in his back. When he turned around, the
defendant was standing behind him with a knife in his hand. The defendant and the victim
struggled for a few minutes and the victim was cut on the arm and the face with the knife. The
bartender assisted the victim by jumping over the bar and forcing the defendant outside by
hitting him with a baseball bat. An ambulance was called to take the victim to the hospital,
where he remained hospitalized for two days.

        The bartender, John Riehl, also testified at trial. On the night that the victim was
stabbed, he observed the defendant and the victim “having words” at the bar but could not hear
what they were saying. Moments later, he saw both men go out the back door. A few minutes
passed and then a customer told him that they were fighting outside. The bartender went outside
where he found the defendant on the ground and the victim standing over him. The bartender
told the victim that the defendant had “had enough” and to come back inside the bar. Both the
bartender and the victim went back inside the bar.

        The defendant came back into the bar a few minutes later and sat at a table behind the
victim. The bartender instructed the two men not to talk to each other or they would have to
leave. The defendant stayed a few minutes and then left the bar. The defendant returned to the
bar twenty or thirty minutes later and the victim told the bartender that he believed the defendant
had a weapon. The bartender searched the defendant for a weapon by patting him down but did
not find any weapons. The bartender returned to the bar and continued to watch the defendant
from behind the bar. A few minutes later, the bartender walked to the other end of the bar to
serve a customer. As the bartender turned to walk back toward the victim, he saw the defendant
stab the victim in the back with a knife. After the police arrived at the bar, the bartender found a
knife with blood on it outside the bar.

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        Laray Hays, a bar patron on the night of the altercation, also testified for the state. She
arrived with a friend and observed the victim and the defendant fighting outside the bar. She
arrived after the fight had started but did see the victim strike the defendant in the face and
knock him down. She also heard the victim tell the defendant to stay down as she was walking
into the bar. Ms. Hays continued inside and sat at the bar. The victim came back inside and sat
a few seats down from Ms. Hays at the bar. The defendant returned to the bar fifteen or twenty
minutes later and sat at a table directly behind the victim. Ms. Hays saw the bartender check the
defendant for weapons. She also heard the bartender say that the defendant did not have
anything. After a few minutes, Ms. Hays saw the defendant stand up and approach the victim
from behind. The victim did not see the defendant approaching and Ms. Hays did not hear them
exchange any words. The defendant stabbed the victim in the right side of his back. The victim
appeared stunned at first but then jumped up and ran after the defendant. A few minutes later the
victim came back inside the bar, and Ms. Hays put towels on his wounds to stop the bleeding
until an ambulance arrived.

        Two police investigators, who spoke with the defendant, testified for the state. Officer
Keith Debow of the Knoxville Police Department was called to the bar after the victim was
stabbed. Officer Debow interviewed the victim before he was taken to the hospital. The victim
told Officer Debow that the defendant stabbed him in the back. Officer Debow was also present
at the bar when a knife with blood on it was found outside the back door of the bar. After
learning from witnesses that the defendant lived near the bar, Officer Debow went to the
defendant’s home. The defendant was found sitting in a chair behind his house. Officer Debow
observed that the defendant was “bloody and beaten” and called an ambulance to take the
defendant to the hospital. Before the ambulance arrived, the defendant made a statement to the
officer indicating that he had been in a fight with the victim and had gone back into the bar
where he stabbed the victim one time.

        Sergeant Tammy Hamlin of the Knoxville Police Department interviewed the defendant
at the hospital. The defendant told Officer Hamlin that a knife fell out of the victim’s pocket
during their fight outside the bar. The defendant said that he picked up the knife after the victim
went back inside the bar and waited for about ten minutes before he went back inside the bar.
The defendant admitted to stabbing the victim in the back while his back was turned. The
defendant told Officer Hamlin that he was planning to leave the victim’s knife with him or in
him. Officer Hamlin could not recall whether he said “with him” or “in him.”

        The defendant also testified at trial. The defendant worked as a bartender at the bar
across the street and had previously worked as a bartender at Mary Jane’s Place. He knew the
victim from his work in the two bars. According to the defendant, he did not say anything to the
victim when he first arrived at the bar. The defendant sat at a table by himself and the victim
asked him to go outside. The victim ordered a bottle of Budweiser beer, which the defendant
believed to be for him because he knew the victim to drink cans of Miller beer. He agreed to go
outside with the victim, believing that they were going to smoke marijuana. Once outside, the
victim hit him in the head with the beer bottle and “knocked his eye about out.” The bottle
broke and the victim “jabbed it in the top of [the defendant’s] head.” The defendant fell down

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and the victim kicked him repeatedly. After the victim went back inside the bar, the defendant
took his tee shirt off and used it to stop the bleeding on top of his head. He pushed his eye back
into place, put on another shirt, and went back inside the bar.

        The bartender searched the defendant when he entered the bar and did not find anything.
The defendant denied having a knife with him when he entered the bar. He also said that he did
not remember telling Officer Hamlin that he picked up the victim’s knife outside the bar. The
defendant sat at a table and drank a beer. When he stood to leave, the victim turned toward him
and asked if he “wanted some more of it.” The defendant testified that he did not want to be
beaten by the victim again. As he walked toward the door, “someone” in the bar tapped him on
the leg. He reached down, and “someone” placed a knife in his hand. The victim started to
stand, and the defendant put his arms around the victim and felt the knife go in the victim’s back.
He immediately pulled it out. The victim began swinging his fists at him and cut himself on the
knife, which the defendant still had in his hand. The bartender jumped over the bar with a
baseball bat, took the defendant outside and hit him with the bat in the chest, arms, and thighs.
After the bartender stopped hitting him, the defendant went home and remained there until the
police arrived.

                                            Analysis

        The defendant raises two issues in this appeal: (1) whether there was sufficient evidence
to sustain a conviction for aggravated assault, and (2) whether the trial court properly sentenced
the defendant to five (5) years to be served in split confinement.

                                     Sufficiency of Evidence

        The defendant contends that the evidence introduced at trial was not sufficient to prove
the offense of aggravated assault. The defendant does not point to a specific element of
aggravated assault that the state failed to prove but asserts that he was acting in self-defense.
Therefore, we will address both the sufficiency of the evidence to establish the elements of
aggravated assault and the sufficiency of the evidence to establish that the defendant was not
acting in self-defense.

        The standard of review when the sufficiency of the evidence is questioned on appeal 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 (1979). Questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised by
the evidence are resolved by the trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987). This Court may not reweigh or reevaluate the evidence but should
presume that the jury has resolved all conflicts in the testimony and drawn all reasonable
inferences from the evidence in favor of the state. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



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        Following the standard of review set out above, we conclude that the elements of
aggravated assault were established in the instant case. The jury members were instructed that
they could find the defendant guilty of aggravated assault as charged in Counts One, Two, or
Three but could only convict the defendant of one count. The jury found the defendant guilty of
Count Two. Therefore, to support the defendant's conviction for aggravated assault, the state
was required to prove that the defendant knowingly caused bodily injury to the victim by using a
deadly weapon pursuant to Tennessee Code Annotated sections 39-13-101(a)(1) and 102
(a)(1)(B).

         There is ample evidence to support a finding that the defendant caused bodily injury to
the victim by using a deadly weapon. The victim testified that he was sitting on a bar stool with
his back to the defendant when he felt the defendant stab him in the back. The bartender
testified that he saw the defendant stab the victim in the back with a knife. A bar patron testified
that she saw the defendant approach the victim with a knife and stab him in the back. Two police
investigators, who questioned the defendant after the incident occurred, testified that the
defendant admitted during questioning that he had stabbed the victim in the back with a knife. A
knife found outside the bar with blood on it was identified by the bartender and introduced into
evidence. Finally, the defendant himself testified and admitted to stabbing the victim with a
knife.

        Turning to the defendant’s contention that he acted in self-defense, we must conclude
that there was sufficient evidence for the jury to find beyond a reasonable doubt that the
defendant was not acting in self-defense. The issue of self-defense is a matter for the jury to
decide. State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). However, once evidence is
admitted supporting the defense, the state must prove beyond a reasonable doubt that the
defendant did not act in self-defense. Tenn. Code Ann. § 39-11-201(a)(3); State v. Belser, 945
S.W.2d 776, 783 (Tenn. Crim. App. 1996). Tennessee Code Annotated section 39-11-611(a)
states that
        a person is justified in threatening or using force against another person when and
        to the degree the person reasonably believes the force is immediately necessary to
        protect against the other's use or attempted use of unlawful force. The person
        must have a reasonable belief that there is an imminent danger of death or serious
        bodily injury. The danger creating the belief of imminent death or serious bodily
        injury must be real, or honestly believed to be real at the time, and must be
        founded upon reasonable grounds. There is no duty to retreat before a person
        threatens or uses force.
Tenn. Code Ann. § 39-11-611(a).

        In the instant case, the defendant testified on his own behalf. According to the
defendant’s version of the events, he went to a local bar in the early evening, and the victim was
seated at the bar when he arrived. The victim ordered a beer and then asked the defendant to go
outside with him. The defendant agreed believing that the victim bought the beer for him and
that they were going to smoke marijuana. Once outside, the victim hit him in the head with a
beer bottle without provocation. The blow caused the defendant’s right eye to come partially out
of the socket and swell severely. The victim then stabbed the top of the defendant’s head with

                                                -5-
the broken bottle. The defendant fell to the ground, and the victim kicked him repeatedly as he
lay on the ground. After he stopped kicking the defendant, the victim went back inside the bar
and returned to his seat at the bar.

        Shortly thereafter, the defendant also went back inside the bar and drank a beer at a table
located several feet behind the victim. The defendant maintains that when he stood to leave the
victim turned to face him and said, “Do you want some more of it?” At this point, the defendant
claims that someone in the bar tapped him on the leg and placed a knife in his hand. The victim
started to get up from his bar stool, and the defendant put his arms around the victim and felt the
knife pierce the victim’s back. The defendant immediately pulled the knife back, and the victim
charged at him, swinging his fists. Then the bartender jumped over the bar with a baseball bat
and began hitting the defendant as he ushered the defendant outside the bar. When asked why he
stabbed the victim, the defendant responded that he was afraid that the victim was going to beat
him up like he had earlier. He said he did not intend to stab the victim but that he was unwilling
to take another beating from the victim. The only corroborating evidence introduced by the
defendant was pictures of his injuries, which conformed to his description of the fight between
him and the victim outside the bar.

        In contrast to the defendant’s version of what happened, the state’s witnesses all testified
that the victim did not say anything to the defendant before he was stabbed. Additionally, the
state’s witnesses testified that the defendant essentially snuck up behind the victim and stabbed
him in the back as he sat at the bar. The victim admitted that he and the defendant fought
outside the bar earlier in the evening. However, the victim asserted that it was the defendant
who struck him with a beer bottle first.

        We recognize that the defendant's account of the events differed substantially from the
state’s witnesses and that, if his version were to be believed, the jury could have found that he
was acting in self-defense. However, the evaluation of witnesses' credibility, the weight and
value to be given to the evidence, and resolution of factual issues raised by the evidence are left
to the trier of fact. Cabbage, 571 S.W.2d at 835. Therefore, taking the evidence in the light most
favorable to the state, we conclude the jury could have found the defendant's claim of
self-defense was negated by the state's proof. This issue is without merit and the judgment of the
trial court is affirmed.

                                             Sentence

       The defendant next asserts that he was improperly sentenced by the trial court. The
defendant does not challenge the trial court’s application of two enhancement factors to lengthen
his sentence to five (5) years, two years more than the minimum in the applicable range. He
does, however, challenge the manner of service, arguing that the trial court abused its discretion
by ordering the defendant to serve (6) months in custody rather than ordering full probation.

       When an accused challenges the length, range, or manner of service of a sentence, this
Court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This

                                                -6-
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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the
evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement
factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or
lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(b); State v.
Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988).

       If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the
sentencing guidelines, and the findings of fact are adequately supported by the record, then we
may not modify the sentence even if we would have preferred a different result. State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In the instant case, the defendant was sentenced to five (5) years based upon the
application of two enhancement factors and no mitigating factors. The trial court ordered the
sentenced to be served in split confinement with six (6) months in custody and the remainder on
probation. We begin by noting that the defendant is presumed to be a favorable candidate for
alternative sentencing because he is a Range I, standard offender who was convicted of a Class C
felony and who does not have any prior felony convictions. Tenn. Code Ann. § 40-35-102(6).
Split confinement is considered an alternative sentence. State v. Bingham, 910 S.W.2d 448,
455-57 (Tenn. Crim. App. 1995). Accordingly, the defendant was afforded the presumption of
alternative sentencing when he was given a sentence of split confinement. Tenn. Code Ann. §
40-35-102(6); State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

        Once a defendant has been afforded the statutory presumption of alternative sentencing,
the burden of establishing suitability for total probation is on the defendant Bingham, 910
S.W.2d at 455. To meet this burden, the defendant must demonstrate that probation will
"subserve the ends of justice and the best interest of both the public and the defendant." Id. at
456. In determining whether or not to grant probation, the trial court should consider, among
other factors, the circumstances surrounding the offense, the defendant's criminal record, the
defendant's present condition, the defendant's credibility or lack thereof, and whether a sentence
of full probation would unduly depreciate the seriousness of the offense. State v. Davis, 940
S.W.2d 558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

       In the instant case, the trial court correctly observed that it is the defendant’s
responsibility to establish his suitability for full probation. The trial court acknowledged that the
defendant’s conviction was not “the type of offense for which [the defendant] should be sent to
the penitentiary for a five-year sentence.” After reviewing the statutory factors, the trial court
found that the seriousness of the offense required that the defendant serve some time in custody.


                                                -7-
Tenn. Code Ann. § 40-35-103 (1)(B). In considering the seriousness of the offense, the trial
court found that the victim suffered serious bodily injury and the victim’s family was also
significantly impacted by the assault. The victim’s lung was punctured when the defendant
stabbed him in the back, which required the victim to be hospitalized. The victim suffered a
great deal of pain as a result of the treatment for his collapsed lung. At the time of the assault,
the victim was responsible for caring for his injured and elderly father and was unable to
continue doing so after the assault. The victim also had a twelve-year-old daughter at the time of
the assault who was psychologically traumatized by the assault on her father.

       Our review of the record leads us to the conclusion that the trial court did not err in
finding that total probation would depreciate the seriousness of the offense. The defendant’s
contention that the trial court abused its discretion by ordering that he serve (6) months in
confinement is, therefore, without merit. Accordingly, the judgment of the trial court is
affirmed.

                                           Conclusion

        When viewed in the light most favorable to the state, there was sufficient evidence to
support the defendant’s conviction for aggravated assault as charged in Count Two and to find
that the defendant was not acting in self-defense. Furthermore, the trial court was within its
discretion in ordering the defendant to serve six (6) months of his sentence in custody. The
judgment of the trial court is affirmed.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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