         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 9, 2005

           STATE OF TENNESSEE v. KERVIN MERCEL COLLINS

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-B-1536 Mark J. Fishburn, Judge



                   No. M2004-01995-CCA-R3-CD - Filed January 31, 2006


The defendant, Kervin Collins, was involved in an altercation with his father, the victim. The
defendant hit the victim several times with a shovel. After an indictment for aggravated assault, a
Davidson County jury found the defendant guilty as charged. The trial court sentenced the defendant
to five years as a Range I standard offender, and the defendant appealed. We reverse the judgment
of the trial court with regard to the denial of the defendant’s motion for mistrial and remand for a
new trial.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Reversed and
                                        Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., J.,
joined; DAVID G. HAYES, J, filed a dissenting opinion.

F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant, Kervin Mercel Collins.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Kimberly Cooper, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        The defendant lived with his father, the victim, intermittently from April of 1998 until May
3, 2003, the date of the assault. The defendant was unemployed and living with the victim at the
time. On May 3, 2003, the victim offered to pay the defendant for mowing the grass. Around 9:00
a.m., the victim paid the defendant part of the money, $35.00. The defendant was worried that he
would spend all the money, so he requested that the victim pay him part of the money. After
receiving the money, the victim went to Nolensville Road. The defendant returned about an hour
and a half later. It was obvious to the victim that the defendant had been drinking. The victim told
the defendant, “[I]f you come back any higher than you already are, then you can’t get in the house.”
The defendant left and returned to Nolensville Road.

       The defendant returned about an hour later. The victim decided that the defendant had gotten
too drunk to come in the house. The defendant got to the front porch of the house. The victim
opened the front door and told the defendant that he could not come in the house. The defendant
went around to the back of the house where the garage was located. There was a door from the
garage to the house. The garage door was closed, but a bottom panel of the door was rotted. The
victim was concerned that the defendant could slide underneath the rotted panel and gain entry to
the house.

        The victim went out to the garage. He got a broom to use to brace the garage door at the
bottom. The defendant was able to push the broom handle aside and slide under the garage door.
After the defendant got inside the garage, he began to hit the victim with his fists.

       The victim tried to run away from the defendant. While he was attempting to escape the
defendant, the victim grabbed a tire rim to use as a shield against the defendant. The defendant
grabbed the tire rim and threw it aside. The defendant picked up a shovel and began to hit the
victim. The defendant hit the victim on the arm, which prompted the victim to state, “You hit me
on my arm, I believe it’s broke.” The defendant did not reply and continued to hit the victim with
the shovel. The victim opened the garage door with the garage door opener and ran outside into the
backyard.

        Once outside the victim began to yell for help. The defendant continued to hit the victim
with the shovel. The victim called to his neighbor, Mr. Heaton. Heaton came, and the defendant
asked him to call the police. When the defendant realized that the victim had asked Heaton to call
the police, the defendant stopped hitting the victim. The defendant then ran into the garage to put
on his shoes. The defendant came up to the victim, hit him in the head with a shoe and demanded
the rest of his money for mowing the lawn. The defendant then ran away.

       Because the police did not promptly arrive, the victim called 911. While on the telephone
with the 911 operator, the victim heard the defendant break out two of the back windows of the
house. The police arrived about that time. An ambulance took the victim to Vanderbilt Hospital.
The victim stayed at the hospital for the evening. At the hospital, the staff stitched his cut, got the
blood off of his face, gave him a CAT scan and x-rayed his arm. No internal injuries were found.

        James Lonnie Heaton is the victim’s next door neighbor. On May 3, 2003, Mr. Heaton was
working in his garage and back yard. He heard a disturbance and heard someone say, “You broke
my arm.” Mr. Heaton then went to the fence between his yard and the victim’s yard to see what the
disturbance was. Mr. Heaton saw the victim and his son standing in the yard. The victim was
frightened. The victim asked Heaton to call the police. Heaton immediately ran to his house to call
911. While Mr. Heaton was on the phone with the 911 dispatcher, he saw the defendant hit the
victim with a shovel. Mr. Heaton went to the front of his house to flag down the police, who had


                                                 -2-
passed the location of the incident. Mr. Heaton told the officers that he had seen the defendant flee
the scene.

        Officer William Traughber with the Metropolitan Nashville Police Department responded
to a “person with a weapon” call. On the way to the address provided by the 911 dispatcher, the
officer was informed that the suspect was walking away from the scene. The officer saw the
defendant walking down the street away from the scene of the incident. The dispatcher had given
the officer a description of the defendant. The officer took the defendant into custody and placed
him in the back of his police cruiser. The officer went to speak with the victim and Heaton. On the
way back to the scene, the defendant became very loud, abusive and belligerent.

        Dr. William Lummus is an emergency physician at Vanderbilt Hospital. Dr. Lummus treated
the victim after the altercation with the defendant. The victim had a contusion on the left side of his
forehead. The victim also had bruises on both of his forearms, a laceration on his left elbow, a
hematoma on his lip and some blood from his nose. Dr. Lummus stated that the only treatment the
victim received was stitches to the laceration on his elbow. The victim had three stitches underneath
the skin and six stitches through the skin. The victim told the doctor that he was assaulted by his the
defendant with a shovel. The injuries sustained by the victim were consistent with being struck with
a blunt object. The victim also received pain medication.

         On June 23, 2003, the Davidson County Grand Jury indicted the defendant for aggravated
assault. A jury trial was held on May 24 and 25, 2004. The jury found the defendant guilty of
aggravated assault. The trial court held a sentencing hearing on July 1, 2004 and sentenced the
defendant to five years incarceration. After the denial of the defendant’s motion for new trial, he
filed a timely notice of appeal.

                                            ANALYSIS

        The defendant argues three issues on appeal: (1) the evidence was insufficient to support his
conviction; (2) the trial court erred in denying the defendant’s motion for mistrial; and (3) the trial
court erred in sentencing the defendant to five years incarceration.

                                              Mistrial

       The series of events leading to the mistrial motion begins with the defendant’s opening
statement:


               Back on May 3rd of last year, [Defendant] was living with his father, that was
       his home also. He had mowed his father’s yard that day. His father had paid him
       part of the money. And he came back, his father didn’t want to let him in, didn’t
       want to let him into his home. What the State has not told you today is, the proof
       will show that [Defendant] wasn’t the original aggressor. [Defendant] came to his


                                                 -3-
       home too, remember that, it’s his home, and if [the victim] didn’t want him there,
       there was legal ways to get him out. He didn’t do that.

               He came to his home, his father wouldn’t let him in. The proof will show that
       in the back garage area there’s a rotted out door, [Defendant] was crawling under that
       door, the garage door, to get in. And the proof will show that [the victim] was
       beating him with a broom handle. Now, I never asked any of you all if a broom
       handle was considered a dangerous weapon during the voir dire, maybe I should
       have, but it goes on the same principle, shovel, broom handle, anything that you can
       hit anybody with can hurt, it’s a weapon; it doesn’t have to be a gun or a knife.

               The proof will then show that [Defendant] came in, that [the victim], his
       father, grabbed a shovel and started hitting him with a shovel. [Defendant] got that
       shovel away from him and protected himself. The proof will also show that [the
       victim], my client’s father, attacked him with a wheel or a rim or something. And
       the only two questions or the questions you as a juror have to come down and decide
       at the end of this case was who was the original aggressor; and was my client acting
       in self-defense. And I submit that you will see that, one, there wouldn’t have been
       an altercation if [the victim], my client’s father, hadn’t attacked him with a broom
       handle and a shovel; and two, any injuries that his father received was [sic] received
       in self-defense. If you believe, and I submit to you you will, that my client was
       acting in self-defense, you will find him not guilty of aggravated assault.


        The next event leading up to the motion for mistrial occurred during the defendant’s cross-
examination of the victim. The defendant’s counsel had begun questioning the victim regarding the
altercation that began in the garage. The relevant portion is as follows:


       Q.     Okay. So, he was coming in that garage and you were poking and hitting him
       with that broom; weren’t you?

       A.      No, I was not.

       Q.     Well, do you remember testifying back last year on May the 8th, 2003, at the
       preliminary hearing?

       A.      Yes, yes.

       Q.     Okay. And do you remember a person named Richard Tennent that was
       representing your son?

       A.      Yes.


                                                -4-
Q.     From the public defender’s office?

A.     Uh-huh (affirmative)

Q.     And didn’t you, under cross-examination, admit that you were hitting and
poking your son?

A.     No. If I did, that’s not what I meant to say.

Q.      Well, I don’t know what you meant to say, but I’m going to tell you – I’ve got
your transcript of your tape – or of your preliminary hearing here today, and I’m
going to take you back to that now. All right?

A.     Uh-huh (affirmative).

Q.     I’m reading from page 8, line 37 through 40. And question to you, from Mr.
Tennent: “Initially, when he was coming through, you jabbed the broom down there,
did you, to hit him with it at that time?” And your answer was “Uh-huh.”
(affirmative).

A.     And I believe that wasn’t what I meant to say.

Q.     Okay. And that was just five days after the incident; correct?

A.     Yes.

Q.     Okay. So, on that day, you were sworn on that day; correct?

A.     Yes.

Q.     Okay. And you were telling the truth; weren’t you?

A.     At the time, when maybe, I don’t –

Q.     That’s “yes” or “no” answer. Were you telling the truth?

[State]:Your Honor, let the witness answer the question.

[The Court]: You can answer it with a “yes” or “no,” then you’ll have an opportunity
to explain to answer.

By [the defendant’s counsel]
A.     Yes, I was telling the truth.


                                         -5-
        Q.       All right. So on that day, on May the 8th, you were telling the truth when you
        testified that you were hitting and poking your son with the broom as he was coming
        under the door; correct?

        [The State]: You Honor, if we may approach, please?

        The Court: All right.

                (Whereupon, a bench conference was held.)

        [The State]: Your Honor, I also have a transcript, and this was the one that we did a
        corrected transcript of, [Defendant’s counsel] has a different transcript and the
        answer that he just said to the jabbed him with a broom when he came through the
        door, you hit him at that time, meaning this witness, he replies, “Uh-uh,” negative.
        [Defendant’s counsel] just read into the record, “Uh-huh,” positive.


The trial court then realized that the defendant’s counsel was working from an inaccurate transcript
of the preliminary hearing. At some point before trial, when the defendant was represented by
another attorney, the parties had disputed the correctness of the preliminary hearing transcript. A
new corrected transcript was ordered. The passage upon which the defendant’s counsel at trial was
relying upon for his cross-examination had been one of the passages that was corrected in the newer
transcript. After the trial court realized the mistake, the State requested that the defendant’s attorney
“read into the record that the victim did not just perjure himself.” The prosecution then argued the
following as an alternative:


        [T]he jury needs to be informed that the victim’s testimony is consistent with what
        happened at the preliminary hearing and not inconsistent, especially since this is a
        case where the defense has argued that the defendant was not the first aggressor, that,
        what was just read into the record, completely turns that on its ear.


        The defendant’s counsel then asked for a mistrial. He argued that the trial court should grant
a mistrial because he had relied upon a faulty transcript in his opening statement to the jury. The
trial court denied the defendant’s request and gave the following curative instruction to the jury:


        Members of the jury, you have heard [Defendant’s counsel] cross-examine [the
        victim] regarding possible inconsistent statements between his testimony in court
        today and his testimony as referenced in a transcript of the preliminary hearing on
        May 8th 2003. [Defendant’s counsel], who was not [Defendant’s] original attorney,
        was provided, through no fault of his own, an inaccurate transcript of the preliminary


                                                  -6-
       hearing; that transcript had been corrected, but these corrections were inadvertently
       not communicated to [Defendant’s counsel] when he became attorney of record for
       [Defendant]. In light of the discrepancies in the transcripts, which [Defendant’s
       counsel] was not aware, he is reserving cross-examination of [the victim] until
       tomorrow, since it apparently will affect the cross-examination by [Defendant’s
       counsel]; therefore, you are to disregard the questions presented by [Defendant’s
       counsel] on cross-examination and any answers provided by [the victim] to those
       questions.


         The defendant argues on appeal that the trial court erred in not granting him a mistrial
because his attorney made promises to the jury as to the defendant’s self-defense claim, based upon
the inaccurate transcript, and because he relied upon an inaccurate transcript his attorney broke his
word and lost his credibility with the jury. The State argues that the defendant’s counsel was able
to elicit some testimony supporting his contention that the victim was the aggressor in a later cross-
examination. The State argues that these statements were enough to salvage the credibility of the
defendant’s counsel.

        The decision whether to grant a mistrial is within the discretion of the trial court and that
decision will not be disturbed on appeal unless there was an abuse of discretion. State v. Reid, 91
S.W.3d 247, 279 (Tenn. 2002); State v. Smith, 871 S.W.2d 667, 672 (Tenn.1994). Moreover, the
burden of establishing the necessity for a mistrial lies with the party seeking it. State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to correct
damage done to the judicial process when some event has occurred which precludes an impartial
verdict.” Williams, 929 S.W.2d at 388. Generally, a mistrial will be declared and the jury
discharged in a criminal case only if there is “manifest necessity” requiring such action by the trial
judge. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)).

        We conclude that there was a manifest necessity for a mistrial. For this Court to determine
that the trial court erred in not granting a mistrial, the defendant must establish that there was a
manifest necessity for declaring a mistrial. The defendant points us to two cases in the Federal
courts where an attorney promised to call certain witnesses during opening statements, but did not
actually present these witnesses during the trial. See Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988);
Harris v. Reed, 894 F.2d 871 (7th Cir. 1990). In both cases, the petitioners had brought a petition for
habeas corpus and alleged ineffective assistance of counsel. The reviewing courts granted a new trial
in both instances because they held that the attorneys were ineffective. Both courts included
language in their opinions regarding the damaging effects of an attorney promising certain testimony,
but not delivering it.

        In Tennessee in the case of State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991);
the defendant was charged with the second degree murder of her husband. In opening statement, the
defendant’s counsel promised to call a psychologist to testify regarding battered wife syndrome. At


                                                 -7-
the conclusion of the State’s proof, trial counsel later recommended that the defendant not testify and
did not call the promised psychologist. We determined that trial counsel was ineffective because
there was no basis for the sudden change in trial strategy, and the defendant suffered prejudice in the
sense that the failure to put on the promised evidence likely changed the result of the trial.
Zimmerman, 823 S.W.2d at 226.

         The issue in this case was not whether trial counsel was at fault; the trial judge found he was
not. When trial counsel realized the mistake he immediately asked for a mistrial. However, the
United States Supreme Court has noted that when counsel’s performance is hampered by
circumstances external to his own judgment, the Sixth Amendment’s guarantee of a fair trial may
nevertheless be implicated if because of the external constraints counsel is unable to subject the
prosecution’s case to true adversarial testing. See U.S. v. Cronic, 466 U.S. 648, 660, 104 S.Ct. 2039,
2047, 80 L.Ed.2d 657 (1984). If we conclude that it is prejudicial to a defendant when his attorney
fails to put on promised evidence such as in Zimmerman, it follows that when an attorney is unable,
through no fault of his own, to deliver such evidence, the attorney may not have performed
deficiently, but the prejudice to the defendant is the same. The case against the defendant has not
been subjected to the adversarial process envisioned by the Sixth Amendment. Id.

       In Zimmerman, this Court stated the following:

               Moreover, the trial attorney should only inform the jury of the
               evidence that he is sure he can prove. . . . His failure to keep [a]
               promise [to the jury] impairs his personal credibility. The jury may
               view unsupported claims as an outright attempt at misrepresentation.


Zimmerman, 823 S.W.2d at 225 (quoting McCloskey, Criminal Law Desk Book, § 1506(3)(O)
(Matthew Bender, 1990)).

        In the defendant’s case, although trial counsel promised a defense that he was sure he could
deliver, the evidence on which he was relying was in the un-corrected transcript he had been given
when he took over the defendant’s case from previous counsel. Through no fault of his own, trial
counsel relied upon this uncorrected transcript. Obviously, as we stated in Zimmerman, this mistake
would have destroyed his personal credibility with the jury, such that the defendant would be unable




                                                  -8-
to reach an impartial verdict. Therefore, there was a manifest necessity in this case for the granting
of a mistrial1.

       For the foregoing reason, we conclude that the trial court should have granted the defendant’s
motion for mistrial.

                                          Sufficiency of the Evidence

         For instructive purposes, we also address the defendant’s argument that the evidence was
insufficient to support the jury’s verdict of guilty. When a defendant challenges the sufficiency of
the evidence, this Court is obliged to review that claim according to certain well-settled principles.
A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits the testimony of
the” State’s witnesses and resolves all conflicts in the testimony in favor of the state. State v. Cazes,
875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus,
although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the
insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer
is whether any rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In
making this decision, we are to accord the state “the strongest legitimate view of the evidence as well
as all reasonable and legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d
at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996);
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute
our own “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight and
value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by
the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

        The defendant specifically argues that the evidence does not support his conviction because
the State did not prove that the victim suffered serious bodily injury. Aggravated assault is found
at Tennessee Code Annotated section 39-13-102(a). That statute states:

         (a) A person commits aggravated assault who:
         (1) Intentionally or knowingly commits an assault as defined in § 39-12-101 and:


         1
           W e are mindful of the fact that prior inconsistent statements such as the one involved here used to impeach
a witness are typically inadmissible as proof of the substance of the statement because the prior statement does not fall
under an exception to the hearsay rule. State v. Smith, 24 S.W .3d 274, 279 (Tenn. 2000). However, in the absence of
an objection from the opposing party on a jury instruction limiting the jury’s consideration of the prior statement to
credibility issues, the prior statement may be considered as substantative evidence. Id. at 280. Had the transcript used
to impeach the alleged victim in this case been accurate, we have no idea whether the jury would have been allowed to
consider the victim’s prior statements as substantative evidence or not.

                                                          -9-
       (A) Causes serious bodily injury to another; or
       (B) Uses or displays a deadly weapon . . . .


Tenn. Code Ann. § 39-13-102(a) (emphasis added). The defendant’s indictment states that the
defendant “intentionally or knowingly did cause bodily injury to [victim] by the use or display of a
deadly weapon, to wit: a shovel . . . .” It is clear from the indictment that the State was relying on
the fact that the defendant used a shovel during the assault as the factor that lifted the assault to an
aggravated assault. The fact that the victim may not have suffered what would be considered
“serious bodily injury” under the law in Tennessee is irrelevant.

         The question is whether a shovel can be considered a deadly weapon. “‘Deadly weapon’
means: . . . [a]nything that in the manner of its use or intended use is capable of causing death or
serious injury.” Tenn. Code Ann. § 39-11-106(a)(5). We have held in two cases that a shovel can
be considered a deadly weapon under this definition. See State v. Thomas J. Tackett, No. M1999-
02541-CCA-R3-CD, 2001 WL 721852 at *10-11 (Tenn. Crim. App., at Nashville, June 28, 2001);
State v. Douglas Canady, No. M1999-02135-CCA-R3-CD, 2000 WL 1449364, at *8-9 (Tenn. Crim.
App., at Nashville, Sept. 29, 2000). In these cases, as in the present case, the defendants beat the
victims with a shovel. We conclude that there is adequate evidence to support the conclusion that
the defendant was using the shovel in a manner that was capable of causing death.

       When viewing the evidence in favor of the State, we conclude that the evidence was more
than sufficient to support the defendant’s conviction for aggravated assault. For the foregoing
reasons, this issue is without merit.

                                             Sentencing

        As with the sufficiency issue, we also address the defendant’s issue that his sentence of five
years is more than necessary to punish the defendant and protect the public at large. “When
reviewing sentencing issues . . . , the appellate court shall conduct a de novo review on the record
of such issues. Such review shall be conducted with a presumption that the determinations made by
the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However,
the presumption of correctness which accompanies the trial court’s action 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 review, we must consider the defendant’s potential for rehabilitation, the trial and
sentencing hearing evidence, the pre-sentence report, the sentencing principles, sentencing
alternative arguments, the nature and character of the offense, the enhancing and mitigating factors,
and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at
169. We are to also recognize that the defendant bears “the burden of demonstrating that the sentence
is improper.” Ashby, 823 S.W.2d at 169.




                                                 -10-
        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for
each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.2

        When sentencing the defendant, the trial court first applied the enhancement factors to the
presumptive sentences. The trial court then announced that there were no applicable mitigating
factors in the defendant’s case. At the conclusion of the sentencing hearing, the trial court sentenced
the defendant to five years as a Range I standard offender. The defendant argues that his sentence
is excessive due to the trial court’s application of enhancement factors found at Tennessee Code
Annotated sections 40-25-114 (2) & (17). The trial court found that the following enhancement
factors applied: “(2) The defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range; and (17) The crime was
committed under circumstances under which the potential for bodily injury to a victim was great .
. . .” Tenn. Code Ann. § 40-25-114 (2) & (17).

        The State concedes that the trial court erred in its application of enhancement factors. The
State concedes in its brief that enhancement factor 17, “the potential for bodily injury to a victim was
great,” should not have been applied to the defendant’s sentence because it is an element of
aggravated assault. This Court has previously held that “the presence of great potential for bodily
injury is inherent in aggravated assault with a deadly weapon.” State v. Hill, 885 S.W.2d 357, 363
(Tenn. Crim. App. 1994). Therefore, the trial court erred in applying this enhancement factor.

        The question now becomes whether the one enhancement factor of the defendant having a
history of criminal convictions or criminal behavior other than that necessary to establish the
sentencing range is enough to support the defendant’s sentence. The trial court sentenced the
defendant to five years as a Range I standard offender.

        The defendant was convicted of aggravated assault. Aggravated assault is a Class C felony
in the defendant’s case. Tenn. Code Ann. § 39-13-102(d)(1). The range of sentencing for a Range


         2
           W e note that the Tennessee Supreme Court has determined that despite the ability of trial judges to set
sentences above the presumptive sentence based on the finding of enhancement factors neither found by a jury or
admitted by a defendant, Tennessee’s sentencing structure does not violate the Sixth Amendment and does not conflict
with the holdings of Blakely v. W ashington, ___ U.S. ___, 124 S.Ct. 2531 (2004), United States v. Booker, __ U.S. ___,
125 S.Ct. 738 (2005), or United States v. FanFan, the case consolidated with Booker, because “the Reform Act [of
Tennessee] authorizes a discretionary, non-mandatory sentencing procedure and requires trial judges to consider the
principles of sentencing and to engage in a qualitative analysis of enhancement and mitigating factors . . . all of which
serve to guide trial judges in exercising their discretion to select an appropriate sentence within the range set by the
Legislature.” State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005).



                                                         -11-
I offender for a Class C felony is not less than three years, but no more than six years. Tenn. Code
Ann. § 40-35-112(a)(3).

        The State argues on appeal that the defendant’s previous criminal history is sufficient to
support the defendant’s five-year sentence. The presentence report shows that the defendant has five
prior convictions for assault, with the disposition of one of these unknown, one conviction for
driving while under the influence, one conviction for public intoxication, and one conviction for
disorderly conduct. We agree with the State that this criminal history is substantial enough to
enhance the defendant’s sentence by two years up to five years. In addition, the trial court found no
mitigating factors. For this reason, we conclude that the defendant’s sentence should be affirmed.

                                         CONCLUSION

       For the foregoing reasons, we reverse the judgment of the trial court and remand for further
proceedings in accordance with this opinion.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




                                                -12-
