          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE        FILED
                              MARCH 1998 SESSION
                                                         April 7, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )    NO. 01C01-9705-CR-00185
      Appellee,                       )
                                      )    DAVIDSON COUNTY
VS.                                   )
                                      )    HON. THOMAS H. SHRIVER,
ABDUL M. ODOM,                        )    JUDGE
                                      )
      Appellant.                      )    (Aggravated Assault)



FOR THE APPELLANT:                         FOR THE APPELLEE:

DAVID I. KOMISAR                           JOHN KNOX WALKUP
211 Printers Alley Building                Attorney General and Reporter
Suite 400
Nashville, TN 37201-1414                   JANIS L. TURNER
                                           Assistant Attorney General
                                           Cordell Hull Building, 2nd Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           VICTOR S. JOHNSON, III
                                           District Attorney General

                                           PAMELA S. ANDERSON
                                           Assistant District Attorney General
                                           Washington Square, Suite 500
                                           222 Second Avenue North
                                           Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant appeals his conviction by a Davidson County jury of the

offense of aggravated assault. He raises two (2) issues for our review; namely,

(1) whether there was a variance between the indictment and the proof sufficient

to merit a judgment of acquittal, and (2) whether the trial court erred in

sentencing the defendant by using inapplicable enhancement factors. The

judgment of the trial court is affirmed.



                                           I.



       The Metro Police Department for Davidson County applied for and

received a search warrant for the residence of Janice E. Bradford. Officer Ernest

Cecil was among the officers who executed the warrant. Once inside the

apartment, Officer Cecil proceeded to a bedroom where he observed the

defendant attempting to exit through a window. When the defendant saw Officer

Cecil enter the bedroom, he turned and pointed a pistol toward the officer.

Officer Cecil then raised his pistol and aimed it at the defendant. Before either

man fired, a juvenile girl either jumped or was pulled between them. The

defendant threw his pistol down, charged the officer, and, after a struggle, was

apprehended by Cecil with the help of other officers. Defendant’s pistol was

loaded with one live round in the chamber and a full magazine clip.

       The defendant was convicted by a jury of aggravated assault, possessing

a deadly weapon, and resisting arrest. The trial court sentenced the defendant

as a Range I offender to concurrent terms of four (4) years for aggravated

assault, thirty (30) days for the weapons charge, and six (6) months for resisting

arrest. The defendant appeals only his conviction and sentence for aggravated

assault.




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                                         II.



       The defendant contends the trial court erred in not granting his motion for

judgment of acquittal. He avers the evidence presented at trial was that he

"displayed" the weapon, while the indictment alleged he "used" it. The

defendant argues the ordinary meaning of the word "used" led him to believe the

state was charging him with firing the weapon, or striking Officer Cecil with the

weapon. The effect of this variance, according to the defendant, is fatal.

       Firstly, we find no variance. The defendant pointed the loaded weapon

toward the officer causing him to fear imminent bodily injury. Thus, the

defendant “used” the deadly weapon within the meaning of the statute. Tenn.

Code Ann. § 39-13-102 (1)(B).

       Secondly, even if there was a variance, it was not fatal. In order for a

variance between the indictment and the proof to be fatal, the variance must be

both material and prejudicial to the defendant. State v. Mayes, 854 S.W.2d 638,

640-41 (Tenn. 1993); State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). A

variance is not material “where the allegations and proof substantially

correspond, the variance is not of a character which could have misled the

defendant at trial and is not such as to deprive the accused of his right to be

protected against another prosecution for the same offense.” State v. Moss, 662

S.W.2d at 592. The defendant has failed to demonstrate that the variance

between the indictment and the proof was material.



                                        III.



       The defendant contends the trial court erred by improperly applying

enhancement factors in his sentencing. This Court’s review of the sentence

imposed by the trial court is de novo with a presumption of correctness. Tenn.

Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative

showing in the record that the trial judge considered the sentencing principles



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and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). If the trial court fails to comply with the statutory directives, there

is no presumption of correctness and our review is de novo. State v. Poole, 945

S.W.2d 93, 96 (Tenn. 1997).

       The trial court found the defendant "possessed or employed a firearm,

explosive device or other deadly weapon during the commission of the offense";

and "had no hesitation about committing a crime when the risk to human life was

high." Tenn. Code Ann. §§ 40-35-114 (9), (10). The defendant alleges these

factors are essential elements of aggravated assault by use of a deadly weapon

and may not be used for enhancement purposes. Any fact necessary to prove

an essential element of an offense may not be used to enhance the sentence for

that offense. See Tenn. Code Ann. § 40-35-114; State v. Jones, 883 S.W.2d

597, 601 (Tenn. 1994). The defendant’s use of a weapon is an element of the

offense charged; therefore, this factor was misapplied.

       The defendant also contends that the risk to human life is high any time

an aggravated assault with a weapon occurs; therefore, this factor was

misapplied as well. The use of this enhancement factor is proper when persons

other than the victim are placed in danger by the actions of the defendant. State

v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The juvenile girl could

easily have been shot as she was between the officer and the defendant when

the defendant pointed the loaded weapon. This enhancement factor was

properly applied.

       Additionally, although not relied upon by the trial court, we find Tenn.

Code Ann. § 39-13-102 (d) applicable as the assault was committed against a

police officer. This may be considered as an enhancement factor.

       Considering the proper enhancement factors, we find the four (4) year

sentence, one (1) year above the minimum, to be appropriate.




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     Finding no reversible error, the judgment of the trial court is AFFIRMED.




                                              _________________________
                                              JOE G. RILEY, JUDGE




CONCUR:




_________________________
JOSEPH M. TIPTON, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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