            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE           FILED
                            AUGUST 1998 SESSION
                                                     September 22, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                 )    C.C.A. NO. 01C01-9708-CC-00381
                                    )
      Appellee                      )    FRANKLIN COUNTY
                                    )
v.                                  )    HON. BUDDY D. PERRY,
                                    )    JUDGE
MICHAEL WALLS,                      )
                                    )
      Defendant/Appellant           )




FOR THE APPELLANT:                       FOR THE APPELLEE:

Philip A. Condra                         John Knox Walkup
District Public Defender                 Attorney General & Reporter
12th Judicial District
200 Betsy Pack                           Lisa A. Naylor
P.O. Box 220                             Assistant Attorney General
Jasper, TN 37347                         Criminal Justice Division
                                         425 Fifth Avenue North
                                         Nashville, TN 37243




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                    OPINION

       The defendant was convicted of aggravated assault in a jury trial. The jury

assessed a fine of $10,000.00 and the trial judge sentenced the defendant to serve

five years as a Range I, standard offender.

       The defendant raises the following issues:

       1.    Is the judgment against the Appellant void for failure of the indictment
             to allege an offense under T.C.A. 39-13-102(c)?

       2.    Is the evidence, specifically on the element of bodily injury, sufficient to
             support the verdict of guilt on aggravated assault beyond a reasonable
             doubt?

       3.    Is the fine of $10,000, the maximum for a class C felony, excessive?

       4.    Was the sentence imposed in compliance with the provisions of T.C.A.
             40-35-101 et seq?

       The judgment is affirmed.

       The evidence introduced by the state shows that the defendant and his wife

were estranged. On November 22, 1994, the defendant’s wife obtained a

restraining order against the defendant under the provisions of T.C.A. § 36-3-606.

The estranged wife testified that the defendant came to where she was living on

September 14, 1995 and asked to be allowed into the house. After some

discussion, the defendant entered the house and, according to the woman, began to

speak of reconciliation. She told him they could not reconcile and he told her he

would kill her. She said the defendant attacked her, pulling her hair and striking her

on the head. He pulled off some of her clothing and forced her to perform oral sex

upon him. The defendant told her he was going to have sex with her and then kill

her. She escaped and ran to a house down the street and called her sister to come

for her.

       The sister and a woman who was with the sister testified that the victim was

“scared” and “terrified” when they got to her. These witnesses testified she had

scratches on her knees and red or purple marks on her face. The man, who lived in

the house where the victim went, testified she was crying and upset. This witness

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testified he thought the victim had some scratches on her legs. He did not observe

any marks on her face.

       The defendant testified he went to the home where his estranged wife was

staying upon her invitation to do so. He testified that he and his wife kissed and

undressed and that his wife got up ostensibly to lock the door but that she stole

some money from him and left. He denied striking her or threatening her.

                                      INDICTMENT

       The defendant claims that the indictment against him is defective because it

fails to allege a criminal offense and that the indictment failed to give notice of what

offense he was charged with.

       The indictment is, inter alia, as follows:

       . . . Michael D. Walls on the 14th day of September, 1995, in Franklin County,
       Tennessee, and before the finding of this indictment, did unlawfully,
       (knowingly), after having been enjoined from coming about one Angie W alls
       for any purpose and specifically from abusing, threatening to abuse or
       committing any acts of violence upon Angie Walls, by Order of Protection
       entered in the Circuit Court of Franklin County in case #8904 on November
       22, 1994; the said Michael D. Walls did commit an assault upon Angie Walls,
       causing her to suffer bodily injury, in violation of T.C.A. 39-13-102(c). . . .

       The pertinent part of T.C.A. § 39-13-102(c) reads:

       A person commits aggravated assault who, after having been enjoined or
       restrained by an order, diversion or probation agreement of a court of
       competent jurisdiction from in any way causing or attempting to cause bodily
       injury or in any way committing or attempting to commit an assault against
       an individual . . ., intentionally or knowingly attempts to cause or causes
       bodily injury or commits or attempts to commit an assault against such
       individual. . . .

       The indictment in this case alleges that the defendant was under an order

from coming about or abusing, threatening to abuse, or committing any act of

violence against his estranged wife and that he did commit an assault upon her in

violation of T.C.A. § 39-13-102(c).

       The indictment clearly sets out the necessary elements of the offense as

defined in T.C.A. § 39-13-102(c) and is valid.

       The defendant claims also that he cannot be prosecuted for a felony under

T.C.A. § 39-13-102(c) because the protection order entered against him under

T.C.A. § 36-3-606(c) provides only for punishment of contempt if he violates the

provisions of the statute. Further, by reason of the requirement of T.C.A. § 36-3-

                                            -3-
606, the defendant says the failure to list the maximum punishment as a felony in

the protection order prohibits the state from prosecuting him for aggravated assault.

       This claim is unlike the allegation that the indictment failed to state a criminal

offense. The failure of an indictment to state a criminal offense can be raised at any

time. A claimed defect in an indictment which otherwise states an offense on its

face must be raised prior to trial; otherwise the defect, if any, is waived and a valid

verdict may be entered in the case. Rules of Criminal Procedure 12(b)(2).

       The indictment in this case is proper and the issues raised by the defendant

as to the indictment are denied.

                         SUFFICIENCY OF THE EVIDENCE

       To convict the defendant in this case, the state had to show that the

defendant was subject to an order of protection and that while under such order the

defendant assaulted or otherwise committed acts of violence against his estranged

wife. The wife testified the defendant struck her and raped her. Three witnesses

testified the victim had scratches on her legs. Two of these witnesses described

marks on the victim’s face. The defendant, of course, denied he assaulted or raped

his estranged wife.

       T.C.A. § 39-13-102(c) does not require actual bodily injury to occur before a

conviction under T.C.A. § 39-13-102(c) can be had. The acts condemned by the

legislature in this statute are the acts which are in violation of the protective order

previously entered against an accused.

       Obviously the jury accredited the testimony of the state’s witnesses and

rejected the defendant’s testimony. The evidence is sufficient for a rational trier of

fact to find guilt beyond a reasonable doubt.

                                      SENTENCE

       The defendant contends the sentence of five years is improper because the

trial court did not follow the sentencing guidelines of T.C.A. § 40-35-102(2). For the

most part, the defendant’s argument on this is a rehash of the events which led to

his conviction and a contention that the defendant’s substantial past criminal




                                           -4-
conduct showed him guilty of only class C misdemeanors which were related to the

defendant’s addiction to alcohol.

        The defendant’s past criminal activity shows seventy arrests, forty of which

were retired or dismissed. Thirty convictions were shown, these being one for

vandalism, eleven for public intoxication, one for evading arrest, one for resisting

arrest, three for misdemeanor theft of property, four for driving while intoxicated, two

for driving on revoked license, four for various traffic offenses, and three for

misdemeanor drug offenses.

        In arriving at the sentence, the trial judge found two enhancing factors: the

defendant has a history of criminal behavior in addition to those necessary to

establish the range and the defendant has a previous history of being unwilling to

comply with the conditions of sentences involving release in the community. The

trial judge found two mitigating factors: the defendant’s alcoholism and his learning

disability.

        The trial judge determined that the enhancing factors outweighed the

mitigating factors. Further, the trial judge considered the facts in this case and the

overall actions of the defendant and determined that there was potential danger to

others from the defendant and that such was “moving in an escalating scale.”

Based upon this, the defendant was sentenced as a Range 1, standard offender to

five years in the penitentiary.

        We review the sentence de novo upon the record with a presumption of

correctness. T.C.A. § 40-35-401(d). The burden is upon the defendant to show the

sentence is wrong. State v. Kear, 809 S.W.2d 197 (Tenn. Crim. App. 1991).

        The record in this case shows the trial court followed the sentencing

guidelines and the record supports the judgment of the trial court.

                                           FINE

        The defendant asserts that the fine of $10,000.00 fixed by the jury and

imposed by the trial court is excessive.

        In State v. Bryant, 805 S.W.2d 762 (Tenn. 1991), the Supreme Court held

that fines are reviewable pursuant to T.C.A. § 40-35-401. In State v. Robert H.



                                           -5-
Blevins, No. 03C01-9606-CC-00242, Washington County (Tenn. Crim. App. May 23,

1997), this Court held that although the jury is to fix a fine it is the duty of the trial

judge to fix the fine in an amount not to exceed the amount fixed by the jury. The

trial judge must fix the fine based upon the factors and principles of the 1989

Sentencing Act, which includes consideration of prior history, potential for

rehabilitation, financial means, and mitigating and enhancing factors.

       There was little if any issue raised at the sentencing hearing in this case.

However, the record shows none of the factors is favorable to the defendant except

his limited financial means.

       A fine is not prohibited merely because it may cause a financial hardship

upon a defendant. See State v. Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993).

Further, a fine, if imposed by the sentencing guidelines, is permissible as a punitive

measure. State v. Timothy Jenkins, No. 01C01-9508-CC-00269, Wayne County

(Tenn. Crim. App. Nov. 15, 1996).

       The judgment of the trial court is affirmed and the cost of this appeal is taxed

to the defendant.




                                             John K. Byers, Senior Judge



CONCUR:




David H. Welles, Judge




Jerry L. Smith, Judge




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