           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                             Assigned on Briefs October 4, 2011

                  STATE OF TENNESSEE v. JERRY WILLIAMS

                    Appeal from the Criminal Court for Shelby County
                        No. 10-02208    John T. Fowlkes, Judge




               No. W2010-02457-CCA-R3-CD - Filed November 18, 2011


A Shelby County Criminal Court jury convicted the defendant, Jerry Williams, of alternative
counts of aggravated assault. The trial court ordered the convictions merged and imposed
a Range I sentence of five years’ incarceration.1 In this appeal, the defendant challenges the
sufficiency of the convicting evidence and the propriety of the five-year sentence.
Discerning no error, we affirm. We remand the case, however, for the entry of a single
judgment of conviction reflecting the merged convictions.

      Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Phillis Aluko (on appeal); and Dianne Thackery (at trial), Assistant District Public
Defenders, for the appellant, Jerry Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Jose Leon and Theresa
McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

              The Shelby County grand jury charged the defendant with aggravated assault
via a deadly weapon and aggravated assault via serious bodily injury for his August 15, 2009
attack on the victim, Alvin Payne.


       1
        Despite recognizing that the convictions should be merged, the trial court nevertheless imposed
concurrent five-year sentences and entered two judgments of conviction.
                On August 15, 2009, the victim went to the home of his cousin, Sam Wesby,
to visit with Mr. Wesby and several others who lived at the residence. At approximately 9:00
p.m., Mr. Wesby indicated that he was going to bed, and the victim told the group, which
included the defendant, that he was “going to ease on to the house.” The victim recalled that
as he left the residence, the defendant was outside alone smoking a cigarette. The victim said
that the defendant asked him for a cigarette, and the victim responded that he had none and
began walking toward his car. Before he reached his car, the victim heard “a lump” or “a
clunk” inside his head before losing consciousness. The victim said that he awoke briefly
after being placed on a stretcher but did not fully regain consciousness until he was in the
hospital.

               The victim testified that he suffered a fractured skull that required a lengthy
hospital stay and that caused a mild stroke, leaving him with only partial use of his right arm.
After an initial release from the hospital, the victim was readmitted after he began having
seizures and confusion. He said that the lasting effects of the injury caused him to lose his
job as a truck driver.

               The victim admitted having a “fingernail cleaner type pocket knife” with him
at the time of the assault, but he maintained that he never threatened the defendant. He
insisted that he and the defendant did not have a heated exchange prior to the offense.

               The victim’s medical records confirmed that he suffered “[f]ractures of the left
frontal, parietal and temporal skull” as well as a “[r]ight orbital roof fracture.” Surgery was
required to repair the skull fracture. He was discharged from the hospital after five days but
readmitted a week later.

              Sam Wesby, Jr., testified that the victim came to his residence to visit on
August 15, 2009. The victim stayed for a few hours, and when he decided to leave, Mr.
Wesby walked with him onto the porch. At that point, the defendant was leaning against “a
telegram post” holding “a shovel in his left hand and a brick in his right hand.” As the victim
walked toward his car, the defendant “throwed [sic] the brick and [the victim] fell to the
ground.” Mr. Wesby described the brick as “just about big enough to fit your hand like you
going to throw a baseball or something.” He said that the brick struck the victim “to the side
of his head and it sounded like a pistol went off it was throwed [sic] so hard.” After
throwing the brick, the defendant ran away, and Mr. Wesby and others helped the victim onto
the porch.

              Mr. Wesby testified that he neither saw nor heard any confrontation between
the defendant and the victim prior to the defendant’s throwing the brick. He said that when
he cleaned the area on the following day, he did not find a razor blade, knife, or any other

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weapon in the vicinity where the victim fell.

               Audrey Vines testified that she and her fiancé were sharing a residence with
Mr. Wesby and his wife on August 15, 2009. The defendant, whom Ms. Vines described as
her “godson,” was staying at the residence. On that night, the victim came to visit along with
some others. At the end of the evening, the victim left, and Ms. Vines walked onto the porch
as he was leaving. As she stood on the porch, Ms. Vines saw the defendant throw a brick and
strike the victim in the head. She recalled that after throwing the brick, the defendant
shouted that he was “not wrong” and ran away. The defendant also claimed that the victim
had threatened him. Ms. Vines said that others helped the victim onto the porch while she
telephoned 9-1-1.

              After his arrest, the defendant telephoned Ms. Vines and told her that he was
“going to get [her]” because it was her fault that he had been arrested and charged in this
case.

              Officers found the defendant hiding in a residence several days following the
assault.

               The defendant testified that the victim and others were drinking and playing
cards on August 15, 2009, but he was not drinking that evening. He said that at one point,
Ms. Vines asked him to go outside with her to get more cigarettes, and the victim followed
them onto the porch “acting real belligerent.” The defendant said that Ms. Vines went inside,
and the victim attacked him, grabbing him “by the back of [the] neck” and attempting to stab
him with a small pocket knife. During the altercation, the defendant fell into some hedges
scraping his arm. The victim went inside, and the defendant armed himself with a shovel and
a brick.

               The defendant claimed that when the 59-year-old victim came back outside a
short time later, he attacked the 29-year-old defendant a second time, leaping from the porch
“like in the Michael Myers scene” and threatening him with the small pocket knife. The
defendant said that he then threw the brick in self-defense and ran away.

              At the conclusion of the proof, the jury convicted the defendant as charged of
two counts of aggravated assault. At the sentencing hearing, the trial court attempted to
merge the convictions, noting that “[t]he charges will be combined”; however, it ordered
separate but concurrent sentences of five years in the Department of Correction.

             In this appeal, the defendant challenges the sufficiency of the convicting
evidence and the propriety of the sentence imposed.

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                                         Sufficiency

              The defendant contends that the evidence was insufficient to support his
convictions because the State failed to establish that he used a deadly weapon and “failed to
disprove the defendant’s theory of self-defense.” The State asserts that sufficient evidence
undergirds each conviction.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). “[D]irect and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” State
v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

                “A person commits aggravated assault who . . . [i]ntentionally or knowingly
commits an assault as defined in § 39-13-101, and . . . [c]auses serious bodily injury to
another [or] [u]ses or displays a deadly weapon.” T.C.A. § 39-13-102(a)(1)(A) (2006). “A
person commits assault who [i]ntentionally, knowingly or recklessly causes bodily injury to
another; [i]ntentionally or knowingly causes another to reasonably fear imminent bodily
injury; or [i]ntentionally or knowingly causes physical contact with another and a reasonable
person would regard the contact as extremely offensive or provocative.” Id. § 39-13-101(a).
“‘Deadly weapon’ means . . . [a] firearm or anything manifestly designed, made or adapted
for the purpose of inflicting death or serious bodily injury; or [a]nything that in the manner
of its use or intended use is capable of causing death or serious bodily injury.” Id. § 39-11-
106(5). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or disfigurement, and physical
pain or temporary illness or impairment of the function of a bodily member, organ, or mental
faculty.” Id. § 39-11-106(2). “‘Serious bodily injury’ means bodily injury that involves [a]
substantial risk of death; [p]rotracted unconsciousness; [e]xtreme physical pain; [p]rotracted
or obvious disfigurement; [p]rotracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty; or [a] broken bone of a child who is eight (8) years of age

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or less.” Id. § 39-11-106(34).

                The evidence adduced at trial established that the defendant threw a brick at
the victim, striking him in the head and causing a skull fracture. The injury caused the victim
to lose consciousness for a protracted period of time and led to a substantial impairment of
the use of his right arm. As a result of his injury, the victim was unable to continue working
as a truck driver. The brick, as it was used in this case, qualifies as a deadly weapon. The
jury heard and rejected the defendant’s claim of self-defense; indeed, the overwhelming
weight of the evidence belies the defendant’s self-defense claim. Under these circumstances,
the evidence was sufficient to support the defendant’s convictions of aggravated assault.

               Because the imposition of two convictions of aggravated assault would violate
principles of double jeopardy, the verdicts must be merged into one conviction with one
conviction judgment. The trial court recognized the necessity for merger but did not properly
effectuate it. As a result, the case must be remanded for the trial court to merge the
convictions. On remand, the trial court should enter a single judgment of conviction
reflecting the merged offenses and a single five-year sentence.

                                       II. Sentencing

              The defendant also challenges the sentence imposed by the trial court, arguing
that the five-year term is excessive and that the trial court erred by ordering a fully
incarcerative sentence. The State contends that the sentence is appropriate.

               At the sentencing hearing, the defendant presented the testimony of Jeffery
Futrell, president of Young Man University, an organization Mr. Futrell described as working
to provide “professional life training, skill training, [and] job training” to young men
convicted of crimes. Mr. Futrell testified that although the defendant had not been officially
granted entry into the program, it appeared that he was a qualified applicant.

                The defendant testified that if granted probation he intended to enroll in the
Young Man University program and reside in one of the program’s residential units. He said
that he wanted to get his life back together, including obtaining his GED, getting a job, and
fulfilling his child support obligation for his five children.

              The defendant apologized to the victim and stated that he did not “hold any
grudges” against the victim. The defendant claimed that he was not angry about having been
“maliciously prosecuted” or about the attempt by the State and the victim to “defame [his]
character.” He maintained that he “was right in what [he] did” because the victim tried to
kill him. He said, “I’m the victim. He’s the assailant.” The defendant explained that the

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victim should have been prosecuted for attempting to kill him. The defendant also took issue
with a previous finding that he violated his probation, stating, “I didn’t violate no probation.
. . . I just . . . didn’t report.”

              The defendant claimed that although he had never paid child support to the
mothers of his five children, he had “been a perfectly good father to” them. He said that he
wanted to provide his children with a better life but could not do so while incarcerated.

               Based upon the evidence presented at the hearing and that contained in the
presentence report, the trial court ordered a sentence of five years to be served in the
Department of Correction. The trial court denied any form of alternative sentencing, citing
the defendant’s criminal history, sporadic work history, previous probation revocation,
failure to accept responsibility, and the circumstances of the offense as warranting a fully
incarcerative sentence.

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb 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 event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court must consider:

              (1) The evidence, if any, received at the trial and the sentencing
              hearing;
              (2) The presentence report;
              (3) The principles of sentencing and arguments as to sentencing
              alternatives;
              (4) The nature and characteristics of the criminal conduct
              involved;
              (5) Evidence and information offered by the parties on the

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              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;
              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and
              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              Relative to the defendant’s Class C felony conviction of assault, he was
considered a favorable candidate for alternative sentencing. See id. § 40-35-102(6).
“[F]avorable status consideration,” however, does not equate to a presumption of such status.
Carter, 254 S.W.3d at 347.

               As the recipient of a sentence of ten years or less, the defendant was also
eligible for probation. See T.C.A. § 40-35-303(a). He bore the burden, however, of
establishing his “suitability for full probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn.
Crim. App. 1999); see T.C.A. § 40-35-303(b). Among the factors applicable to probation
consideration are the circumstances of the offense; the defendant’s criminal record, social
history, and present condition; the deterrent effect upon the defendant; and the best interests
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

               Here, the trial court imposed a five-year sentence based upon its finding that
the defendant’s record of criminal convictions exceeded that necessary to establish the
appropriate range. See T.C.A. § 40-35-114(1). Contrary to the defendant’s assertion, the
trial court did not apply enhancement factors based upon either the defendant’s use of a
deadly weapon, see id. § 40-35-114(9), or the seriousness of the victim’s injuries, see id. §
40-35-114(6). Instead, the trial court concluded that the seriousness of the defendant’s
previous convictions warranted a sentence enhancement of two years.

               The trial court ordered that the defendant serve the entire sentence in the
Department of Correction, finding that the defendant’s prospect of rehabilitation was “very
poor” given his criminal history, failure to accept responsibility for the offenses, and previous
history of a probation revocation and that confinement was necessary to avoid depreciating
the seriousness of the offense given that the victim was permanently disabled as a result of
the injuries sustained at the defendant’s hand.



                                               -7-
              The record supports the findings of the trial court. The defendant’s criminal
record includes convictions of aggravated criminal trespass, vandalism, drug possession, and
carrying a concealed firearm. His criminal history also includes a revocation of his probation
only months before the assault in this case. The defendant failed to accept full responsibility
for the victim’s serious and debilitating injuries, maintaining that he had been “maliciously
prosecuted,” and failed to accept any accountability for the prior probation revocation. The
defendant’s criminal history justified his sentence of five years. Furthermore, his recent
unsuccessful attempt at probation and the need to avoid depreciating the very serious nature
of the offense supported the imposition of a fully incarcerative sentence. See id. § 40-35-
103(1)(B),(C).

                                         Conclusion

              The judgment of the trial court is affirmed. The case must be remanded,
however, for the imposition of a single judgment of conviction reflecting the merged
convictions of aggravated assault and a single five-year, incarcerative sentence.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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