          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON                FILED
                             MAY SESSION, 1998              August 21, 1998

                                                           Cecil Crowson, Jr.
                                                           Appe llate Court C lerk

STA TE O F TEN NES SEE ,             )   C.C.A. NO. 02C01-9710-CR-00404
                                     )
            Appellee,                )
                                     )   SHELBY COUNTY
V.                                   )
                                     )
                                     )   HON. CHRIS CRAFT, JUDGE
MAR IO SC OTT ,                      )
                                     )
            Appe llant.              )   (THEFT; AGGRAVATED ASSA ULT )




FOR THE APPELLANT:                       FOR THE APPELLEE:

A.C. WHARTON                             JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

TONY N. BRAYTON                          PETER M. COUGHLAN
Assistant Public Defender                Assistant Attorney General
Criminal Justice Center, Suite 201       2nd Floor, Cordell Hull Building
201 Poplar Avenue                        425 Fifth Avenu e North
Memphis, TN 38103                        Nashville, TN 37243

                                         JOH N W. P IERO TTI
                                         District Attorn ey Ge neral

                                         DANIEL S. BYER
                                         Assistant District Attorney General
                                         Criminal Justice Center, Suite 301
                                         201 Poplar Avenue
                                         Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED
THOMAS T. WOODALL, JUDGE




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                                    OPINION

       The Defen dant, M ario Sco tt, appeals as of right his convictions of aggravated

assa ult and theft of prope rty over the value of one thousa nd dollars following a jury

trial in the Shelby County Criminal Court. The trial court sentenced Defendant as a

Range I Standard offender to four (4) years confinement on the theft conviction and

six (6) years confinement on each aggravated assault conviction. The trial court

ordered the two (2) aggravated assault convictions to be served concurrently, but

consecutive to the theft conviction, for an effective sentence of ten (10) years.

Defe ndan t prese nts the followin g two (2) issu es on appe al:

       1. Whether the evidence was sufficient to convict Defendant of aggravated
       assault; and

       2. Whether the trial court properly ordered Defendant’s aggravated assault
       convictions to be served consecutive to his theft conviction.


We a ffirm the jud gmen t of the trial cou rt.




       The facts presented at trial reveal that on March 22, 1995, Marcus Wilson was

driving a blue car when it was stoppe d by the p olice. The Defen dant, M ario Sco tt,

was a passenger in the vehicle. Marcus Wilson testified at trial that he believed that

the car belonged to Defendant and that Defendant offered to sell the car to him for

$1700 .00.




       Officer Halfacre of the Memphis Police Department was prev iously given a

photo of Defendant and the blue vehicle from the sergeant in auto theft on the

morning of March 22, 1995. Halfacre was told that the vehicle Defendant was

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driving was stolen and that the vehicle identification number (VIN) had been

changed. The vehicle was parked at the home of Defendant’s mother. Officer

Halfacre was told to wait un til Defend ant got into the vehic le before attemp ting to

make a stop.




      About 2:20 that afternoon, Officer Halfacre was observing traffic in front of

Northside High School when Defendant and Marcus Wilson passed by heading

westbound in the stolen vehicle. Officer Halfacre then notified Officers Boyce and

Murray that the stolen car had just passed her going west on Northside. The three

officers followed it to Breedlove and Vollintine where they attempted to pull the

vehic le over. The driver, Marcus Wilson, pulled ov er to the curb and remained in the

car. Officer Halfacre pulled crossways in front of the vehicle so that it could not pull

away. Officer Halfac re exite d her c ar and Defe ndan t got ou t of the s tolen v ehicle

and pointed a nine millimeter automatic handgun at Officers Halfacre and Murray.




       Officer Boyce pulled in directly behind the stolen vehicle and was attempting

to exit his p olice cr uiser w hen h is drive r’s side door w as hit b y Office r Murr ay’s

cruiser, causing Officer M urray’s pa sseng er side w indow to shatter. Officer Boyc e’s

door bounced back and hit him in the chest, stunning him momentarily. By the time

Officer B oyce re covere d from th e blow, D efenda nt had e scape d on foo t.




       Hearing the win dow of Offic er Mu rray’s car shatter, Officer Halfacre believed

that a gunshot had been fired by Defendant at Officer Murray. Halfacre broadcast

over the radio that her partner had been shot at by Defendant. Halfacre ran over to


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Murr ay’s cruise r to see if she ha d been shot. After d iscoverin g that a gunshot was

not the cause of the broken window and that Officer Murray was unharmed, Officer

Halfacre realized that Defendant had taken off running. Officer Boyce chased after

Defendant on foot. Defendant escaped but was later captured.




      Officers Halfacre and Murray testified at trial that Defendant pointed a nine

millimeter autom atic hand gun at them over the roof of the stolen vehicle. Officer

Halfacre testified that s he really “b elieved s he mig ht be fired a t by Ma rio Scott.”

Neither Marcus Wilson nor Officer Boyce were able to testify that they saw

Defendant with a gun on March 22, 1995.




                       I. SUFFICIENCY OF THE EVIDENCE




      Defendant argues that the evidence presented at trial was ins ufficient to

support his convictions of aggravated assault. When an accused challenges the

sufficiency of the convicting evidence, the standard is whether, after reviewing the

evidence in the light most favorable to the prosection, any rational trier of fact c ould

have found the essential elem ents of the crime b eyond a reaso nable d oubt.

Jackson v. Virgin ia, 443 U.S. 307, 319 (1979).        This standard is applicab le to

findings of guilt predicated upon direct evidence, circumstantial evidence or a

combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d

776, 779 (Te nn. Crim . App. 19 90). On appea l, the State is entitled to the strongest

legitimate view of the evid ence a nd all infere nces the refrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption


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of innocen ce and replaces it with a presumption of guilt, the accused has the burden

in this court of illustrating why the evidence is insufficient to support the verdict

returned by the trier of fact. State v. Williams, 914 S.W.2d 940, 945 (Tenn. Crim.

App. 1995 ) (citing State v. Tug gle, 639 S.W .2d 913 , 914 (Te nn. 198 2)); State v.

Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).




       Questions concerning the credibility of the witnesses, the weight and value to

be given the evide nce, as we ll as all factual issues raised b y the evidenc e, are

resolved by the trier o f fact, not this c ourt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987 ). Nor may this court

reweigh or reeva luate the e vidence . Cabbage, 571 S.W.2d at 835. A jury ve rdict

approved by the trial jud ge acc redits the Sta te’s witn esse s and resolv es all conflicts

in favor of th e State. Grace, 493 S.W.2d at 476.




       In this case, the Sta te mu st prov e that D efend ant inte ntiona lly or kn owin gly

committed an assault as defined in Tennessee Code Annotated section 39-13-101,

and us ed or disp layed a d eadly w eapon . Tenn. C ode An n. § 39-1 3-102(a )(1)(B).




       Officer Halfacre , a ten (10) year vete ran of the police de partme nt,

unequivocally stated that when the stolen car w as pulled ove r, Defendant stepped

out of the passenger side of the car and pointed an “automatic weapon” over the roof

of the car at the officers. Officer Halfacre was standing behind her vehicle with an

unobstructed view of Defendant, who was standing only fourteen (14) feet away.

Officer Murray, an eight (8) year veteran of the police department, also testified that


                                            -6-
Defendant had a gun and pointed it at the officers. Officer Murray believed that she

had been shot at when her window shattered. She proceeded to lay down on the

seat of her cruiser in o rder to av oid being shot by D efenda nt. Officer Halfacre also

believed that Officer Murray had been shot at by Defendant. Officer Halfacre even

went so far as to broad cast over her radio that her partner had been shot at by

Defen dant.    Officer Boyce and Marcus Wilson testified that they never saw

Defen dant w ith a gun.




       When viewing the eviden ce in the light mos t favorable to the S tate, the jury

justifiably could have found beyond a reasonable doubt that Defendant committed

aggravated assault.       The jury heard conflicting stories and chose to credit the

testimony of Offic ers M urray a nd Ha lfacre.       T he res olution of discrepan cies in

testimony, whether caused by an intentional attempt to mislead the jury, or by

variations in witness percep tion, is a m atter for the ju ry to decid e. State v. She ffield,

676 S.W.2d 542, 5 47 (Ten n. 1984 ). The jury h ad mo re than e nough evidenc e to

convict D efenda nt of aggr avated assau lt. This issue is without m erit.




                           II. CONSECUTIVE SENTENCING




       Defendant does not contest the length of his sentences, but he does challenge

the manne r in which they a re to be served. The trial court sentenced Defendant to

four (4) years confinement on the theft conviction and six (6) years confinement on

each aggravated assault conviction. The trial court ordered the two (2) aggravated

assa ult convictions to be served concurrently, but consecutive to the theft conviction


                                             -7-
for an effective sentence of ten (10) years. Defendant argues that the trial court

erred in ordering him to se rve his co nvictions for aggra vated a ssault co nsecu tive to

his conviction for theft. Defendant contends that the sentences should have been

ordered to run con currently ra ther than conse cutively.




      When an accused challenges the length, range, or the 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 presumption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). There are, however, exceptions to the presumption of correctness. First, the

record must d emon strate that th e trial court c onsidered the sentencing principles and

all relevant fa cts and c ircums tances . Id. Seco nd, the presu mptio n doe s not a pply

to the legal conclusions reached by the trial court in sentencing.             Third, the

presumption does not ap ply when the determination s made by the trial court are

predicated upon u ncontro verted fa cts. State v. S mith, 898 S.W.2d 742, 745 (Tenn.

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn. 1 995).




      Our review requires an analysis of: (1) The evidence, if any, received at the

trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the argum ents of co unsel rela tive to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his ow n beh alf; and (7) the d efend ant’s


                                           -8-
potential for rehab ilitation or treatm ent. Ten n. Code Ann. §§ 40-35-102, -103, & -

210; see Sta te v. Sm ith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).




      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 facts and principles set out under the sentencing law, and that

the trial court’s findings of fact are adequately supported by the record, then we may

not modify the sentence even if we would h ave pre ferred a d ifferent resu lt. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court followed proper statutory sentencing procedure, and

therefore, review by this Court is de novo with a presumption of correctness.




      Consecutive sentences shou ld be im pose d only after the proof establishes (1)

that the terms imposed are reasonably related to the severity of the offenses

committed; (2) the sentenc e is necessa ry to protect the public from further criminal

acts by the offende r; and (3) that the defendant meets at least one of the criteria as

set forth in Tennessee Code Annota ted sectio n 40-35 -115(b). State v. Wilkerson,

905 S.W .2d 933 (Te nn. 1995).




      The trial court recognized Defendant’s long-term pattern of criminal activity.

See Tenn. C ode Ann. § 40-35-115(b)(2). Defendant’s criminal record includes

convictions for assault, receiving stolen property, driving on a revoked license, and

unlawful posse ssion of a weap on. Wh ile on bond for the revoked license and

weapons offenses, Defendant was convicted for driving on a revoked license and


                                          -9-
reckless driving. Defendant then received two (2) more convictions for driving on a

revoked license. Defendant also has three (3) convictions for selling cocaine or

possession of cocaine with intent to sell. Defendant was on parole for those

convictions when he committed the present offenses.              The trial court found

Defe ndan t’s repeated violations of the law to be a “steady stream of crimes . . . with

appa rently no control.” We agree with the trial cou rt and fin d that th is proo f is

sufficient to suppo rt a finding th at Defen dant’s crim inal activity has been extensive.

See, e.g., State v. Chrisman, 885 S.W .2d 834 ,839 (Te nn. Crim . App. 19 94).




       In ordering consecutive sentencing, the trial cou rt explic itly stated, “I’ve also

considered whether or not that’s a sentence disproportionate to the gravity of these

offenses pursuant to case law.” The trial court found the crimes in the instant case

to be se vere. P olice officers attempted to stop Defendant because he was in a

stolen car, and a s a result, Defen dant pulled a g un on the officers . The trial court

also found Defendant to have “a conscious disregard for the safety of citizens and

a disregard for the courts and orders of the co urt.” Ce rtainly it can be reasoned from

the foregoing statements that the trial court found consecutive sentencing to be

reaso nably related to the sev erity of the cr imes a nd also fo und it nec essary to

protect the public from future crim es by this Defen dant. See Wilkerson, 905 S.W.2d

at 939.   We agree with the trial court’s finding that consecutive sentencing is

appro priate in this cas e. This issue is withou t merit




      Based on all the foregoing, the judgment of the trial court is affirmed.




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                         ____________________________________
                         THOMAS T. WO ODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
PAUL G. SUMME RS, Judge




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