         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 27, 2001

                   STATE OF TENNESSEE v. RAUL T. GARCIA

                  Direct Appeal from the Criminal Court for Greene County
                      No. 00-CR-080     James Edward Beckner, Judge



                                 No. E2000-02817-CCA-R3-CD
                                         July 31, 2001

A Greene County jury convicted the Defendant of reckless aggravated assault, a Class D felony, and
the trial court sentenced the Defendant as a Range I, standard offender to four years in the Tennessee
Department of Correction. The Defendant now appeals, challenging the sufficiency of the evidence
and the propriety of the sentence imposed by the trial court. After a careful review of the record, we
conclude that the evidence is sufficient to support the conviction and that the sentence is proper.
Accordingly, the judgment of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Michael A. Walcher, Morristown, Tennessee, for the Appellant, Raul T. Garcia.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; and Cecil Clayton Mills, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

        The Defendant was indicted by the Greene County Grand Jury on September 5, 2000 for the
offense of aggravated assault, a Class C felony. The indictment alleged that the Defendant
knowingly caused serious bodily injury to Kenneth Sizemore by striking him with a garden hoe. The
Defendant was tried by a jury of his peers on September 28, 2000 and was found guilty of the lesser-
included offense of reckless aggravated assault. On appeal, the Defendant argues that the evidence
was insufficient to support the conviction and that the jury should have found him not guilty because
he acted in self-defense. The Defendant also argues that the trial court improperly sentenced him
to four years in the Tennessee Department of Correction, specifically arguing that the trial court
improperly applied one enhancing factor (the use of a deadly weapon) and that the trial court
improperly rejected all of the Defendant’s proposed mitigating factors. Further, the Defendant
argues on appeal that the trial court erred in failing to impose a sentence other than incarceration.
Concluding that the evidence is sufficient to support the conviction and that the trial court properly
sentenced the Defendant, we affirm the judgment of the trial court.

                                             I. FACTS

         On Sunday, June 18, 2000, the incident resulting in the Defendant’s conviction occurred at
the Cross Anchor trailer park in Greeneville, Tennessee. The victim, Kenneth Sizemore, lived in
a trailer next to the trailer in which Regina Absher lived. Ms. Absher, at that time and at the time
of trial, was the girlfriend of the Defendant. According to Ms. Absher, the Defendant came home
under the influence of alcohol and became physically abusive towards her. Apparently hearing Ms.
Absher’s cries for help, Mr. Sizemore came to Ms. Absher’s trailer door. Ms. Absher managed at
that moment to break free from the Defendant and rush out of the trailer, knocking Mr. Sizemore off
the porch. Ms. Absher then saw the Defendant obtain a garden hoe and begin swinging it at Mr.
Sizemore.

         Mr. Sizemore testified that he was almost asleep when he heard someone yelling, “[H]elp,
help, Kenny. He’s killing me.” When Mr. Sizemore went to the aid of Ms. Absher, the Defendant
turned Ms. Absher loose; looked at Mr. Sizemore; came down the steps of the trailer, saying, “I’ll
kill you white boy”; grabbed the hoe; and started swinging the hoe around “like some kind of martial
arts.” Mr. Sizemore testified that as he backed up to keep from being hit, the Defendant struck him
in the left hand with the hoe. As Mr. Sizemore walked back toward his trailer, the Defendant swung
the hoe, and Mr. Sizemore raised his right hand up “to keep him from striking me any . . . you know,
in the side of the head, and it struck my right hand.” Mr. Sizemore went into his trailer to get away
from the Defendant and wrapped his wrist in a towel because of “severe bleeding.” Mr. Sizemore
testified that the Defendant struck his trailer door two or three times with the hoe after Mr. Sizemore
had entered his trailer. Mr. Sizemore further testified that his injuries required extensive surgery,
for which he ultimately was flown to Jewish Hospital in Louisville, Kentucky. At the time of the
trial, Mr. Sizemore testified that the use of his right hand was “extremely limited.”

         Dr. Donald Hanson testified that he was an independent contractor employed at Laughlin
Emergency Room, Laughlin Memorial Hospital, and that he treated Mr. Sizemore for the injuries
that he sustained in this incident. Dr. Hanson found that Mr. Sizemore had a tendon laceration on
the back of his left index finger and severe lacerations in the wrist of the right hand. He further
testified that Mr. Sizemore had no use of his right thumb, index finger, or middle finger, although
Mr. Sizemore had touch sensation that was intact to the index finger. Dr. Hanson referred Mr.
Sizemore to the Jewish Hospital in Louisville, Kentucky for further treatment. Dr. Hanson testified
that Mr. Sizemore volunteered to him that he had had three to five beers the afternoon before the
incident. He testified that Mr. Sizemore exhibited no effects from the alcohol and that Mr. Sizemore
was alert, cooperative to the examination and treatment, and in no way combative, disruptive, or
otherwise belligerent to the treatment.




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         The Defendant testified that Ms. Absher became upset with him when she noticed that he
“had drunk a little bit.” According to the Defendant, Ms. Absher starting arguing with him and
started to throw “all the things she found on the coffee table at [him].” The Defendant testified that
he tried to calm Ms. Absher down, but she opened the door and ran outside. As the Defendant
followed her, the two of them encountered “Mr. Kenny coming around the corner with a stick in his
hand. The stick looked like a two-by-four.” The Defendant testified that Mr. Sizemore came
towards him with the stick and started swinging it at him. He claimed that Mr. Sizemore hit him
“two or three, maybe even four, times.” The Defendant explained that he picked up the hoe to
defend himself from Mr. Sizemore’s attack with the two-by-four. The Defendant testified that Mr.
Sizemore fell down during their “fight,” at which time the Defendant remembered having kicked Mr.
Sizemore two or three times. According to the Defendant, Mr. Sizemore then got up and went
running inside the trailer. The Defendant testified that he went behind Mr. Sizemore to “make sure
he was going inside of the trailer and wouldn’t come back out.”

       Although Ms. Absher testified that she did see Mr. Sizemore with a two-by-four, she
admitted that she had never mentioned in any of her previous statements that the victim had a two-
by-four. Mr. Sizemore denied having a two-by-four. Ms. Absher testified that she saw the
Defendant swing the hoe at the victim, although she did not see the actual striking of the victim with
the hoe. She also denied making a previous statement that the Defendant swung the hoe at both
Sizemore and her. She testified that Sizemore was drunk when he came to her trailer.

                                           II. ANALYSIS

                                  A. Sufficiency of the Evidence

        The Defendant was charged with committing a knowing aggravated assault against Kenneth
Sizemore, and he was convicted of the lesser-included offense of reckless aggravated assault. Thus,
the State was required to prove beyond a reasonable doubt that the Defendant recklessly caused
serious bodily injury to the victim. See Tenn. Code Ann. § 39-13-102(a)(2)(A).

        When an accused challenges the sufficiency of the evidence, an appellate court’s 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. Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds, State v. Hooper, 29
S.W.3d 1 (Tenn. 2000).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999). Questions


                                                  -3-
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. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.

        In this case, the evidence, taken in the light most favorable to the State, clearly supports the
finding by the jury that the Defendant committed a reckless aggravated assault against Kenneth
Sizemore. “Serious bodily injury” is defined as bodily injury which involves: (A) a substantial risk
of death; (B) protracted unconsciousness; (C) extreme physical pain; (D) protracted or obvious
disfigurement; or (E) protracted loss or substantial impairment of a function of a bodily member,
organ or mental faculty. Tenn. Code Ann. § 39-11-106(a)(34). The testimony of the victim and Dr.
Donald Hanson supports the finding by the jury that Mr. Sizemore suffered serious bodily injury.
Also, there is clearly sufficient evidence from which a rational trier of fact could conclude, as did
the jury in this case, that the serious bodily injury was inflicted upon Mr. Sizemore by the Defendant.
The jury determined that the Defendant acted recklessly rather than knowingly, and thus convicted
the Defendant of a Class D reckless aggravated assault rather than a Class C knowing aggravated
assault. The jury was instructed on the issue of self-defense and obviously rejected the Defendant’s
claim of self-defense. The Defendant’s argument that the evidence is insufficient to support his
conviction in this case is without merit.

                                           B. Sentencing

        The trial court sentenced the Defendant to four years incarceration with the Tennessee
Department of Correction. The Defendant contests the length of his sentence and the trial court’s
denial of alternative sentencing.

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must 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, 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). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (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


                                                  -4-
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        Reckless aggravated assault is a Class D felony. Tenn. Code Ann. § 39-13-102(d). The
presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is the minimum
within the applicable range unless there are enhancement or mitigating factors present. Tenn. Code
Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start at the
presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and then
reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e). The
weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d at123.
However, the sentence must be adequately supported by the record and comply with the purposes
and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237 (Tenn.
1986).

       When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors 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 have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

       In this case, the trial court followed the statutory sentencing procedure and considered the
sentencing principles and all relevant facts and circumstances. Therefore, our review is de novo with
a presumption that the determinations made by the trial court are correct.

        The Defendant first contests the length of his sentence. The sentencing range for a Range
I, standard offender convicted of a Class D felony is between two and four years. Tenn. Code Ann.
§ 40-35-112(a)(4). In sentencing the Defendant, the trial court applied enhancement factor (1), that
“[t]he [D]efendant has a previous history of criminal convictions or criminal behavior” and
enhancement factor (9), that “[t]he [D]efendant possessed or employed a . . . deadly weapon during
the commission of the offense . . . .” Tenn. Code Ann. § 40-35-114(1), (9).



                                                  -5-
         It is important to note that the possession or employment of a deadly weapon was not an
element of the reckless aggravated assault for which the Defendant was convicted. As indicted, the
“aggravation” of the assault was the alleged serious bodily injury to Kenneth Sizemore. Therefore,
the trial court correctly enhanced the Defendant’s sentence based upon the use of the garden hoe as
a deadly weapon.

        With regard to the Defendant’s prior criminal convictions or criminal behavior, the trial court
noted a “1997 conviction for driving under the influence in Greene County, a February 23 of 2000
conviction for driving without a license, and a February 25 of 2000 conviction for public
intoxication.” The Defendant does not contest the trial court’s application of this enhancement
factor.

         The trial court carefully considered possible mitigating factors. The trial court rejected the
Defendant’s assertion that he had acted under strong provocation. Likewise, the trial court rejected
the Defendant’s assertion that substantial grounds existed which tended to excuse or justify the
Defendant’s criminal conduct. Finally, the trial court rejected, under the particular circumstances
of this case, the proposition that the Defendant’s difficulty with the English language or the
Defendant’s difficulty in understanding the “customs of the country” as mitigating factors in this
case. The trial court found no other mitigating factors. Because we conclude that the trial court
properly applied two enhancement factors and found no mitigating factors, the sentence of four years
is justified in this case.

       Finally, the Defendant argues that he should have received some form of alternative
sentencing. With regard to alternative sentencing, the trial court stated the following:
               I do not believe that alternative sentencing or probation is an appropriate
       sentence by this court for several reasons, one, that this is a crime of violence to the
       person in which serious bodily injury was caused; because there has been a prior
       record; because there’s been a history of alcohol abuse and alcohol is involved in this
       offense; because of deterrence consideration. This is basically a domestic dispute,
       and it seems that more and more, and more and more, and more and more that we’re
       having people attempting to solve all their domestic disputes by violence. Also, it
       appears to be a very irregular or poor employment history.

       Tennessee Code Annotated § 40-35-102(5) provides as follows:

        In recognition that state prison capacities and the funds to build and maintain them
        are limited, convicted felons committing the most severe offenses, possessing
        criminal histories evincing a clear disregard for the laws and morals of society, and
        evincing failure of past efforts at rehabilitation shall be given first priority regarding
        sentencing involving incarceration . . . .

       A defendant who does not fall within this class of offenders “and who is an especially
mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a


                                                   -6-
favorable candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he
trial court must presume that a defendant sentenced to eight years or less and not an offender for
whom incarceration is a priority is subject to alternative sentencing and that a sentence other than
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard
offender convicted of Class D felony, is presumed to be a favorable candidate for alternative
sentencing.

         However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may
be overcome if
                 (A) [c]onfinement is necessary to protect society by restraining a defendant
         who has a long history of criminal conduct;
                 (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
         offense or confinement is particularly suited to provide an effective deterrence to
         others likely to commit similar offenses; or
                 (C) [m]easures less restrictive than confinement have frequently or recently
         been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

        We conclude that in this case, confinement is necessary “to avoid depreciating the
seriousness of the offense.” Tenn. Code Ann. § 40-35-103(1)(B). The Defendant engaged in a
vicious and violent attack upon the victim and caused the victim to suffer extremely serious bodily
injuries, requiring extensive medical treatment. Also, although relatively minor in nature, the
Defendant’s prior criminal record indicates that measures less restrictive than confinement were
recently applied unsuccessfully to the Defendant. Despite being convicted of driving under the
influence and public intoxication, the Defendant apparently continued to abuse alcohol, which
contributed to the facts and circumstances of this case. This pattern of continued abuse of alcohol
does not indicate a positive potential for the rehabilitation of the Defendant. For these reasons, we
conclude that the trial court properly sentenced the Defendant to four years in the Tennessee
Department of Correction.




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         Accordingly, we AFFIRM the judgment of the trial court.1




                                                                 ___________________________________
                                                                 ROBERT W. WEDEMEYER, JUDGE




         1
          The State points out in a footnote on page two of its brief that the judgment in this case cites Tennessee Code
Annotated § 39-13-101 when it should cite Tennesse e Code Annotated § 39-13-102. We respectfully direct the trial
court to enter an amended judgment to correct this error.

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