        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                        JUNE, 1997 SESSION
                                                    October 9, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,        )
                           )      No. 03C01-9609-CR-00351
           Appellee,       )
                           )
vs.                        )      Hamblen County
                           )
RICKY LEE JARNAGIN,        )      Honorable James E. Beckner, Judge
                           )
           Appellant.      )
                           )      (Reckless Aggravated Assault)



FOR THE APPELLANT:                FOR THE APPELLEE:

CHARLES G. CURRIER                JOHN KNOX WALKUP
709 Market St.                    Attorney General & Reporter
Knoxville, TN 37902
                                  MARVIN E. CLEMENTS, JR.
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  C. BERKELEY BELL
                                  District Attorney General
                                  109 E. Main St., Ste. 501
                                  Greenville, TN 37743

                                  VICTOR VAUGHN
                                  Assistant District Attorney General
                                  520 Allison St.
                                  Morristown, TN 37814


OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE


                               OPINION
             The defendant, Ricky Lee Jarnagin 1, was convicted in a jury trial in

the Hamblen County Criminal Court of reckless aggravated assault, a Class D

felony. As a Range I, standard offender, he received a four-year sentence in

the Department of Correction and a one thousand dollar fine. In this direct

appeal, the defendant challenges the sufficiency of the evidence and contends

that he received an inappropriate sentence.



             We affirm the judgment of the trial court.



              The grand jury returned a two-count indictment against the

defendant for intentionally and knowingly causing serious bodily injury to Bobby

Joe Hayes (Count 1) and Edward Myers (Count 2). Tenn. Code Ann. § 39-13-

102(a)(1)(A). The case arose out of an incident that occurred on July 2, 1995 in

the parking lot of the Eagle’s Club2 in which the defendant struck Bobby Hayes

once and Edward Myers twice. The defendant pleaded guilty to simple assault in

the attack on Edward Myers, and the state dismissed Count 2 of the indictment

prior to trial. On March 12, 1996, the jury acquitted the defendant of aggravated

assault as defined by Tennessee Code Annotated section 39-13-102(a)(1)(A)

and found him guilty of reckless aggravated assault. Tenn. Code Ann. § 39-13-

102(a)(2)(A)(Supp. 1996).



             According to testimony submitted at trial, the defendant arrived at

the Eagle’s Club during the evening of July 2. As he was not a member of the


   1
      We note that the transcript of the proceedings and the defendant’s brief
shows his last name to be “Jarnigan.” The policy of this court is to use the name
under which a defendant was indicted. In this case, the indictment identifies the
defendant as “Ricky Lee Jarnagin.”
   2
     The Eagle’s Club is a private social club located in Morristown,
Tennessee.

                                        2
private club, he rang the bell at the back door. A friend, who was a member,

agreed “to sign him in” as a guest. Of the approximately 20 members in

attendance that evening, some were shooting pool, others were drinking in the

bar, and others were just socializing. Several members testified as to the events

they observed during the course of the evening. Peggy Hayes, the victim’s wife,

observed the defendant going from table to table and talking loudly. She

overheard him tell Eddie Myers that there was some guy there that he could

“whoop.” Other witnesses testified that the defendant asked them whether

everyone in the place was scared or if they were just stuck up. Eddie Myers,

who had worked with the defendant, had a friendly conversation with him. At

some point, however, the bar manager became uneasy about the defendant’s

behavior, and the friend who had agreed to be responsible for the defendant as

a guest decided to withdraw his signature. At the request of the manager, Eddie

Myers told the defendant that he would have to leave and walked with him to the

back door. As the defendant stepped out into the parking lot, Myers turned back

to speak to someone, and when he turned around again, the defendant hit him

twice in the face with his fist. Carol Cody reported hearing something hit the

building, and when she opened the door, she saw the defendant hit Myers.



             At least four or five other members came out into the parking lot.

Cody testified that she pulled the defendant’s hair and shoved him away from

Myers. She said that the defendant slapped her, and, after exchanging some

heated words, he turned to walk toward his car. Bobby Hayes, who sometimes

served as bar manager, followed closely behind him. According to the state’s

witnesses, the defendant suddenly turned around and punched Hayes in the

face. Hayes fell backwards striking his head hard against the pavement. The

defendant jumped in his car and left the parking lot.


                                         3
              The defendant’s statement to the police and his testimony at trial

confirmed the fact that he was asked to leave the club and that Eddie Myers

walked with him to the door. However, the defendant alleged that Myers had

taken his arm and shoved him out the door. When he protested, they got into a

scuffle in which he hit Myers two times. After his confrontation with Cody, she

and the victim followed him to his car. They were walking very closely behind

him. The defendant said that he was frightened because several club members

had pursued him into the parking lot, and when someone slapped him on the

side of the head, he turned and struck the person closest to him. He did not

know Bobby Hayes and had never spoken to him.



              Hayes was seriously injured. He was semi-conscious when he

arrived at the local hospital. From there he was taken by helicopter to the

trauma center at University of Tennessee Hospital in Knoxville. He suffered a

fracture to the base of his skull, various abrasions and bruises to the soft-tissue

of the brain, and fractured bones in his face. His condition was complicated by

the fact that he had a steel plate in his skull from a previous injury although his

doctor testified that the current injury was to a different area of the brain. His

permanent injuries include a limited grip in his right hand, serious short term

memory loss,3 and a decreased ability to control his frustration and anger. He

spent six weeks in the hospital and another month in a rehabilitation center.

Medical expenses exceeded $150,000.



              Based on this evidence, the jury acquitted the defendant of an

intentional or knowing aggravated assault but found him guilty of reckless

aggravated assault pursuant to Tennessee Code Annotated section 39-13-


   3
       For example, he may not remember the doctor from one visit to the next.

                                          4
102(a)(2)(A) and recommended a fine of one thousand dollars. The defendant

now contends that the evidence does not establish beyond a reasonable doubt

all the elements of the crime. We respectfully disagree.



              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, 317 (1979); State v. Duncan, 698 S.W.2d 63, 67

(Tenn. 1985); Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct

and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim.

App. 1990).

              In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 250, 253

(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, 199 Tenn. 298, 286

S.W.2d 856, 859 (1956), cert. denied 325 U.S. 845, 77 S.Ct. 39 (1956); Farmer

v. State, 574 S.W. 2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this

court is required to afford the State of Tennessee 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. Cabbage, 571 S.W.2d at

835.



              The appellant was tried and convicted by a jury. A guilty verdict

from the jury, approved by the trial judge, accredits the testimony of the State's

witnesses and resolves all conflicts in favor of the State. State v. Williams, 657


                                          5
S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 639 (Tenn.

1978). Since a verdict of guilty removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court

of demonstrating why the evidence is insufficient, as a matter of law, to support

the verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              A person commits an aggravated assault pursuant to Tennessee

Code Annotated section 39-13-102(a)(2)(A) when he recklessly causes serious

bodily injury to another. A person acts recklessly when the person is aware of a

substantial and unjustifiable risk that a given result will occur but consciously

disregards that risk. Tenn. Code Ann. § 39-11-302(c)(1990). The nature and

degree of the risk must be such that its disregard constitutes “a gross deviation

from the standard of care an ordinary person would recognize.” Id.



              In this instance, the record contains more than adequate evidence

to support the defendant’s conviction. The defendant, in plain view of several

witnesses, swung around and hit the victim full force in the face with his fist.

None of the witnesses saw the victim, who is twenty years older than the

defendant, make any aggressive gestures or touch the defendant. The

defendant did not know the victim and had never exchanged any words with him.

Without question, the defendant acted recklessly by slamming his fist into the

face of a man whom he did not know and who had done nothing more

threatening than walk behind him in a parking lot.4




   4
       Even if one credits the defendant’s testimony that he was slapped on the
side of the head, the defendant admitted that he did not know for certain who
had hit him.

                                          6
              The defendant excuses his actions on the grounds that he was

frightened by the five or six people who had come out of the club. He thought

that they were “all going to come out on me,” and, therefore, he was justified in

attacking Mr. Hayes. The trial court instructed the jury on self-defense, and the

jury rejected that defense. 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 833,

835 (Tenn. 1978). The jury accredited the state’s witnesses and disregarded the

defendant’s testimony. All factual conflicts have been resolved in favor of the

state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The defendant’s

action constitutes a “gross deviation” from the standards imposed by a civilized

society.



              As result of the defendant’s reckless act, the victim spent weeks in

the hospital and will never fully recover from his injuries. The defendant’s

reckless act caused serious bodily injury. Any rational juror could have found

the elements of reckless aggravated assault beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 317 (1979); State v. Duncan, 698 S.W.2d 63,

67 (Tenn. 1985); Tenn. R. App. P. 13(e).



              As his second issue, the defendant questions whether the trial

court imposed the appropriate sentence. The defendant’s brief in this respect is

totally inadequate. It contains one paragraph on the sentencing issue and lacks

any meaningful legal argument or citation to authorities. Issues which are not

properly supported may be treated as waived. Tenn. R. Ct. Crim. App. 10(b).

However, we chose to discuss briefly the defendant’s single complaint.




                                         7
              When a defendant appeals a sentencing issue, the law requires

this court to conduct a de novo review of the record. If the record affirmatively

demonstrates that the trial court considered the sentencing principles and all

relevant facts and circumstances, the review is conducted with a presumption

that the determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d); State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991); State v. Byrd,

861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The defendant has the burden

to show that his sentence is improper. State v. Gregory, 862 S.W.2d 574, 578

(Tenn. Crim. App. 1993).



              The gist of defendant’s complaint is that the trial judge incorrectly

considered the misdemeanor conviction arising out of his attack on Eddie Myers,

and that the trial judge placed inordinate weight on that conviction in arriving at

the four-year sentence. The transcript of the sentencing hearing is not clear as

to whether the trial judge actually considered the conviction in question in his

sentencing decision. However, the record does show that when the trial judge

made the reference to the weight, he was referring not to one conviction, but to

the emphasis he was placing on the defendant’s entire record which shows

convictions for driving while impaired, striking a police officer, and assault and

battery. 5 Even without the questioned conviction, the trial court was justified in

placing great weight on the defendant’s previous history of criminal convictions or

criminal behavior. Tenn. Code Ann. § 40-35-114(1) (1990).




   5
       In the trial court, the defendant did not dispute the accuracy of the record
included in the presentence report. He contended only that some of the
convictions were more than ten years old and should not be used to enhance his
sentence. He has not raised this issue on appeal.

                                          8
              The defendant raises no objection to the other two enhancement

factors or to the trial judge’s denial of alternative sentencing. Therefore we do

not address those issues in detail. We have carefully reviewed the record, the

presentence report, and the transcript of the sentencing hearing. The trial court

found that the evidence supported three enhancement factors: (1) that the

defendant has a previous history of criminal convictions or criminal behavior

beyond that necessary to establish the appropriate range; (8) that the defendant

has a previous history of unwillingness to comply with conditions of release into

the community; and (10) the defendant had no hesitation about committing a

crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114

(1),(8), (10) (1990). Although we find the applicability of enhancement factor 10

to be questionable in this case, we conclude that the defendant’s proven

propensity for violence, his inability to accept any responsibility for his actions,

and his failure to complete successfully a previous probationary period are

sufficient to justify a four-year sentence in the Department of Correction as a

Range I offender.



              We affirm the defendant’s conviction for reckless aggravated

assault and the sentence imposed by the trial court.

                                                   __________________________
                                                   CURWOOD W ITT, Judge



______________________________
JOHN H. PEAY, Judge



______________________________
JOSEPH M. TIPTON, Judge




                                           9
