          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON                FILED
                           FEBRUARY SESS ION, 1998            May 5, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TE NNE SSE E,               )   C.C.A. NO. 02C01-9704-CR-00159
                                     )
            Appellee,                )   SHELBY COUNTY
                                     )
V.                                   )
                                     )   HON . JAME S C. B EASLE Y, JR.,
                                     )   JUDGE
KENNETH W. JACKSON,                  )
                                     )   (AGGRAVATED ASSAULT;
            Appe llant.              )   RECKLESS ENDANGERM ENT )



FOR THE APPELLANT:                       FOR THE APPELLEE:

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

TONY N. BRAYTON                          GEORGIA BLYTHE FELNER
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

                                         KAREN COOK
                                         Assistant District Attorney General
                                         Criminal Justice Center, Suite 301
                                         201 Poplar Avenue
                                         Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Defe ndan t, Kenn eth W . Jacks on, ap peals as of rig ht from his convictions

for aggravated assault and reckless endangerment following a jury trial in the Shelby

Coun ty Criminal Court. The trial court sentenced Defendant as a Rang e II Multip le

Offender to ten (10) years for the aggravated assault conviction and four (4) years

for the reckless endangerment conviction. The sentences were ordered to run

cons ecutive ly and Defendant was a lso fine d a tota l of $2,0 00. In th is app eal,

Defendant argues that the evidence was insuffic ient to sustain convictions for

aggravated assault and reckless endangerment and that the trial c ourt er red in

ordering the senten ces to be served c onsec utively. We affirm the judgment of the

trial court.



       Angie Sanders and one o f her sisters, Nina, we re co-signors on a lease to an

apartment on East Mallory Street in Memphis. In early August 1995, th ey went to

the apartment to evict another sister, Marilyn Clemmons, from th e apa rtmen t. Angie

Sanders testified that the Defendant, Ms. Clemmons’ boyfriend, was present during

the eviction and told h er that she wa s “going to get wh at [she] got com ing.”



       Ms. Sanders did not see the Defendant again until August 22, 1995.

Sometime between 12:00 noon and 1:00 p.m. that afternoon, Ms. Sanders pulled

into the driveway of her home at 3750 Mia mi Str eet. An gie Sa nders lived at th is

home with her twelve-year-old sister, Shaquita, who was with her on this day. As

Ms. Sanders pulled into the drivew ay, she saw th e Def enda nt in a white car parked

nearby. She and Shaquita went into the house, and each went to their respective

bedrooms. Ms. Sanders’ bedroom is located on the front of the house facing the

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street and has two big windows, with each one providing a view o f the stre et. Ang ie

Sanders watched Defendant from the windows, and she saw him pass her house

two or three times in the white car. As he passed the house the last time, Ms.

Sanders saw Defendant point a gun toward the house. She then yelled for Shaq uita

to “hit the floor” because Shaquita was on her way out of her bedroom going toward

the front of the house. Angie Sanders heard shots and immediately called the

police.



      Testimony at trial revealed that there were four bullet holes in the front of Ms.

Sanders’ home, and th at two o f the bu llets ha d actu ally entered the home striking an

interior wall. Memphis Police Officer Jamie Joyner testified that he arrived at the

scene about !:00 p .m., and that Shaquita “just sat there just real scared stiff and

tears dripping down off her face.” Acco rding to Officer Joyner, Ms. Sanders was

“real panicked, real trembling, nervous, scared.” No one was physically injured.



      The Defendant testified on his own behalf and stated that at the time of the

shoo ting he was at his mother’s house where he also lived. He said that he had

been at Marilyn Clem mons’ ho use earlier that day b efore driving bac k to his mo ther’s

house. He denied ever previously having any cross words with Angie Sanders. He

also denied even being present when Angie Sand ers evic ted M arilyn C lemm ons in

early Aug ust.



      Marilyn Clemmons, sister of Angie Sanders, also testified for the defense.

She stated that Defendant had been at her house the morning of August 22, 1995.

Defendant was babysitting Ms. Clemmons’ children while she went to report her

sister An gie San ders to the police for taking her pos sessions w hen the locks were

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changed on her fo rmer res idence . She sa id that she arrived back home between

12:00 noon and 1:00 p.m. on that day. She testified that Defendant then left to go

home to his mother’s house. She said that Defendant drove her blue Chevrolet

Nova to his mother’s house. Approximately ten minutes after Defe ndan t left, Ang ie

Sanders called her and asked to speak to Defendant. Ms. Clemmons then called

Defen dant at his mothe r’s house where h e said he had just a rrived.



       Ms. Clemmons testified that the distance between her home and An gie

Sanders’ is a twenty (20) to twenty-five (25) minute drive. She said that the distance

from her home and Defendant’s mother’s house is approximately a ten (10) to fifteen

(15) minute drive. According to Ms. Clemmons, the drive from Ms. Sanders’ home

to Defen dant’s m other’s ho me is fiftee n (15) m inutes.



                            I. Sufficiency of the Evidence



       Defendant argues that the evidenc e prese nted at trial w as insufficie nt to

support his convic tions for ag gravated assau lt and reck less end angerm ent.

Specifica lly, he conte nds tha t the eviden ce was insufficient a s to identity.



       When an accused challenges the sufficiency of the convicting evidence, the

stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the

prosection, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ).

This stand ard is a pplica ble to fin dings 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 (Tenn. Crim. App. 1990). On appeal, the

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State is entitle d to the strong est leg itimate view of th e evide nce a nd all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence 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 th e verdict re turned b y the trier of fac t. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn. 1982)); State v. Grace, 493 S.W.2d 474, 476 (Ten n. 1973).



       Questions concerning the credibility of the witnesse s, the weig ht and va lue to

be given the evidence, as well as all factual issues raise d by the evidenc e, are

resolved by the trier of fa ct, not this co urt. 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 reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge ac credits the State’s w itnesses and res olves all co nflicts

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



       In this case , in order to s upport a conviction for aggravated assault, the State

must have proven that Defendant in tention ally or kn owing ly com mitted an as sault

as defined in Tennessee Code Annotated section 39-13-101, and used or displayed

a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B). In order to support the

conviction for reckless endangerment, the proof must show that Defendant acted

reckle ssly by firing shots into Ms. Sanders’ home and that that conduct placed or

could have placed twelve-year old Shaquita in imminent danger of death or serious

bodily injury. T enn. C ode An n. § 39-1 3-103(a ).




                                            -5-
       Ms. Sanders unequivocally stated that when she and Shaquita pulled into the

driveway of their hom e that she saw D efenda nt drive by in a white car. Once inside

the house, they w ent to their respective bedrooms. Ms. Sanders’ bedroom is located

on the front of the house facing the street, a nd has two big w indows which bo th

provide a view of the street. Ms. Sanders watched Defendant through those

windows drive past her house two to three times before actually shooting. Ms.

Sanders testified that she actually saw Defendant point a gun toward the house.

She to ld her tw elve-ye ar-old sister to “hit the floor,” and then she called the police.

The police determined that four bullets were fired at Ms. Sanders’ house.



       When viewing the evidenc e in the light m ost favorable to the State, the jury

justifiably could have found beyond a reasonable doubt that Defendant was the

person who fired the gun at Ms. Sanders’ home, and that he did so knowing that Ms.

Sanders and Shaquita were inside the house at that time. Ms. Sanders testified that

she is positive that the person she saw fire the shots at her house was D efenda nt.

It was c ertainly within the jury’s prerogative to accred it the State’s witnesse s and to

believe their ver sion o f the fac ts rathe r than D efend ant’s. A s a firea rm wa s use d in

the commission of this offense, all the elements of aggra vated assa ult as d efined in

Tennessee Code Annotated section 39-13-102(a)(1)(B) were proven beyond a

reason able do ubt.



       The nature of this o ffense , intentio nally, kn owing ly or rec klessly firin g a gun

into an occup ied house, ce rtainly meets the stand ard for rec kless co nduct.

Additionally, the fact that two of the four bullets entered the house, satisfies the

requirement that the cond uct pla ced o r could have p laced Shaq uita in imminent




                                             -6-
danger of death or serious bodily injury, thereby justifying the reckless

endan germe nt convictio n. This iss ue is witho ut merit.



                                    II. Sentencing



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

the mann er in which they are to be serve d. Defen dant was sentenced to ten (10)

years as a Range II offender for the aggravate d assault con viction and four (4) yea rs

as a Ran ge II offend er for the re ckless e ndang ermen t conviction. The trial court

ordered the sentences to be run consecutively.          Defendant contends that the

sentences should have been orde red to run con currently.



      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 senten ce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-3 5-401(d). Th is presump tion is “conditioned u pon the affirma tive

showing in the reco rd 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 the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces. Id. Seco nd, the presu mptio n doe s not a pply

to the legal conc lusions re ached by the trial co urt in sente ncing.       T hird, the

presumption does not apply whe n the determ inations mad e by the trial court are

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

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).




                                          -7-
      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 arguments of counsel relative 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

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

210; see Sta te v. Smith , 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 sentenc e 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 th e sente nce eve n if we wo uld have preferred a different re sult. 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.



      Consec utive sentences should be imposed only after the proof establishes (1)

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

committed; (2) the sente nce is ne cessar y to protect the public from further criminal

acts by the offender; and (3) that the d efenda nt mee ts at least one of the criteria as

set forth in Tennessee Code Annotated section 40-35-1 15(b). State v. Wilkerson,

905 S.W .2d 933 (Tenn . 1995).



      In considering whether to order consecutive or concurrent sentences, the

court found two factors to be app licable: (1) that Defend ant has a rec ord of extensive

                                           -8-
criminal activity; and (2) that he was a d angero us offend er. See Tenn. Code Ann.

§ 40-35-115(b)(2) and (4). The court specifically stated:

             [T]he Court ha s taken in to accou nt the fact that the
             defendant has a -- is an offender whose record of criminal
             activity is extensive and also that this is a dangerous
             offender. For the sta tute whose behavior indicates little or
             no regard for hum an life a nd no hesita tion abou t a crime
             in which the risk to human life is high; the Court finds that
             both of tho se are a pplicable .


      The record reflects that Defendant had an extensive criminal history. The

court found th at Defendant had four prior felony convictions, five misdemeanor

convictions, and had even violated his proba tion in the p ast. We find that this proof

is sufficient to support a finding that Defendant’s criminal activity has been extensive.

See, e.g., State v. Chrisman, 885 S.W .2d 834 , 839 (T enn. C rim. App . 1994).

Because only one of the enumerated factors in Tennessee Code Annotated section

40-35-115(b) must be fou nd by a prepo ndera nce o f the evid ence in order to impose

consecu tive sentencing, w e need no t address the matter of the trial court finding

Defendant to be a dangerous offender under Tennessee Code Annotated section

40-35-115 (b)(4). See also Mann ing v. State, 883 S.W.2d 635, 641 (Tenn. Crim.

App. 1994). We further agree with the trial court’s finding that it is necessary to

protect the pu blic from Defe ndan t and w e find th at con secu tive sen tencin g is

reaso nably related to the severity of the offenses committed by Defendant in th e

case sub judice. See Wilkerson, 905 S.W .2d at 938 . This issu e is withou t merit.



      Based on the fore going re asons , we affirm th e judgm ent of the tria l court.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge

                                           -9-
CONCUR:



(not participating)
JOSEPH B. JONES, Judge



JOHN H. PEAY, Judge




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