State v. Roberts ( 1998 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE         FILED
    AUGUST 1998 SESSION         October 19, 1998
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,                    )
    )    NO. 03C01-9707-CR-00259
    Appellee,                        )
    )    SULLIVAN COUNTY
    VS.                                    )
    )    HON. PHYLLIS H. MILLER,
    HAGAN PAUL ROBERTS, II,                )    JUDGE
    )
    Appellant.                       )    (Reckless Aggravated Assault)
    FOR THE APPELLANT:                          FOR THE APPELLEE:
    STEPHEN M. WALLACE                          JOHN KNOX WALKUP
    District Public Defender                    Attorney General and Reporter
    TERRY L. JORDAN                             SANDY C. PATRICK
    (at trial)                                  Assistant Attorney General
    Assistant Dist. Public Defender             Cordell Hull Building, 2nd Floor
    P.O. Box 839                                425 Fifth Avenue North
    Blountville, TN 37617-0839                  Nashville, TN 37243-0493
    B.C. McINTURFF                              H. GREELEY WELLS, JR.
    (on appeal)                                 District Attorney General
    132 Broad Street
    P.O. Box 583                                J. LEWIS COMBS
    Kingsport, TN 37662-0583                    Assistant District Attorney General
    P.O. Box 526
    Blountville, TN 37617-0526
    OPINION FILED:
    AFFIRMED
    JOE G. RILEY,
    JUDGE
    OPINION
    The defendant, Hagan Paul Roberts, II, appeals as of right his conviction
    by a Sullivan County jury of reckless aggravated assault by the display and use
    of a deadly weapon. He was sentenced as a Range II, multiple offender, to
    seven (7) years imprisonment. On appeal, the defendant presents the following
    issues for review:
    (1) whether the evidence was sufficient to support the
    jury’s verdict;
    (2) whether the trial court properly admitted
    photographs of the victim into evidence;
    (3) whether the trial court erred in allowing the state to
    question a defense witness about her gender;
    (4) whether the trial court erred in allowing the victim
    to testify regarding prior altercations with the
    defendant;
    (5) whether the cane used in the commission of the
    offense could be considered a deadly weapon; and
    (6) whether the trial court properly sentenced the
    defendant.
    After a careful consideration of the record, the judgment of the trial court is
    AFFIRMED.
    FACTS
    The victim, Teresa Gillenwater, was the defendant’s girlfriend. She
    described their 3 ½ year relationship as stormy and believed it was nearly over
    when the assault occurred. Although the couple once lived together, they
    maintained separate residences at the time of the incident.
    On the evening of May 1, 1996, the victim called the defendant and asked
    him to come to her apartment to discuss his courtship of another woman. The
    victim testified that she had several drinks of vodka waiting for the defendant.
    2
    The defendant arrived around midnight and entered the victim’s bedroom where
    she was sleeping. They began arguing about the woman the defendant was
    supposedly seeing. The defendant attempted sexual intercourse, but the victim
    resisted by scratching him. The defendant then punched the victim, knocking
    her down. When she attempted to get up using a cane, the defendant grabbed it
    and began to strike the victim with the cane.
    The victim apparently lost consciousness during the incident. She
    testified that the next thing she remembered was waking up the following
    morning with the defendant still in her apartment. After having consensual
    sexual intercourse with the victim that morning, the defendant showered and left.
    The victim did not initially intend to seek medical attention for the injuries
    she received in the incident. However, the following evening she lost vision in
    her left eye and it became very painful. Her daughter took her to the emergency
    room. Hospital personnel called the police after seeing the victim’s injuries.
    Kingsport police officers questioned the victim at length and took photographs of
    her injuries. Her face and neck were bruised, and she had multiple linear marks
    on her back consistent with being struck with a cane.
    The jury was charged as to the indicted offense of intentional aggravated
    assault. They returned a verdict of guilty for the lesser offense of reckless
    aggravated assault.
    SUFFICIENCY OF THE EVIDENCE
    The defendant contends the evidence presented at trial was insufficient to
    support a verdict of guilt for reckless aggravated assault. The defendant asserts
    that he was defending himself from an unprovoked attack by the victim.
    3
    When an accused challenges the sufficiency of the evidence, this Court
    must review the record to determine if the evidence adduced during the trial was
    sufficient "to support the findings by the trier of fact of guilt beyond a reasonable
    doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
    predicated upon direct evidence, circumstantial evidence or a combination of
    direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn.
    Crim. App.1996).
    In determining the sufficiency of the evidence, this Court does not reweigh
    or reevaluate the evidence. State v. Cabbage, 
    571 S.W.2d 832
    , 835
    (Tenn.1978). Nor may this Court substitute its inferences for those drawn by the
    trier of fact from circumstantial evidence. Liakas v. State, 
    199 Tenn. 298
    , 305,
    
    286 S.W.2d 856
    , 859 (1956). To the contrary, this Court is required to 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. State v. Tuttle, 
    914 S.W.2d 926
    , 932 (Tenn. Crim. App.1995).
    The victim testified that she resisted the defendant while he attempted to
    perform sexual intercourse. The defendant became angry and punched the
    victim. The victim testified that after the defendant knocked her down with
    punches she attempted to use a cane in order to stand up. The defendant
    grabbed the cane and began beating her with it. The cane was made an exhibit
    at trial. Photographs admitted into evidence show linear bruises on the victim’s
    back consistent with multiple blows from a cane. Viewing the facts in a light
    most favorable to the state, there is sufficient evidence for the jury to have found
    the defendant guilty of recklessly causing the victim bodily injury by use of a
    deadly weapon.
    This issue is without merit.
    4
    PHOTOGRAPHS
    The defendant contends the trial court erred in admitting photographs of
    the victim showing injuries not inflicted by the deadly weapon. The defendant
    also asserts the photographs depict injuries not inflicted on the night in question.
    The defendant failed to object to the admission of the photographs at trial.
    The trial court, consequently, was not afforded the opportunity to determine their
    potential for unfair prejudice. Therefore, the issue is waived. Tenn. R. App. P.
    36(a). Furthermore, even if the issue were not waived, we would conclude that
    the trial court did not abuse its discretion in admitting the photographs. See
    State v. Stephenson, 
    878 S.W.2d 530
    , 542 (Tenn. 1994).
    This issue is without merit.
    SCOPE OF CROSS-EXAMINATION
    The defendant alleges as his third issue that the trial court erred in
    allowing the state to cross-examine a witness as to her gender. The witness
    testified for the defendant regarding the victim’s prior conduct at the defendant’s
    apartment.1 The defendant claims the questions were an impermissible attempt
    to impeach the witness’ credibility.
    On cross examination, the prosecutor asked the witness, “Now, is it, it’s
    Mr. Sierra West, is that correct?” The witness replied, “No, sir, it’s Sierra West.”
    The prosecutor replied that he needed to refer to the witness as either “Mister” or
    “Miss.” The witness responded, “Miss.” Defense counsel objected,
    1
    The witness testified that she met the defendant one (1) month prior to
    the incident. She testified that she had seen the victim at the defendant’s
    apartment “ranting and raving.” The witness further testified that the victim acted
    as if she believed the defendant and the witness were romantically involved.
    5
    contending the state was attempting to “slur” the witness.
    During a jury-out hearing, the prosecutor stated that the witness was listed
    as a male on her driver’s license, but dressed as a female in court. The witness
    testified in the jury-out hearing that she was born with the sexual organs of both
    sexes.2 The witness preferred to be addressed as a female and was currently
    “taking care of that problem.”
    The prosecutor argued “[i]f she’s one sex and she’s dressed as another,
    then she’s portraying herself as something she’s not . . . I think it has to do with
    her credibility.” Defense counsel vociferously argued this line of questioning was
    irrelevant and demeaning to the witness.
    At the conclusion of the jury-out hearing, the trial court, while noting this
    matter to have “some relevance to this case,” stated that the jury would be
    instructed to disregard the prosecutor’s question. Defense counsel,
    nevertheless, stated that he intended to give the witness an opportunity to
    explain her condition. The trial court then responded that the prosecutor would
    be allowed to ask the witness if she was listed as a male on her driver’s license,
    and the witness would be given the opportunity to explain her condition. This
    procedure was followed when the jury heard her testimony.
    This Court concludes that an attempt to utilize hermaphrodism as a
    ground for general impeachment would be improper. 3 However, defense
    counsel desired to allow the witness to explain her condition. This was done.
    2
    This anatomical condition is known as hermaphrodism or
    hermaphroditism.
    3
    As to marking “male” on the drivers license application and
    subsequently claiming to be female, the probative value of such evidence is
    clearly outweighed by its prejudicial effect even if it were deemed “relevant” to
    credibility. Tenn. R. Evid. 403.
    6
    We conclude there was no prejudice to the defendant. See Tenn. R. App. P.
    36(b).4
    PRIOR INCIDENTS
    The defendant contends the trial court also erred by allowing the victim to
    testify to prior violent episodes by the defendant on redirect examination.
    Defense counsel asked the victim on cross-examination about a contempt
    citation that she received for “filing a false warrant against [the defendant].”
    Counsel then asked the victim, “You all hadn’t had any violent confrontations or
    anything of that sort?” The victim responded, “There had been other times that
    he had slapped me.”
    When the state attempted to rehabilitate the victim’s testimony by
    inquiring into the prior violent episodes, the defendant objected, arguing that the
    prior incidents were overly prejudicial.
    The prosecution replied that the defense had opened the door to the
    testimony by asking whether there had been prior violent episodes between the
    defendant and the victim. The trial court agreed with the state that the defendant
    had opened the door to the testimony on prior violent episodes. The victim was
    able to testify to three (3) instances of violence by the defendant and the injuries
    she received on those occasions.
    4
    Canon 3B(6), Code of Judicial Conduct, Sup. Ct. Rule 10, provides as
    follows:
    A judge shall require lawyers in proceedings before the judge to
    refrain from manifesting, by words or conduct, bias or prejudice
    based upon race, sex, religion, national origin, disability, age,
    sexual orientation, or socioeconomic status, against parties,
    witnesses, counsel, or others. This Section 3B(6) does not
    preclude legitimate advocacy when race, sex, religion, national
    origin, disability, age, sexual orientation, or socioeconomic status,
    or other similar factors, are issues in the proceeding.
    7
    The admissibility of testimony and other evidence, as well as the scope of
    redirect examination, is within the discretion of the trial court, which will not be
    reversed absent demonstration of an abuse of that discretion. State v. Barnard,
    
    899 S.W.2d 617
    , 624 (Tenn. Crim. App. 1994).
    The trial court did not abuse its discretion allowing the victim to testify on
    redirect to the prior incidents as the defendant “opened the door.” The state,
    attempting to avoid any potential prejudice to the defendant, had avoided
    reference to the prior incidents on direct examination. The defendant, however,
    created an impression on cross-examination that no prior violent incidents
    occurred between them. The victim’s testimony on redirect was appropriate in
    light of the circumstances.
    This issue is without merit.
    DEADLY WEAPON
    The defendant raises as his fifth issue the characterization of the cane as
    a deadly weapon. The defendant alleges the state failed to prove the mens rea
    of the crime as it failed to prove his intent to use the cane as a deadly weapon.
    According to statute, "'[d]eadly weapon’ means: [a]nything that in the
    manner of its use or intended use is capable of causing death or serious bodily
    injury[.]" Tenn. Code Ann. § 39-11-106(5)(B). "Serious bodily injury" results from
    bodily injury involving "(A) [a] substantial risk of death; (B) [p]rotracted
    unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted or obvious
    disfigurement; or (E) [p]rotracted loss or substantial impairment of a function of a
    bodily member, organ or mental faculty[.]" Tenn. Code Ann. § 39-11-106(34).
    8
    The trial court correctly instructed the jury as to the elements of the crime
    charged and applicable definitions. The jury found the defendant guilty of
    reckless aggravated assault, which necessarily included a finding that the cane
    was a deadly weapon. It is clear that the jury could have found the manner in
    which the defendant used the cane made it capable of causing serious bodily
    injury.
    This issue is without merit.
    SENTENCING
    In his final issue, the defendant contends trial court erred in denying
    probation and setting an excessive sentence. The defendant submits that the
    majority of his past convictions were drug related, and that the victim was the
    instigator of the subject incident.
    This Court’s review of the sentence imposed by the trial court is de novo
    with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
    presumption is conditioned upon an affirmative showing in the record that the
    trial judge considered the sentencing principles and all relevant facts and
    circumstances. State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991).
    A. Probation
    Under the Criminal Sentencing Reform Act of 1989, trial judges are
    encouraged to use alternatives to incarceration. An especially mitigated or
    standard offender convicted of a Class C, D or E felony is presumed to be a
    favorable candidate for alternative sentencing options in the absence of
    evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).
    9
    In determining if incarceration is appropriate, a trial court may consider the
    need to protect society by restraining a defendant having a long history of
    criminal conduct, the need to avoid depreciating the seriousness of the offense,
    whether confinement is particularly appropriate to effectively deter others likely to
    commit similar offenses, and whether less restrictive measures have often or
    recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-
    35-103(1); see also State v. Ashby, 823 S.W.2d at 169.
    The defendant, although convicted of a Class D felony, was sentenced as
    a Range II, multiple offender because of prior felony convictions. The
    presumption of alternative sentencing, therefore, does not apply. Tenn. Code
    Ann. § 40-35-102(5), (6). In determining that incarceration was appropriate, the
    trial court explicitly found that less restrictive measures had been unsuccessfully
    applied to the defendant previously, that he had a long history of criminal
    conduct, and that confinement was necessary to avoid depreciating the
    seriousness of the offense.
    The defendant had over ten (10) prior felony convictions and over ten (10)
    misdemeanor convictions from 1971 until the present. On numerous prior
    occasions, he had received alternative sentencing. He has continued to violate
    the law. The trial court properly considered the relevant criteria for alternative
    sentencing. The denial of alternative sentencing is entitled to a presumption of
    correctness and was proper.
    This issue is without merit.
    B. Length of Sentence
    The defendant also contends the trial court imposed an excessive
    10
    sentence. The burden is upon the appealing party to show that the sentence is
    improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
    If no mitigating or enhancement factors for sentencing are present, Tenn.
    Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
    minimum sentence within the applicable range. See State v. Fletcher, 
    805 S.W.2d 785
    , 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a
    trial court should start at the minimum sentence, enhance the minimum sentence
    within the range for enhancement factors and then reduce the sentence within
    the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No
    particular weight for each factor is prescribed by the statute, as the weight given
    to each factor is left to the discretion of the trial court as long as the trial court
    complies with the purposes and principles of the sentencing act and its findings
    are supported by the record. State v. Moss, 
    727 S.W.2d 229
    , 238 (Tenn. 1986);
    State v. Leggs, 
    955 S.W.2d 845
    , 848 (Tenn. Crim. App. 1997); State v. Santiago,
    
    914 S.W.2d 116
    , 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-
    210 Sentencing Commission Comments.
    The range of the defendant’s sentence was 4-8 years. Tenn. Code Ann.
    § 40-35-112(b)(4). In determining the length of sentence, the trial court applied
    three (3) enhancement factors and one (1) mitigating factor. The trial court
    found the defendant had an extensive criminal history as evidenced by
    numerous convictions other than those relied upon to establish the defendant as
    a Range II, multiple offender. Tenn. Code Ann. § 40-35-114(1). The trial court
    further found the defendant was on probation at the time of the instant offense.
    11
    Tenn. Code Ann. § 40-35-114(13)(C). The trial court enhanced the defendant’s
    sentence to eight (8) years.5 The trial court then found that a sustained intent to
    violate the law did not motivate the defendant’s conduct and mitigated the
    sentence down to seven (7) years. Tenn. Code Ann. § 40-35-113(11).
    Based upon the trial court’s findings, the sentence of seven (7) years was
    appropriate. This issue is without merit.
    CONCLUSION
    In summary, there was sufficient evidence for a rational trier of fact to find
    the defendant guilty of reckless aggravated assault. Further, the trial court
    correctly denied probation and arrived at an appropriate sentence of
    incarceration. Accordingly, the judgment of the trial court is AFFIRMED.
    5
    The trial court also found the defendant had previously shown an
    unwillingness to comply with conditions of a sentence involving release into the
    community. Tenn. Code Ann. § 40-35-114(8). The record does not support the
    application of this enhancement factor. In spite of the multitude of convictions,
    the record does not reveal that any offense or proven violation was committed
    while the defendant was on probation or while on any other condition of a
    sentence involving release into the community. However, the trial court expressly
    stated at the sentencing hearing that it was giving this factor little weight.
    Accordingly, we see no need in reducing the defendant’s sentence.
    12
    _________________________
    JOE G. RILEY, JUDGE
    CONCUR:
    ___________________________
    JOSEPH M. TIPTON, JUDGE
    ___________________________
    THOMAS T. WOODALL, JUDGE
    13