State v. Smiley ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE 1998 SESSION
October 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9707-CR-00305
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. PHYLLIS MILLER,
RICHARD T. SMILEY, ) JUDGE
)
Appellant. ) (Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN W. SHEPHERD JOHN KNOX WALKUP
404 Ellis Ave. Attorney General & Reporter
Maryville, TN 37804
TODD R. KELLEY
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
DORIS MATTHEWS
Asst. District Attorney General
220 Carson St.
Madisonville, TN 37354-1130
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted for aggravated assault. A jury found the
defendant guilty of simple assault. Following a sentencing hearing, the trial court
imposed an eleven month and twenty-nine day sentence, ordering the defendant to serve
ten weekend days in jail with the balance on probation. In this appeal as of right, the
defendant argues that the trial court improperly sentenced him and improperly instructed
the jury. Finding no merit to the defendant’s arguments, we affirm.
The fifty-four-year-old defendant had worked with Teresa Gourley as a
painter, painting houses, barns, and other buildings. The defendant maintained that he
and Gourley had an ongoing sexual affair, despite both of them being married to other
people for a significant period of time. The victim, W. F. Bivens, is a truck driver. On
November 21, 1995, he was at a C & G Market in Monroe County unloading fuel from his
truck when Gourley, who was acting scared and was crying, ran to his truck. The victim
knew Gourley; she had painted his barn on a previous occasion. Gourley sought refuge
with him because the defendant had chased her and hit her with his van, knocking her
to the ground.1
The victim drove Gourley to his next delivery point in Blount County, where
they intended to call Gourley’s husband. However, the defendant followed them, blocking
Gourley’s access to a telephone with his van. The defendant also circled the parking lot
in his van, taking pictures of the victim and Gourley. The defendant demanded three
hundred dollars ($300) in return for the photographs he had taken and said he was going
to Wal-Mart to have the film developed.
1
These events apparently resulted in reckless endangerment and assault charges in Monroe
Cou nty.
2
The victim testified that the defendant had finally stopped his van at the rear
of his (victim’s) truck. He then walked to the back of his truck, believing that the
defendant wanted to talk. Instead, the defendant jumped out of his vehicle and stabbed
the victim’s left-hand ring finger with a knife and drove away. After wrapping his finger
in a rag, the victim retrieved his personal pick-up truck to drive to the hospital. On the
way to the hospital, he stopped by Wal-Mart, where he spotted the defendant’s van. He
reported the stabbing to a police officer there. Later, the victim sought medical treatment
at the hospital, where the injury to his finger required surgery because an artery had been
severed.
The defendant’s version of the events differ as to where and how the
stabbing occurred. According to the defendant, he had seen Gourley and the victim
together on a previous occasion and was jealous. He admitted taking pictures of them,
but claims that Gourley offered him three hundred dollars ($300) for the film. He told
Gourley he was going to Wal-Mart to have the film developed and then left. He drove to
Wal-Mart, parked his van, and went inside the store to drop off the film and purchase
other items. While he waited in his van for the film to be developed, Gourley and Bivens
approached his van, hit his window with a pistol, and began threatening him. When
Bivens grabbed his window, the defendant became scared and stuck his knife up to the
window, cutting Bivens’ hand.
The defendant was indicted for aggravated assault by using a deadly
weapon to knowingly cause bodily injury, but after hearing the evidence, a jury found the
defendant guilty of simple assault and fixed a fine of two thousand five hundred dollars
($2500). A sentencing hearing followed, at which neither side presented additional
evidence. The trial court found that the defendant’s lack of candor regarding how the
stabbing occurred indicated he was a poor candidate for rehabilitation. The trial court
3
also found that the defendant and the public would benefit from some form of
incarceration and that a sentence without incarceration would depreciate the seriousness
of the offense. Further, the trial court noted that the defendant’s actions involved a
deadly weapon, affected more than one victim, and created a high risk to human life. The
trial court also noted that the defendant’s lack of prior criminal conduct was a mitigating
factor. Considering all of this, the trial court imposed a sentence of eleven months and
twenty-nine days, ordering the defendant to serve ten days in county jail with the balance
on probation. The trial court also imposed a fine of two thousand five hundred dollars
($2500) and ordered the defendant to pay restitution. The defendant now appeals.
I.
In his first issue on appeal, the defendant contends that the trial court erred
in sentencing him. When a defendant complains of his or her sentence, we must conduct
a de novo review with a presumption of correctness. T.C.A. § 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). The burden of showing that the
sentence is improper is upon the defendant, as the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments.
In misdemeanor sentencing under the Sentencing Reform Act of 1989, trial
judges must adhere to three principles. First, all misdemeanor offenders must be
sentenced in accordance with the purposes, goals, and principles of the Criminal
Sentencing Reform Act of 1989. T.C.A. § 40-35-302(b); see State v. Palmer, 902 S.W.2d
391, 393 (Tenn. 1995). Second, while a separate sentencing hearing is not mandatory,
trial courts are required to allow the parties a reasonable opportunity to be heard on the
question of the length of the sentence and the manner in which it is to be served. T.C.A.
4
§ 40-35-302(a); see Palmer, 902 S.W.2d at 393. Third, trial judges must set a release
eligibility percentage not greater than 75%, or alternatively, “grant probation immediately
or after a period of split or continuous confinement.” Id. In the instant case, the
defendant does not challenge the fact he was provided a reasonable opportunity to be
heard on the length and manner of service of his sentence. Rather, the defendant argues
that the trial court erred by failing to adhere to the principles, goals and purposes of the
Sentencing Reform Act and by failing to set a release eligibility percentage.
The defendant contends that he was entitled to immediate probation and
that the trial court failed to follow the principles of the Sentencing Reform Act by ordering
him to serve ten days incarcerated. We disagree. Although he disputes the details of the
stabbing, the defendant admitted stabbing the victim and circling a parking lot several
times in his van while taking pictures of the victim and Gourley. Prior to this, the
defendant chased and hit Ms. Gourley with his van in the parking lot of the C & G Market
in Monroe County, resulting in reckless endangerment and assault charges. The trial
court specifically found that the defendant and the public would both be served by some
form of incarceration and that a sentence without incarceration would depreciate the
seriousness of the offense. The trial court also specifically found that the defendant
lacked candor, which is probative of the defendant’s potential for rehabilitation.
Considering all of this, the defendant has not shown how a ten-day period of incarceration
is improper.
The defendant also argues that the trial court erred in failing to set a release
eligibility percentage. Here, the trial court imposed a sentence of eleven months and
twenty-nine days, ordering the defendant to serve ten days in confinement with the
balance on probation. Because of the trial court ordered probation following a period of
confinement, it did not need to set a release eligibility percentage. See Palmer, 902
5
S.W.2d at 393.
The defendant makes two other brief contentions. The defendant argues
that the trial court improperly considered his gender in sentencing him, thus violating the
sentencing principle stated in T.C.A. § 40-35-102(4) that sentencing must exclude
consideration of one’s gender. After a review of the record, we find no support for the
defendant’s contention; merely mentioning a defendant’s gender does not equate with
considering it as a factor in sentencing the defendant.
The defendant also contends that the trial judge erred in following her
preference “to start in the mid range on a misdemeanor sentence.” The defendant
contends that by allowing each trial judge to follow his or her preference---whether that
be to start in the low-, mid-, or high-range---unjustified disparity between offenders’
sentences results, in violation of a stated purpose of the Sentencing Reform Act. See
T.C.A. § 40-35-102(2). The defendant’s argument assumes, however, that all judges
prefer to start at a different point in the range. There simply is no evidence to prove that
contention. Even so, in the instant case, the trial judge’s preference “to start in the mid
range” does not violate the Sentencing Reform Act. Unlike the felon, the misdemeanant
is not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d
829, 832 (Tenn. Crim. App. 1994). Moreover, nowhere in the Sentencing Reform Act
does the Legislature specify where in the appropriate sentencing range a trial judge
should begin the sentencing process on a misdemeanor charge, allowing a trial judge
certain discretion in sentencing misdemeanor offenders. This discretion allows trial
judges to begin anywhere in the appropriate sentencing range they choose, without
violating the purpose stated in § 40-35-102(2). Accordingly, the trial judge’s preference
in the instant case to begin in the mid-range of the applicable sentence was not error.
6
II.
In his second issue on appeal, the defendant argues that the trial court
improperly instructed the jury. Following closing arguments, the trial court instructed the
jury on the offenses of knowing aggravated assault, reckless aggravated assault, reckless
endangerment, and simple assault.2 First, the defendant contends that he is entitled to
a reversal because the trial court failed to instruct the jury on all definitions of simple
assault.
Simple assault, a lesser grade offense of aggravated assault, is committed
when a person "(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury;
or (3) Intentionally or knowingly causes physical contact with another and a reasonable
person would regard the contact as extremely offensive or provocative." T.C.A.
§ 39-13-101(a)(1)-(3). Simple assault committed by violating subsections (1) or (2) is a
Class A misdemeanor, but assault committed by violating subsection (3) is a Class B
misdemeanor. § 39-13-101(b). Here, the trial court instructed the jury as to simple
assault under subsection (1), but did not instruct the jury under subsections (2) and (3),
which the defendant claims was error. We disagree.
Defendants are entitled to jury instructions on all lesser included offenses
and on all offenses which are a lesser grade or class of the charged offense, but only if
the evidence would support a conviction for the offense. State v. Trusty, 919 S.W.2d
305, 311 (Tenn. 1996). Here, it is undisputed that the defendant stabbed the victim’s
hand, inflicting bodily injury on the victim. Neither party presented any evidence that the
2
The record contains a written copy of the jury instructions, but not a transcription of the
instruction s as rea d to the jury, wh ich this Co urt has re peated ly admo nished is genera lly necessa ry to
facilitate full appellate review of issues involving jury instructions. However, because there is no
apparent dispute in the instant case about what instructions were read to the jury, we will review the
issue presented.
7
defendant’s actions caused the victim to reasonably fear bodily injury or that the
defendant’s contact with the defendant was extremely offensive or provocative. See §
39-13-101(a)(2)-(3). Thus, the defendant was not entitled to instructions on the
definitions of simple assault found in § 39-13-101(a)(2)-(3).
The defendant also argues that the trial court erred in defining two terms
that were not explicitly mentioned in the indictment, specifically, the term “intentionally,”
which was defined in conjunction with the charge on knowing aggravated assault, and the
term “serious bodily injury,” which was defined in conjunction with the charge on reckless
endangerment. The defendant contends that giving these two instructions were
misleading and confusing to the jury and thus, a reversal is warranted. We disagree.
The indictment charges the defendant with “unlawfully and knowingly
caus[ing] bodily injury to W.F. Bivens by the use of a deadly weapon, to-wit: a knife, in
violation of Tennessee Code Annotated, Section 39-13-102.” We are convinced that the
indictment as written was sufficient to put the defendant on notice of the charges against
him. As such, we do not find error with the trial court instructing the jury on the definition
of “intentionally.”
Moreover, we conclude that the instruction for “serious bodily injury” was not
error because the elements of reckless endangerment, a lesser grade offense of
aggravated assault, may be charged so long as there is evidence to support it. See
Trusty, 919 S.W.2d at 311. Here, there was evidence to support a finding of serious
bodily injury, which includes the protracted loss or substantial impairment of a function
of a bodily member, because the injury to the victim’s finger severed an artery and
required surgery. Even if charging the jury on serious bodily injury was error, we
conclude it was harmless beyond a reasonable doubt because the defendant was not
8
found guilty of reckless endangerment.
In sum, we find no merit in the defendant’s arguments on appeal.
Accordingly, the defendant’s conviction and sentence for assault is affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
DAVID G. HAYES, Judge
9