State v. Abdul Odom

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
April 7, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9705-CR-00185
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER,
ABDUL M. ODOM, ) JUDGE
)
Appellant. ) (Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID I. KOMISAR JOHN KNOX WALKUP
211 Printers Alley Building Attorney General and Reporter
Suite 400
Nashville, TN 37201-1414 JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
PAMELA S. ANDERSON
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant appeals his conviction by a Davidson County jury of the
offense of aggravated assault. He raises two (2) issues for our review; namely,
(1) whether there was a variance between the indictment and the proof sufficient
to merit a judgment of acquittal, and (2) whether the trial court erred in
sentencing the defendant by using inapplicable enhancement factors. The
judgment of the trial court is affirmed.
I.
The Metro Police Department for Davidson County applied for and
received a search warrant for the residence of Janice E. Bradford. Officer Ernest
Cecil was among the officers who executed the warrant. Once inside the
apartment, Officer Cecil proceeded to a bedroom where he observed the
defendant attempting to exit through a window. When the defendant saw Officer
Cecil enter the bedroom, he turned and pointed a pistol toward the officer.
Officer Cecil then raised his pistol and aimed it at the defendant. Before either
man fired, a juvenile girl either jumped or was pulled between them. The
defendant threw his pistol down, charged the officer, and, after a struggle, was
apprehended by Cecil with the help of other officers. Defendant’s pistol was
loaded with one live round in the chamber and a full magazine clip.
The defendant was convicted by a jury of aggravated assault, possessing
a deadly weapon, and resisting arrest. The trial court sentenced the defendant
as a Range I offender to concurrent terms of four (4) years for aggravated
assault, thirty (30) days for the weapons charge, and six (6) months for resisting
arrest. The defendant appeals only his conviction and sentence for aggravated
assault.
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II.
The defendant contends the trial court erred in not granting his motion for
judgment of acquittal. He avers the evidence presented at trial was that he
"displayed" the weapon, while the indictment alleged he "used" it. The
defendant argues the ordinary meaning of the word "used" led him to believe the
state was charging him with firing the weapon, or striking Officer Cecil with the
weapon. The effect of this variance, according to the defendant, is fatal.
Firstly, we find no variance. The defendant pointed the loaded weapon
toward the officer causing him to fear imminent bodily injury. Thus, the
defendant “used” the deadly weapon within the meaning of the statute. Tenn.
Code Ann. § 39-13-102 (1)(B).
Secondly, even if there was a variance, it was not fatal. In order for a
variance between the indictment and the proof to be fatal, the variance must be
both material and prejudicial to the defendant. State v. Mayes, 854 S.W.2d 638,
640-41 (Tenn. 1993); State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). A
variance is not material “where the allegations and proof substantially
correspond, the variance is not of a character which could have misled the
defendant at trial and is not such as to deprive the accused of his right to be
protected against another prosecution for the same offense.” State v. Moss, 662
S.W.2d at 592. The defendant has failed to demonstrate that the variance
between the indictment and the proof was material.
III.
The defendant contends the trial court erred by improperly applying
enhancement factors in his sentencing. 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
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and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). If the trial court fails to comply with the statutory directives, there
is no presumption of correctness and our review is de novo. State v. Poole, 945
S.W.2d 93, 96 (Tenn. 1997).
The trial court found the defendant "possessed or employed a firearm,
explosive device or other deadly weapon during the commission of the offense";
and "had no hesitation about committing a crime when the risk to human life was
high." Tenn. Code Ann. §§ 40-35-114 (9), (10). The defendant alleges these
factors are essential elements of aggravated assault by use of a deadly weapon
and may not be used for enhancement purposes. Any fact necessary to prove
an essential element of an offense may not be used to enhance the sentence for
that offense. See Tenn. Code Ann. § 40-35-114; State v. Jones, 883 S.W.2d
597, 601 (Tenn. 1994). The defendant’s use of a weapon is an element of the
offense charged; therefore, this factor was misapplied.
The defendant also contends that the risk to human life is high any time
an aggravated assault with a weapon occurs; therefore, this factor was
misapplied as well. The use of this enhancement factor is proper when persons
other than the victim are placed in danger by the actions of the defendant. State
v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The juvenile girl could
easily have been shot as she was between the officer and the defendant when
the defendant pointed the loaded weapon. This enhancement factor was
properly applied.
Additionally, although not relied upon by the trial court, we find Tenn.
Code Ann. § 39-13-102 (d) applicable as the assault was committed against a
police officer. This may be considered as an enhancement factor.
Considering the proper enhancement factors, we find the four (4) year
sentence, one (1) year above the minimum, to be appropriate.
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Finding no reversible error, the judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
JOSEPH M. TIPTON, JUDGE
_________________________
DAVID H. WELLES, JUDGE
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