State of Tennessee v. Khamphonh Xayyasith

09/20/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 19, 2021
STATE OF TENNESSEE v. KHAMPHONH XAYYASITH
Appeal from the Criminal Court for Davidson County
No. 2019-C-1623 Steve Dozier, Judge
No. M2020-00379-CCA-R3-CD
The Defendant, Khamphonh Xayyasith, was convicted by a Davidson County Criminal
Court jury of three counts of aggravated assault, a Class C felony, and domestic assault, a
Class A misdemeanor. See T.C.A. §§ 39-13-102 (2018) (subsequently amended)
(aggravated assault); 39-13-111 (2018) (domestic assault). The trial court merged the
aggravated assault convictions and imposed concurrent sentences of fifteen years for
aggravated assault and eleven months, twenty-nine days for domestic assault. On appeal,
the Defendant contends that (1) the evidence is insufficient to support his aggravated
assault convictions, (2) the trial court erred by admitting a recorded jail telephone call, and
(3) his sentence is excessive. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.
Martesha L. Johnson, District Public Defender; and Jeffrey A. DeVasher (on appeal),
Jonathan Wing (at trial), and Casey Elliot (at trial), Assistant District Public Defenders, for
the appellant, Khamphonh Xayyasith.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Jenny Charles and J.
Wesley King, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The Defendant’s convictions relate to two October 2018 incidents, which involved
Sokonthea Chek, the mother of the Defendant’s children. The Defendant was charged with
three counts of aggravated assault based upon the alternative theories that he caused the
victim serious bodily injury, that he caused bodily injury and employed or attempted to
employ strangulation, and that he used or displayed a deadly weapon. He was likewise
charged with domestic assault related to a separate incident.
At the trial, the victim testified that she had known the Defendant approximately
thirteen to fifteen years and that they shared a son and a daughter. The victim said that her
children were ages four and ten in October 2018. She said that in late September and early
October, she lived with her parents and children but that the Defendant lived with the
Defendant’s sister and her seven children. The victim explained that her relationship with
the Defendant had been “on again, off again” and that they were attempting to work on
their relationship. She said that her cell phone agitated the Defendant and that he began
wanting to look through her phone’s content. She said that she began working as a model,
that the Defendant “approved” initially, that his behavior changed, and that she became
concerned. She said that on one occasion, the Defendant took her phone, looked through
it, and accused her of “things.” She said that on another occasion, the Defendant broke her
phone, which she replaced.
The victim testified that the children lived with her the majority of the time but that
the children visited the Defendant at his sister’s home. The victim said that during
September and October 2018, the Defendant drove a convertible BMW.
The victim testified that on Sunday, October 7, 2018, she took the children to the
Defendant’s sister’s home for the children to visit the Defendant. The victim recalled that
the Defendant’s sister was not home and said that the Defendant asked for her cell phone,
that he looked at photographs on her phone, and that he accused her of being unfaithful.
She said that the Defendant asked questions and began beating her. She said that the
Defendant strangled her at one point during the incident. She said that she was scared, that
the Defendant asked if she were lying to him, and that the Defendant wanted her to say she
had lied to him. She said that the Defendant began “whipping” her with a coaxial cable
cord, which caused pain. She described the cord as the type that screwed into the back of
a television and had copper wires protruding at the end. She said that the Defendant’s
beating her was constant and that she did not count the number of times the Defendant
struck her with the cord. She said that the Defendant stood while she sat on the living room
couch when the Defendant began striking her. She said that as the Defendant struck her
with the cord, he told the victim not to lie and ordered her to tell him what she had done.
She said he stated that she had done “this” and that she had been unfaithful. She said that
at one point, the Defendant “mentioned” he would place her and the children inside the
trunk of a car and set the car on fire. She said she admitted to things that she had not done
because she was scared and because she thought telling him what he wanted to hear would
make him stop beating her.
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The victim testified that she did not defend herself or attempt to take the cord from
the Defendant because she thought he would “use that against” her and because she
believed she should not harm anyone under any circumstances. She said that the Defendant
struck her with the cord on her arm, leg, and back. She said that at some point, the
Defendant placed his hands around her neck and that his fingernail punctured the skin on
her neck. She described the amount of pressure applied to her neck as an eight on a scale
from one to ten. When asked if she was rendered unconscious, she said that she felt dizzy,
could not speak anymore, and had blurred vision. She said the Defendant squeezed her
neck for probably five minutes, although it felt like thirty seconds. She said that as the
Defendant squeezed her neck, he told her to tell him the truth and not to lie to him but that
she could not speak. The victim stated that after the incident, her pain level was a ten and
that she felt as though she could not walk out of the home because she had a “sleepy
feeling.” She said that her then-four-year-old son entered the room during the incident and
that the Defendant yelled at their son to leave the room.
The victim testified that on October 8, 2018, she stayed at the home with her
children because she could not move from the pain. She thought the Defendant would have
beaten her if she attempted to leave with the children. She said that she could not walk
without assistance and could not care for her children. She said that the Defendant
apologized and attempted to care for her, that they had sexual intercourse, and that she
“gave in” because she feared he would hurt her if she were not intimate with him. She said
that the Defendant had her cell phone and continued to allege she had been unfaithful. She
said that the Defendant, likewise, had taken their daughter’s phone. She said the Defendant
did not strike her on October 8.
The victim testified that she and the children were unable to leave the home until
the morning of October 9, 2018, and that the Defendant returned her and her daughter’s
cell phones before they left. The victim said that she drove her son to school and that
afterward, she drove to the hospital. She said her daughter assisted her as they walked into
the emergency room. The victim said that she had bruises on her arm, back, and leg and
had a puncture wound on her neck. She identified photographs of her injuries and said the
red markings on her body were caused by the cord striking her and that a wound to her
shoulder was caused by the cord when it “pinched that part.” She identified lacerations
and bruises on her arms, legs, and back, and a puncture wound on her neck. The
photographs were received as an exhibit.
The victim testified that she had scars on her leg and neck from her injuries. She
displayed one scar on her leg to the jury and described it as “kind of a track mark.” She
said that the scar on her neck was caused by the puncture of the Defendant’s fingernail but
that she had since covered the scar with a tattoo to make it less visible. The victim’s
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medical records were received as an exhibit. She stated her injuries prevented her from
working for an unspecified time. She said that the injury to her leg, caused by one of the
copper wires, became swollen and infected, that she returned to the hospital for treatment,
and that she was prescribed medication.
The victim testified that at an unspecified time after the October 7, 2018 incident
but before October 22, the victim’s daughter requested to go to the Defendant’s sister’s
home because the victim’s daughter wanted to get a manicure and to play with her cousins.
The victim said that she dropped off her daughter, although she knew the Defendant might
be at the home. The victim said that although she had “issues” with the Defendant, she
would not prevent her daughter from visiting family.
The victim testified that on October 22, 2018, at 7:00 a.m., she was about to leave
her parents’ home to return to work for the first time since the October 7 incident. She said
that she lost the job she had at the time of the October 7 incident and that she had started a
new job on October 22. She said that although she never thought the Defendant would
come to her parents’ home, the Defendant came to the home on the morning of October
22. She said that she pulled out of the driveway and drove a couple of blocks, that the
Defendant’s light blue convertible BMW appeared, that the Defendant sped to get in front
of her, and that he used his car to “block [her] off,” as though he were intending to run her
off the road. She said that she put her car in reverse but that she parked the car near her
parents’ home. She said that the Defendant left his car and yelled for her to get out of her
car. She said that she felt threatened, that she called 9-1-1, and that she dropped her cell
phone inside her car to prevent the Defendant from knowing she called the police.
The recording of the 9-1-1 call was received as an exhibit and played for the jury.
In the recording, the dispatcher requested the address of the emergency. A beeping sound
is heard, along with the faint sound of a voice. However, the statements were indiscernible.
The dispatcher repetitively stated, “Hello” and “Ma’am,” before the call ended.
The victim testified that the beeping sound came from her car. When asked why
she did not get out of her car and run away screaming for help, the victim said, “[I]t’s just
the fact that [you’re] in fear . . . and then the fact that I . . . could be hit automatically right
then, right there.” She said that she got inside the Defendant’s car because he threatened
her while she sat in her car and that she left her cell phone inside her car. She said the
Defendant told her that she was “testing” his patience. She said that she was afraid of being
beaten again. She said that after she got inside the Defendant’s car, he told her to tell him
the truth, accused her of lying, showed her his phone, and said he had downloaded
something to his phone that “showed him everything.” She said the Defendant told her
that he would “burn” her in the trunk of his car if she did not tell him the truth. She said
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that she was scared of the Defendant and told him she needed to go to work and that
eventually, he allowed her to leave after she gave him $20 for gas as he requested. She
said that the incident ended because she was able to calm the Defendant. She said that the
Defendant cried and said he “did not want to do this” and that she reciprocated, telling him
she loved him, because she was scared. She said that after she gave him the money, the
Defendant drove her to her parents’ house. She said that she drove to work and that she
called 9-1-1 again after work. A recording of the 9-1-1 call was played for the jury.
In the recording, the victim provided the dispatcher with her name, her parents’
address, and her cell phone number. The victim told the dispatcher about the previous
incident on October 7, 2018, and stated the “person” came to her home earlier in the
morning. The victim expressed the desire for a restraining order, and the dispatcher asked
for a case or compliant number associated with the October 7 incident. A young child is
heard in the background as the victim provided the information to the dispatcher. The
dispatcher stated that the report was filed at the hospital and asked who assaulted her. The
victim identified the Defendant. When asked if the Defendant was at the home, she said
that the Defendant was at the home earlier in the morning and that she placed a 9-1-1 call
at that time, although she did not speak because he “made” her get inside his car and later
returned her to the home. When the dispatcher asked if the Defendant “made” her get
inside his car, she responded, “Yes.” She said that the Defendant told her “he would do
something violent” if she did not talk to him. She described the Defendant’s erratic driving
and said the Defendant looked as though he was going to hit her. She said that later, the
Defendant told her he would take her to her parents’ home if she gave him money. The
dispatcher asked if the Defendant had ever choked her, and the victim responded, “Yes.”
She said her children were not in her car at the time of the incident.
In the recording, the dispatcher told the victim that police would respond to her
home and to call 9-1-1 if the Defendant came to the home again. She told the dispatcher
about the 9-1-1 call she placed earlier in the day and explained that she dropped her phone
because she feared the Defendant would “beat her to death” if he saw her phone. She said
she was “really scared.”
The victim testified that the Defendant had an Instagram account. At this juncture,
the parties stipulated that “the Instagram page belongs to [the Defendant] and the Instagram
posts introduced into evidence were made by him.” The Defendant’s Instagram account
was displayed for the jury, and an October 20, 2018 post reflected as follows:
Lord kno a n---- wrong may GOD be wit me….. I cant undo the wrong
I did but I can make it right!!!! I’m sorry T [breaking heart emoji] i really
miss my kids even tho I act like I don’t that’s only when a n---- mad but still
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I have no right….. I miss being around u guy.. I kno the situation between
ain’t no kiming from that…Daddy Love u guys love u [daughter’s name] luv
u [son’s name] [heart emoji]…..[heart emoji]……..[heart
emoji]………..Forgive me T for the hurt n pain broken…. You kno I’m right
about everything don’t worry I’m not saying Nuttin take my half love [heart
emoji] u till
The victim stated that T referred to her and that “they” called her “Tia.” A video recording
attached to the post was played for the jury and reflected a person holding a child’s toy.
The victim said the recording showed their son’s Transformer toy in the Defendant’s hand.
Another October 20, 2018 Instagram video recording post was played for the jury.
In the recording, a man sat inside a convertible car with a BMW emblem on the steering
wheel. The man repeatedly stated, “It’s really real.” The man left the car and showed the
outside of the light-blue car. The victim identified the man as the Defendant and said the
car depicted in the recording was the same car the Defendant drove to her parents’ home
on October 22.
A recording of an August 10, 2019 jail call placed by the Defendant was played for
the jury. Simultaneous talking and low quality prevent deciphering all of the statements.
However, the recording reflects that the Defendant stated that he called “this b---- so she
could drop me off at your house.” He said that after “that,” he did not call “her” anymore.
He said “this b---- just popped up and never left.” He said he wanted to “get his rocks off”
and laughed.
On cross-examination, the victim testified that the October 7, 2018 incident began
because the Defendant believed she had been unfaithful. When asked, “When he choked
you, you did not lose consciousness during that incident,” the victim responded, “Yes.”
She agreed that the Defendant did not choke her with the cord. She did not recall if the
Defendant covered her nose and mouth as he choked her with his hands. She said, though,
she remembered the Defendant’s hands “thrusted” on her throat. She said it was possible
he had covered her nose and mouth because at one point she could not breathe. She did
not dispute that she did not mention her nose and mouth being covered during her
preliminary hearing testimony and during her police interview two days after the incident
but said that many things happened during the incident and that her primary focus was
being strangled and beaten.
The victim testified that on October 9, 2018, her daughter helped her son get ready
for school. She agreed that she did not obtain an order of protection until October 26. She
said that on the day she dropped off her daughter at the Defendant’s sister’s home, the
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daughter told the victim that the Defendant was “still in that home.” The victim agreed she
did not call the police. She agreed that she mentioned pulling her car into a garage on
October 22 but said that English was not her first language and that she might not have
used the proper words. The victim stated that although she had scars from the October 7
incident, she had no other permanent injuries.
On redirect examination, she testified that she had an additional scar on the back of
her left leg that was not shown to the jury previously because she had covered the scar with
a tattoo.
The victim’s eleven-year-old daughter testified that she lived with her mother,
brother, and grandparents. She said she liked playing with the Defendant’s sister’s
children. She said that on October 7, 2018, she, her brother, and the victim went to the
Defendant’s sister’s home to visit her father. When asked what happened to the victim,
the victim’s daughter said, “Domestic violence by my dad.” She said that although she did
not see the incident, she heard her mother “getting abused” in another room. She said that
she and her brother were in a bedroom, that her brother left the bedroom, that she heard the
Defendant yell at her brother, and that her brother returned to the bedroom crying. She
said that she told her brother not to leave the bedroom. She stated that although she heard
the Defendant talking loudly to the victim, she did not remember what he said. She said
the victim cried.
The victim’s daughter testified that she did not call the police because the Defendant
had taken her cell phone. She said that the Defendant returned her and her mother’s cell
phones on the day she and her mother dropped off her brother at school. She said that
although the victim drove, the victim needed help walking. The victim’s daughter said that
she helped her brother get ready for school and that she and the victim drove to the hospital
after dropping off her brother at school. The victim’s daughter said that at the hospital, she
saw bruises on the victim’s body, including her leg, arm, and back. She said that the victim
did not have the bruises and was capable of walking when they went to the Defendant’s
sister’s house on October 7, 2018. She said she saw the bruises on the victim “right after
the violence.”
The victim’s daughter testified that at an unspecified time after the victim was
released from the hospital, the victim’s daughter wanted to go to the Defendant’s sister’s
home to have her fingernails painted and to play with her cousins. She said the Defendant
was at the home at this time.
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The victim’s daughter testified that on the morning of October 22, 2018, she was at
her grandparents’ house but that her grandparents had already left for work. She said that
as the victim left for work, she called the victim’s cell phone. She said that she looked out
the window and that she saw the victim’s car with nobody inside.
On cross-examination, the victim’s daughter testified that the Defendant and the
victim were in the living room during the October 7, 2018 incident. She said that she did
not see the Defendant on October 22.
Metropolitan Nashville Police Officer Calvin Graham, Jr., testified that he
responded to the hospital on October 9, 2018, at approximately 11:00 a.m. Officer Graham
recalled that the victim had bruises, scratches, and “scars” on her arms, legs, and neck. He
said that he spoke with the victim while medical personnel treated her. He said the victim
had scars on both sides of the neck and a large gash or laceration on the back of her neck,
which he believed supported a conclusion that the incident involved strangulation. He said
that the victim also had scratch marks on the right and back sides of her neck. He said the
victim suffered a deep, more severe wound to the thigh.
On cross-examination Officer Graham testified that the victim reported the
Defendant “attempted” to strangle her. Officer Graham said that the victim said she did
not lose consciousness during the incident. He agreed that the victim did not want to obtain
an order of protection on October 9, 2018, but said that the victim expressed a desire to
obtain an order at a later date.
Metropolitan Nashville Police Officer Taylor Hurley testified that on October 22,
2018, at 5:21 p.m., she spoke to the victim at the victim’s parents’ home. She said the
victim reported, without hesitation, the Defendant’s threatening behavior, which included
threatening to throw the victim in the trunk of his car and taking her wherever he wanted.
Officer Hurley accompanied the victim to the police station to file charges against the
Defendant for domestic assault. Officer Hurley said that although the Defendant had
outstanding arrest warrants related to the October 7 incident and she knew the Defendant’s
address, she did not attempt to arrest the Defendant because the police department had a
high call volume, preventing her from arresting the Defendant.
The Defendant elected not to present any proof.
Upon this evidence, the jury convicted the Defendant of three counts of aggravated
assault in connection with the October 7, 2018 incident and domestic assault in connection
with the October 22 incident. This appeal followed.
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I. Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his aggravated
assault convictions. Although he does not dispute that an assault occurred, he argues that
the evidence failed to establish that the victim suffered serious bodily injury, that he
strangled or attempted to strangle the victim, and that he used or displayed a deadly
weapon. He requests that this court modify his convictions to domestic assault. He does
not challenge the domestic assault conviction in connection with the October 22 incident.
The State responds that the evidence is sufficient to support the convictions pursuant to all
theories of aggravated assault. We agree with the State.
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing 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, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.
As relevant to this case, a person is guilty of assault, in relevant part, if the person
“[i]ntentionally, knowingly or recklessly causes bodily injury to another,” or
“[i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury[.]”
T.C.A. § 39-13-101(a)(1)-(2) (2018) (subsequently amended). “A person commits
aggravated assault who . . . [i]ntentionally or knowingly commits assault as defined in §
39-13-101, and the assault . . . [r]esults in serious bodily injury to another,” “[i]nvolved
the use or display of a deadly weapon,” or “[i]nvolved strangulation or attempted
strangulation[.]” Id. § 39-13-102(a)(1)(A)(i), (iii), (iv).
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A. Serious Bodily injury
Serious bodily injury is defined as an injury involving a substantial risk of death, a
protracted unconsciousness, extreme physical pain, a protracted or obvious disfigurement,
a protracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty, or a broken bone of a child who is twelve (12) years of age or less. Id. 39-
11-106(a)(34) (2019).
The record reflects in the light most favorable to the State that on October 7, 2018,
the Defendant accused the victim of being unfaithful, examined the photographs on her
cell phone, and became angry because he thought the victim had lied to him. The
Defendant beat the victim with a coaxial cable cord and squeezed her neck with his hands,
applying pressure with the force the victim rated an eight on a scale from one to ten. The
victim became dizzy, had blurred vision, and was unable to speak, although she did not
lose consciousness. The Defendant beat the victim with the cord constantly while asking
her questions about infidelity, leaving lacerations, bruises, and scars on her leg and neck.
During the assault, the Defendant stopped striking the victim with the cord and placed his
hands around her neck. As the Defendant squeezed her neck, his fingernail punctured the
skin, leaving a scar. She described her pain level after the assault as a ten on a scale from
one to ten and said she was unable to walk out of the home because of the pain. The victim
remained at the home until October 9 because she could not move from the pain she
experienced. She could not walk without her daughter’s assistance two days later and was
unable to care for her children. The victim’s daughter cared for her younger brother while
they remained at the home. Likewise, the victim was unable to work after the incident
because of her injuries.
The record reflects that the victim experienced extreme pain from the injuries
inflicted by the Defendant. The record likewise reflects that the injuries inflicted by the
Defendant resulted in scars to the victim’s neck and leg. A scar constitutes a protracted or
obvious disfigurement for establishing serious bodily injury. See State v. Charles Eugene
Darvin, Jr., M2018-01669-CCA-R3-CD, 2019 WL 4440220, at *4 (Tenn. Crim. App.
Sept. 17, 2019), perm. app. denied (Tenn. Jan. 15, 2020); State v. Deonte Matthews, No.
M2010-00647-CCA-R3-CD, 2012 WL 5378046, at *4 (Tenn. Crim. App. October 13,
2012), perm. app. denied (Tenn. May 16, 2012); State v. Richard Dale Capps, No. M2010-
02143-CCA-R3-CD, 2012 WL 3800848, at *7 (Tenn. Crim. App. Sept. 4, 2012), perm.
app. denied (Tenn. Feb. 13, 2013). As a result, we conclude that the evidence is sufficient
to support the Defendant’s conviction for aggravated assault resulting in serious bodily
injury to another. He is not entitled to relief on this basis.
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B. Strangulation or Attempted Strangulation
Strangulation is defined as “intentionally or knowingly impeding normal breathing
or circulation of the blood by applying pressure to the throat or neck or by blocking the
nose and mouth of another person, regardless of whether that conduct results in any visible
injury or whether the person has any intent to kill or protractedly injure the victim.” T.C.A.
§ 39-13-102(a)(2).
The record reflects in the light most favorable to the State that during the assault,
the Defendant squeezed the victim’s neck with his hands. The victim described the amount
of pressure applied to her neck by the Defendant’s hands as an eight on a scale of one to
ten. The Defendant’s fingernail punctured the skin on the victim’s neck as he squeezed
her neck. Although she did not lose consciousness, she felt dizzy, could not speak, could
not breathe, and had blurred vision. Officer Graham saw markings on both sides of the
victim’s neck, which he testified were indicative of strangulation, and a large gash or
laceration on the back of the neck. As a result, we conclude that the evidence is sufficient
to support the Defendant’s conviction for aggravated assault involving the use of
strangulation or attempted strangulation. He is not entitled to relief on this basis.
C. Deadly Weapon
A deadly weapon is defined as “[a] firearm or anything manifestly designed, made
or adapted for the purpose of inflicting death or serious bodily injury” or “[a]nything that
in the manner of its use or intended use is capable of causing death or serious bodily injury.”
Id. § 39-11-106(a)(5)(A), (B). If an instrument or weapon is not a deadly weapon per se,
such as a firearm, “it will only be considered a deadly weapon . . . if the defendant in a
particular case actually used or intended to use the item to cause death or serious bodily
injury.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see State v. McGouey, 229
S.W.3d 668, 673 (Tenn. 2007); Morgan v. State, 415 S.W.2d 879, 882 (Tenn. 1967).
The record reflects in the light most favorable to the State that although the coaxial
cable cord was not a deadly weapon per se, the manner in which the Defendant used the
cord made it capable of causing serious bodily injury. The Defendant repeatedly struck the
victim with the cord, causing extreme physical pain. As a result, the Defendant used the
cord in a manner that caused serious bodily injury. See State v. Eaves, 959 S.W.2d 601,
604 (Tenn. Crim. App. 1997) (concluding that the manner in which the defendant used a
pen to stab the victim’s hand, which resulted in a puncture wound, rendered the pen a
deadly weapon because it was capable of causing extreme pain or obvious disfigurement).
As a result, we conclude that the evidence is sufficient to support the Defendant’s
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conviction for aggravated assault involving the use of a deadly weapon. He is not entitled
to relief on this basis.
II. Jail Call Recording
The Defendant contends that the trial court erred by admitting a portion of the
Defendant’s recorded jail telephone call. He argues that his characterization in the call of
the victim as a “b----” and that his stating he contacted the victim because he wanted to
“get his rocks off,” along with his laughter, were irrelevant pursuant to Tennessee Rules of
Evidence 401 and 402. He likewise argues that even if the evidence were relevant, any
probative value was substantially outweighed by the danger of unfair prejudice, rendering
it inadmissible pursuant to Tennessee Rule of Evidence 403. The State responds that the
trial court did not abuse its discretion by admitting the recording because the evidence
provided contextual background to the Defendant’s relationship with the victim.
Alternatively, the State asserts that any error was harmless.
Evidence is relevant and generally admissible when it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401, 402.
Questions regarding the admissibility and relevance of evidence generally lie within the
discretion of the trial court, and the appellate courts will not “interfere with the exercise of
that discretion unless a clear abuse appears on the face of the record.” State v. Franklin,
308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn.
2007)).
A trial court abuses its discretion when it applies an incorrect legal standard or
reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R.
Evid. 403.
The Defendant filed a pretrial motion to exclude from evidence any recordings of
jail telephone calls placed by the Defendant. He argued that the calls were irrelevant,
ambiguous, and contained material that would unfairly prejudice his defense. Initially, the
State sought to introduce recordings of four calls. However, only a portion of one jail call
was played for the jury.
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Regarding the recording played at the trial, the State argued that the Defendant, who
was speaking with his sister, referred to the victim as a “b----.” The prosecutor argued that
the statement was relevant because it was a derogatory term for a woman and showed the
Defendant’s animosity toward the victim. The prosecutor stated that redacting the word
would permit the defense to argue that the Defendant could have been referring to anyone
rather than the victim. Likewise, the prosecutor argued that the Defendant’s stating “the
b---- just popped up and never left” was relevant to the victim’s anticipated testimony that
she was unable to leave the home because she had been beaten badly. Last, the prosecutor
argued that the Defendant’s statement that he wanted to “get his rocks off” was relevant to
show the Defendant was referring to the victim during the call because she and the
Defendant had been in a romantic relationship and had two children.
The defense did not challenge the portion of the recording in which the Defendant
referred to being dropped off at the home but argued that the Defendant’s “language
directed to” the victim was inadmissible because it was “overly prejudicial anytime
somebody calls somebody a name.” The defense argued, as well, that reference to “getting
his rocks off” was irrelevant and highly prejudicial.
The trial court determined that the recording was relevant to show the Defendant’s
“acknowledgement of what’s going on, the date of one of these allegations, and why he is
there and what’s occurring.” Specific to the Defendant’s use of profanity, the court
determined that “today’s world [is] a little different than 1980.” The court said that it did
not know the meaning of “getting his rocks off” and that if a statement were subject to
various impressions or interpretations, it became a “weight issue for the jury.” The court
found that the recording placed into context what was being discussed by the Defendant
and his sister.
As a preliminary matter, the State argues for the first time on appeal that the
Defendant’s statements in the jail call were relevant to providing contextual background
pursuant to State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000). Such evidence is usually
related to other crimes, wrongs, and acts by a defendant. In order for such evidence to be
admissible, the State must establish that the evidence is necessary to prevent a
chronological or conceptual void in the State’s case-in-chief and to prevent significant
confusion as to the material issues or evidence. Id. at 272. Likewise, the State must show
that the probative value of the evidence is substantially outweighed by the danger of unfair
prejudice. The prosecutor did not argue in the trial court that the recording provided
contextual background pursuant to Gilliland.
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However, the State argued that the recording reflected that the Defendant discussed
the victim and the October 7 incident. The prosecutor argued that the Defendant’s
derogatory terminology showed his animosity toward the victim. The prosecutor, likewise,
argued that the Defendant’s stating the victim came to the home and never left was in direct
contravention of the victim’s anticipated testimony that she was unable to leave the home
because of the injuries she sustained during the October 7 incident. The prosecutor also
argued that the Defendant’s statement that he wanted to “get his rocks off” was relevant to
show the Defendant was referring to the victim during the call because she and the
Defendant had been in a romantic relationship and had two children.
The record supports the trial court’s determinations that the Defendant’s statements
during the call showed the Defendant’s knowledge of the October 7 allegations. The
Defendant’s statements about what occurred during the incident conflicted with the
victim’s testimony and showed a lack of remorse for his conduct when considered in light
of his defense that a misdemeanor assault occurred, rather than an aggravated assault. See
Tenn. R. Evid. 401, 403. Likewise, the record supports the trial court’s determination that
the probative value of the evidence was not substantially outweighed by the danger of
unfair prejudice in light of the victim’s testimony about the incident, along with the medical
records and photographs related to her injuries. At the trial, the Defendant did not dispute
that he had assaulted the victim. Therefore, the trial court did not abuse its discretion by
admitting the relevant evidence. The Defendant is not entitled to relief on this basis.
III. Sentencing
The Defendant contends that the trial court erred by imposing the maximum
sentence for his aggravated assault convictions and argues fifteen years’ confinement is
excessive. He does not challenge his sentence for domestic assault. He asserts that the
court erred by applying enhancement factors and that the court should have applied the
catchall mitigating factor. The State responds that the trial court did not abuse its discretion
by imposing a fifteen-year sentence.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
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823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. § 40-35-102 (2019).
Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
At the sentencing hearing, the presentence report was received as an exhibit. The
thirty-two-year-old Defendant had previous convictions for three counts of robbery, being
a felon in possession of a handgun, assault, child abuse and neglect, two counts of burglary
of an automobile, driving while his license was suspended, and misdemeanor marijuana
possession. The report reflects that the Defendant failed to appear for eight court
appearances.
The presentence report reflects that the Defendant left school after the tenth grade.
He reported being in State custody from ages twelve to eighteen and changing schools
frequently. He reported having good mental and physical health. The Defendant reported
first using marijuana at age twelve, first using cocaine at age fifteen, first drinking alcohol
at age fifteen, and taking one to two Xanax daily when he was age twenty-six. The report
reflects that during his confinement at the jail in connection with the present case, the
Defendant tested positive for buprenorphine on December 5, 2018, and March 4, 2019.
The presentence report reflects that the Defendant was born in a “refugee camp” in
Thailand and that, at age six, he immigrated to the United States with his parents and three
sisters. The report reflects that the Defendant’s parents divorced when he was age thirteen
and that he stated life was difficult without a father figure. The Defendant reported having
a close relationship with his mother and one sister. The Defendant reported that he had
been unemployed since 2014 and that his longest period of employment was nine to ten
months.
The presentence report reflects that the Defendant had juvenile delinquency
adjudications and that the Defendant’s juvenile court record was attached to the trial
judge’s copy of the report. However, the adjudication records are not attached to the
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presentence report and are not included in the appellate record. The Strong-R assessment
reflects that the Defendant had a score of “high” for violence.
The presentence report reflects that the Defendant submitted a written statement to
the investigator. In the statement, the Defendant apologized for what he had done and for
his mistakes. He said that he was learning to become a man and to learn from his mistakes.
He acknowledged his lack of a father figure and said that he was wrong. He said that he
was fighting to become a better person, father, and role model for others.
The victim testified that the October 7, 2018 incident was not the first incident of
violence. She said that, at an unspecified time, she and the Defendant were inside a car
when he “just started beating” her in front of their daughter. She said, though, she had
never seen the Defendant use violence against their children.
Somphane Xayyasith, the Defendant’s sister, testified that the Defendant was the
youngest of four children. She said that she was born in Thailand and that the family
immigrated to the United States when the Defendant was age three or four. She said that
she and her family stayed at a refugee camp before entering the United States, although she
was too young to recall any details about the family’s time there. She said that learning
English and acclimating to American culture was difficult initially.
Ms. Xayyasith testified that family life was good initially when they arrived in the
United States but that their parents’ marriage disintegrated after her father wanted to
“party” with friends and have “other relationships.” She recalled that before her parents
separated, their mother worked two jobs, was unable to spend much time with the children,
and gave her paychecks to her father. Ms. Xayyasith said that her father controlled the
money and spent the income “on having fun with his friends.” She described her father as
controlling and recalled an incident in which her father locked everyone inside the home.
She said she and the Defendant snuck out of the home through a window. She said that
her father attempted to “whip” the children but that her mother would not allow it. Ms.
Xayyasith said that she feared her father and that he was not a role model for the Defendant.
Ms. Xayyasith testified that her father remarried after her parents divorced. She
recalled that the Defendant lived with their father for a period of time and that the
Defendant saw that their father treated his stepchildren better than his biological children.
Ms. Xayyasith said that the Defendant ran away from their father’s home and left
Tennessee. She recalled that, at an unspecified time, she and the Defendant lived with their
other sisters. Ms. Xayyasith said that although she did not understand at the time, she
learned later that their oldest sister had molested the Defendant.
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Ms. Xayyasith testified that the Defendant had lived at her home before his arrest
and that he was “good” with her seven children. She noted that their mother and friends
were at the sentencing hearing to support the Defendant. Ms. Xayyasith requested that the
court give the Defendant “a chance.”
On cross-examination, Ms. Xayyasith testified that the clothes the Defendant wore
at the sentencing hearing were yellow-colored because he had been in a fight at the jail.
She clarified that her children’s father was in jail with the Defendant, that someone attacked
her children’s father, and that the Defendant intervened to help her children’s father. She
agreed that the Defendant had abused drugs previously but denied that he had abused
alcohol. She agreed the Defendant had been given previous opportunities to rehabilitate.
Thongkham Xayyasith, the Defendant’s mother, testified that she and her family
originally lived in Laos but that the family fled because it was a communist country. She
said that they went to Thailand, where they stayed in a refugee camp before immigrating
to the United States. She said that the Defendant was age two when the family stayed at
the refugee camp. She said that she and her family were provided “just enough” daily food
at the camp but that they went hungry at times. She said most of the people at the camp
were desperate to come to the United States.
Mrs. Xayyasith testified that the children’s father did not support the household or
the children and that over time he was never home. She recalled that they argued frequently
and said that because she worked from 3:00 p.m. to 7:00 a.m., she could not socialize as
her husband wanted. She said that he never cared for any of the children and frequently
became mad at the children. She said that after the divorce, the Defendant lived with his
father, and the daughters lived with her. She said that she had been unaware that the
Defendant was not being provided sufficient food and that he had begun breaking into
homes.
Mrs. Xayyasith testified that in her culture, the husband was “king,” “made the
rules,” and treated others how he wanted. She said that the Defendant had never been
violent toward her and that he cared for his sisters, nieces, and nephews. She asked the
trial court for mercy. On cross-examination, Mrs. Xayyasith testified that the Defendant
was her only child with a criminal history.
Upon questioning by the trial court, Mrs. Xayyasith testified that the Defendant was
placed in “State custody” between the ages of twelve and eighteen. She said that although
she did not know where the Defendant lived during this time, the Defendant was in the
custody of the Department of Children’s Services. She said she saw the Defendant almost
every weekend when he was in State custody.
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After the sentencing hearing, the trial court entered a written order. The order
reflects that the parties agreed the Defendant was a Range III, persistent offender and that
the court merged the aggravated assault convictions. The order reflects that the court
considered the evidence at the sentencing hearing, the presentence report, the principles of
sentencing, the nature and characteristics of the criminal conduct, evidence of enhancement
and mitigating factors, statistical information provided by the Administrative Office of the
Courts, the results of the validated risk and needs assessment, and the Defendant’s potential
for rehabilitation.
The trial court rejected the Defendant’s request for application of mitigating factors.
See T.C.A. § 40-35-113(13) (2019). The court stated it was “particularly sensitive” to the
childhood traumas suffered by the Defendant and “recognize[d] the destabilizing impact
that fleeing his homeland as a refugee and immigrating to a new country at such a young
age likely had on the Defendant.” The court found, though, none of the statutory mitigating
factors applied. The court found that although the Defendant’s childhood history provided
explanations for the Defendant’s conduct, the evidence did not mitigate the Defendant’s
culpability.
Regarding enhancement factors, the trial court found that the Defendant had a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range. See id. § 40-35-114(1) (2019). The court found that
although the Defendant’s previous felony convictions were used to classify him as a Range
III, persistent offender, factor (1) applied in light of the Defendant’s previous misdemeanor
convictions for assault, child neglect, and marijuana possession and in light of his history
of assaultive behavior toward the victim. The court found that the Defendant had engaged
in at least one uncharged domestic assault based upon the victim’s testimony at the
sentencing hearing, in which she described an incident inside a car. The court found that
although the Defendant did not have a particularly lengthy misdemeanor criminal history,
the “apparent pattern of assaultive behavior” concerned the court.
The trial court, likewise, found that the Defendant possessed or employed a deadly
weapon during the commission of the offense. See id. § 40-35-114(9). The court found
that this factor did not apply to the aggravated assault conviction involving the use or
display of a deadly weapon because of the elements of the offense but that the factor applied
to the remaining convictions. The court found that the manner in which the Defendant
used the coaxial cable cord rendered it a deadly weapon, although a cord was not typically
considered a deadly weapon. The court found, as well, that enhancement was warranted
because the Defendant was adjudicated to have committed delinquent acts as a juvenile
that would have constituted a felony if committed by an adult. See id. § 40-35-114(16).
The court found that the Defendant’s juvenile record showed adjudications for felony
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escape, theft of property valued at $1,000 or more but less than $10,000, evading arrest by
a motor vehicle, burglary of an automobile, and aggravated assault involving the use or
display of a deadly weapon. The court stated that it was concerned the Defendant had been
adjudicated delinquent for aggravated assault and stated that it was another violent offense
similar to the convictions in the present case.
The trial court imposed fifteen-year sentences for each aggravated assault
conviction and eleven months, twenty-nine days for domestic assault. The court declined
to impose consecutive service after finding that concurrent service was consistent with the
overall principles of sentencing. The court ordered the Defendant to serve his fifteen-year-
sentence in confinement because the Defendant was ineligible for probation and
community corrections. See id. §§ 40-35-303(a) (2019) (subsequently amended)
(probation eligibility); 40-36-106(a)(1) (2019) (subsequently amended) (community
corrections eligibility).
The record reflects that aggravated assault, regardless of whether the offense results
in serious bodily injury, involves the use or display of a deadly weapon, or involves
strangulation or attempted strangulation, is a Class C felony. Id. § 39-13-102(e)(1)(A)(ii).
A Range III sentence for a Class C felony is ten to fifteen years. Id. § 40-35-112(c)(3)
(2019). The trial court imposed fifteen years’ incarceration, which is a within-in range
sentence. As a result, the court’s determinations are afforded a presumption of
reasonableness. Bise, 380 S.W.3d at 708.
The Defendant argues that the trial court should not have applied enhancement
factor (1) because his previous misdemeanor convictions were not so extensive as to
constitute a previous history. He notes that the assault and child neglect convictions arose
from the same incident and that all of the misdemeanor convictions occurred when he was
ages eighteen and nineteen. The record reflects that the court relied upon the Defendant’s
misdemeanor convictions and upon the victim’s testimony about an additional incident of
domestic assault. The presentence report reflects misdemeanor convictions for assault,
drug possession, and child abuse. The victim in the present case testified at the sentencing
hearing that, at an unspecified time before the October 7, 2018 incident, she and the
Defendant were inside a car when he “just started beating” her in front of their daughter.
Additionally, the trial court, when discussing enhancement factor (16), found that
the Defendant had been adjudicated delinquent for offenses that would have constituted a
felony if committed by an adult. The presentence report stated that the Defendant’s
juvenile record was “attached to the judge’s copy of the presentence report.” However the
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juvenile record relied upon by the trial court is not included in the appellate record.1 The
court found that the Defendant had juvenile adjudications for felony escape, felony theft,
evading arrest by a motor vehicle, burglary of an automobile, and aggravated assault
involving the use or display of a deadly weapon. See State v. LaQuinton Brown, No.
E2015-00899-CCA-R3-CD, 2016 WL 3633474, at *14 (Tenn. Crim. App. June 29, 2016)
(“This court has repeatedly ‘approved the consideration of a defendant’s history of juvenile
adjudications in determining whether a defendant has an extensive record of criminal
activity.’”) (quoting State v. Carlos Campbell, No. E2014-00697-CCA-R3-CD, 2015 WL
6155893, at *22 (Tenn. Crim. App. Oct. 15, 2015)), perm. app. denied (Tenn. Oct. 20
2016); Lamario Sumner v. State, No. W2009-00453-CCA-R3-PC, 2010 WL 4544955, at
*8 (Tenn. Crim. App. Nov. 10, 2010). Likewise, the Defendant admitted during the
presentence investigation to unlawfully using controlled substances, and he tested positive
for buprenorphine twice while in confinement at the jail. The record supports the trial
court’s determinations, and we conclude that the court did not abuse its discretion by
applying this enhancement factor.
The Defendant argues that the trial court erred by applying enhancement factor (9)
to the aggravated assault convictions involving the use of strangulation and resulting in
serious bodily injury. He asserts that the coaxial cable cord was not a deadly weapon and
even if the cord were a deadly weapon, it was not used during the incident involving
strangulation or attempted strangulation. The record reflects that although the trial court
did not apply this factor to the aggravated assault conviction involving the use of a deadly
weapon because of the elements of the offense, the court applied this factor to the
Defendant’s remaining convictions.
As we have previously determined, the manner in which the Defendant used the
coaxial cable cord during the October 7 incident rendered it a deadly weapon, and the
record supports the trial court’s determination in this regard. The use or display of a deadly
weapon is not an element of aggravated assault resulting in serious bodily injury to another
person, and the record reflects that the victim was struck multiple times with the cord,
1
We acknowledge appellate counsel states in his brief that he contacted the Davidson County Clerk’s Office
to obtain a duplicate of the trial court’s copy of the presentence report, which was purported to have
included the Defendant’s juvenile record, and/or the Defendant’s juvenile record from the trial court record
and that appellate counsel was advised that neither document was included in the trial court file. Appellate
counsel concedes that trial counsel did not challenge the application of enhancement factor (16). Therefore,
we “conclusively presume” that the trial court’s determinations in connection with the Defendant’s juvenile
record were correct. State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987) (citing State v. Jones,
623 S.W.2d 129, 131 (Tenn. Crim. App. 1981); State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App.
1983); State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983)); see State v. Ivy, 868 S.W.2d 724,
728 (Tenn. Crim. App. 1993).
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leaving scars. As a result, the trial court did not abuse its discretion by applying
enhancement factor (9) to this conviction.
Relative to the aggravated assault conviction involving the use of strangulation or
attempted strangulation, the record reflects that the October 7 incident began with the
Defendant’s striking the victim repeatedly with the cord as she lay on the couch attempting
to protect herself from the beating. At some point during the altercation, the Defendant
stopped striking her with the cord and placed his hands around her neck and strangled her,
although she did not lose consciousness. The record does not reflect that the cord was used
to strangle the victim. However, enhancement factor (9) requires, in relevant part, only
that the Defendant have “possessed or employed” the cord during the commission of the
offense. See id. § 40-35-114(9). The record reflects that the Defendant possessed the cord
during an assault involving strangulation. As a result, the trial court did not abuse its
discretion by applying enhancement factor (9) to this conviction.
Finally, the Defendant argues that the trial court erred by failing to apply mitigating
factor (13) based upon evidence of his traumatic immigration to the United States,
traumatic childhood, and statement of remorse to the presentence investigator. The record
reflects that the court considered evidence of the Defendant’s immigration to the United
States and his childhood. See id. § 40-35-113(13). However, the court declined to apply
mitigating factor (13) because this evidence provided explanations for the Defendant’s
criminal conduct but did not excuse his culpability. The court expressed its concern that
although the Defendant had experienced trauma, he had engaged in a pattern of violence,
which included domestic assault, aggravated assault, and robbery. The record reflects that
the court considered the mitigation evidence, including the presentence report in which the
Defendant’s statement is reflected, and determined that the Defendant’s violent conduct
was not mitigated by the evidence. We conclude that the court did not abuse its discretion
by declining to apply this mitigating factor.
Upon review, we conclude that the Defendant has failed to demonstrate any abuse
of discretion in the trial court’s application of enhancement and mitigating factors in
connection with his aggravated assault convictions. We conclude, as well, that the
Defendant has not demonstrated that the court abused its discretion in imposing the
effective fifteen-year sentence.
In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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