### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 12, 2001 Session

STATE OF TENNESSEE v. THOMAS WAYNE SHI ELDS

Direct Appeal from the Circuit Court for He nry County No. 12940 Julian P. Guinn, Judge

No. W2000-01524-CCA-R3-CD - Filed January 4, 2002

The appella

nt, ThomasWayne Sh

ields, ch allenge s both

his conviction by a

jury in the Circuit Court of Henry County of

one count of assault and

his consequent sentence. Following a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court, concluding that (1) the evidence adduced

at trial is sufficient to support the appellant’s conviction of assault; (2) the appellant waivedany objection to the t rial cou rt’s res ponse

to a question posed by the jur y during de

liberati ons, and the trial court’s remarks do not constitute plain error within the meaning o f State v. Smi th , 24 S.W.3d 274 (Tenn. 2000); and (3) the trial court properly denied the appellant full probation.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t is Affir med.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J OE G. R ILEY , J., and C ORNEL IA C LARK , Sp. J., joined.

Victoria L. DiBona

ventura , Paris, Te

nnessee , for the

appella nt, ThomasWayne Sh

ields.

Paul G. Summers, Attorney General and Reporter; Laur a McMu llen Ford, Assistant Attorney Genera l; Robert “Gus” Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factua

l Background On November 2, 1999, a Henry County Grand Jury indicted the appe llant for one
count of aggra vated as sault, alleging tha t t he appellant intentionally or knowingly and while using

or displaying adeadly weapon caused Nashar a Allyse W

illiams to r

easonab ly fear

imminent bo dily injury. Tenn. Cod

e Ann. § 39 -13-102( a)(1)(B) (2001 Su pp.); T enn. Code Ann. § 39-13-101(a)(2) (1997). The indictment

arose from

the appellant’s assault upon Williams with a knife at her Henry County home in an attempt to obtain repayment of a $150 loan that he had guaranteed. Williams, a certified nursing a ssistant, t

estified at trial th at, on the morning of August 8, 1999, between 7:30 a.m. and 8:00 a.m., the appellant arrived at her trailer and

began pounding on her front door, demanding repayment

of the lo an . Williams ultimately opened the front door and spoke with the appellant-2-

through the screen door, asking the appellant to leave. The a ppellant, however, opened th e sc reen doo r and entered the trailer. When Williams attempted to ca ll the police, the appellan t seized th e telephone and threw it onto the floor. He then pushed Williams onto a couch, “got on top of [her],” held a knife t o her thr oat, and t hreate ned to kill her. The victim noted that the appellant had on three prior occasio ns visited h

er work place a nd threa tened to “run [he r] over ” or othe rwise “h urt” her if she didnot repa

y the loan . Teandr

ea Nico le Willia

ms and Melissa Ann Sn ow, frie nds of the

victim, witnessed the assault in this case and confirmed the victim’s account. Teandr e a Williams a

lso acknowledged

her rep ort to polic e that the ass ault occurred at approximately 7:45 a.m. All three

women testifie d that, fo llowing the assault, the appe

llant drove a way from the trailer in a green Mercedes-Benz.

Bryan Hall, a

deputy sheriff with the Henry County Sheriff’s Department, testified a t trial that he wa s dispatc hed to the victim’s tr

ailer at approximately 7:5 3 a.m. on A ugust 8, 1999. At the tra iler, he discovered three women, including the victim, who appea red to be “pretty s haken
, upset.” Hall also

noticed t hat a tab le had been pushed onto its side, and the telephone was lying on the floor. After interviewing the three women, Hall drove to the appellant’s residenc e. Hall noted that, depending upon the chosen route, a person could drive from the victim’s trailer to the appellant’s residence in “seven to eight minutes” or “two or three minutes.”

At the appellant’s residence, Hall observed a green Mercedes-Benz par ked outside. Hall placed his hand on the hood of the vehicle and discovere d that, despite the c ool and rainy morning, the hood was warm. The officer then knocke d on the front door of the appellant’s residence. When the appe

llant answ ered the

door, Ha ll arres ted him an d advised him o f his Miranda

rights. Upon being informed of the victim’s allegations, the appellant denied a ssaulting h

er, stating to Hall that he had been at home since 4:00 a.m. that morning.

The appella

nt testified on his own behalf at trial. He conceded that, in 1996, he had pled guilty i n Mississippi to committing the offense of grand larceny. However, he aga in denied assaulting Williams, reit er ating that he was at home on the morning of the offense and adding that he had taken medication that morning and was unable to drive. Indeed, he insisted that he would have been incapab le of assaul ting Williams due to a back injury that he suffered while enlisted in the United States Army. The appellant’s wife, Carlene Elizabeth Shields, likewise asserted a ttrial that her husband w as at hom e on the mo rning of A

ugust 8, 19 99. Acco

rding to Shi elds, she

left home sometime after 7:00 a.m. that morning to g o to w ork at the Henry County Nursing Home, arriving
at her workplace at approximately 7:18 a.m. She called home to c heck on the appel lant at approximately7:45 a.m., and the appellant answered the telephone. More over, the appellant called her back at approximately 7:50 a.m., speaking with bot h her and her supervisor, Jason Browning. Browning confirmed at trial that he spoke with the appellant on the telephone at a pproximately 7:50 a.m. on the morning of August 8, 1999.

At the conclusion of the parties’ presentation of proof, th e trial court instructed the jury

on both the charged offense of aggra va ted assa

ult and the le sser-inc luded off enses of reckle ss1 As we subseque ntl y note i n thi s opi nion, the j ury ins truc ti ons are not i ncluded in the r eco rd b efor e this co urt.

Nev ertheless, we are o therw ise able to glean the trial court’s provis ion of inst ruct ions on les ser- incl uded offe nses from the i ncomplete recor d.

2 The record contains a National Cr i me I nf or ma t i on Ce nt er

( “N CI C” ) r ep or t pe r t ai ni ng t o a “T ho ma s W. Shields” wi t h the s ame birth d ate as the a ppe llant. Th e rep ort ind icates th at Sh ields w as also arreste d fo r two cou nts of assaul t in 1983 and was ult imatel y convic ted, possi bly of les ser offens es. The tr ial court did not consi der t he report in sent encing the a ppell ant. Moreover, we note t hat, alt hough rel iabl e hears ay is admiss ibl e in s entenc ing hea ring s , Tenn. Code A nn. § 40-35 -209(b) (199 7), our suprem e court has described NC IC reports as “pure hearsay, of a dubious degree of accuracy, prepared for purposes other than court use, contain[i ng] informati on that i s li kely to be prej udicial under all circu ms tance s and

. . . not t he best evi dence of m atters tha t can b e pro ven by re liable, d ocu me ntary evid enc e.” State v. Buck , 670 S.W .2d 600, 607 (Tenn. 198 4).

-3- endangerment

and assa ult. 1 The jury f

ound the a

ppellant gui lty of assault. Consequently, the trial court conducted a sentencing hearing on April 18, 2000.

At the sentencing hearing, both the State and the appellan t simply relied upon the proof adduced a

t tria l. Defense counsel emphasized to the trial court the proof concerning the appellant’s military career and the appellant’s rec ord of on ly one prior criminal conviction. 2 The Statein turn argued that

the trial court should consider the appellant’s use of a wea pon in assaulting the victim in this case. At the conclusion of the hearing, the trial court imposed a sentence of eleven months and twenty-nine days in the Henry County Jail. The trial court further ordered the appellant
to serve sixty days of his sentence in confinement and the remainder on unsupervised probation. In denying the appellant full probation, the trial court observed:

I find it very difficult to merely turn my head at something that had the potential for such danger as what y ou willingl y and know ingly i nvolved yourself in. You made the election to go there, and f o r whatever re aso n it was, it

was to at t

he very l east, thr

eaten these people. A

nd you did it . And you d id it very w ell.

. . . .

I suspect that you might have just had your good strok

e of luck in this [case]. I wouldn’t test it again, s ir, beca use I don’t think you’ll ever make it.

II. Analysis

A. Sufficiency of the Evidence In this appeal, the appellant first challenges the sufficiency of the evidence underlying his conviction of assault. In essence, he contends that the jury’s verdict of guilt of the lesser-included offense of assault was inconsistent with its verdict of acquittal of the charged offe nse of aggravated assault a nd the les ser-inc luded off ense of r eckless endange

rment. Th

e State di sagree s.

We prelimina

rily note t hat in Statev. Michae

l P. Healy , No. W1999-01510-CCA-R3- CD, 2001 WL 721077, at **3-4 (Tenn. Crim. App. at Jackson, June 26, 2001), a panel of this court3 Defe nse cou nsel app rov ed th e tr ial court ’s j ury ins truc ti ons i n thi s cas e. However, in State v. Stokes , 24

S.W.3d 303, 306 (Tenn. 2000), our supreme court held that “a def endant’ s acqui escenc e to a jury inst ruct ion bas ed on

an incorrec t bel ief that an offense is a lesser i ncluded offense is simply insufficient to transform an erroneous jury instruc tion in to a v alid am end me nt of a n ind ictm ent b y tha t defe nda nt’s co nsen t.”

-4- heldthat, under the test set forth by our supreme court in State v. Burns , 6 S.W.3d 453, 466 -46 7 (Tenn. 1999), reckless e

ndanger ment is not a

lesser-included offense of aggravated assault by causing another to fear imminent bodily injury while using or displaying a deadly weapon. See also State v. Larry Mitchel Watson
, No. E2000-01923-CCA-R3-CD, 2001 WL 1035173, at **2-3 (Tenn. Cri m. App. at Knoxville, Septem ber11, 2001). In Healy , No. W1999-01510-CCA-R3-CD, 2001 WL 721077, at **3-4, we adopted the following reasoning expressed by Judge Tipton in his dissenting opinion in State v. Ralph Dewayne Moore , No. E1999-02743-CCA-R3-CD, 2000 WL 1612705, at *4 (Tenn. Crim. App. at Knoxville, October 30, 2000), perm. to appeal granted
, (Tenn. 2001), a case in which the defendant was convicted of fe lony reckless endangerment pursuant to an indictment charging him with

aggravated assault by causing another to fea r imminent bodily injury while using or displaying a deadly weapon:

[Aggravated

assault] has a re sult-of-conduct aspect in that it focuses

on the victim being placed in fear of imminent bodily injury. . . . On the other hand, felony reckl es s endangerment is defined as engaging in conduct . . . which places or may place another person in imminent danger of death or serious bodily injury. Tenn. Code Ann. § 39-13-103 [(1997) ]. It focuses - by its terms - upon the conduct that

causes a risk of harm, not the harm itself. Those within the zone of danger need not even be aware that the thre a t exists. . . . Thus, one may commit the offense of aggravated assault by c ausing fear of bodily injury while using or displaying a weapon without committing the offense

of felon y reckle ss endang erment. Likewise, one may commit the offense of f

elon y reckless endangerment without committing the offe

nse of ag gravate d assault

by causing fear. In other words, neither offense covers the range of c onduct or result of the other. This means that neither offense is included in the other. See also Watson , No. E2000-01923-CCA-R3-CD, 2001 WL1035173, at **2-3. We further noted in Healy , No. W1999-01510-CCA-R3-CD, 2001 WL 721077, at *4, that not only are the eleme nts of reckle ss endang erment not included in the elements of aggravated assault but also the differing ele ments of reckless endangerment do not establish a mental state indicating a le sser kind of culpability nor

do they establ ish a less serious harm or risk of harm. Burns , 6 S.W.3d at 466-467. We are persuaded both by Judge Tipton and by our opinions in Healy and Watson . Accordingly, we conclude that the jury should not have been afforded an opportunity in this case to find the a ppellant guilty of r eckless endange

rment. 3

In contras t, becau se assaul t is itself an essential element of aggravated assault, the former satisfies the Burns test. Watson , No. E2000-01923-CCA-R3-CD, 2001 WL 1035173, at *3 n.7; Healy , No. W1999-01510-CCA-R3-CD, 2001 WL 721077, at *2; cf. State v. Smiley , 38 S.W.3d 521, 524 (Tenn. 2001). Notably, however, neither the main jury instructions nor the verdict form are4 Any detrim ent re sulting from the inc om plete st ate of the recor d must be bor ne by the appel lant . Tenn. R. App.

P. 24(b).

-5- included in the recor d in this ca se . Accordingly, it is unclear whether the trial court instructed the ju ry on al l three means of assault set forth in Tenn. Code Ann. § 39-13-101. Neve rtheless, on the basis of the record before us, we c an assume with some confidence that the jury returned a verdict of guilt of assault as defined in subsection (a)(2) of Tenn. Code Ann. § 39-13-101, i.e., assault by intentiona

lly or knowingly causing another to reasonably fe ar imminent bodily injury. 4 First, the record contains no evidence of bodily injury that reasonable minds could acce pt. Tenn. Code Ann. § 39-13-10 1(a)(1 ); cf. Smiley , 38 S.W.3d at 525. Second, the judgment of conviction and the appellant’s sentenc e clear ly refle ct the ap

pellant’ s convict

ion of a c lass A misdemeanor, precluding the appellant’s conviction pursuant to subsection (a)(3) of Tenn. Code Ann. § 39- 13-101. See Tenn. Code Ann. § 39-13-101(b).

We now turn to the appellant’s contention that the jury’s verdict of guilt of

the offe nse of assault was inconsistent with its verdict of acquittal of the offense of

aggrava ted assa ult. “We will
not‘upset a seemingly inconsistent verdict by speculating as to thejury's reasoning if we are satisfied that the evidence establishes guilt of theoffense upon which the conviction was returned.’” Statev. Timothy Clark Newson
, N o. E2001-00974-CCA-R3-CD, 2001 WL 1194208, at *3 (Te nn. Crim. App

. at Knox ville, October 10, 2001)(addressing a jury’s return of ve rdicts on a multi-co un t indictment)(quoting Wiggins v. State , 498 S.W.2d 9 2, 94 (Tenn .1973)); see also State v. Milton Anthony Kafoglis , Nos. 03C01-9504-CR-00128 & 03C01-9504-CR-00129, 1997 WL 21365, at *3 (Tenn. Crim. App. at Knoxville, January 21, 199 7)(applying the same reasoning to inconsistent verdict s “on the of

fense charged in the indic tment and its lesser

-include d offens e s for whi ch a defendant may be found guilty under the indictment”). The tria l in this ca se amount

ed to a cl assic “swearing cont est,” in which credibility became the central question for de termination. Questions concerning the credibility of witnesses, like all other factual issues, ar e resolved by the trier

of fact and not this court. State v. Pr uett , 788 S.W.2d 559, 561 (Tenn. 1990). This court will only intrude upon the province of the trier of fact and disturb its assess ment of a witness’ credibi lity in the r arest of cases. See State v. Lee Roy Gass , No. E2000-00810-CCA-R3-CD, 2001 WL 767011, at **7-8 (Tenn. Crim. App. at Knoxville, July 3, 2001). Suffice it to say that this is not one of the ra rest of

cases. Rather, a “rational trier of fact” c ould have found beyond a reasonabl e doubt the essential elementsof assault contained in subsection ( a)(2) of Tenn. Code Ann. § 39-13-101. Jackson v. Virginia
, 443 U.S. 307, 319, 99 S. Ct. 2781, 27 89 (1979) ; State v. Tuggle , 639 S. W.2d 913, 914 (Tenn.1 982); Ten

n. R. App. P. 13(e). T

his issue iswithout me

rit.

B. Trial Cou rt’s Re sponse to Que stion Pose d by the Jury

During De

liberatio ns The appella

nt next co ntends tha

t the tria l court vio lated Ar

ticle VI , Secti on 9 of the Tennessee Constitution in responding to a question posed by the jury during deliber ations. The State
retorts that the appellant has waived any objection to the trial court’s rema rks by failing to proffer a timely objection. Tenn. R. App. P. 36(a). Alternately, the State apparently concede s error but contends that the trial court’s remarks did not affect the judgme

nt or pre judice the judicia

l proces s. Tenn. R. App. P. 36(b).-6- The record ref

lect s that, during the course of the jury’s deliberations, it submitted several questions to the trial court. On each occasion, the trial court “reca ll[ed] th e jury, c ounsel, the defendant[], and the c ourt rep orter ba ck into open cou

rt . . . totake the matter up on the record.” State

v. Mays , 677 S.W.2 d 476, 479 ( Tenn. Cri m. App. 198 4); see also State v. Che sley Rand ell Thomps on , No. 03C01-9807-CC-00238, 1999 WL 160961, at *9 (Tenn. Crim. App. at Knox ville
, March 24, 1999). On the third and final occasion, the following exchange ensued between the trial court and members of the jury: The Court : Alright, you asked a question about the lesser charge.

You only consi der the l esser c harges i f you fi nd him
notguilty of th

e first cha rge, as the instructions, the lead-ou t, says. Mr. Kennon: Yes, sir. But then you get to the second charging, you

can’t agree. Juror: But you can on the third charge. Mr. Kennon: But you can on the third charge. We don’t know what to do. The Court: Well, I would su ggest toyou that perhaps you ought

to give some consideration to saying that you have found him not guilty as to the second ch a rge. But you have considered

and foun d him guilty of the third charge. You know, an inability to reacha verdict as to the one charge is the same

as a mis tri al. Eithe

r that or I miss try[sic] it and we come back another day with another jury and try it again. Mr. Kennon: Is that a for sure thing? The fact that that would be the situation? The Court : You mean another trial? T here’s nothing that’s sure.

Ah, I commonly, when encoun te ring mistr ials, and it doesn’t happen th at often , insist tha t it be retried. But that should not enter your thinking here today. What should enter your thi nking here today is simply and solely, “did they

prove thi s charge beyond a reasona ble doubt?” Yes or no. They either did, in whi ch event he’s guilty, or if they didn’t, he’s not guilty.

Don’t let me ge t much further into it, because I think I’m trying to usurp your duties here.

Take your jury

back the re for - - see if

you can c ome to an agre ement. The record suggests, as indicated below, a nd the par ties do not

appear to dispute

that the “ first charge” comprised the offense of aggravated a ssault; the “second charge” comprised the off ense of reckle ss endang erment; a nd the “th ird char ge” comp rised the offense of assault.-7- Following th

e above exchan ge, the ju

ry retir ed to cont inue its deliberations, and the trial court inquired if either the State or defe nse co unsel wished to say “[a]nything for the record.” Both the prosecutor an d defens e counsel d eclined to proffer any objection, whereupon the trial c ourt remarked: Alright, say they have found your man not guilty of aggravated

assault. They’re

unable to arrive

at a ver

dict as to r

eckless endange rment, bu t they hav e found h

im guilty of

assault.

Now the quest

ion is, is whether the additional remarks the court made

were such as to find . . . force o r coerc e a not gui lty verdict as to reckle ss endange

rme nt. We’l l see what they do. Give them a few minutes.

You’ve gotone of tho se rare juries tha t just simply

have not read the instructi ons, and they’ ve been unable to understa nd them, not that they

are the simple st things in t he world to understand. I’m aware of that. Alright, w e’ll stan d in rece ss until the jury rep orts. Five minutes following its exchange with the trial court, the jury returned a verdict of guilt of

assault.

Article I
, Section 6 of the Tenness ee Constitution affords a criminally accused the right
to trial by jury. “[T]his right dictates that all issues of fact be tried and determined by twelve jurors,” Statev. Garrison , 40 S.W.3d 426, 432 (Tenn. 2000), including whet her a defendant

is guilty of a lesser-included

offense, State v. El

y , 48 S.W.3d 710, 727 (Tenn.), cert. denied , __ U.S. __ , 122 S. Ct. 408 (2001). C orrespo ndingly, a s noted by t he appella nt, Articl e VI, Section 9 of the Tennessee Constitution provides that “[t]he Judges shall not charge juries with respect to matters of fac t, but may
state the testimony and declare the law.” See also State v. Odom , 928 S.W.2d 18, 32 (Tenn. 1996); Statev. Suttles , 767 S.W.2d 403, 406-407 (Tenn. 1989); State v. Brown
, 823 S.W.2d 576, 588 (Tenn. Crim. App. 1991). “Any undue intrusion by the trial judge into th[e] exclusive province of the jury, is an error of the first magnitude.” Kersey v. State , 525 S.W.2d 139, 144 (Tenn. 1975).

Consis tent

with the c onstitution al division of labor betwee n the tria l court a nd the ju ry , a trial court has the authority t o pro vide supplemental instructions when the jury poses a question during deliberations indicating its confusion regarding a question of law. State v. Forbes
, 918 S.W.2d 431, 451 (Ten

n. Crim. Ap

p. 1995); cf. Tenn. R. Cr

im. P. 30(c). However, in Kersey , 525 S.W.2d at 144-145, our supreme court strictly circumscribed the proce dures, includi ng the requ isite supplemental instruction, to which a trial court must adhere when the jury communicates to the court its inability t

o reach a verdict. In so doi ng, our su preme c ourt spec ifically

rejected any supplemental instruction that e n courages a member of the jury to change his or he r opinion for the purpose of obtaining unanimity and avoiding a mistrial. Id. at 144. In this regard, the court cited with approval the following observation by Judge Brown in his dissenting opinion in Huffman v. United States , 297 F.2d 754, 759 (5 th Cir. 1962): “[A] mistrial from a hung jury is a safeguard to liberty. In many areas it is the sole means by which one or a few may stand out against an ove rwhelming contemporary public sentiment. Nothing should interfere with its exercise.” Kersey , 525 S.W.2d at 143.-8- In applying the above principles to the instant case, we preliminarily n ote o ur agreement

with the State that

defense counsel failed to preserve this issue for appeal by neglecting
to object to the trial court’s response to the jury’s question, even when invited to do so by the c ourt. As a general rule, “[a] par ty cannot witness misconduct on the part of the court, await the r e sult of the verdict , and then , if it

is agains thim or her, object to the alleged misconduct.” State v. Tune , 872 S.W.2d 922, 930 (Tenn. Crim. App. 1993); Tenn. R. A pp. P. 36(a

); see also State v. McPherson
, 882 S.W.2d 365, 373 ( Tenn. Cri m. App. 199 4); cf. State v. Mounce
, 859 S.W.2d 319, 323 (Tenn. 1993); State v. Adkisson , 899 S.W.2d 626, 634-636 (Tenn. Crim. App. 1994). Accordingly, the appellant has waived this issue absent a finding of plain error. Tenn. R. Crim. P. 52(b).

In State v. Smith
, 24 S.W.3d 274, 282-283 (Tenn. 2000), our supre me court formally adopted the plain error analysis set forth in Adkisson , 899 S.W.2d at 641-642. Specifically, the court approved the consideration of the following five factor s in determining

whethe r an erro r constitutes “plain error” in the absence of a n objection at trial: “(a) the record must clea rly estab lish what occurred in the trial court; (b) a cl ear and unequivocal rule of law must have been breached; (c) a substantial right of the acc used mus t ha ve been adverse ly affected; (d) the

accused did not waivethe issue for tactical

r easons; and (e) consideration of the error is ‘necessary to d o substantial justice.’” Smith
, 24 S.W.3d at 282 (quoting Adkisson , 899 S.W.2d at 641-642). The court emphasized that the presenceof all

five factors must be established by the record, and “complete considera tion of all the factors is not necessary when i t is clea r from the record that at least one of the fa ctors cannot be established.” Id. at 283.

The appellant’s principal contentionon appeal is that, when the jury stated its failure
to agree with respect to the offense of r eckless endangerment and its “agreement” with respect to the offense of assau lt, “[t]h e Judge assumed[, possibly erroneously, that the jury] had decided on . . . guilty as to assa

ult, ” and the

ju dge’s supplemental instruction reflected this assumption to the detriment of the appellant. In other words, the appellant argues that the jury may have acquitted the appellant of all offenses if the trial court had not responded to the jury’s inquiry by suggesting that it “ought to give some consideration to saying that you have found him not guilty as to the second charge. But you have consider ed and fo und him guil

ty of the th

ird char ge.” In t his rega rd, we mu st conclude that the record does no t clearly establish what occurred in the trial court. First, as noted previously, the appe

llant h as failed to include in the record before this court the main jury instructi ons. Te nn. R . App. P. 24(b). The absence of the main jury instructions from the rec ord prevent s this court from

reviewing the exchange between the tr ial court and the jury in its f ull context. S econdand more importantly, upon returning to open court to respond to the jury’s third and final question, the trial judge did not disclose the precise content of the jury’s communication, and defe nse counsel at no time requested any clarification. Acc ordingly, it is plausible that in remarking to the jury that “you have considered and found [the appe llant] guilty of the third charge” the judge was merely r eiterat ing the jur

y’s communication

to him prior

to his retu

rn to open

court.-9- Indeed, the record before this court more strongly suggests thatthe jury’s confusion

s temmed from the trial court’s inclusion in the main instructions of the rule requiring that a jur y unanimous ly agree to acquit a defendant of a greate r offen se befor

e conside ring a defendant ’s guilt of a lesser offense. McPherson , 882 S.W.2d at 375-376. In other words, the record suggests that the jury was essentially repo rtin g to the trial court its inability to reach a unanimous verdict for the offense of reckless endangerment and inquiring whether it could, ne verthel ess, return a ve rdict of g uilt fo r the offense of assault. The trial court essentially responded tha t the jury’s inability to reach a verdict for the offen se of reckless endangerment would result in a mistrial and suggested tha t members of the jury who belie ved the a ppellant to be guilty

of reck less enda ngermen t change their minds in order to avoid a mistrial. The trial court’s suggestion was clearly er ror under Kersey , 525 S.W.2d at 144. Indeed, it is app arent f rom the record tha

t the cour t immediate

ly recog nized its mistake and attempted to provide a curative instruction, emphasizing to the jury that t

he possibi lity of a mistrial was irrelevant to its consideration of whether the State had satisfied its burden of proving the appe llant’s gu ilt of rec kless end angerme

nt.
Notwithstanding the trial

court’s Kersey violation, we conclude that the appellant has failedto establish either an adverse affect to a substantial right or the necessity of considering the trial court’s error in order to do substantial justice. Smith , 24 S.W.3d at 282. Th e sole pr ejudice possibly occasioned

by the trial court’s error was the jury’s failure to de adlock on the issue of the appellant’s guilt or innocence of reckless endange rment. Yet, as already noted, the appellant was not e ntitled to

an instruction on the offense of reckless endanger ment. Accordingly, we are notinclined

to rever se the appe llant’s c onviction

of assault on the ba sis of plain error . This issue is without me

rit.

C. Sentenc

ing Finally, the appellant

contendsthat the tr

ial cour t erred in denying him full probation. The appellant primarily asserts that the trial court’s failure to place findings o n the rec ord rela ting to its consideration of sen ten cing principles entitles him to relief. The State responds that the “potenti ally dangero

us” nature o f the app ellant’sconduct w arrant ed a sent ence of split conf inement.

This court reviews the manner of service of sentence s de novo with a presumption that the determinations made by the trial court are correct. Tenn. Code. Ann. § 40-35-401(d) (1997). Generally, the presumption is conditioned upon an affirmative showing in the recor d th at the trial
court considered

the sentencing principles and all relevant facts and circumstanc es. State v. Ashby

, 823 S.W.2d 166, 169 (Tenn. 1991). However, “the trial court has more flexibility in misdemeanor sentencing than in felony sentencing.” State v. Ric hard Woo ls , No. W2000-01979-CCA-R3-CD, 2001 WL 935466, at *3 (Tenn. Crim. App. at Jackson, August 16, 2001). Thus, in the cont ext of misdemeanor

sentenc ing, a tria

l court’sfailure

to place specific findings o n the rec ord will no t vitiate the presumption of correctness. State v. Troutman , 979 S.W.2d 271, 273-274 (Tenn. 199 8); see also Statev. Marvin W. Hill, Jr.
, No. E2000-02789-CCA-R3-CD, 2001 WL 1105303, at *2 (Tenn . Crim. App. at Knoxville, September 21, 2001)(“Because this case involves misdemeanor sentencing rather than felo n y sentenc ing, a lac k of findi ngs by the t

rial cou rt is no ba sis for ho lding the tr ial cour t in error.”). In any ev ent, the burden is u pon the ap

pellant to demonstr ate to thiscourt the

improprie

ty of his sentence. State v. Grigsby , 957 S.W.2 d 541, 544 (Tenn. Cri m. App. 199 7); Statev. Loden , 920 S.W.2d 261, 266 (Tenn. Crim. App. 1995).-10- A trial cou

rt has the

authority

to place a misdeme anant o n pro bation either immediate

ly after sentencing or after servic e of a portion of the sentence in confinement. Tenn. Code Ann

. § 40-35-302(e) (1997). As on appeal, a def endant bears the burden in the trial court of demonstrating that total probation, rather than split confinement, will “‘subserve the ends of justice and the best interest of both the public and the defendant.’” Statev. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000). In determining whether

a defendant has satisfied his burden, the trial court consider s the following factor s: the nature and circumstances of the cr iminal conduc t, Ten n. Code Ann. § 40-35-210(b)(4) (1997); the def

endan t’s potential or lack of potential for rehabilitation, Tenn. Code Ann. § 40-35- 103(5) (1997); whether a sentence of total probation would unduly deprec iate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and whether a senten ce other than tota l probatio n would provide an effective deterre nt to others likely to commit similar crimes, Tenn. Code Ann. § 40-35- 103(1)(B). State v. Grissom , 956 S.W.2d 514, 520 ( Tenn. Cri m. App. 199 7); Bingham , 910 S.W.2d
at 456. A defendant’s potential or lack of potential for rehabilitation may, in turn, be demonstrated by circumstances such

as his criminal record, his social history and present condition, and his candor before the court. State v. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. Ap p. 1997). Moreover, a defend ant’s willingness to accept responsibility for his crime is a circumstance germane to hi s rehabilitation potential. State v. Ze olia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996).

The trial cou

rt clear ly based its denial of

full probation upon the circumstances or the

ser iousness of the appellant’s offense. The gener al rule is that “[i]n order to deny an alternat iv e sentence based on the seriousness of the offense, ‘the circumstances of the of fense a s committe d must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree,’ and the

nature of the offense must outweigh all factors favoring a sentenc e other than confinement.” Bingham , 910 S.W.2d at 454. That having been said, circumstances that do not riseto the level required to justify a d enial of a ny alternative sentence may nevertheless justify a denial of full probation. Id. at 456; see also State v. William D. Ware , No. 01C01-9803-CC-00129, 1999 WL 378341, at *9 (Tenn. Crim. App. at Nashville, June 11, 1999).

The trial court in this case emphasized the “potential for . . . danger” create d by the appellant’s behavior. Although the trial court did not make a spec ific f inding concerning the appellant’s use of a weapon during the commission of this offense, such a finding was implicit in the trial court’s remarks, Tenn. Code Ann. § 40-35-114(9) (1997) , as was a f ind ing concerning the consequent

potentia l for bodi ly injury to

the victim

and, indeed, the risk to human life, Tenn. Code Ann. § 40-35-114(10) & (16). See State v. William Butler Bolling , No. E2000-03166-CCA-R3-CD, 2001 WL 965099, *3 (Tenn. Crim. App. at Knoxville, August 16 , 2001)(ho lding that the enhancement

and mitigating factors are relevant to the trial court's manner-of-servic e determination); Statev. Claude Ronnie Morrison , No. E2000-02048-CCA-R3-CD, 2001 WL 881382, *3 (Tenn. Crim. Ap p. at Knoxville, August 7, 2001)(holding that enhancement and mitigating factors ar e appropr iateconsiderations in determining manner of service as well as length of sentence) . None of these factors are inherent in the offense of assault by intent

ionally or knowingly

causing a nother to

reasona bly fear imminent bodily injury. Indeed, the appellant’s guilt of as sa ult in this case was established by the victim’s testimony that the appellant had threatened her with bodily harm on three prior occasions, that

the appellant entered her apartment without permissio n on the oc casion of this-11-

offense, that the appellant forcibly prevented her from c alling the police, and that the appellant pus h ed her onto a couch, “got on top of [her],” and threa tened to kill her. In contr ast, the appellant’s use of

a weapon and the attendant “potential for . . . danger ” was established

by testimony that the appellant held a knife to the victim’s throat. Cf. State v. Lavender , 967 S.W.2d 803, 807-808 (Tenn. 1998).

Of course, the jury in

this case

acquitte d the appe

llant of a

ggravat ed assault. Neverth eless, in State v. W

infield , 23 S.W.3d 279, 283 (Ten n. 2000), our supre

me court held that a
court “may apply an enhancement factor ba sed on facts underlying an offense for which the defendant has been acquitted, so long as the facts have been e stablished in the record by a preponderance of the evidence.” Moreover, even prior to our supreme court’s decision in Winfield , this court had held that “[c]onsideration

of leniency in . . . the verdict . . . [is a] proper consideration[] for finding confinement necessary under Tenn. Code Ann. § 40-35-103(1)(B).” State v. Michael Buell , No. 01C01 -9607-CC00292, 1997 WL 677947, at *4 (Tenn. Crim. App. at Nashville, Novembe r 3, 1997) ; see also State

v. David Carl Orr , No. W1998-00010-CCA-R3-CD, 2000 WL 674584, at *5 (Tenn. Crim. App. at Jackson, May 19, 20 00); Statev. Samuel D. Braden , No. 01C01-9610-CC-00457, 1998 WL 85285,
at * 8 (Tenn. Crim . App. at Nashville, February 18, 1998). In contrast to the circumstances of Winfield
, 23 S.W.2d a

t 284, the r

ecord in this case contains little conflicting evidence concerning the appellant’s use of a weapon. See also State v. Le wis , 44 S.W.3d 501, 508 (Tenn. 2001). Rather, the bulk of the conflicting evidence concerned the a ppellant’s commission of any assault whatsoever, a dispute r esolved b y the jury ’s verdi ct.

In any event, “[a]lthough the defendant was ne ve r specif

ically asked, he never accepted responsibility or expressed remorse concerning the

present offense.” Wools , No. W2000- 01979-CCA-R3-CD, 2001 WL 935466, at *4. A defendant’s failure to acknowledge culpability for his actions isnot only germane to his rehabilitation potential, Zeolia
, 928 S.W.2d at 463, but also may support a finding that a se ntence o f confinement is necessa ry to avoid dep

reciating the ser

iousness of an offense, State v. Gutierr ez , 5 S.W. 3d 641, 647 (Tenn. 1999). In short, notwithstanding any mitigating effect of the appellant’s military service a nd his record of a single prior conviction, we decline to disturb the trial court’s denial of full probation.

III. Conclusion For the fo regoing r easons, w e affir

m the judgme

nt of the tr

ial cour t.

___________________________________ NORMA McGEE OGLE, JUDGE