### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs N ovembe

r 5, 2002
STATE OF TENNESSEE v. BRUCE MARVIN VANN Appeal from the Circuit Court for Madison County No. 01-551 Donald H. Allen, Judge

No. W2002-00161-CCA-R3-CD - Filed Mar ch 31, 2003

The defendant, Bruce Marvin Vann, w as convictedof aggravated a ssault. The trial court imposed
a si x- year s ent enc e. In this appeal of right, the defendant prese nts five issues for

review: (1) whether the indictmen

t suffici ently

describ ed the of

fense of aggravated a ssault; (2) whether the evidence was sufficie nt; (3) whe

ther the trial cou rt erre d by

failing to act as thirteen

th juror; (4) whether the trial court erred by allowing prior convictions as impeachment evidence; and (5) whether the trial court erred by refusing to apply

a mitigating circumstance. The judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and R OBERT W. W EDEMEYER , JJ., joined.
Didi Christie, Brownsville, Tennessee (on appeal), and Vanessa D. King, A ssistant D istrict Pub lic Defender (at trial), for the appe llant, Bruce Marvin Vann.
Paul G. Summers, Attorney Gene ral & Reporter; P. Robin Dixon, Jr., Assista nt Attorne

y General ; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION
At approximately 2:00 P.M. on April 9, 2001, Sergeant David DeMoss of the Jackson Police Department

arriv ed at Lin coln C ourts to in vesti ga te a rep ort made by Da rren Douglas that he had been t he victim of an aggravated a ssault. The defendant had reportedly been a witness to the incident

. When Douglas returned to the scene ac companied by Serg eant DeMoss and an other officer, the suspe ct, who wa s sitting o n a porch , ran, le aving b ehin d a .45 caliber black gun. The defenda nt, who was standing near the front porch with a woman whe n the police arrived, picked up the gun and ran several feet to a small opening in a fence.-2-

At trial, Sergeant DeMoss testified that upon arriving at the scene, he attempted to arrest the suspect, who was later identi fied as Kevin Transou. As Transou tried "to jerk a way and r

un," Sergeant DeMos s and O fficer Mark Lot t plac ed him on th e gr o und and be gan to a pply handcuf fs. At that point, S e rgeant DeMoss saw the defenda nt "shoot" towards the porch, gra b the pistol, and
run. Sergeant DeM oss dr ew his weapon and ordered the defe ndant to "drop it." The defendant ignored the command and ran toward a fence at the back of the complex. Accor ding to Sergeant DeMoss, the defe

ndant, who was " swingin g and wa ving the pistol" wildl

y a s he r an, t ried to "s quee ze through the fence," turning to one side as he did so, and "as [t]he p istol [came ] up in my direction

. . . I fired a shot at him. " Se rgeant DeMoss testified that he experienced f ear for himself and the others in the vic inity

when the gun waspointed in

his direction. He said that he was also concerned about Officer Lott, who wa s still struggling to gain control of Transou. The d efendant, who was struck by the sing le shot in his upper left leg, fell to the ground and droppe d the pistol.
At trial, Douglas, who testified for the state, claimed that the defendant had thrown the gun down before

passing through the fenc e but that he c onti nued to ru n from Ser

geant D eMoss. Dougla s, a friend of the defendant, who had re mained in h is car on

the str eet as the arrests were being made, confirmed

that Sergeant DeMoss had ordered the defendant to stop before the shot was fired. Douglas described the defenda nt as "trying

to hide" the gun. He state d that the defenda nt did not aim the gun at Sergeant DeMoss.
Officer Lott testified that he was helping subdue Transou when he h

eard Ser geant D eMoss ye ll, "Gun." He desc ribed the de fendan t as "pr etty much flail ing th e gu n . . . wildly " as he ran. Officer Lo tt testifi ed that he saw "the gun barr el stick back through the fence" as the defendant climbed t hro ugh it and "that's when Serg eant DeMoss shot him." He confirmed that the gun wa s pointed in the direction of Sergeant DeMoss, who was a distance of only five or six feet away

at the time the shot was fired. The officer contended that the defendant did not drop the weapon until he was shot. The weapon was found on the side of the fence opposite the officers. As the shots we re fired, Transou fled on foot from Officer Lott who, after a cha se, finalized his arrest. Sergeant Stacy Hutchins identified the we apon foundat the cr ime scene as a

High Point .45. She found seven rounds ins ide the ma gazine o f the wea

pon and one inthe cham

ber, indi cating

its readiness to be fired.
James Bruce, who was visiting nearby at the time of the shooting, testified for the defense. He state d that from h is van tage point, he only saw one g un, the one that Serg eant De Moss had in

his possession. Bruce stated that he saw the defe ndant squeeze through the fence but lost sight of him when he fell down afte

r beingshot in th e back of the leg. He was una ble to say whether

the defendant was armed. The defendant, who testified on his own behalf, confirmed that Transou had "pulled a gun
on [Douglas ]." He claimed that after Douglas sped awa y, he admonished Tra

nsou, who was intoxicated, "[You] didn 't have to do him like that." The defendant contended that when Sergeant DeMoss and Officer L

ott arrived at the scene, Sergea nt DeMoss pickedup the weapon and, while-3-

Transou was being ar

rested by Office

r Lott, Sergeant De

Moss "came toward me, and I took out running." The de fendantclaimed that he had informed the officers that Tra nsou was drunk and commentedthat "they didn't have to do him like that because they was really

just roughing him up." The defendant denied altogether ha ving picked up Transou's gun from the front porch. He asserted that he never had the

weapon in his hand, that he did not point a gun at any one, and that h

e ran onl y because he was about to be arrested. During cross-e xamination, the state

introduc ed judg ments of conviction for reckless endanger ment with a vehicle and evading arre st for which the defendant had received two-year sentences.
I Ini ti al ly, the defendant

alleges that the indictment was defect ive, having fail ed to suff

iciently describe the offense. In re sponse, the state argues that because the defendant failed to include the issue in his motion for new trial, the doctrine of waiver applies. See Tenn. R. App. P. 3(e). In the alterna tive, the state ar gues tha t the indic tment wassufficie nt. The charging document, in per tinent part, contains the following information: [T]hat BRU CE M AR VIN VA NN on or ab ou t A pr il 9, 20 01 , i n M ad is on Co un ty, Tennessee, and before the finding of this indictment , did intentionally and/or knowing ly

b y d isplaying and/or

using a deadly

weapon, to-wit: a gun, a more part icular descrip tion of whi ch to the G rand Juror s afore said is unk nown, ca use DAVI D DEMOSS to

reasona bly fear imm inent bodi ly in

jury , in violation of Tenn. Code Ann. § 39-13-102, all of which is against the peace a nd dignity of the

State of Tennessee.
The defendant submits that the failure to include the specifi c subsec ti on of the statute,
m akin g reference to the use of a g un as opposed to serious bodily injury as the method of aggravation, re sults in an incomplete, defective indictment. He cites Tennessee Code Annotated
sec tion 40-13-202, which requires that the indictment state "the fac ts constituting the of

fense i n ordinary and concise language ." Because an assault can be committed either by serious bodily injury
or by the use of a

deadly we apon, he argues that the failure to include the subsection was fatal to the prosecution.
In s upport of his argument, the defendant makes re ference to the holding in State v. Jo e David Sloan , No. W2000- 02861-CCA -R3-CD (Tenn. Crim. App., at J ackson , Jan. 4, 200 2), wher ein
a panel of this court modified a conviction of felony evading arrest t o misdemea

nor evad ing arr est because the indictment charged the latter crime r ather than the former . I n that case, the panel determinedthat the indictment, which fa iled to list t

he appro priate st atu tory subsect

ion, did not sufficie ntly alleg e the elemen ts of Class E felony evading arrest in order to satisfy either the constituti onal or st

atutory purposesof the ind

ictment:
When a statute

includesth ree different classifications of an offense, c itation of the "appropriate" or "pertinent" statute logically requires that

the appropriate subsection-4-

be named in o

rder fo r the indictme nt to be sufficient to support a conviction. Becau se the indictment in issue omitted the subsection number which woul d enable the accused t o know that he was charge d with a Cla ss E felon y, a nd the spe cific l anguage (used by the State in dra fting the indictment) alleges the offen s e constituting misdemea

nor evad ing arr est, we h old that the

indictmen

t in this ca se only alleg ed the offense of misdemeanor evading arrest. Slip op. at 6.
Ge ne ra ll y, defense s based up on indictme nt defic iencies must be pr ese nted pri or to tria

l. Tenn. R. Crim. P. 12(b)( 2), (f). A valid indictment is essential to prosecution, however, and may be subject to attack at any time when the c ontent does not charge an offense or does not confer jurisdiction. Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998). A crimina l indictme

nt must include a sufficient description of the offense to ensure that the defendant understands the nature of the charge. Jackson v. V

irginia , 443 U.S. 307, 314 (1979). The essential functions of the indictment
are to provide notice of the charge, ena ble entry of a proper judgment

upon conviction, and protect agains tdouble jeopardy. State v. Byrd , 820 S .W.2 d 739, 741 (T enn. 1 991) ( citi ng Statev. Pearce , 7 Tenn. ( Peck) 66 , 67 (1823 ); State v. Haynes , 720 S.W.2d 76, 82 (Tenn. Crim. App. 1986)).
Article I, section 9 of the Tennessee Constitution guarant ees that "in all criminal prosecu tions, the accused [has] the right . . . to demand the nature and ca use of the accusation a

gainst him, and hav e a c opy t her eof ." T enn . C ons t. art . I, § 9. Tennessee Code Annotated section 40-13- 202, cite d by

the defe ndant, pr ovides, in pertine nt part, a s follows:
The indictment

must state the facts constituting the offense in ordinary and concise langua ge, wit hout proli xit y or r

epetition, in such a manner as to enable a person of common

understa nding to k now what i s intended, and with that degree of certai nty whic h will enable the court, on conviction, to pronounce the proper judgment . . . . Tenn. Code Ann. § 40-13-202.
I n State v. H

ill , 954 S.W.2d 725, 729 (Tenn. 1997), our supreme cour t held tha

t a n indictmentcharg ing ag grava ted rape was valid even thou gh it did n ot alleg e a culpa ble mental sta

te because "the required mental state [could] be inferred from the na ture of the criminal conduct alleged." In State v. Stokes , 954 S.W.2d 729 (Tenn. 1997), an indictment for rape of a c h ild was determinedto be sufficient to vest the trial cou rt with jur isdiction w

here it utilized the language of the statute but alleged no culpable mental state. A similar result occur r ed in Ruf

f v. State , 978 S.W.2d 95, 1 00 (Te nn. 1998), where the charge s included aggravated se xual battery, ag gravated rape, and aggravat

ed kidnaping, and the court held that "wher e the constitutional and statutory require ments outlined in Hill are met, an indict ment which cites the

perti nen t statute a

nd uses its langua ge will be suffi cient to support a co nviction ." Finally, in State v. Barney , 986 S.W.2d 545, 547 (Tenn. 1999), our

supreme court ruled that intent could be logically infe

rred from an indictment-5-

including charges of rape of a child and aggra

vated sexual battery where it was alleged that the defendant had eng aged in "unlawful sexual penetration" and "unlawf ul sexual contact" with the victim.
In State v. Wilson , 31 S .W.3 d 189, 191-9 2 (Ten n. 200 0), ou r high court determined that an indictmentcharging delivery of cocaine which refere

nced the appropriate statute but did notinclude
an allegation of

the culpable mental state was sufficient despite the omission. Similarly, in State v. Carter , 988 S.W.2d 145, 148-49 (Tenn. 1999), our supre me court ruled tha t indictme

nts for felony murder which made reference to the statute but fa iled t o include the required mens rea were neverth eless sufficie

nt. The court determined that a referenc e to the statute was sufficient notice of the required level of intent. Id. at 149.
In sum, the more recent decisions of our sup reme court es tablish tha t an indic tment is adequa te when it achieves the overriding pur pose of notice to the accused. Here, the cha rge was aggravated

assault. The state

refer red to the proper statute, Tennessee Code Annotated section 39- 13-102, which provides alternative theories of guilt for the sa me offense. Alternative theories of guilt within a si ngle ind

ictment a re perm issib le. Addit

ionally, the indictment alleg es a criminal intenton the part

of the defendant

. Finally, there was no allegation of serious bodily injury and the culpable mental state was listed as knowing and intentional, which distinguishes aggr avated a ssault,
a C felony, from

reckless aggra

vated assault, a D felony

. See Tenn. Code Ann. § 39-13-102(a)(1)- (2). In our view, the content of the indictment was sufficient to place the petitioner on notice of the nature of the charges, c onfer jurisdiction upon the tr ia l c ou rt , a nd pr ot ec t a ga in st do ub le je op ar dy.
II While the defendant concedes that he fled f rom the police, he argues that inconsistencies in the evidence offered by

the state warranted an acquittal. For e xample, h e submits th at if police testimonyplaced the weapon in his right hand and he squeezed through the fence right side first, as evidenced

by his being shot in the bac k of the left leg, "there is no phy sical way [he] could have p ointed the gun at Sergeant DeMoss." The defendant further submits that the state was unable t o establish that his actions were knowing or intentional rather than inadvertent. See State v. Wilson , 9 24 S.W.2d 648, 6 51 (Tenn . 1996) (holding th at evide nce that the defe ndant fir ed shots in

to a residence after a

n angr y c onfronta

tion with itsowner wa s insuffic ient to establish that the defendant intentiona

lly or knowingly c aused the victi ms to fear imminent bodily injury where there was no proof that the defendant was aware that the residence was occupied at the time).
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which mig htbe draw n theref

rom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). When the sufficiency of the evidence is challenged, the r elevant question is whether, after reviewing the e

vidence in the lig ht most favorable to the state, any rational trier of

fact could have found the essential elements of the crime bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Statev. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesse s, the weight and value of the evidence , as well as all factualissues raised by the e vidence
are resolved by the trie

r of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956); Byrge-6-

v. Sta te , 575 S.W.2d 2 92, 295 (T enn. Crim. App. 1978 ). Bec ause a ve rdict of g uilt aga inst a defendant removes the presumption of innocence and raises a presumption of guilt, the co nvicted criminal defendant bears the burden of showin g that the evidence was legally insuffic ient to sust

ain a guilty ve

rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).
In or der to sus tain a co nviction f or agg ravate d assault , the evide nce must e stablish

that the defendant intentiona

lly or knowingly c ommitted an assault as defined in Tennessee Code Annotated section 39-13-101 and either caused serious bodily injury to anothe r or used or displa ye d a dead

ly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(A)-( B). An assault may

be committed, among other way s, when the

defenda nt "[i]nten

tionally or knowingly c auses another to reasonably fear imminent bodily injury ." Tenn . Code Ann . § 39-13- 101(a)( 2). One a cts intent ionall y "with respect to the nature of the conduct or to a result of the conduct w hen it is the person's conscious objective or desire to engage in the conduct or c ause the result." Tenn. Code Ann. § 39- 11-302(a ). A per son acts knowing ly

when, with respect to a result of the person's c onduct, "the pe rson is aware t hat the conduct is reasonably

certain to cause the result." Tenn. Code Ann. § 39- 11-302(b).
Ini ti al ly, pos sible discrepancies in the evidence would rare ly warra nt the reversal of a conviction on insuff

iciency ground s. This co urt may neither r eweigh nor reevaluate the evidence and cannot

substitute its inferences for those dra wn by the jury . Here, the state

establish ed that wh ile two office

rs attemp ted to handcuff and arrest Transou, the defendant grabbed a loaded pistol from the front porch and ran towa rds a fence, ignoring wa

rnings by the

officers to stop and to drop the weapon. As the defendant turned sideway s in order to squeeze through a small open area, Ser geant DeMoss observed the barrel of a gun pointed in his direction. Because the defendant had ig nored the directive of Sergeant

DeMoss, it could be reasonably inferred that his resistance to arrest might escalate. That the defendant and Transou were together w hen the officers arrived and that Tra nsou resisted arrest a

nd strug gled with the off icers a re circumstance s that sug gest tha t th e defendant 's actions also constituted an effort to resist. That Sergeant DeMoss experienced rea sonable fear when the gun wasturned in

his direc tion is not at issue. It was the prerogative of the jury

based upon the circumstances to infer that the defendant had either knowingly

or intentiona

lly a imed the b arrel in the direction of the officer. Thus, the evidence is legally suff

icient to support the verdict.
III Next, the defendant

argues that the trial court

failed to exercise its responsibilities to consider the evide nce as a thirteenth juror. The allegation is made based upon comments made by the trial judge in overrul ing the m otion for new tria l:
The court does not fee l that it erred by not g ranting the defendant's motion for judgment of acquittal at the conclusion o f the proof. Obviously a gain, this was strictly a jury question w

hether o r not they chose to believe Mr. Vann's version, that is, he didn't even have a gun, or whether or not the jury

chose to believe .

. . what the officers testified happened.-7-

Rule 33(f) of

the Tennessee Rules of Cri minal Proc edure pr ovid es that a "trial court may grant a new trial following a verdict of g uilty if it disagree s with the jury about the weig ht of t h e evidenc e." The

purpose o f the thir

teenth ju ror rule is to be a "' safeg

uard . . . agains ta misc arriage of justice by the jury.'" State v. Mo ats , 906 S.W.2d 431, 434 (Tenn. 1995) (quoting State v. Johnson , 692 S. W.2d 412, 41 5 (Tenn. 1985)). T he rule r equiresthat the tr

ial judg e must be p ersonall y satisfied with the verdict. State v. D ankwort h , 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995).
In State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995), our supreme court acknowledg ed the restoration of the thirteenth juror rule as it existed at common law, thereby mand ating that tri al judges exercise the duty to function as a thirteenth jur or in crimi nal cas es. An order o verrul ing a motion for new

trial est ablishes a presum

ption th at the tri a l court has exercised the duty and no explicit statement on the record is required

. Carter , 89 6 S.W.2d at 1 22; see also State v. Robert Bacon , No. 03C01-9608-CR-00308 (Tenn. Crim. App., at Knoxville, Jan. 8, 1998). It is only when the trial court expresses dissatisfaction or disagreemen t with the jury

verdict or makesstatemen

ts indicating that it has absolved itself of its responsibility that the judgment should be set aside. See Bacon , slip op. at 19.
In State v. Mo ats , 906 S.W.2d 431 (Tenn. 1995), the state conceded that the trial court had failedto act as thirteenth juror by entering the judgment while expressing doubts about the weight of the evidence and concluding that it was inappropr iate to overturn the jury

verdict. Our supr

eme court determined that because the trial court had misco nstrued its author ity t o grant a new trial under th e t hi rt ee nt h j ur or ru le , a ne w t ri al wa s n ec es sa ry:
The trial judg e is in

a difficult position to make a thirteenth juror determination after
a remand w

hich woul d not occu

r until aft er the case works its way through the appella te co ur ts . B y th at ti me , t he tr ia l j ud ge is un li ke ly t o have an ind ependent recolle ction of th

e demea nor and c redibilit y of all the witnesses.
Moats , 906 S.W.2d at 435. Here, both the tone and content of the comments made by the trial judge during the hearing
on the m oti on for new trial signal a satisfaction with the verdict. I n fact, the trial judge described this as "a situation where

the court does feel that the evidence was sufficie nt to support the verdict of aggravated a ssault." That is enough.
IV Next, the defendant complains that the trial court erred by allowing the state to introduce prior convicti ons of

fe lo ny reckless endangerment and f elony evading

arrest for impeachment purposes
. The defe ndant argu es that even thoug h the cha rge wa s one of a

ggra vated as sault in thi s instance, the underlying

facts were so similar to a reckless endang erment or evading arr est as to warrant exclusion.-8-

Rule 609 of the Tennessee Rules of Evidence establishes that the credibility of the def endant may be attac ked by present ing evid ence of prior co nvictions so lon g as the convictions are punishabl e by death or imprisonment in excess of one y ear or for a crime involving dishone st y or false statement. The rule requires the state to provide written notice of the conviction and that the trial court determine that the probative value outweighs any unfair prejudice before the evidenc e may be introduced. SeeTenn. R. Evid. 609(a)(3). Also, no more than ten year s may have lapsed between the commenc ement of the prosecution and the defendant' s release from confinement on a prior conviction. Tenn. R. Evid. 609(b). In balancing the proba tive valu e on cre dibility

agains t the unfa

ir prejudicial effec t on the sub stantive i ssues, the trial court must consider whether the prior conviction is the same or similar to that at issue. State v. Mixon , 983 S.W.2d 661, 674 (Tenn. 1999). The admission o f prior c onviction s cannot b e the bas is for re versal u nless the trial cou rt has abused its discretion. State v. Blanton , 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).
In determining the probative value of the prior convictions, the trial court must consider whether those con

victions in

volv e disho nesty. See State v. Gibson , 701 S.W.2d 627, 629 (Tenn. Crim. App . 19 85) . In our view , neither felony reckle ss endangerment nor felony evading arrest are indicative of di shonesty. Next, there must be an asse ssment of the probative value of the prior convictions on the issue of credibility. In this instance, as in Statev. Walker , 29 S.W.3d 885 (Tenn. Crim. App. 1999), the

re was a "swea ring ma tch" am ong witnesses. That is, the jury had to ass ess the credibility of Serg eant DeMoss and Officer L ott and that of the defendant, who not only denied that h e aimed the weap on but also claimed that he had no weapon at all. As in Walker , the prior felony convictions here were properly deemed probative. As argued by the defend ant, ther e is a similarity between the crimes of rec kle ss endang erment a nd felony evading arrest a nd the fa cts leading to th e charge of agg ravate d assault

in this cas e. Neve

rtheless , the cri mes are

sufficie ntly distinct from ag grava

ted assa ult involving the use

or displa y of a deadly weapon a s to warr ant admission. This court would defer to thediscretionary a uthority of the trial court whic h determined that the probative value on the issue of credibility outweighed any

prejudice despite any

fact ua l similarity. Cf. State v. Galmore , 994 S.W.2d 120 (Tenn. 1999).
V As his last

issue, the defenda nt argu es that the

trial cou rt should h ave found as a

mitigating factor that the crime was committed under circumstances indicating that it was unlikely that he had
a sustained intent to violate the law. See Tenn . Code An n. § 40-35-113(11). The trial court considered

and rejected the factor

after observing that

the jury had conc luded that the display of the deadly we apon was intended to place Sergea nt DeMoss in fear.
Initial ly, the aggravated a ssault statute is rather unique in that it requires trial court s t o consider as an enhancement factor that the victim was a law enforcement officer. See Tenn. Code Ann. § 39-13-102(d ) (Supp. 2000). As a Range I offender, the defendant qualified for a sentence of between three and six y ears. See Tenn. Code Ann. § 40-35-112(3). The trial court found a total of four enhancement factors and no mitiga ting factors. The defendant had a prior criminal history which included two prior felonies and eight prior misdemeanor convictions ranging from possession of cocaine to driving

on a revo

ked lice nse and crim

in al impersonation. In addition to his felony-9-

conviction for evading arrest, he had two prior misdemeanor convictions for evading ar rest. Also, the trial cou

rt deter mined tha t the def endant ha d a previ ous histor

y of unwillingness to co mply

with the conditions of a sentence involving release into the community

. See Tenn. Code Ann. § 40-35- 114(8) (1997). He had twic e absconded from probatio n and on one of those occasio ns, his probation was revoked . Finally, t

he tr ial cour

t determined that t

he agg ravate d assault

was committed while the defendant was on probation for a prior felony

offense. See Tenn. Code Ann. § 40-35-114(13) (1997).
In our view, even if application of the mitigating fa ctor of lack of sustained intent was warranted, its weight would ha ve been minimal an d, under

all of the circumst ances, it would not have served to reduce the six-y ear sentence. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE