### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs F

ebruary 6, 2001
STATE OF TENNESSEE v. RONNIE D ULWORTH
Appeal from the Criminal Court for Overton County

No. 3846 Lillie Ann Sells, Judge

No. M2000-01681-CCA-R3-CD - Filed April 6, 2001

The defendant appeals from his conviction for assault, contesting the sufficiency of the evidence and the manner of ser

vice of his senten

ce. We affirm the

judgment of the tr

ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. James D. White, Jr., Celina, Tennessee, for the appellant, Ronnie Dulworth.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Lawrence Ray Whitley, District Attorney General, Pro Tempore ; and C. Wayne Hyat t , Assistant District Attorney General, Pro Tempore , for the appellee, State of Tennessee.
OPINION

The defendant, Ronnie Dulworth, appeals from his conviction by an Over ton County Criminal Court jury

for assault, a Class A misdemeanor. The trial court se ntenced the def

endant to eleven months, twenty

-nine days i

n the county

jailat seventy-five

perc ent , or deri ng al l bu t fo rty d ays of the sentence to be suspended and served on probation. The defendant contends that the evidence is insufficient to support his conviction because the state did not prove that he acted

recklessly and didnot disprove that he acted in self-defense. The defendant also contends that the trial court improperly denied him full probation.

This case arises from an assault upon Ronnie Carmack. At trial, Mar y Paul, Ron nie Carmack’s sister-in-law, testified as follows: On September 20, 1997, she, her sister, her daughter, and her niece stoppe

d at Brown’s Gro

cery in Allo

ns, Tennessee. Whi

le she was at the g asoline pump, her daughter and niece went into the store, and her sister, Tammy Bullock, stay ed in the car. She saw the victim walk out of the store, and the

y spoke brie

fly. As the v

ictim walked toward his car, which was parked in the second parking place to the right of the store’s entrance, she saw the-2-

defendant behind and to the left of the victim. When the victim lookedover his left shoulder, the defendant hit the victim on the right cheek. The defendant went to his car and drove toward the road butstopped, enabling

Ms. Bullock to see his license plate. After a few seconds, the defendant drove away.
Ms. Paul testified that it looked like the defendant was holding something in his hand when he hit the victim. She sta ted that the victim’ s eye was sw oll en and bleed ing and that the injury required surgery . She said that she w as close enoug h to the location of the assault that she

could have heard a conversation of normal volume between the defendant a

nd victim, but she did

not hear any words exchanged between them. Also, she did not see the victim make any threats or gestures toward the defe

ndant.

Ronnie Carmack, the vi ctim, t estified as follow s: On September 20,

1997, he went to Brown’s Grocery,

and while he was in

si de th e store, he talke

d with his two niece

s and saw his sisters-in-law outside. When he left the store, he talked briefly with his sister-in-law, Ms. Paul, who
was pumping gasoline. A s he was walking to his car, he heard a soft drink being purchased from
a mach ine outside the store. Then a man behind him asked him if he was Ronnie, and when h e turned around, the man

hit him in the right eye. He did not speak to the man and was not face-toface with him. He did not remember anything else about that day, and he did not know the defendant was the perpetrator until the police matched the license plate number to the defendant’s car.

Mr. Carmack testified that he we ighed one hundred sixty-five pounds on the day of the assault. He said that his injury required surgery and that his rig

ht eye was still numb and was permanently

damaged in that it would not open completely. He stated that he had known the defendant for more thantwenty years but that he had not seen the defendant since 1993. He said that he and the defendant used to drink together but that he went to rehabilitation and qui t drinking i n 1993. He stated that shortly after completing his rehabilitation, the defendant came to his house, but he as ked the defe nda nt t o le ave. The defe nda nt c omp lie d an d di d no t ap pear to b e ang ry.
On cross-examination, Mr. Carmack stated that at the tim e of the assault, if someone had been standing at

the soft drink machine closest to the store’s entrance, then the person would have be en next to the left fron t fender of his ca

r. He also acknow

ledged that he h

ad filed a civil sui

t against the def

endant.

Dr. Ronald Barton, a

plasticsurgeon, te stified that he treated the victim in September and October 1997. He said that the victim’s cheek bone was broken and displaced and that he performed surgery to move the cheek bone to its original position. He stated that the injuries indicated that the victim must have been hit with a s ignifican t force, but he co uld not determine w

hether the victim
was hit with a fist or a weapon. He said that the victim’s eyelids were no longer, and

would never be, symmetr

ical.

Tamm y Bullock, the victim’s sister-in-law, testified as follows: On September 20, 1997 , she , her sister, her daughter, and her niece stopped at Brown’s Grocery

. Her daughter a

nd niece went into-3-

the store, and her sister, Ms. Paul, was pumping gasoline. She stayed in the front passenger seat of her sister’s car and

noticed a person

driving a white c

ar, which was lat

er determi

ned to be the defendant’s,

pull out of a parking place on one side of the store, drive to the front of the store, and park in the place next to the victim’s car. She saw the victim leave the store and heard him talking to her sister. Then she saw the defendant approach the victim from behind, and as the victim turned around, the defendant hit

him on the right side of his face with a soft drink can. The defendant then went to h is c ar an d st art ed t o dr ive away, but stop ped in the parking lot for a few seconds, which enabled her to write down his license plate number.

Ms. Bullock testified that the car w indow was partially down and that she observed the assault through the mirror on the passenger-side door. She s aid that she was us ing the mirror to watch for her daught

er and niece to c

ome out of the store . She state d tha t she did not hear the defendant or the victim say anything to each other.

The defen dant testifie

d as follows: He, his wife, and his son were returning from buying dinner, and he stopped at

Brown’s Grocery to buy

mouthwash for his toothache. He parked to the left of the store in the parking place furthest from the store’s entrance and gave his son, Shane Dulworth, money to buy the mouthwash. When his son returned , he drove toward the road but decided that he wanted a soft drink, so he drove around the gasoline pumps and parked in front of the drink machines that were outside the store. After he bought a drink, he turned and asked his wife and son if they wanted drinks. They responde d that they did not, and then a man, whom he did

not recogni ze at the time, ordere d him to get out of the way, calling him a profane name. When he turned around, he was face-to-face with the man, who then said, “Yea h, you.” He was scared because of the man’s tone o

f voice; the man’ s appearance, specifically

the fact that his

eyes were dilated; and the fact that

he thought he saw something in the man’s hand. Because he thought that the man was going to hit, stab, or shoot him, he hit theman with his left hand. He then got into his car and started to leave but stopped when a woman approached the car. When the woman walked away from

the car, he left

. The defendant testified that he weighed about one hundred ninety pounds. He said that he met the victim twenty-six years ago but that he had not see n the victim in over t wenty years. H e denied being at

the defendant’s

house in 1993 and being asked to leave. He said that when he was face-to-face

with the victim, the v

ictim was not blocki

ng his path to

his car, and he di

d not ask his son, who weighed about one hundredeighty pou

nds at the time, for

help. He admitted t

hat he did notsee the victim with

a knife or

a gun and that he did not know what the victim was holding. He said that he had a s

oft drink in his rig

ht hand when he hit t

he victim.

Shane Dulworth, the defendant’s son, and Shirley Dulworth, the defendant’s wife, provided accounts substantially

similar to

that given by the defendant. Shane Dulworth testified that he saw the victim leave the st

ore and did

not hear the victim talk to anybody other than the defendant. He said that he heard the

victim call the def

endant a profane name and that

the victim looked aggressive and agitated. Shirley Dulw orth also testified that the victim called the defendant a profane name and ordered him to move. She stated that the victim had a weird look on his face and appeared agitated.-4-

She said that the victim had his hand in his pocket and looked like he was about to do something to the defendant.
I. SUFFICIENCY OF THE EVIDENCE

The defendant

contends that the evidence is insuf ficient to support h

is conviction for a

ssault beca use the state did not prove that he acted recklessly and did not disprove that he acted in selfdefense. The sta

te contends that th

e evidence is suf

ficient.

Our standard of review when the suff iciency of

th e evidence is que

stioned on appeal

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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. C abbage , 57 1 S. W.2 d 83 2, 8 35 ( Ten n. 1 978 ). Q ues tio ns a bou t wi tne ss c redi bil ity w er e resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

To establish that the defendant assaul ted th e victim, the state must have proven that the defendant intentionally, knowingly, or reckles sly c aused bodily injury to the victim. Tenn. Code Ann. § 39-13-101(a)( 1); see§ 39-11-106(a)(2) (defining bodily injury ). “Reckless,” which is the least culpable mental state that the state needed to prove, is “when the person is a ware of but consciously disregards a substantial and unjustifiable risk” that the result will occur. Tenn. Code. Ann. § 39-11-302(c).

In this case, the evidence viewed in the light most favorabl e to the st ate reveals that the defendant approached the victim from beh ind and asked him if he was Ronnie. When the

victim turned around, the defendant, without saying any thing else, hit the defendant’s cheek, breaking and displacing it. A rational jury could have found b eyond a reasonable doubt that the defendant assaulted the victim. Moreover, the evidence viewed in

this light reveals that self-defense was not an issue. Accordingly, the state did not fail to disprove that the defendant acte d in self-defense.
II. FULL PROBATIO

N

The defendant contends that the trial court should have granted him full probation, arguing that the assault, at worst, was a re ckless actio n. The defendant also argues that his good social his tor y, work history, and lack of criminal history favor

full probation. The state contends that the trial court prope

rly sentenc

ed the defendan

t.
At the sentenc ing hearing, the victim testified that the defendant broke his cheek bone, which required reconstructive surgery. He state d that, as a result of the assault, his right eye no longer-5-

openedcompletely, his eyesight was worse, and his eyes were more sensitive to wind and sunshine. He said that these injuries were permanent and that they forced him to change to a lower paying job.

The defendant test ified that he had only been arrested one time, for driving under the influence fifteen years ago, and that he had maintained e mployment

since he was fifteen years old. He said that he had le

arned fro m this case to stop and think about situations and not to react too quickly. He testified that he was acting in self-defense whe n he hit the victim.

The trial court

sentenced the defendant to eleven months, twenty-nine day s in the county jail at s eventy-five percent, ordering all but forty day s of the sentence to be suspended and served on probation. The court found that some amount of incarceration was appropriate beca us e of the severity of the injuries. SeeTenn. Code Ann. § 40-35-114(6). The court also noted that it did not believe that the a

ssault was just a fa

st reaction or sur

prise attack by

the defendant.

In reviewing whe

ther the trial cou

rt properly

sentenced the de

fendant, we con

duct a de novo review of the record with a presumption of correctness. Tenn . Code Ann. § 40-35- 401(d). This presumption of correctness is conditioned upon the affirmative showing that the trial co u rt considered

the relevant facts, circumstances, and sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1 991). In misd emeanor sen tencing, the trial court is not required to p

lace specific findings on the record. State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998).

A defendant seeking full probation bears the burden on appeal of

showing that the sentence imposed is improper and th at full probation will be in the best interest of the defendant and the public. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). In determinin g whether to grant or deny pro

bation, a trial co

urt should consider

the circumstanc

es of th e offense , the defendant's criminal record, the defendant's social history and prese nt condition, and the need for deterrence. Sta te v . Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App.1995).

In this case, the record

shows that the trial court considered the defendant’s good social and work history. I

n denying f

ull probation, the t

rial court gave

littleweight

to the defendant’s minor criminal history

but emphasized that the defendant inflicted severe, permanent injuries. The court commented that it did not believ e the defendant

’s claim that he just reacted too quickly. Moreover, the nature of the off

ense – approach

ing the victim fro

m behind and, as the

vic tim turned around, hitting him

in the face with a force great enough to break and displace his cheek bone – suppor ts the denial of full

probation. The de

fendant has not c

arried his burden of showing that his sentence of split confinement is improper.

Based upon the foregoing and the record as a whole, we affirm the judg ment of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE