### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

STATE OF TENNESSEE v. ROBER T GOBER

Direct Appeal from the Circuit Court for Robertson County No. 97-0404 Robert W. Wedemeyer, Judge

No. M1999-01425-CCA-R3-CD - Decided July 7, 2000

The Defendant was convicted of two counts of aggravated assault. For the se crimes, he was sentenced to concurrent terms of eight years to be served in the Department of Correction as a Range II, multiple offender. On appeal, he challenges the sufficiency of the convicting evidence and argues that he was imprope

rly sentenced. W

e affirm the judgm

ent of the trial co

urt.

Tenn. R. App. R. 3 Appea l as of Right; Judgme

nt of the Trial Cour

t is Afirmed.

W ELLES , J., delivered the opinion of the court, in which S MITH , J., and W ILLIAM S , J., joined.

Michael R. Jones, Public Def ender, Fred W. L

ove, Assistant P ublic Defender , for the appella

nt, Robert Gober.

Paul G. Summers, Attorney Generaland Reporter, Clinton J. Morgan, As sistant Attorney Ge neral, John Carney, District A

ttorney Genera

l, Joel Perry, Assis

tant D istri ct Attorney General, for the appellee, State of Tennessee.

OPINION

On May 11, 1997, the Defendant attended a cookout which wa s being held to celebrate Mother's Day. Although the D efendant w as not rela

ted to the family which had gathered for Mother's Day, he arrived at the party with a family member who had been invited. An argumen t developed

between the “mother” in wh ose honor the family had gathered and her brother. The Defendant

involved himself in t

he argument, whic

h then quickly esc

alated into

an altercation during which the Defen

dant brandished a

knife, resulting in

two people being c

ut.

The Defendant

was subsequently charged with public intoxication, disorderly conduct and
two counts of aggravated

assault. He waive

d his right to a jury tr

ial, and the charges were heard by the trial judge. The judge found t he Defe ndant not guilty of pu blic intoxication or

disorderly conduct, but guilty of both cou nts of aggravate

d assault. Th e Defendant was determined to be a Range II, multiple

offender and was sentenced to concurrent terms of eight years incarce ration, the mid-range for his crimes. On appeal he argues (1) that the evidence is insufficient to s

upport his convictions,

(2) that t

he trial court erre

d in finding him to be a Range II offend

er, (3) that his-2-

sentences are excessive,

and (4) that he sho

uld have been give

n a sentencing alt

ernati v e not involving incarceration.

Tennessee Ruleof Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by

the trial court or

jury shall be

set aside if the ev

idence is insufficient to

support the findings b y the tr ier of fact o f guil t beyon d a rea sonab le dou bt.” T enn. R . App. P. 13 (e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes

a presumption of

guilt, a convicted criminal defendant bears the burden of showing that the evidence

was insufficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1 992) (citi ng State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State

v. Brown , 551 S.W.2d 329, 331 (Tenn. 1977)); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 1962).

In its review of the e

vidence, an appe

llate court must af

ford the State “th

e strongest leg

itimate view of the evidence as well as all reasonable and legitimate i nferences that may be drawn therefrom.” Tuggle , 639 S.W. 2d at 914 (ci ting State v. Ca bb age , 571 S.W.2d 832, 835 (Tenn. 1978)). The court ma y not “re-weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191 (cit ing Cabbage , 571 S.W.2d at 836 ). Likewise, should the reviewing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle , 639 S.W.2d at 914.

The Defendant's convictions for aggravated assault were based on the trial cour t's finding that the Defendant intentionally or k nowing ly caused the vict ims to reasonably f

ear imminent bodily injury while

using or displaying a deadly weapon. See Tenn. Code Ann. § 39-13-102(a)(1)(B). The trial court heard witnesses testify that after the Defendant was asked to leave a family gathering, he brandisheda “boot knife” wi th a six to eight inch blade, swung the knife and cut a seventeen-yearold female. This

victim testified that when she saw the knife, she wa s afraid that she

was going to be injured. Immediately after the first victim was cut and in the turmoil that followed, the Defendant either “swung” his

knife or “stabbed at” the other victim, who testified that he received a puncture wound approximately a half inch to three-quarters of an inch deep. He testified that as soon as he

saw the knife, he feared that he would be injured. No evidence was presented that anyoneother than the Defendant was armed with any type of weapon. In arguing that the evidence is insuf

ficient to support his convictions, the

Defendant points

to inconsist

encies in t he testimony of the witnesses which he asserts casts doubt upon their credibility. The trier of fact resolved the credibility issues against the Defendant, as do we on appeal. See Tuggle , 639 S.W.2d at 914.

The Defendant also argues that the Stat e failed to prove the necessary mens rea of “intentionally

or knowingly.” A person acts intentionally if the person consciously desir

es to engage in the conduct or cause the result. Tenn. Code Ann. § 39-11-106(a)(18). A person acts know ingly when a person is aw are that the conduct is reasonably certain to cause the result. Id. § 39-11- 106(a)(20).

The trier of fact may infer a criminal defendant's intent from the surroundin g facts and circumstances. Sta te v. Lowery , 667 S.W.2d 52, 57 ( Tenn. 1984). The actions of a defendant-3-

constitute circumstantial evidence of his intent. State v. Holland , 860 S.W.2d 53, 59 (T enn. Crim. App. 1993). In most cases, the fact-finder must infer the defendan t's intent from circumstantial evidence. See id. at n.14. We believe the proof clearly supports a finding that the Defendant

acted intentionally

or knowingly at the time he assaulted these victims with a knife ; thus, the evidence presented is sufficient to support the findings by the trier of fact of guilt beyond a rea

sonable doubt. This issue is without m

erit.

The Defendant next argues that he was improperly sentenced. When an accused challenges
t he length , range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35- 401(d). This

presumption is “conditioned upon the affirmative showing in the record that the trial court con sidered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature a nd ch aracteristics of the crimina l conduct involved; (e) any sta

tutory mitig

ating or enhanc

ement factors; (

f) any stat

e men t

ma de by the defendant regarding sentenc ing; and (g) the potential or lack of poten tial fo r rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the

cou rt impo sed a lawful sentence after having given due consideration and prope r weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by

the record, then

we may not m

odify th e sentence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The Defendant

first argues that the trial court erred in finding that he should be sentenced as

a Range II, multiple

offender. He a

cknowledges that the State fi led its notice of intent to seek enhanced punishment in a timely manner. See Tenn. Code Ann. § 40-35-202. The record is clear that the State gave the Defendant proper notice of three prior felony convictions, including the nature of the convictions, th

e dates of the con

victions and the ide

ntity of the courts in which the convictions occurred. Because the State did not introduce certified copi es of the prior convictions at the sentencing hearing, the Defendant argues that the State did not meet its burden of proving that the Defendant qualified for Range II sentencing.

At the beginning of the sentencing hearing, in response to a question by defense counsel, the assistantdistrict attorney stated to the sentencing judge, “Your honor, there is a Range II notice filed by the State. You should have the attached copies of prior convictions of

Mr. Gober.” The Court noted that a presentence report had been filed and that he had defense

counsel's notice of proposed mitigating factors. The pr esente nce report w as entered into evidence, and no further proof was offered at the sentencing hearing. No further issue was raised concerning the Defenda nt' s prior convictions or his Ra

nge II status.-4-

The D efenda nt was convicted of two Class C felonies. To support a Range II sentencing classificati

on, th e State was required to establish that the Defendant had at least two prior felony convictions. See id. § 40-35-106(a)( 1). The convictio ns s et fort h in the State's notice of prior convictions were as follows: (1) a 1988 conviction for the sale of a controlled substance for which the Defendant received a seven-year sentence; (2) a 1 990 convict ion for theft over one thousand dollars for which the Defendant received a two-year sentence; and (3) a 1991 conviction for escape for which the Defendant received a one-year sentence. These convictions are also listed as a part of the Defendant's

prior record co

ntained in the pre

sentence repor

t.

All three felony con

victions upon which

the State relied to establish the Defendant's Range II status were entered i

n the Robertson Coun

ty Circuit Court, the

same court in

which the Defendant

was convicted herein. The State's notice provided the Defen dant with th e date of conviction, the
nature of the offense, a

nd the docket numbe

r in the Robertson Co

unty Circuit Court. Thes

e offenses

were again listed in the presentence report. At the beginning of the hearing, the State made reference to “the attached copies of prior convictions of Mr. Gober.” The Defendant raised no factual issue concerning the validity of the prior convictions. Based on our review of the record, we conclude that the record supports the trial judge's finding that the Defendan t qualified as a Range II offender beyond a reasonable doubt. See Statev. Anthony D. Hines , No. 01C01-9406-CC-00189, 1995 WL 316304 (Tenn. Crim. App., Nashville, May 25, 1995); Tenn. Code Ann. § 40-35-106(c).

The Defendant further argues that the trial court erred in setting his sentences at eight years and in denying him an alt ernativ e sen tencing option. As a Range II offender, the Defendant's sentencing range was six to ten years. Tenn. Code Ann. § 40-35-112(b)(3). For each offense, the trial court set

the Defendant's sentence at eight years and ordered the sentences se

rved concurre

ntly in the Department of Correction. The trial court foundas an enhancement factor that the Defendant had a previous history of criminal convictions or cr iminal behavior in a

ddition to that nece

ssary to establish the appropriate range. See id. § 40-35-114(1). I n additio n to the convi ctions already discussed, the presentence report reflects convictions for public intoxication, passing forged papers, assault and “harassment.” The record clearly supports the application of this enhancement factor.

In addition, the trial court found tha t the Defendant had no hesitation about committing a crime when the risk to human life was high. See id. § 40-35-114(10). It is clear from this record that other individuals were in the proximity of the Defendant when he pulled and “swung” his knife and committed these assaults. Th is enhancement

factor may be ap

plied where the D

efendant crea

tes a high risk to the life of a person other than the victim. See State v. Bingham , 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). We believe the record supports the application of this enhancement factor.

The trial court also considered and applied three mitigating factors, but found t hat the enhancement

factors outweighed the mitigat ing factors. Accordingly, it set the Defendant's sentence in the middle of the ra

nge. We conclude

that this eight-year sentence is adequately supported by the evidence in the record below.

Because the Defen d ant was sentenced as a Range II offender, he was not entitled to the presumption that he is a favor able candidate

for an alternative to incarceration. See Tenn. Code Ann.-5-

§ 40-35-102(6). We believe the Defendant's rather extensive criminal record adds support to the trial court's presumptively correct decision that the Defend ant serv e his sentence in the Department of Correction.

The judgment of the trial court is accordingly affirmed.