# FILED
OCTOBER 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1997 SESSION
RANDY L. MILLER, ) ) Appellant, ) C.C.A. No. 03C01-96 0 8-CC-0032 3 ) vs. ) Anderson County ) STATE OF TENNESSEE, ) Honorabl e James B. Scott Jr., Judg e ) Appellee. ) (Aggravated Assault) )

FOR THE APPE LLANT: FOR THE APPELLEE: A. PHILIP LOMANACO JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 112 Durwoo d Drive Knoxville, TN 37922 TIMOTHY F. BEHAN Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 JAMES N. RAMSEY District Attorney General JANICE G. HICKS Assistant

District Attorney General 127 Anderson County Courthouse Clinton, TN 37716 OPINION FILED: ____________________
AFFIRMED IN

PART, REVERSE D IN PART, R EMANDED CURWOOD WITT JUDGE1 Paul S. Green is an adult. Paul Green is a minor. 2 OPINION The defendant, Randy L. Miller, appeals his convictions of six counts of aggravated assault and the six year incarcerative sentence he re cei ved for his crimes. The defendant, a truck driver , received these conv ictions in the Anderson County Criminal Court, follow

ing a shooting alterc

ation between himself and a vanload of travelers on Intersta te 75. In his direct appeal, the def endant r aises two issues for our considerati on. 1. Whether the court erred by refusi ng to charge the lesser grade of aggravated assault,o r, in the alternative, di d the state produce sufficient evidence to find Miller guilty of six sep

arate aggravated assaults each don e intent ionally or knowingly? 2. Whether the court properly applied thre e enhancement factors. On our review of the record, we affirm the defendant's convic tions of aggravated assault of Paul S. Green , Dedra Green and Shannon Uller y and affirm the defendant's sentences for those con victions, and we remand these convictions to the trial court for correction of a technical aspect of the record. On the other hand,
we reverse the defendant's convictions of ag gravated assault of Paul Green, 1 Kirstie Green and Sarah Green and remand for a new trial.

On June 10, 1995, Miller was returning to his home state of Georgia via Interstate 75 in Anderson County in a tractor-tr ailer truck. The six vi ctims, Paul S. and Dedra Green, their three minor c hildren, Paul, Kirstie,and Sarah, and their 19 year old friend Shannon Ull ery were trav eling from Ohio to Georgi a in t h e Greens' van on Interstate 75. The Greens had a citizens' band (CB) radio in their van, and Mr. Green had been on the radio joking and belching with various truck drivers. Apparently, the talk was somewhat anta gonistic. According to Mr. Gr een, himself a truck driver, the conv ersation w as not out of character for that in which truckdrivers generall

y engage on CBs. At

various times, the adults in the van heard3

an individual who w

as yelling and cursi ng. At first, this v oice sounded far

away, and Mr. Green and the other participants to the c onversation ignored hi m. A truck driver told the speaker he was not inv olved in the conversa

tion, which only ant

agonized him. Later, the voice threate ned that if they did not shut up, he would shut them up permanently and that he would runthem off the road. Mr. Green identified the voice he heard on the CB radio as bel onging to the defendant.

According to the Greens and Ms. U llery, after the defendant threatened to run them off the road, he came up behind them in the left lane, and Mr. Green moved into the rig ht lane. The defendant passed them, then forced them off the road onto the right shoulder. M r. Green pulled back onto the road, and the defendant was in front of them. Mrs. Green testified she was incensed and grabbed the microphone and said, "Youson of a bitch, I have three babi es in here. What the hell do you think you're d oing? I ought to kick your ass." The defendant

slammed
on his brakes so hard that the victims could see smoke from his tires. Mr. Green then attempted to go around the defendant's truck to get the identification numbers off his tractor so he could report the defendant to his employer. As the Greens' van approached the fron t of the t ruck, Mrs. Green notic ed the defendant had a gun. Then the van wi ndows disintegrated as sev eral gunshots were fir

ed. Mrs. Green
was grazed with a bul let to her back, causing non-life threatening injur y. As the van and truc k traveled on, Mr. Gr een saw a police cruis er with flashing li ghts in a construction area. He pulled in and aler ted the officer. The def endant arrived shortly thereafter and accu sed Mr. Green of shooting at him.

Searches of the defendant's tr uck cab rev

ealed no weapons. A .9mm semi-automatic handgun was found in the gl ove box of the Greens' v an. Gunshot residue tests

of the defendant's hands were inconc lusive. A firearms expert from the Tennessee Bureau of Investigation Cri me Lab testified a mirror taken fr om the4

driver's side of the defendant's truck had damag e consistent with dam age from a projectile fired from a gun within 36 i nches. The da ma ged area wa s caused b y a projectile traveli ng right to left.

The defendant claimed he had heard sever al individual s using profan ity, belching and insulting others on his CB radio. He conceded he may have inadvertently run the van off the road when he passed it, but he thought he was clear of it. After this happened, he said a woman's voi ce came on the radio and said, "You're dead MF," and a man 's vo ice sai d, "I'm g oing to kill y ou, son o

f a bitch." He looked in his rear -view mirror and saw the Gree ns' van. He could see the driver, whom he could n ot ident ify, leaning over and then hol ding up ahandgun. He alleged he began braking to keep the driv er from having a clear s hot at him, and
as the van passed him his mirror was shot. He testified he did not have a gun. He identified the gun taken from the Greens' v an as looking like the gun he saw. The defendant also testified he saw onl y two people in the v

an.

The defendant also presented two char acter witnesses at tr

ial who testified to his reputation for truthfulne ss.

The defendant requested jury instructions on the lesser

grade offense of reckless aggrav

ated assault, but the court decl ined the request. The jury found the defendant guilty of

six counts of aggrav

ated assault. During del iberations, the juryreported difficulty reaching a v erdict on four

of the six counts. The foreperson reported guilty verdic

ts for the counts pertaining to Paul and Dedra Green, and after further deliberati on the jury returned gu ilty verdicts for the counts relating to Shannon Ullery and the Gr een children.

In an apparent attempt to throw himself on the mercy of the court, the5

defendant took the stand at the sentencing hearing and admitted h e comm itted perjuryat trial. He a pologized to the state, the court and the victims for his dishone sty. He admitted he shot at the Greens, althoug h he maintained Mr. Green pulled a gun and fired on him, and he shot in self-de fense. The defendant claimed he previously lied

under oath because he was scared. He cl aimed to have disposed of all the guns he and his w ife owned. He reported he quit his job as a truck driver and would neve r drive a truck again. Unpersuaded, the cour t sentenced the defendant to six years for each count, the maximum for a Range I offende r, the six sentences to be served concurrent l y. The court rejected the defendant's bid for probation and ordered he serv e his time in the Department of Cor rection.

I In his first appellate

issue, the defendant alleges the trial court erred in failing to instruct the jury on the lesser g rade offense of reckless aggrav ated assault. Alternatively, he argues the evidence is insufficient to convic t him of aggravated assault of Shanno n Ulle ry and the three Green chi ldren, based upon insufficientevidence of a knowing or intentional mentalstate. The statecounters there was no proof the defendantacted recklessly; hi s defense was he did not shoot at the victims. In this absence of e vidence the defendant is guil ty of the lesser offense, the state argues, the court did not err in declining to instruc t the jury on the lesser grade offense.

A trial cour t has the duty, sua sponte , to instruct the jury on all lesser grade or class offenses and lesser i ncluded offenses, provided the evidence would support a conviction for the lesser offenses. Tenn. Code Ann. § 40-18-110 (1990); State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); see Tenn. R. Crim. P. 31(c).

Under the statutory scheme, reckless aggravated as sault is a lesser6

grade offense of aggravated assault. See Tenn. Code Ann. § 39-13-102(b) (Supp. 1995) (amended 1996); Trusty , 919 S.W.2d at 310-11 (dis ting uishing between lesser grade and lesser incl uded offenses); State v. Donald W. Brantley , No. 01C01-9508-CC-00255, slip op. at 7 (Tenn . Crim. App., Nashville, Mar ch 13, 1997) (Hayes, J., concurring), pet. for perm. app. filed (Tenn. May 13, 1997). Thus, the trial court had a duty

to in struct the jury on reckless aggravated assault if the evidence would support a conviction of that crime. See Trusty , 914 S.W.2d at 488.

The relevant

statutory provisions define reckless aggravated assault
as resulting where a person "[r]ecklessly commits an assault as defined in§ 39-13- 101(a)(1) , and: (A) Causes serious bodily injury to another; or (B) Uses or displays
a deadly weapon." Tenn. Code An n. § 39-13-102(a)(2) (Supp . 1996) (itali cs added). Section 3 9-13-10 1(a)(1) in culpate s "[i]nte ntional ly, knowingly or recklessly caus[ing] bodily inj ury to another[.]" Tenn. Code A nn. § 39-13-101(a)(1) (1991 ).

In the case at bar, there was no evidence Paul S. Green or Shannon Ullery received any bodily

injury, as requi red under section 39-13-101( a)(1). On the other hand, there was un conte sted evidence Dedra Green received bodily injury when she was graz

ed by a bullet, and there was conflicting evidence whether the Green children received mi nor scratches from shattering glass. Because reckless aggravated assault mus t involve some degr

ee of bodily injury, a conviction of that crimemay be found only as to those victims who are alleged to have been inj ured. In other words, the evi dence would not support a con viction of reckless aggrav ated assault of Paul S.Green an d Shannon Ullery. The tri al cour t had no basis fo r instructing the jury on reckless aggravated assault as to these victims.

With respect to the child v ictims, the defendant contend s he was entitled to a jury instruction on reckless aggrav ated assault on the counts pertaini ng2 The question we find determinative is not whether the evidence

presented at trial was

sufficient to sustain the defendant's c onvictions of aggravated assault; it is whether the jur y was properly

instructed on all cri mes of which the defendant might properly be found guilty. As this court has noted in the past, In effect, the trial court must consider the evidence in the light most favorable to the existenc e of the lesser included offense and if the evidence so considered per mits an inference of guilt of a les ser offense, the trial court must gi ve instructions as to the lesser offense. Otherwise, the trial court's consideration of the e vidence runs the risk of invading the province of the jury relative to witness credibility, the w

eight and sufficiency of the ev idence, and the degree of the offense, if any, to be sust ained. State v. Brooks , 909 S.W.2d 854, 86 1 (Tenn. Crim. App. 1995). In the end, it may well be that the defendant w ill be found guilty of ag gravated assault after the jury has been instructed on remand on both aggravated assault and reckless aggravated assault, and the evidence will be sufficiently supported by the record if this matter is thereafter reviewed by this court. Nonetheless, the defend ant is entitled to have the question of his guilt of both aggravated assault and reckless aggravated assault be

fore the jury, provid ed the evidence presented on r emand supports an inference of his gui lt of either crime. 7 to these victims because the state failed to prove beyon d a rea sonable doubt he
was aware of their pres ence in th e va n. Thus, he argues , he could not have intentionally or knowingly assaulted them. The defendant all eged at tri al he saw onlytwo people in the front seat o f the van. To the contrary, the state offered proof Mrs. Green got on the CB radio and told the defendant she had "three babies" in the
van prior

to the gunfir

e. The defendant

denied heari ng this sta tement. Th e evidence could support a finding of reck less aggravated ass

ault of the children if the juryaccredited the testimony of the defendan t that he was aware of only two people in the van and never heard M rs. Green say she had thr ee babies in th e v

an . We believe the trial court committed reversible error in failing to charge the j ury on the lesser offense of reckless aggrav ated assault as to the three counts of the indictment pertaining to the children. 2

Finally, with respect to the tr ial court's failure to i nstruct the jury on reckless aggravated assault of Dedra Green, the record is devoid of any evidence3 The defendant's subsequent admission at the sentencing hearing that he shot at the Greens' van technically is not part of the evidence we can consider in determining whether the jury was properly instructed, in that the admission did not occur at trial. We note parenthetical ly, however, the defendant never contradicted his trial testimony that he had not seen or otherwise been awar

e of the presence of more than two peopl e in the van. 8 his conduct toward her

constituted mere recklessness. The defendant admitted he
saw two people in the front of the v an. Mrs. Green was s itting in t he front passenger

seat. According to the s tate's theory, the defenda nt th reatened to run the van off th e road, then proceeded to do just that. The defendant admitted he mayhave accidentally run the van off the road. When the van returned to the road and attempted to pass t he defend ant, he shot at the van. Cl early, the latter ri ses to the level of intentional or at least knowing

conduct. Th e defendant offered no evidence he recklessly shot a t the van, choosing ins tead to challen ge that the events occurred at all. In the absence of any evidenc e of reckless conduct direct ed to Dedra Green, the court did not err in failing to instr uct the jury on reckless aggravat ed assault of this victi m.

In reaching these conclusi ons, we have consider ed and rejected the state's argument the tr ial court was excused from instructing the jury on reckless aggravated assault unde r t he rule espoused in State v. Barker , 642 S.W.2d 735 (Tenn. Crim. App. 1982). In Barker , this court held that the tr ial court had no obligation to instruct the jury on lesser includedoffenses where the defendant did not contest the occurrence of the cr ime but merely interposed an alibi defense. Barker , 642 S.W.2d at 738 (citing Price v. State , 589 S.W.2d 929 (Tenn. Crim. App. 1979); Judge v. State , 539 S.W.2d 340 (Tenn. Crim. App. 1976)). Unli ke the defendant in Barker , the defendant before us challenged w he the r the crimes themselvesoccu rred. 3 His evidence attempted to s how the events occurr ed differently than as illustrated b y th e state's proof and that no crimes were committed. The jury had to determine not only whether the defendant c ommitted9

the crimes, but whether any crimes occurred at all

. Accordingly, w e reject Barker as dispositive of the case at bar.

The defendant argues in the alter native the evidence is insufficient to support convictions of aggr avated assault of

Shannon Ullery and the thr ee children based upon an inadequate showing he possessed the requisite intentional or knowing mental state at the tim e of the crimes. Our standard of rev iew as to sufficiency questions is whethe r, after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985 ); Tenn. R. App. P. 13(e). When undertaking such review, we are constrained to a fford the State of Tennessee the strongest l egitimate view of the evidence contained in the record as w ell as all reasonable and legitimate inferences which may be drawn

from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In the light most favorable to the stat e, the defendant threatened to
run the Green s' van off the road, did so, then shot into the occu pied van while travelingdown the interstate. The defendant admitt ed seeing two people in the van, and Mrs. Green warned him there were children in the van. Ms. Ullerytestified she was sitting in the

center of the middle seat, wher e she could see out between the two front seats . Wh ether the defendant was aware of Ms. Ullery's presence is essentially a question of the defendant's credibility. The jury could logically conclude beyond a reasonable doubt the defendant knew Ms. Ullery was in the van and intentionally or know ingly caused her to fear bodily injury, a

s cha rged in the indictment. Likewise, whether the defendant saw the children or heard Mrs. Green's warning there were three chil dren in the van is essentiall y a credibility

question, and4 As noted previously, however, the defendant's co nvictions of aggrav ated assault as to the three chil d victims are infirm due t o the lower court's fail ure to submit the lesser grade offense of reckless aggravated assault to the jury. Thus, notwithst anding ou r findin g of suff icient evi dence of the great er offe nse, we ha ve vacated and remanded these three convictions for a new trial. 10 a rational jury could resolve this quest ion in favor of the state by finding beyond a reasonable doubt that the defendant's actions were intentional or knowing as to the children.

In the defendant's challenge to the suffici ency of the evidence, he has not directly questione

d Ullery's and the child victims' reasonable fear of imminent bodily injury, and we find th e record contains sufficient ev idence ofthis element as to these victims. Ullery test ified sh e lay down in the seat and pushed the childr en down in their seat once she became aw are the d efendant had a gun. Several windows on the van were shattered by the defendant's gun blasts. The chil dren had shattered glass in their hair, and they r eceived minor

cuts and scratches from the glass. A rational jury

could infer these victims' reasonable fear of imminen t bodily injuryfrom the se facts . Accordin gly, we find the evidence sufficiently supports the jury's findings of guilt as to Ullery and the child victims. 4

II The defendant's second issue is w hether the trial court properly relied
on three enhancement factors. Theenhancement factors found by the court were "the offense involved more than one vic tim[, ]" "a victim of the offense was particularlyvuln erabl e because of age or physical or mental disability[ ,]" and "the defendant had no hesitation about co mmittin g a cri me when the ris k to huma n life
was high[.]" Tenn. Code Ann. § 40-35- 114(3), (4) and (10) (1990). The state has
c onceded the inapplicability of the three factors but argues a max imum sentenc e is nevertheless appropria te for this defendant because ano ther enhancement factor,11

"the crime was committed under circumstances under

which the potential for bodily in juryto a victim was g reat," applies even though it was not relied on

by the tria l court. See Tenn. Code Ann. § 40-35-114(16) (1990).

When a defendant challenges the sentence imposed by the tr ial court, this court engages in a de novo r eview of the record w ith a presumption the trial court's determinations were cor rect. Tenn. Code Ann. § 40-35-401( d) (1990). This presumption is "conditioned upon the affirmative showing in the record that the

trial court considered the sentencing prin ciples and all relev ant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we mustconsider the evidence at sentencing, the presentence report, the sentencing pr inciples, thearguments of counsel, the statements of the defendant, th e nature and characteristics of the offense, a ny mitigating and enhancement factors, and the defendan t’s amenability t o rehabilitation. Tenn. Code Ann. § 40-35-210(b) (1990); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showing the sentence impos ed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1990); Ashby , 823 S.W.2d at 169.

The record in this case fails to demons trate tha t the tria l court gave ap pro priate consideration to the principles of sentencing as w ell as the relevant facts and circumstances. Accordingly, our review is de novo unaccompanied by the presumption of correctness.

With respect tothe length of the three aggravated assault sentences,
we find two enhancement factors a pplicable to the defendant. First, we disagree with the state's concession that factor (10),"[t]he defendant had no hesitationabout committing a crim e when the risk to human li fe was high[,]" does not appl y. See Tenn. Code Ann. § 40-35-114(10) (S upp. 1996). Second, factor (16), "[t]he crime[s5 The record before us does not incl ude the victim impact statement

appended to the presentence report. On the particular facts of this case, 12 were] committed under circumstances under which the potentialfor bodily injury to
a victim was great[,]" applies. See Tenn. Code Ann. § 40-35-114(16) (Supp. 1996). We acknowledge the gener al rule that these fac

tors a re inherent in the crime of aggravated assault accomplished through the use of a deadly w eapon. See, e.g. , State v. Hill , 8 85 S.W. 2d 357, 3 63-64 (T enn. Crim . App. 19 94). W e have previouslyrecognized, ho wever, t hat these factors may be applied "if the facts demonstrate a culpability disti nct from and appreciably gr eater than that

incident to the convicted offense." State v. Gregory Muse , No. 03C01-9508-CC-00212, sli p op. at 5-6 (Tenn. Crim. App., Knoxvil le, Sept. 17 1996), perm. app. granted on other grounds (Tenn. Mar. 17, 1997 ); se e State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994). This case presents a situation which is appropriate for a pplication of the exception, rather than therule. T he defendant unhesitatingly endang ered the victims with gun shots, the basis for the convictions, but he also unhesitatingly endangered them by creating a situation in which there w as substantial risk of their
van wrecking, whether as a result of the defendant's shooting at the driver and the windows or running the van off the roa d. We believe the latter lay e r of ris k of a wreck, which was not essent ial to the convictions, justi fies the application of enhancement factors (10) and (16). M oreover, we find the natur e and characteristics of the c riminal co nduct in t his case ju stify giving these two enhancement factors great weig ht. See State v. George E. Martin, Jr. , No. 02C01- 9512-CC-00389, slip op. a t 1 4 (Tenn. Crim. App., Jackson, Aug. 18, 1997) (circumstances

of offense maybe considered in determining appropriate weight to be given to enhancement factors). In fa ct, we believe these two enhancement factors justify maximum Range I sentences o f six years for the defendant's three convictions. We find evidence of no m itigating factors on the record before us, and the defendant ha

s not argued

that any app ly to him. 5however, the vic tim impact statement is not essential to our determination. The considerations recited i n the main text of the opinion jus tify maximum sentences to be served in the Department of Correction. Thus, any additional po tentially enhancing information whic h may be contained in the v ictim impact statement would only further justify these sentences. On the other hand, if the victim impact statement contained information favorable to the defendant which might mitigate the length of his s entence or support an alternati ve sentence, the defendant bore the duty of seeing that it was included in th e record and waived our consideration of it by failing to see that it w

as included therein. See Tenn. R. App. P. 24(g); State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993) (citations omitted).

6 On our de novo review, we ac cord little counterv

ailing weight to

the defendant's subsequent admission of per jury. While this may have been a sincere admission of wron gdoing, it just as eas ily may have been a pl oy by the defendant to try a different tactic to obtain more favorable sentencing after his original tactic of perj uring himself at trial di d not work to his adv antage. 13 Next, we turn to the issue of the manner of service of this sentence. Having received a sentence of less than eight years, the defendant is presumed to be a favorable candidate for alter native sentencing. See Tenn. Code Ann. § 40-35- 102(6) (1990). Moreover, he is eligible for prob ation. See Tenn. Code Ann. § 40- 35-303(a) (Supp. 1996). Curiously, he has devoted no argument in his brief to the proposition he should receive probation or some other form of alt ernative sentencing, rather than confinement. In any even t, we have serious concern about the defendant's potential for rehabilitation in light of his perjuryat trial. 6 See State
v. Dowdy , 894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994) ; see also Tenn. Code Ann. § 40-35-103(5) (defendant's potential for rehabilitation is a proper sentencing consideration). This factor overcomes the pr es ump tion that the defendant is a favorable cand idate for alte rnative sentenc ing. As such, he was properly or dered to serve his sentences i n the custody of the Department of Cor rection.

In summary, we arriv

e at the same sentencing resul t at the trial court, albeit for different reasons.

III14 Finally, we note from the technical record that the trial court enter ed all six judgments against the defendant on one judgment form. This is cont rary to Rule 17 of the Supreme Court, which p rovides that a uniform judgment document "shall be prepared for each conviction; if there ar e multiple convictions

in the same i ndictment, separate judgments should be fil led out with appropriate no tation s stating whether

the sentences will run consecutively or concurrently." Because the trial court's judg m ent does not comply with the rule, we remand the defendant's convictions

of aggravated assault of Paul S. Green, D edra G reen and Shannon Ullery with instructions that the trial court amend its cons olidated judgment document by generating one ju dgment document for each conviction. In addition,
we caution the trial court t o comply with Rule 17 with respect to any convictions that mayresult from the three convi ctions we ha ve vacated and remanded for further proceedings.

In sum, the defendant's convictions of aggr avated assault of Paul S. Green, Dedra Green and Shannon Ullery and the sente nces imposed by the trial court are affirmed and remanded withinstructions. The convi ctions ofaggravated assault of Sarah Green, Kirstie Green and Paul Green are vacated and remanded for a new trial consis

tent with this opinion.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ JOHN H. PEAY, JUDG E15

_______________________________ JOSEPH M. TIPTON, JUDGE