### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on

Briefs N ovembe

r 4, 2003

STATE OF TENN ESSEE v. MATTHEW A . WEBB

Direct Appeal from the Circuit Court for Weakley County

No. CR 79-2002 William B. Acree, Jr., Judge

No. W2002-03048-CCA-R3-CD - Filed January 2, 2004

After a jury trial, the defenda nt was fou

nd guilty of agg ravate d assault

and sente nced as a Ran ge I,

standard offender to five y ears in the Tennessee Department of Correction. He contends on appeal

that 1) the evidence was insuf fici ent to sustain the conviction, 2) the trial court erred in admitting

a photograph of the victim, and 3) the trial court erred in deny

ing any form o f alte rnati ve sen tenci ng.

The judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERE TT W IL LI AMS

, J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE

G. R ILEY

, JJ., joined.

Joseph P. Atnip, Di strict Publ ic Defender (on appeal); Didi Christie (on appeal), Brownsville,

Tennessee; and Char le s S. Kelly and Charles S. Kelly , Jr. (at trial), Dyersbur g, Tennessee, for the

appellant, Matthew A. Webb.

Paul G. Summers

, Attorney Gene ral & Reporter; J. Ross Dyer , Assistant Attorney Gene ral; and

Thomas A. Thomas, District Attorney G eneral, for the appellee, State of Tenne ssee.

OPINION

The defenda

nt, Matthew A. Webb, was conv icted of aggr avate d ass ault in violation of

Tennessee Code Annotated section 39-13-102(a)(1)(A), a Class C felony. Following a sentencing

hearin g, the t rial c ourt s enten ced th e defen dant a s a Ran ge I, sta ndard of fender to five yea

rs in the

Tennessee Department of Correction (TDOC). This appeal timel y f oll owed. The defendant

contends on appeal that 1) the evidence was insufficient

to sustain the conviction, 2) the trial court

erred in admitting a photograph of the victim, and 3) the tri al court erred in deny ing any form of

alternative sentencing. The judgme nt of the trial court is affirmed.-2- Facts

During the late evening hours of January 27, 2002, a group of ten to fifteen y oung men had

gathered in the dormitory room of L ucas Ingr am on the campu s of the University of Te nnessee at

Martin (UTM) to watch a bo xing matc h on television. Although not a student at UTM, the

defendant had drive n to Martin

from Unio n City

to visit I ngram i n his dorm r

oom. The defendant

was accompanied by

Robert Taylor and Este s Mitchell. Most of the people present in the room were

football players a t UTM. After watching the boxing match on television, the defendant challenged

Frankie Doss, a student and two-hundred-seventy -pound football player , to a boxing ma tch. The

men put on boxing gloves and began boxing in the hallway of the dorm. After the noise level

escalated, the group moved outside, and the fight continued. Doss knocked the defendant down on

two different occasions. The defendant be came upset after the second knock down and stated that

he was goi ng to his car to get a gun. Doss and a few of the other men, including the victim, Andrew

Garret t, ran af ter the defendant to prevent him from reaching the parking lot. The defendant was

pushed to the gr

ound, and he and Do ss wrestl ed in the g rass until the others broke up the fig ht.

Everyone then shook hands and apolog ized for w hat had ha

ppened. The victi m apolog ized to the

defendant for pushing him down. The defendant, along with his friends Tay lor and Mitchell, left

Ma rt in an d r et ur ne d t o U ni on Ci ty.

Jerome McElrat h and Jeff rey Shields, c o-defe

ndants, testified that the defendant returned to

U nion City and told them what had transpired in Mar tin. The men said that the def endant aske d

them to return to Martin with him. The defendant said that he had lost his wallet during the fight and

wanted to go bac k and look for it. Ac cording

to Shields, the defe

ndant sai d th at if

th ey s aw an ybo dy,

they were going to fight. The defendant drove Shiel ds, Taylor, and McElrath back to the UTM

campus. As the defendant’s group claimed to be outside the dorm looking for the missing w allet,

the victim and

another student, Sh ane Willia

ms, arriv ed back

at the dorm from a trip to a local

convenience store.

The victim

testifie d that he a

nd Williams returned to the dorm around 12:30 a.m. As they

walked towar d the b uild ing, a group of three men, including the defendant, approa ched them. One

of the men wa s in front of the victim to the right and theother was in front to the victim’s left. One

of the men, later identified as Shields, hit him in the face and dazed him. After being hit again, the

victim was knoc ked unco nscious. T

he victim a ssumed tha

t the def endant hi t him the second time,

but did not know for

sure, because the defendant was stand

ing on the side whe re the vi ctim was h

it.

The victim was taken by ambulanc e to the emergency room in Martin. He was later transpor ted to

Vander bilt Medic al Center

in Nashville. The victi m testifie d that he s ustained numerous injuries,

including a broken jaw in two different places, a broken nose, a black eye , a

gash on the back of his

head, a cut on hi s ear, a nd lacer ations an d tears to

th e inside o f his mo uth. Upon arriving at

Vanderbilt, the victim underwent over fou r hours of reconst ructive surger y to his jaw. Four metal

plates and wire mesh were permanently implanted into the victim’s jaw. His mouth w as comple tely

wired shut for a

pproximate

ly two m onth s, dur ing whi ch tim e he had to in gest fo od th rough a straw.

He said that h

e was i n excruciating pain, had constant headache s, and had trouble breathing. The

victim stated that he was in constant pain for about seven weeks and lost thirty pounds.-3-

Teresa Garrett, the victim’s mother, first saw her son around 7:00 a.m . in the emergency

room at Vanderbilt. She said that s he proba bly would not h ave eve

n recog nized him, b ecause

his

face was so distorted. The victim was sitting up and continually spitting blood and tissue into a cup.

His jaw was distorted and he had a badly bruised eye . She or the victim’s father took a picture of

the badly beate

n victim before he underwent the surgery . The State introduced the picture, over the

defendant’s objection, in order to assist in establishing that the victim suffered

se ri ou s b od il y in

ju ry.

Shane Williams stated that as he and the victim approached the dorm, the defendant pointed

at the victim and said “that’s the kid that was talking shit.” He initially saw only three

of the men.

A fourth person later ca

me from a round the building . One of t

he men, ot

her than the defe ndant, tol d

Williams to stay out of

it and kept him back while he attempte d to assist t he victim. As Williams

was running around, he heard a bottle bre ak. He looke d around and saw the victim lying on the

ground with at least two of the men kicking and stomping on the vi ct im ’s fa ce an d s id es of hi s b od y.

The men were kicking the victim’s head into the concr ete curb. He t esti fied that he saw the

de f endant kick the victim. The

victim wa s not fig hting ba ck and a ppeare d to be unc onscious.

Williams ran around the corner of the building and hid until the incident was over.

Robert Taylor testified that as th e group began looking f or the defendant’s wallet near the

dorm, Taylor wa

lked around the side of the building to use the bathroom. He said that he came back

around the building and

saw the defendant standing over the victim while the victim was ly ing near

the concrete curb. He

saw the defendant hit the victim once in the victim’s shoulder area while he

was lying on the g

round. The victim was not moving. Tay lor told t hem “that ’s enough,” and the

group got in the

ir car and left. He said that h

e only saw the e nd of the f

ight and did not see anyone

else hit th e victim.

The defendant testified

that his on

ly in tention in r

eturning to Martin w as to loca

te his wallet.

He said that he approac

hed the vi ctim to ask

him about h

is wallet, and the victim pushed him. The

defendant stated that Shields hit the victim, and then the victim fell and hit his head on the curb. The

defendant testified that he only struck the victim onc e in the r

ibs while h

e was on t he gro und. Both

McElrat h and Shields stated that the defendant asked them to re

turn to Martin with him to look for

his wallet. H aving a

lready been co nvicted, both of the witnesse s admitted

to hit ting th e victim.

According to them, the defendant also hit th e victim numerous times during the altercation.

McElrat h said that afte r they realized that the v ictim had s topped mov ing, the y r eturned to their car

and left.

Analysis

The defendant contends on appeal that 1) the evide nce was insufficient to sustain the

conviction, 2) the trial court erred in admitting a photogr aph of the victim, and 3) the trial court erred

in denying a

ny form of alter

native sentencing.-4-

I. Sufficiency

of Evidence

The defendant con tends on ap peal that the evidence was insufficient to establish that the

defendant was the person who inflicted the injuries upon the victim. When adefendant challenges

the sufficiency

of the evidence, the standard of review is whether, after viewing the evidence in the

light most favorable to the State, any rational trier of

fact could have found the essentia l element s

of the crime bey ond a

reasona ble doubt. Tenn. R. A

pp. P. 13(e ); Jackson v. V irginia , 443 U.S. 307,

319, (1979); State v. Evans , 838 S.W.2d 185, 190-91 (Tenn. 1992). On appeal, the State is entitled

to the strongest legitimate view of the evidenc e and all reasonable or legitimate infer ences which

may be draw n theref

rom. State v. Elkins , 102 S.W.3d 578, 581 (Tenn. 2003). This Court will not

re-wei gh the evidence, r eevaluat e the evi dence, or substitu te its evid

entiary infere nces for those

reached by the jury

. State v. Carey , 914 S.W.2d 9 3, 95 (Te nn. Crim. A

pp. 1995) . Furthe

rmore, in

a criminal trial, great weight is g iven to the result reached by the jury. State v. Johnson , 910 S.W.2d

897, 899 (Tenn. Crim. App. 1995).

Once approve d by

the trial court, a jury verdict accre dits the wi tnesses p

resente d by

the State

and resolves all conflicts in favor of the State. State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983).

The credibility of witnesses, the we ight to be given their testimony

, an d the reconciliation of

conflic ts in the proof are matters entrusted exclusively to the jury as trier of

fact. Statev. Sheffi eld

, 676 S.W.2d 542, 5 47 (Tenn . 1984); State v . Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

A jury’s g uilty verdict removes the pr esumption of innocence enjoy ed by the defe ndant at trial and

raises a presumption of guilt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant

then bears the burden of overcoming this presumption of guilt on appeal. State v. Black , 815 S.W.2d

166, 175 (Tenn. 1991).

In Tennessee, a

conviction may not be base d solely upon the uncorroborated testimony of an

accomplice. State v. Bane , 57 S.W.3d 411, 419 (Tenn. 2001); State v. Allen , 976 S.W.2d 661, 666

(Tenn. Crim. App. 1997). Furthermore, accomplices cannot c orroborate each other. Statev. Boxley

, 76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). In order to qualify as corroborative evidence,

[t]her e must be some

fact tes tified to, entirely independ

ent of the

accompl i ce’ s

te st im on y, which, taken by itself, leads to the infer ence, not only that a

crime has

been committed , but also t hat the de fendant is implica

ted in it; and this independent

corroborative testimony must also include some fact establishing the defendant’s

id en ti ty.

State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994) (citations omitted).

The corroborative evidence may be direct or circumstantial and is not required to be

sufficient standing alone to support a conviction. Id. The corroborative evidence is suffic ient if it

fairly and leg itim ately

te nds to connect the defendant with the commission of the crime charg ed.

Statev. Shaw , 37 S.W.3d 900, 903 (Tenn. 2001). In addition, corrob oration is s ufficient even

thou gh the evidence is slight and entitled, when standing alone, to but little considera tion. State v.

H eflin

, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999) . The corroboration need not extend to al l-5-

portions of the accomplice’s evide nce. Bigbee

, 885 S.W.2d at 803. The sufficiency of the

corroboration is a determination for the jury

. Shaw , 37 S.W.3d at 903.

The defendant does not argue that the State failed to establish the elements of agg ravated

assault. See Tenn. Code Ann. § 39-13-102(a)(1)(A). He contends that the evidence did not

sufficie ntly establish that the defendant was the person that infl ic ted the injuries sustained by the

victim. The def

endant a vers tha t the only evidenc e establishing that he struck the victim was the

uncorroborated

testimony of his accomplices. Shane Williams, the student accompany ing the vic tim,

unequivo cally

testified that he saw the defendant kick the victim. This testimony alone is sufficient

to corroborate the accomplice testimony. Additionally , the defendant admitted t

o striking the victim

on a t least one occasion. A rational trier of fac t could have properly found that the evidence

sufficie ntly esta bli shed that

the defe ndant com

mitted ag grava

ted assa ult. This iss ue is without merit.

II . Admission of Photographs

Tennessee courts follow a policy of libera lity in the adm

ission of p hotogra

phs in both civil

and criminal cases. See State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978) (citat ions om itted).

Ac co rd in gl y, “t he ad mi ss ib il it y o f ph otogra phs lies within the dis cretion of the tri al court

” whose

ruling “will not be overturned on appeal except upon a clear showing of an abuse of discretion.” Id

. Notwithsta

nding, a photogr aph must be

found re levant to an issue a

t trial, with its probative value

outweighing any prejudicia l effect, before it may

be admitted into evidence. See State v. Vann , 976

S.W.2d 93, 102 (Tenn. 1998). Notwithstanding this broad interpretation of ad mi ss ib il it y, evidence that

is not relevant to prove some part of the prosecution’s case should not be admitted solely to inflame the

jury and prejudice the defenda nt. Banks

, 564 S.W.2d at 951.

The defendant argues that the photograph introduced throu gh the victim’s mother showing his

injuries before he underwent surgery was more prejudicial than probative and was cumulative because

the mother had already testified about the extent of the injuries. Ev en thou gh injuries have been

graphica l ly described, it is not necessa rily an abuse of discretion to allow photographs depicting the

injuries. State v. Br own

, 836 S.W.2d 530, 531 (Tenn. 1992). The photograph complained of was

relevant to assist in establishing serious bodily in ju ry. The defendant remarked in his opening statement

that the injuries sustained by the victim were as a result of his falling and hitting his head on the curb.

The trial court did not abuse its discretion in admitting the photograph of the victim after the altercation

in order to show serious bodily injury and rebut the defendant’s claim that the injuries were caused by

a fall

. We cannot conclude that the trial court abused its discretion in finding that the probative value

of the photograph outweighed any prejudicial effec t. This issue is without merit.

III. Sentencing

The defendant contends on appeal that the trial court erred in denying him alternative sente ncing.

This Court’s review of the se ntence impos ed by the trial court is de novo with a presumption of

correc tness. Tenn. Code Ann. § 40-35-401(d). This pres umpt ion is conditioned upon an affirmative

showing in the record that the trial judge considered the sentencing principles and all relevant facts and-6-

circumst ances. State v. Pettus

, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with

the statutory directiv

es, there is no presumption of correc tness and our review is de novo

. State v. Poole

, 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann.

§ 40-35-401(d), Sentencing Commission Comments. In conducting o ur review, we are required,

pursuant to Tennessee Code Annotated section 40-35-210, to consider th e followi ng factors in

sente ncing:

(1) [t]he evidence, if an y, received at the trial and the sentencing hearin g; (2) [t]he

presentence report; ( 3) [t ]he principles of sentencing and argume nts as to sentencing

alterna tives; (4) [t]he nature and charac teris tics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the enhancement a nd mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to

make in the defendant’s own behalf about sente ncing.

Under the Criminal Sentencing Reform Act of 19 89, trial judges are encouraged to use

alternatives to incarceration. An especia lly mitigated or standard offender convicted of a Class C, D, or

E felony is presumed to be a favora ble candida

te for alternative sen tencing options in the absence of

evidence to the co nt ra ry. Tenn. Code Ann. § 40-35-102(6).

In determining if incarceration is appropriate, a trial court sho uld consider the need to protect

society by restraining a defendant having a long history of crimina l conduct, the need to avoid

depreciating the seriousn

ess of the offense, whether confinement is particu larly appropr

iate to effec

tively

deter others likely to commit similar offense s, and whether less restrictive measures have often or

recent ly been unsucce ssfully applied to the defenda nt. Tenn. Code Ann. § 40-35-103(1); see also State

v. Ashby

, 823 S.W.2d 166, 169 (Tenn. 1991).

A court may also consider the mitigating and enhancing factors set for th in Te nnessee Code

Annotated sections 40-35-113 and -114 as the y are relevant to the section 40-35-103 consider ations.

Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston

, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

Ad di ti on al ly, a court should consider the defendant’s potential or lack of potential for rehabilitation when

determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); Boston

, 938 S.W.2d at 438.

With certain statutory exception s, probation must be automatic ally considered by the trial court

if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). In determining whether

to grant or deny probation, a trial court should consider the circumstances of the offense, the defendant’s

criminal record, the defendant’s social history and present condition, the need for deterrence, and the best

interest of the defen dant and the public. State v. Grear

, 568 S.W.2d 285, 286 (Tenn. 1978); State v.

Bo yd

, 925 S.W.2d 237, 2 44 (Tenn. Crim. App. 1995). The defendant’s lack of credibi lity is also an

appropr iate consideration and reflec ts on a defendant’s potential for rehabilitation. State v. Nunley

, 22

S.W.3d 282, 289 (Tenn. Crim. App. 1999).-7-

There is no mathematical equation to be utilized in determining sentencing alterna tives. Not only

should the sentence fit the offense, but it should fit the offender as well. Tenn. Co de Ann. § 40-35-

103(2); State v. Batey

, 35 S .W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized

punishment is the essence of alternative sente ncing. State v. Dowdy

, 894 S.W.2d 301, 305 (Tenn. Crim.

App. 1994). In su mm ar y, sentencing must be determined on a case-b y- case basis, tailoring each sentence

to that particular defendant based upon the facts of that case and the circumstances of that defenda nt.

State v. Moss

, 727 S.W.2d 229, 235 (Tenn. 1986).

After reviewing the record, we conclude that the trial judge considered the sentencing principles

and all relevant facts and circumst ances; therefore, our revi ew is de novo with a presumption of

correc tness. As a Range I offender, the applica ble range for the Class C felony committed by the

defendant is three to six ye ars. Tenn. Code Ann. § 40-35-112(a)(3). The trial court enhanced the

sentence from three to five years based on the presence of four enhancement factors and no mitigating

factor s. See id. -210(d). The defendant does not chall enge the trial cou rt ’s findi ngs concerning the

applica bility of enhancement and mitigating factor s. The tria

l court ordered the sentence to be served

in the TDOC based on two ground s. First, the court found that confinement is necessary to avoid

depreciating t

he serious ness of the offense. See id. -103(1)(B). For this provision to ap pl y, the

circumstan ces of the offense “as committed, must be ‘espec ially violent, horri fying, shock ing,

reprehensible, off

en sive, or otherwis e of an excessive or exaggerated degree,’ and the nature of the

offense must outwe igh all factors fa voring probation.” State v. Cleavor

, 691 S.W.2d 541, 543 (Tenn.

1985); State v. Hartley

, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).

The evidence established that the perpetrators of this aggravated assault kicked the victim’s head

agains t a concre te curb as he was unconscious on the ground. As noted above, the victim testified that

he sustained numerous injuries including a broken jaw in two different places, a broken nose, a black eye,

a gash on the back of his head, a cut ear, and the inside of his mouth was lacerated and torn. The victim

underwent over four hours of reconstructive surgery to his jaw. Four metal plates and wire mesh were

permane ntly implanted into the victim’s jaw. His mouth was complete ly wired shut for approxima tely

two month s, during which time he had to ingest food throu gh a straw. He said that he was i n

excruciating pain, had constant headac hes, and had trouble breath ing. The victim stated that he was in

constant pain for about seven week s and lost thirty pounds. We conclude that the aggravated assault

committed by the defendant was especia lly violent and reprehensible. The trial court did not err in

finding that confinement is necessary to avoid depreciating the seriousn ess of the offense.

Second, the trial court also found that any form of alternative sentence should be denied because

there is a need for deterrence to others likely to commit similar offense s. See Tenn. Code Ann. § 40-35-

103(1)(B). The Tennessee Supreme Court has held:

[A] trial court’s decision to incarc erate a defendant based on a need for deterrence [will

be presumed to be correc

t] so long as any reasona

ble person looking at the entire record

could conclude that (1) a need to deter similar crimes is present in the particular

co mm un it y, jurisdiction, or in the state as a whole, and (2) incarceration of the defendant

may rationa

lly serve as a deterrent to others similarly s ituated an d likely to commit

similar crimes.-8-

State v. Hooper

, 29 S.W.3d 1, 10 (Tenn. 2000). To determine whether there is a need for deterrence, the

following nonexclusive list of factors should be considered: (1) whether other incident s of the charged

offense are increa

singly present in the co mm un it y, jurisdiction, or state as a whole; (2) whether the crime

was the result of intentiona l, k nowin g, or reckle ss conduct or was otherwis e motivated by a desire to

profit or gain from criminal behavior; (3) whethe r the alle ged offense received substantial publicity

beyond that normally expected in a typical case; (4) whether the defendant was a member of a criminal

enterprise, or substantia

lly encouraged or as sis ted others in achieving the criminal objective; and (5)

whether the defendant has previous ly enga ge d in criminal conduct of the same type as the offense in

question, irrespective of whether such conduct resulted in previous arrests or convicti ons. Id. at 10-12.

“[A] court need not find that all of these factors are present before ordering incarceration based on a need

to deter similar crimes.” Id. at 12. The court found that there was a need for d eterrence based on the

following factor

s: the increasing number of assaults and aggravated assaults “coming throu gh the court,”

the crime was committed as a result of intentional conduct, the defendant encouraged others in achieving

a criminal objective, and there was substantial publicity in this case beyond that in a typical case. The

record adequa

tely supports a finding that denial of any form of alternative sentence was appropr iate in

this case based on the need for deterrence. The defendant is not entitled to relief on this issue.

Conclusion

Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.

___________________________________ JOHN EVERETT WIL

LI AMS, JUDGE