# FILED March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801- CR-00005 ) Appellee, ) KNOX COUNTY ) V. ) ) HON. RIC HARD BAUMGA RTNER, LONNIE CA NNON, ) JUDGE ) Appe llant. ) (AGGRAVATED ASSA ULT)

FOR THE APPELLANT : FOR THE APPELLEE : W. ZANE DANI EL JOHN KNOX WALKUP DANIEL & OBERMAN Attorney General& Reporter Nationsbank Buil ding, Suite 950 550 West Main Avenue ELLEN H. POLLACK Knoxvill e, TN 37902 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 RANDALL E. NICHOLS Distri ct Attorney General MARSHA SEL ECMAN Assistant Distri ct Attorney General City-County

Building Knoxvill e, TN 37902

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

Th e Defe ndan t, Lonn ie Can non, a ppea ls as of r ight follo wing h is conv ic tio n and sentencing i n the KnoxCounty C riminal Court. De fendant was charged in a sixcount indictme nt with offen ses ran ging from atte mpted murder to aggravated assau lt. T he jury acquitted the Defendant of all charges except for reckless aggravated assault. The trialcourt hel d a se ntencing hear ing and sentenced t he Defend ant as a Ra nge I Sta ndard O ffender to serve a to tal senten ce of four (4 ) years, served by split con fineme nt com prising nin e (9) mo nths in the Knox C ounty J ail with the bal ance suspended on intensive probat ion. Defendant argues the sentence imposed by the t rial court was exc essive, with improp er applica tion of both enhancement and m itigati n g factors. He also argues t hat he should have been granted full probation . We affirm the ju dgme nt of the trial co urt.

When an accused chall enges the lengt h, range or t he manner of servi ce of a sentence, this co urt has the duty to conduct a de novo review of th e sente nce with a presumption t hat the determinations made by t he trialcourt are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “co nditioned upo n the affirmative showing in the record that t he trialcourt consi dered the sentenci ng princi ples and all relevant

facts and circums tances .” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this co urt must con sider: (a) the evidence, if any, received at the tri al and thesentencing hearing; (b)the presentence report; (c) the principl es of senten cing and argum ents as to sentencing alternatives;-3-

(d) the nature and characteri stics of the crimi nal conduct involved ; (e) any statutory mitigati ng or enhancement factor s; (f)any statement

that the defen dant m ade o n his own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , and -21 0; see State v . Smith , 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).

I f our revi ew reflect

s that thetrialcourt fol lowed the statutory sen tencin g procedure, imposed a lawfulsentence after having given due consider ation and properweight to t he factors and princi ples set out un der the s entencing l aw, and made finding s of fact

adequately su pported by the reco rd, then w e may n ot mod ify the sentence even if we would have preferr ed a different resu lt. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A brief summary of

the facts

is hel pful fo r our review. Defen dant, a twentynine (2 9) yea r old lifel ong resident of Knox County, went into the Tekoa Lounge at appro ximate ly 10:30 p .m. While Defendant was apparent ly not i ntoxicated, he may have been dri nkin g. De fendant attempted to shoot poolfor money, but he was unab le to find anyone to play with and beg an to crea te a dis turban ce. Th is disturbance became very loud and obnoxious, eventu ally disrupti ng the patrons of the establi shment. The vict im, the owner of the bar, adv ised the vi ctim that “[he had] had enoug h tonight . . . come back tom orrow. I will bu y you a be er . . . You ne ed to leave,” and escorted t he Defendant to t he door. A s Defe ndan t was le aving, h e spit on one of the cus tome rs in the bar with whom he prev iously had a confrontat ion earlier that sa me e venin g. Tha t same customer became angry and hit the Defen dant.-4- Defend ant got insi de his vehi cle parked di rectly outside t he door of the ba r and backed it up. He drove back and for th in theparking l ot severaltimes, rev ving his engine at a hi gh speed. A wit ness who was in the rea r seat o f the D efend ant’s cartestified that h e was being t hrown around in th e back seat of t he vehicle. All the testimony

reflected that the victi m then came out of the bar into the parking lot and held up his hand in the a ir to indic ate tha t Defe ndan t shou ld stop. Defend ant drove his vehicle in a line toward s the victim . His car hit th e victim, with the victi m going up over the hood, hitti ng the windshi eld, travel ing over the top of the car and coming to rest in the parking lot. Defend a nt’s testimony at t he time of t he trialand the sentencing hearing was tha t he did no t know tha t he had hit anyon e. The trial court reasoned that it

would be difficult to hit an adult individual, “have them come across yourhood, h it your winds hield, a nd fly over the top of your car, and not know that you hit anything.”

After striki ng the vict im, the Defendant drove out of th e park ing lot to wards his ho me. Instead of

drivi ng home and parking his car, he drov

e to a nea rby hom e which was vacant and par ked his car on th e far side of an embankment. The Defendant then walked home and went t o bed. When Detective Mik e Upchurch later arrivedat Defendant’ s ho me, De fendant told him that he had n ot been to an y bar, but had been home watching tel evision t hat night and had been in bed for over four (4) hours. The trial court stated “that goes t

o further show not only tha t [Defend ant] was aware o f the fact tha t he had hit some body u p at tha t bar, an d that h e was in trouble, but he took act ive stepsto conceal his conduct and lied to the poli ce when initially confronted with this revelation.”-5- The trial court first no te d that it was “compelled to follow t he sentencing statute,” and that th e total r ange of puni shme nt f or a Clas s D felon y is two (2) to tw elve (12) years. Ten n. Code A nn. § 40-35-1 11(b)(4). As a R ange I Stan dard Offender, t he proper range of punishment is two (2) to four (4) years. Tenn. Code Ann. § 40-35-112(a) (4). The trial court stated th at it t

ook into account

the testi mony at trial , the statements of the vi ctims and the Defendant at the sentencing heari ng, and the presenten ce report. The only e n hancem ent factors the trial court determined as app ropriate w ere that the perso nal inju ries inflic ted up on the victim were particul arly gre at and that the Defendant used a dead ly weapon, his veh icle, in the com mission of the offen se. Ten n. Cod e Ann. § 40-35-1 14 (6) an d (9). W hile the tri al court ag reed that aggr avated assau lt i nvolve s serio us bo dily injury as an element of t he offense, he based the applicat ion of fac tor (6) upon the fact that proof

showed the vict im’s inj uries were f ar in excess

of those contemplated by the statute defining “se rious bodily injury.” The trial co urt reaso ned tha t the fifty (50) year old vict im n early di ed as a result of these i njuries, and that as a r esult of these inj uri es h e hadnot onl y pe rman ent

physical i mpai rmen t, but per ma ne nt neurologica l defici ts whic h serious ly limit his phys ical and m ental abilities . In applying factor ( 9), thetrial court stated th at this offense was committed by vir tue of Defe ndan t’s car. The tr ial court noted that if the Defendant had been found gui lty of a ggravated a ssau lt by the u se of a dead ly weap on, his vehicle , then th is enhancement factor woul d not apply because it woul d be “part an d parcel of the offense itself .” Howeve r, the Defe ndant was found gui lty of reckless conduc

t causing seriousbodily i njury, therefor e the a pplica tion of e nhan cem ent fac tor nine (9) is appropriate.-6- With reg ard to miti gating fac tors, t he trialcourt found that the only pr io r criminal conduct indi cated on Defendant’ s record was a char ge of publ ic in toxicat ion. This wa s the only m itigating facto r the trial cou rt deem ed app ropriate.

As the State cor rectly concedes withi n its bri ef, the record sup ports the applicat ion of one of t he enhan ceme nt factors a pplied by th e trial court, but not bot h. The trialcourt may not consider an el ement of the crime as an enhan cemen t factor. State v. Jones , 883 S.W.2d 597, 602 (Tenn. 1994). The aggravated assault offense forwhich Defenda nt was convicte d occurs whene ver a pers on reck lessly com mits an assault and caus es serious bodi ly inj ury to anot her oruses or displays adead ly weapon. Tenn. Code Ann. § 39-13 -102(a)( 2). The jury found the Defe ndant g uilty of recklessl y causing bodily i njury to another and that such bodily injury was serious pursuantto the fifth cou nt of the ind ictm ent aga inst the Defendant. Thus, the impositi on of enha ncem ent factor (6 ) was ina ppropria te. State v . Crowe , 914 S.W.2d 933, 940 (Ten n. C ri m. App. 1995). The appl icatio n of enhancement factor (9), thatthe De fenda nt use d a de adly weapon during th e commission of t he offense, was correctly im posed
. A motor vehicl e may properly be determ ined to be a d eadly weapon. State v. Tat e , 912 S.W.2d 785, 787 (Tenn. Cri m. App. 1995) (ci tations omitted).

W hile one enhancement factor was i ncorrectl y applied, this cour t has revi ewed the evidence and finds that an addi tional e nhancement factor should have been app lied. Testimony indi cated that the vict im’s wife was in the di rect vi cinity of the victim when he was assaulted by the Defendant . In fac t, she had to jump out of t he way of the oncom ing ca r in order to esca pe serious i njury. Therefore, as proof establi shed that t here was ri sk to life t

o th e vi cti m’swife, e nhan ceme nt facto r (10)-7-

applied as a person other than the vi ctim was in t he area and was potentiall y subject to injur y. State v . Si ms , 909 S.W.2d 46, 50 (Tenn. Cr im. App. 1995) ( citati ons omitted).

Based upon the revi ew of the applicabl e mitigat ing factors, thi s court fi nds no error in t he trial c ourt’s a pplica tion of o nly one (1) mitig ating fa ctor. T estim on y reflected thatit was t he Defendant who began the dist urbance at the bar that ni ght and continued the disturbance until he was ask ed to leave by the vi ctim. On his way ou t of the bar, th e Defe ndant s pit at anoth er custom er. W hen the Defen dant h a d escaped the scene, he continued to cause the dist urbance by rev ving his motor and attempt ing to ram the victim’s b ar with his ve hicle. W hen the victim ask ed him to stop, he drove his v

ehicle di rectly

towards the vict im, hitt ing him, and t hen fled t he scene. Even though some testimony i ndicated t hat Defendant was hit by a custo mer of the ba r, there is not su fficient e videnc e to m itigate th e Def enda nt’s sentence due to his own actions.

Based upon the appli cation o f two (2) enhancement factors and one (1) mitigati ng factor, a sentence of f our (4) year

s is amply j ustifi ed by the record. The weightto be affor

ded each mitigat ing and enhancement factor is determi ned by the trialcourt. There is n o merit to Defendant’s ar gument regarding t he length of the sentence imposed.

Defendant further

argues that

he was un justly denied any type of alternative sentence. Howe ver, as the record a nd judg ment a ptl y reflect , the trial court suspended all of

the Defendant’ s four (4)yearsentence except for nine (9)months. Defendant was therefor e given an alterna tive sen tence involving split confinem ent.-8-

Convicted of a Clas s D felon y, Defen dant was en titl ed to the pres umption that he was a favorable can didate for a lternat ive sentenci ng options i n the absence of evidence to the contrar y. Tenn. Code Ann. § 40- 35-102(6). While the trialcourt was required to automat icall y consider t he Defendant for an alternat ive sentence , includi ng proba tion, the Defe ndan t bore th e burd en of e stabli shing both his s uitability and that an al ternati ve to incar ceration woul d “subserve t he ends of just ice and the best interest

of both thepublic and the defenda nt.” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations omit ted). The Defendant

bea rs the burden of establish ing suitab ility for full probation . Tenn. C ode An n. § 40-3 5-303(b ).

In deciding whe ther to grant or den y probation, a trial court should consider the circumstances of

the offens e, the defenda nt’s potential o r lack of potentialfor rehabilitation, whether ful l probati on will unduly de p reciate t he seriousness of the offense, and wheth er a se ntenc e othe r than fu ll proba tion wo uld provide an effective deterrent

to others l ikely to commit simila r crimes. Tenn. Code Ann. §§ 40-35- 2 10(b) (4), -103(5), -1 03(1)(B ); State v. Boggs , 932 S. W.2d 4 67, 477 (Ten n. C ri m. App. 1996). In determini ng that Defendant ’s sentence woul d involve nine (9) months of confineme nt, the trial court based his deci sion upon the fact that confi nement was necessa ry to avoid depr eciati ng the seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B). Also , the trial cou rt found that the Defe ndan t was n ot cred ible and had tried to hide hi s crime. A lack of truthfu lness is indica tive of a d efend ant’s lackof “potent ial for

rehabilitation.” State v. Byrd , 861 S.W.2d 377, 380 (Ten n. C ri m. App. 1993). In sentenci ng Defendant to ser ve nine (9) months, wit h the remainder to be served on probation, the tri al court r easoned thatthe inj uries sustained by the victim were e xtensiv e while the vic tim was m erely t rying to diffus e the sit uation. Furthermore, the trial cou rt again relied u pon th e Def enda nt’s actions of attempting-9-

to conceal the ca r on the n ight of t he offense and t hen refusing to accept any respon sibility for his actio ns.

W hile Defendant argues that he was denied alternative sentencing, that is not correct. Defendant was giv en alternat ive sentenci ng in the form of probat ion for the majori ty of his se ntenc e, with o nly nine (9) mo nths to be se rved in the co unty ja il
. Sentencing must be determined on a case-by-case basis, with each sentence tailor ed to that par

ticula r defendant bas ed upon the facts and circumstance s of that defend ant. State v. Moss , 727 S .W.2d 229, 235 (T enn. 1986 ). The trial court concluded that

Defendant did not

meet his burde n of estab lishing suita bility for full probation, and our revi ew of the trial court’s findings i s de novo with a presu mption of correctn ess. Boggs , 932 S. W.2 d at 4 76. Based upon the nat ure and circumstancesof this offense and the Defendant’s lackof rehabil itative potenti al due to his establ ished lack of credibility, we c onclud e that De fendan t has failed to meet his burde n of entitlem ent to total p robation
.
The Defenda nt also alludes to the argume nt that the trial court should h ave sentenced him to the Com munity Altern atives to Prison Prog ram (C APP ), which is the Com mun ity Corre ctions Prog ram e stabli shed p ursuant to Tennessee Code Annotated section 40- 36-101 et seq in Kn ox Cou nty. From the record, it appears thatDefendant did not urge this al ternative sentenceto the tri al court un til af ter the sentencing hearing was co mplete and the trial court ha d impo sed the senten ce. In any event, t he record ind icates tha t the eligibility criteria fo r CAP P, acco rding to its own report concerning Defendant, requires for a defendant to be eligible, that there be no serious bodi ly harm to t he victi m. Tenn. Code Ann. § 40- 36-106(a)(3) . For-10-

this reason and u nder t he circ ums tance s of this case , the trial c ourt did not err in decl ini ng to al low

ser vi ce o f t he s ent enceunde r t he CA PP program.

After a thorough rev iew of therecord, t he briefs a nd the appli cable law in this case, we find no error in the D efe nda nt’s sentence and affi rm the judgment of the trial court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ DAVID H. WELLES , Judge