### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Marc h 24
, 200 9 S es sio n

STATE OF TENNESS EE v . WI LEY RATHB ONE

Appeal from t he Circuit Court for C ocke County No. 9966 Ben W. Hooper, II, Jud ge

No. E2008-00403-CC A-M R3-CD - Filed September21, 2009

The De fenda nt, Wiley Rathbone, wa s convicted by a jury in Cocke County Circuit Court of thr ee
c ou nts of a gg ra vate d a ssa

ult , C las s C fel onie s, a ndon e c ou nt o f d ome sti c a ssa ult , a Cla ss A mis de me a no r. Th e tr ia l c ou rt imp os e d se nte nc e s of fi ve ye ars fo r e a c h a gg ra vate d a ssa ult of fe ns e
a nde le ve n mo nth s a ndtw e nty -n ine da ys fo r the do me sti c a ssa ult of fe ns e , o rd e ri ng a ll s e nte nc e s to be ser ved conc urre ntly except fo r o n e aggravated a ssault sentence which is to be ser ved

consec utively and on probation, for a total ef fe ct i v e s entenc e of f

ive yea rs incar cer ation followed by five years probation. In this appea l as of right, he c ontends (1) that the State’s comments bef ore the jury denie d him a fair trial, (2) that the evidenc e is insuff icient to support his convictions, and (3) that t he trial c ourt imposed an exc essive sente nce both in length and ma nner of service

. Following our review, we aff irm th e co n v ictions but remand the c ase f or re consideration of the lengths of the sente nces a nd imposit ion of consec utive sentenc es.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt s o f the Ci r c uit Co ur t a r e Af

fi r me d in Part and Reve rsed in Part; C ase Re manded.

D. K EL LY T HOMAS , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and J AM ES C UR W OOD W I TT , J R ., J., joined.

Edwar d C. Mill er, D istrict Publi c Defende r; and Ke ith E. Haas, Assistant District Public Defe nder, attorneys f

or appe llant, Wiley Rathbone.

Rob e rt E. Coo pe r, Jr
., At torne y Ge ne ra l and Re po rt e r; De sh e a Du la ny , A ssi sta nt A tto rn e y G e ne ra l; James B. Dunn, Dist rict Att orney Gener al; and Amanda Inman Lowe, Assistant Dist rict Attorney Gene ral, attorneys for a

ppellee, State of

Tenne ssee.

OP IN ION

The off enses aro s e fr om a July 9, 2006, alterc ation among the De fenda nt, his girlfriend, Ta mmy Ho lt, he r sis te r, Ra lph e ne Ba ll, a ndthe sis te rs ’ m oth e r, Ir e ne W ill ia ms. Th e Coc ke Cou nty grand jury indicte d the D ef en dant for thr ee c ounts of aggra vated a ssault, one with respe ct to eac h-2-

victim, and an additional count of domestic assault related t o Ms. Holt. See Tenn. Code Ann. § 39- 13-111. The a ggravated assault counts re lated to M s

. B al l and Ms. Holt both alleged the use of a deadly we apon, see Tenn. Code Ann. § 39- 13-102(a )(1) (B), while the aggravated assault count related to Ms. Williams alleged that the victim suff ere d serious bodily injury. See Tenn. Code A nn. § 39-13-102( a)( 1)(A)

. Cocke County Sheriff’ s Depa rtment Lieutena nt Ron Ri ce te stified that he re sponded to the call of a domestic disturbance on June 9, 2006. Upon his arrival, he enc ountere d three fema les who

came t o wa rd h i m “kind of scr eaming hysteric al-like a ccusations towards [the De fenda nt].” He immediately noticed that the wome n had inj uries and asked if the y wanted him to ca ll an ambulance
, but the women re fused medic al assistance at t hat time. Through his investigation, Lieutenant Rice le arn e d th a t th e wo me n w e re Ir e ne W ill ia ms, Ra lph e ne Ba ll, a ndTa mmy Ho lt. He no te d th a t Ms

. Williams had a c ut above he r right eye and conside rable bruising to her left hand. Ms. Ba ll suffere d “a larg e g as h o n t h e top of her hea d” and told Lieute nant Rice that the D efe ndant hit her with a baseba ll bat. Ms. Holt had br uises to he r fa ce, e yes, and nose . He a lso noticed the De fenda nt at the

scene and that the Def

endant was cover ed with pe pper spray. The Def endant gave L ieutenant Rice the following ac count of the a ltercation that morning:

He told me that his girlf

riend, Tammy Holt, w as on pills. S he wa s wanting some more pills or something. He co u ldn’t sleep, and the y had gotten in an argume nt. And he then – she started towar ds the bedroom a nd he we nt – he told that he hit her. I asked him if he hit any of them, and he sa id yes. He sa id that he hit her. Th e n h e r mo th e r , M s

. W il li a ms o n ( s ic )
, s h e g o t i n v o lv e d in s o me w a y , a n d he advised that he had take n – they had we nt to the back bedroom a nd he had pinne d them both on the bed himself.

. . . .
He told me that later

on Ralph en e ca m e d o wn, or Ms. Ball came down there , he didn’t know what she w as going to be up to, and he went out to the car and got a bat to protect himself.

. . . . [Ms. Ball] started to war ds him with t he spray and she spr ayed him and he started swingly wildly.

Bas ed upon the Def

endant’ s acc ount of the incident, Lieute nant Rice a rre sted the De fenda nt for domestic assault.

Lieutena nt Rice and other office rs recover ed a small baseba ll bat from inside the front door of the re sid e nc e

. He a lso state d th a t Ms . Ba ll g a ve the m a c a n o f p e pp e r s pr a y. He re c a lle d th a t a

c hil d w a s p re se nt w he n he arrive d at th e sc e ne a ndthat Ste ve n Ba ll, Ms. Ba ll’ s so n, arrive d “ a lit tle later” afte r he a nd the officers “had everything under control.” He also rec alled that the hous e wa s-3-

not “in that big of a disarray” but that pepper spray “ was dripping off

the walls of the f

ront entra nce to the door.”

The De fenda nt gave a

statement once in c ustody a t the jail. He indicated that Ms. Holt and he arg ue d a

bo ut he r dr

ug us e a nd that he r mothe r inv olv e d he rs e lf in the arg ume nt and“ wa nte d to fi gh t [ him ]. ” Both h is g ir lf ri e nda ndhe r m oth e r t

hr e a te ne d h im, a ndhe ran to the ba c k b e dr oo m. Th e De fe nd a nt t olda uth oriti e s th a t he “ ha d to fig ht both of the m of f. ” Ac c or din g to the De fe nd a nt, his girlfriend’s sister a

rrived thirty to forty-five minutes later and sprayed h i m wi th pepper spray. H e s t a t e d h e h i t M s

. B a l l w i t h a b a s e b a l l b a t b e c a u s e h e w a s “ f e ar i n g f o r [ h i s ] sa fe ty. ” He a lso admitted to hitti ng Ms. Holt and Ms. Williams with h is fist but claimed it was also out of fe ar f or his safety.

Lieutenan t R ice testified on c ross-examination that the effe cts of peppe r spra y can be debil i tating. He also a cknowledge d that pepper spray c ould be used in an of fensive or defe nsive

manner

. He also acknow ledged that “it’s fair to say [ that the Def endant] had quite a bit [of pepper spray] on him.” Lieutena nt Rice admitted that in his closing conver sation with the 911 cente r, he may have commented that one of the fema les might be c harge d with assault. He c laimed that “if one

was c harge d possibly it would have be en Ms. Ball because she’ s t h e o n e t h at h ad the spray.” Howeve r, he a lso stated that the use of t h e b as eb al l bat was more aggre ssive so “it seemed mor e fea sible to charge [the De fenda nt].” On redire ct, he elabor ated rega rding his char ging decision and stated that Ms. Ball “ had sustained quite a bit of injuries so I didn’t consider her a s being the primary aggre ssor in the ca se.”

Tammy Holt testified that at the time of the inc ident she was living wit h her mother and her great-niece . She rec alled that the Def endant also “staye d with [them]” at the residenc e while the two

wer e dating. She testified that e arly in the morning on June 9, 2006, she woke up to go to the bathroom. Whe n she re turned to bed, the Def endant told he r she woke him up so she told him she would go to the couch. A s she bega n to leave the bedroom, the D efe ndant started hitting her in he r
c he st. Th e De fe nd a nt f

oll ow e d h e r t o th e c ou c h a nd st art ed “ c us sin g [ he r] a ndstu ff ” wh ile sti ll hitting her. Ms. Holt’s mother came into the living room wher e she and the Def endant then “started fu ssi ng a nd go ing on .” Ms. Ho lt ran to the be dr oo m, g ra bb e d th e te le ph on e , a ndloc ke d h e rs e lf in the bathroom so she c ould call the police.

Ms. Ho lt t e sti fi e d th a t the De fe nd a nt kic ke d in the bathr oo m do or a nd sta rt e d be a tin g he r i n the fa ce. She stated that while the Def endant beat her, her mother was trying to get him to st op and the Def endant would “ rea ch ar ound [her ] and he would hit Mother .” Ms. H olt state d that “I grabbe d my mother and [thr ew] her dow n on the bed a nd I jumped down on top of her and had her up unde r
me tryi ng to sh iel d he r b e c a us e

. . . I did n’ t w a nt h im t o b e a t[ ] h e r. ” Th e De fe nd a nt c on tin ue d to be a t bo th w ome n w ith his fi sts

. Ms. Ho lt re c a lle d tha t the De fe nd a nt w or e a ho rs e sh oe ri ng on his left hand. Ms. Holt’s gre at-niec e, Ha nnah Ball, telephone d her gr andmother, Ralphene Ball, for help. Ms. Ho lt r e c a lle d th a t th e De fe nd a nt f ina lly sto pp e d w he nh e r

m oth e r t oldhim , “ ‘W ile y, qu it. You’re going to kill us, y o u ’re going to kill us. How would you like for your daughte r . . . to see

so m e b o d y b e a t i n g y o u ? ’ ” –r e f e rr i n g t o t h e f

a c tt h a tH a n n a h w a s w i t n e s s i n g t h e e n t i r e i n c i d e n t. Both women went to the kitchen wher e Ms. H olt be gan treating he r mother’s wounds. She rec alled-4-

that her mother

was blee ding. The women w ent to the couc h, and Hannah came out from her bedr o o m. T h e D e f

e n d a n t o r d e r e d a ll th r e e to s tay o n th e c o u c h a n d th r e a te n e d M s

. H o lt th a t he would hurt her if

she did not “sit [her] ass bac k down on the couc h and not move.”

Ms. Ho lt t e sti fi e d th a t a s th e y s a t on the c ou c h, the te le ph on e c on tin ue d to ri ng be c a us e Ms. Ball was ca lling. The Defe ndant had both telephones but ref used t o answe r. When Ms. Ball arrived at the re sidence , Ms. Holt, her mother, a nd Hannah wer e st ill sitti ng on the couc h. The De fenda nt ha d th e fro nt door

loc ke d. Th e De fe nd a nt o pe ne d th e do or a ft e r M s. Ba ll k no c ke d s e ve ra l ti me s. Ms. Holt followed Ms. Ball to the kitchen wher e she told he r to “ call the law .” Ms. Ball used her

c e llu lar t e le ph on e to c a ll the po lic e a ndhe r s on (andHa nn a h’ s f a the r) , St e ve n Bal l. W he n Ms. B a ll
returne d to the living room, one of the women asked if she had called the police, and she announce d that she did and that he r son was a lso on his way. The De fendan t t o l d t h e women, “ ‘I don’ t take threats too G.D. easy’ ” and went to his car , returning with a bat. Ms. Ball tol d the Def endant that he sh ou ld h op e the po lic e arrive be fo re he r s on . T he De fe nd a nt sta rt e d tow ard he r wi th the bat in his ha nd , an d the y “sc uf

fl e d” un til sh e sp raye d h im w ith the pe pp e r s pr a y. At so me po int , M s. Ba ll tripped over

some ca rpeting and f

ell. The De fenda nt then “hit[] he r good.” Ms. H olt state d that she tried to grab his a

rm but that he was wet fr om the pepper spray a nd hit her with the bat. W hen the po lic e arrive d, the De fe nd a nt we nt to the kit c he n a nd be ga n wa sh ing his fa c e

. Th e wo me n a ndc hil d walked out on the porch. Ms. H olt testified that she felt safe once the police arrived. She stated that she suffe red “ a broke n nose, broke n eyebr ow, and a ruptured ne ck” a s a re sult of the alterc ation. Pho tog ra ph s a dmi tte d at tria l do c ume nte d th e se inj urie s a s w e ll as br uis e s to he r a

rm fr om b e ing hit with the bat. Ms. Holt testified t hat her mother’s injuries we re more sever e than he rs and that he r mother still suffers fr om some memory loss as a re sult of the beating.

On cross-e xamination, Ms. H olt testified that the Def endant had undergo n e e m er gency quintuple bypass surgery in August 2005, ten months prior to the offenses. She also ac knowledged that the Def

endant a ccuse d her of

taking drugs on the morning of the alterc ation, but she denied that she had taken anything. She testified that the D efe ndant ca lled his own mother “a nd told her that she needed to come down there

. . . befor e he killed these bit ches . . . . A nd I think he did ca ll the law but he gave them the wrong address.” When asked why she did not leave , Ms. Holt testified that she was not fre e to leave beca use t he Defenda nt “held [he r] c aptive in [he r] own home on the couc h.”

Ir e ne W ill ia ms, six ty- six ye ars olda t th e tim e of tr ia l, t e sti fi e d r e ga

rd ing the a lte rc a tio n w ith the Def endant. Ms. Williams rec all ed that the a rgument betwe en her

daughter and the De fenda nt ha d a wa ke ne d h e r g re a t- gr a nd daug hte r, Ha nn a h, so Ms. W ill ia ms a pp ro a c he d th e De fe nd a nt t o te ll them to stop arguing. Her testimony abo u t the alterc ation esca lating was consistent with the
tes t i m o n y of Ms. Holt. She also stated that Ha nnah stood in a bedr oom doorway f or much of the incident and c ried for the Def endant to stop beating the women. She rec alled that Ms. Ball pepper sp raye d th e De fe nd a nt a s he re turne d thr ou gh the fr on t do or a ft e r r e tr ie vin g h is b a t. M s. W ill ia ms described injuries to the right side of he r hea d that require d stitches to he r fore head and three staples to the right side of her

scalp. She a lso suffer ed a c rac ked bone in he r wrist that re quired he r to wea r
a ca st for about six weeks. Ms. Williams testified that as a re sult of the beating, she r equire d surgery fol l o we d b y a t wo-we ek hospital stay. She also testified that the pa in she felt as a result of he r injuries was horrible and that she c ontinued to suffer from hea dache s.-5-

On cr oss-exa mination, Ms. Willi ams denied that Ms. Ball told the Def endant he should hope the police a

rrive be fore M r. B all. She rec alled Ms. Ball telling the Defe ndant to leave befor e the polic e o r M r

. Ba ll arr iv e d

. Sh e c o u ld n o t r e c a ll th e p o li c e o f f e r in g th e w o me n a n ambulance and stated that they would ha ve taken one if it ha d been offe red. She a dded that she w as transf err ed fr om Baptist Hospit al in Cocke County to the University of Te nnessee Hospital via ambulanc e later that day. She also reca lled that the Defenda nt’s mother arrived at the residence after the pol ice a nd that she collec ted the De fenda nt’s clothing and other be longings.

Ralphene Ball testified that her granddaughter Hannah telephoned her at approximate ly 4:30

a.m. on June 9, 2006, and that she was crying hysterically beca use t he Defenda nt and Ms. Holt were fighting. Ms. Ball t ried to telephone the ho m e re p ea t ed ly to talk to an adult because she f elt that Hannah might be confusing fussing or ar guing with fighting. When she wa s unable to reach anyone, she bega n the twenty-f

ive minute trip to her mother’ s home. She knocked on the front door and the Def endant let he r in. Her

mother, s i s t er, and grandda ughter we re sitting on the couch. H annah immediately ran to Ms. Ball and they we nt into the kit ch en

. M s. Ball testified that her sister

mou the d th e wo rd s “ Ca ll the la w” to h e r s o s he we nt o uts ide a ndc a lle d th e po lic e . Sh e a lso telephoned he r son to come pick up Hannah. When she returne d and announc ed that she ha d called the po lic e , th e De fe nd a nt l e ft the po rc h a ndwe nt to his c ar. W he n h e re turne d w ith a bat, M s. Ba ll testified that she pepper sprayed him in the face. She stated t hat t he Defenda nt struck her with the bat seve ral times on the right side of her head. Desc ribing her injuries, she testified that she suffe red a thre e ce ntimeter cut that e xposed her skull. Ms. B all testified that she re peate dly told the Def endant that he neede d to leave, but she denied making a ny threats about the police or he r son.

The De fenda nt testified that Ms. H olt ha d woken him e arly in the morning of June 9, 2006, by ge tti ng in andou t of

be d. Be c a us e the y h a d r e c e ntl y a rg ue d a bo ut h e r t akin g X a na x, he a ga in

acc used her

of taking pills, which she denie d, and an argume nt e nsued. The De fenda nt testified that he wa s f e arf ul that Ms . H olt

wo uldob ta in a

gu n fr om the be dr oo m and a lso state d tha t Ms. W ill ia ms threatened to “‘ smash [him] right in the fac e.’” He r eca lled that he phoned his parents and a sked for help. He stated that he also called the police twice. The Def endant testified that Ms. Ball arrived and came inside to speak with her mother and sister be fore going to he r ca r fo r her pepper spray. He state d that she re turned a nd verba lly thr ea t en ed to peppe r spra y him. By t his tim e, he ha d retrie ved the bat. The De fenda nt testified that he did not want to fight with anybody and that it was da ng e ro us fo r h im t o f

igh t si nc e his qu intup le by pa ss s ur ge ry . H e te sti fi e d th a t he wa s “ sc are d to death” throughout the incident. He stated that he only used the bat to protec t himself.

On c ro ss- e xa min a tio n, the De fe nd a nt a dmi tte d th a t he fo llo we d M s. Ho lt t o th e be dr oo m, despite his fea

r that she wa s obtaining a wea pon. He a lso admitted that she never obtained a gun or a knife but stated that she did have a telephone and that “[w ]ell, a telephone can be a we apon.” H e
a lso a dmi tte d th a t he ne ve r go t int o his c ar to le a ve , a lth ou gh he te sti fi e d th a t he wa s in fe ar o f h is safe ty. He expla in ed t h at he could not lea ve the r esidenc e bec ause e verything that he ow ned wa s there

. An audiotape rec ording of the telephone calls to the 911 ce nter wa s played for the jury. The

rec ording ref

lects that three telephone c alls were place d to 911 re q u es t ing law enf orce ment at the reside n c e

. T h e f

ir s t c a ll w a s ma d e b y M s

. Ba ll w h o r e p o r te d th a t th e D e f e n d a n t h a d beat up he r-6-

sister and “ punched [ her] momma in the fac e.” T wo subsequent c alls were made by a male, pr e su ma bly the De fe nd a nt. Th e ma le vo ic e giv e s th e wr on g ad dr e ss but the dis patc he r c or re c ts h im and assur es him that someone is alrea dy on the way. T he tape rec ording also re flec ts that one of the office rs at the sc ene disc ussed cha rging a fe male with assault following the initial investigation.

Iva Le e Rathbone, the Def endant’ s mother, t estified that the Defenda nt telephoned he r in the

early hour s o f J u n e 9 an d asked he r to come to Ms. Williams residenc e. She testified that the Def endant told her

that “they” wer e trying to kill him . Her son-in-law dr ove her

for the twe nty-five min ute tr ip t o th e re sid e nc e . W he n s he arrive d, Li e ute na nt R ic e tol d h e r that th e De fe nd a nt w a s in Rice’s squad c ar. She testified that the Def endant’ s fac e, head, shoulders, and c hest wer e cove red in pepper spray. Ms. Rathbone w ent inside the home to re trieve the Def endant’s cl o t h es and medicine. She testified that Ms. Holt and Ms. Ball were leaving in a ve hicle as she approa ched the home. She went inside to find Ms. Williams clea ning the house. She did not discuss the altercation wi th M s. W ill ia ms b ut a sk e d h e r f or a ba g in wh ic h to c oll e c t th e De fe nd a nt’ s c lothe s. Ms. R a t h b o n e t e s t i f

i e d t h a t M s

. W i l l i a m s h e l p e d h e r c o l l e c t t h e D e f e n d a n t ’ s b e l o n g i n g s a n d t h e n le ft

.

ANALY SIS

Sufficiency of the E

videnc e
As an initial argument, the D efe ndant contends that the evidenc e is insufficient to support his convictions for a ggravated assault and dome stic assault beca use he acte d in self-de fense when

a tta c ke d b y th e vic tim s in his ow n h ome wh e re he ow e d n o d uty to r e tr e a t. T he Sta te arg ue s th a t the evidenc e supports the ve rdicts that the De fenda nt was the a ggressor in the a ltercation.

Next, the De fenda nt contends that the e vidence is insufficient to support his conviction for the a gg ra vate d a ssa

ult by us e of a de a dly we apo n of Ms. Ho lt be c a us e the pr oo f sho we d tha t he o nly swung the base ball bat at Ms. Ball. He argue s that Ms. H olt approac hed him while he wa s blinded by the peppe r spra y that Ms. Ball had spraye d in his e yes and that any “swinging of the bat” dir ecte d

a t he r w a s in a dv e rt e nt. He a lso arg ue s th a t he on ly o btaine d the bat to pr ote c t him se lf fr om M s. Ba ll and her son, who had be en ca lled to the home.

The De fenda nt also contends that the evidenc e is insufficient to support his conviction for the aggr avate d assault with serious bodily injury of Ms. W illiams because the evidenc e did not show that Ms . W ill ia ms s uf

fe re d s e ri ou s b od ily inj ury a s a resul t of the a lte rc a tio n w ith the De fe nd a nt. He c laims that the evidenc e shows that the victim suffe red only a few cuts and a

b ra s ions and that inj urie s suc h as the se do no t rise to the le ve l of se ri ou s bod ily inj ury to supp ort a n a gg ra vate d a ssa ult conviction.

An appe llate cour

t’s standard of

revie w when the defe ndant questions the sufficie ncy of the evidenc e on appe al is “whe ther, a fter vie wi n g t h e ev idence in the light most favor able to the prosec ution, any

rational trier of fact could have found the e ssential elements of the crime be y ond

a reas on a ble do ub t.” Jac ks on

v. Vi rg ini a

, 4 4 3 U

. S. 3 0 7
, 3 1 9 ( 1 9 7 9 ) ( e mp h a s is in o r ig in a l). The

a pp e llate c ourt

do e s n ot r e we ig h th e e vid e nc e ; r ath er, it presume s th a t th e jur y ha s r e so lve d a ll-7-

conflicts in the testimony

and dra wn all reasonable infere nces from the evidence in favor of the State. See State v. Sheff

ield, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978)

. Qu e sti on s r e g ard ingwi tne ss c re dib ili ty , c on fl ic ts in t e sti mony , a nd the we ig ht a

nd va lue to be g iven to evidenc e we re r esolved by the jury . See State v. Bla nd, 958 S.W .2d 6 5 1
, 6 5 9 (T enn. 1997). A guilty

verdic t removes the pr esumption of innocenc e and repla ces it with a pre sumption of guilt, and on appea l the defendant has the burde n of illustrating why the evidenc e is insufficient to support the jury ’s ver dict. I d.; State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982). This standar d appli es to findings of

g uilt based upon direc t evidence , circ umstantial evidence , or a c ombination of both direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

The c onviction for aggra vated assault committed a gainst Ms. W illiams requires proof that the Def endant intentionally or knowingly caused serious bodi l y i n j u ry to the victim. Tenn. Code An n. § 3 9- 13 -1 02 (a )( 1) (A ). Se ri ou s b od ily inj ury is de fi ne d a s “ bo dil y in jury th a t in vo lve s a substantial risk of death; protrac ted unconsc iousness; extreme physic al pain; protra cted or obvious disfigurement; or pr otrac ted loss or substantial impairment of a f unction of a bodily member , organ
or me nta l fa c ult y. ” Te nn

. Cod e An n. § 39 -1 1- 10 6( a )( 34 ). Th e c on vic tio ns fo r a gg ra vate d a ssa ult committed against Ms. Ball and Ms. Holt require pr oof beyond a rea sonable doubt that the Def endant intentionally or knowingly caused the victims to rea sonably fea r imminent bodily i njury through the use or

display of a de adly wea

pon. Tenn. Code Ann. § 39- 13-102(a )(1) (B).

The proof in this case shows that in the ea rly morning hours of June 9, 2006, the Def endant be ga n ar gu i n g w i t h M s

. H o l t

. T h e ar g u m e n t q u i c k l y e s c a l a t e d i n t o p h y s i c a l v i o l e n c e t h a ta lso involved Ms. Williams. The Def endant struc k both women wit h his fists. Fearf ul for the wome n’s safe ty, Hannah c alled her grandmother

for he lp. Ms. Ball arrive d to find both her sister a nd her mother had suf

fer ed injuries fr om the beatings at the ha nds of the De fenda nt. After Ms. Ball called the police a nd her son, the D efe ndant went outside to his c ar to obta in a ball bat. Ms. Ba ll peppersp raye d th e De fe nd a nt andin the e ns uin g f ra c a s, Ms. Ba ll a ndMs. Ho lt w e re str uc k w ith the ba ll b a t. Although he suffe red theeff ects of the pepper

spray, the D efe ndant re ported no other injuries from the alter cation.

Re le va nt t o th e De fe nd ant ’s ar gu me nts re ga rd ing se lf -d e fe ns e a ndthe a tta c k o n M s. Ho lt, the jury chose to a ccr edit the testimony of the victims that the Defe ndant was the aggre ssor during the incident. Releva nt to the aggra vated a ssault of Ms. Williams, the vict im testified that she require d surgery and a two- wee k hospital stay as a re sult of her injuri es

. S h e al so stated that she

wore a ca st on her hand f or six wee k s and that she stil l suffer s some memory impairment and residual pa in from the injuries. The evidence supports the j ury’s verdict t hat M s. Williams suffer ed serious bodily injury at the Def endant’ s hands. Ther efo re , we conclude that ther e is sufficie nt evidenc e to support the De fenda nt’s convictions in this case.

Prosecutorial Misconduct-8-

The De fenda nt contends that the prose cutor made improper c omments in front of the jury rega rding medical evidenc e that had been limit ed by the trial court’s pretria l r ulings. He argue s that the State’s comments in re sponse to his o b jections amounted to prose cutorial misconduct that de nied him a fair trial. The State asserts that the Def endant has failed to e stablish a ny prejudice resulting from the c omments of the prosec utor.

When a defe ndant makes a llegations of prosec utorial m i s co n duct on appe al, this Court revie ws the re cord to se e “whe ther such conduct could have aff ecte d the ver dict to the prejudice of the de fe nd a nt. ” Sta te v. Smith, 80 3 S. W .2 d 7 09 , 7 10 (T e nn . Crim . App . 199 0)

. In oth e r wo rd s, it will be reversible error if the i mproper comments of the prose cutor we re so imprope r or the a rgument so inflammatory t hat i t aff ecte d the verdict. See S tate v. Reid, 164 S.W.3d 286, 344 (Tenn. 2005) ; Har rington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (Tenn. 1965). This court must consider the fo llo wi ng fi ve fa c tor s o n a pp e a l:

“(1) the conduc t co m p lained of vie wed in conte xt and in light of the fac ts and circ umstances of

the ca se; (2) the curative measure s undertaken by the Court and the prosec ution; (3) the intent of t h e p ro s ecutor in making the improper state ment; (4) the cumulative e ffe ct of the i mproper conduct and any other e rror s in the rec ord; and (5) the r elative stre ngth or wea kness of the c ase.”

State v

. B u ck, 670 S .W.2d 600, 609 (Te nn. 1984) (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976) ); see a lso St ate v. Goltz, 111 S.W.3d 1, 5- 6 (Tenn. Crim. App. 2003)

.
The re cord r efle cts that the trial court limit ed much of the medica l rec ords that documente d Ms. Williams’ injuries when the State chose not to prese nt any expert te stimony regarding the de gree of injuries and tre atment for he r injuries sustained in the a ltercati o n wi th the Def endant. During direc t examination, Ms. Williams described her injuries and st ated that she was tre ated f or a blood clot and bra in injury. The Def endant objec ted, and the trial court ga ve a c urative instruc tion to the jury to disregar d the t estimony. Later during direc t examination, Ms. Williams testified t hat she wa s treated for a

broken ha nd. When the Def endant objec ted, the prose cuto r commented that “I think a per son would know, Your Honor , whether their bone is cra cked as opposed to a blood c lot.” The Def endant r equeste d a mi strial. The trial court denied the m otion for mistrial but once again gave

a cur ative instruction to disregar d the testimony.

On cr oss-exa mination, the Defe ndant elicited testimony from Ms. Williams regarding he r being treated for c ance r conte mporane ou s l y t o t h e incident in an effort to show that some of her symptoms were re lated to her canc er and not the i njuries s ustained in the assault. Because the trial

c ou rt ha d p re vio us ly r

ule d th a t th e State cou ld n ot d isc us s o n d ir e c t e xa min a tio n M s. W ill ia ms’ treatment for cancer , the State objecte d and stated, “ We’ ve bee n over it continually what we ar e supposed to ad d re s s and what we’r e not, Your H onor. If we’ re going to get be at up about what we’ re not a ddressing bec ause you’ ve made a ruling [to exc lude it], I objec t to that.”

Th e De fe nd a nt g e ne ra lly arg ue s th a t bo th o f the comme nts by the Sta te a mou nte d to pr os e c uto ri a l mi sc on du c t. I nit ia lly , w e no te that th e De fe nd a nt o bje c te d r athe r i nc on sis te ntl y to

are as of testimony p er ceive d to be elicited in violation of the trial c ourt’s pre trial ruling. For-9-

example, Ms. W illiams t estified without objection to r equiring three staples in he r head, surgery, and

a ca st on her hand as a r esult of the assault. Phot ographs of her injuries post-sur gery w ere admitted without objection as we ll; these photographs cle arly de pict that the victim suffer ed some he ad
trauma as a result of her injuries. Furthermore
, we agre e that the Def endant e licited a portion of the objectionable te stimony giving rise to the prosec utor’s comments. Under these circ umstances, we conclude that the Def

endant ha s failed to esta

blish prosecutorial misconduc t in this case

.

Sentenc ing

As his final allegation of err or, the De fe n d an t co n t ends t hat the trial c ourt imposed an

exce ssive sentenc e in length and manne r of se rvice

. Initially, the Defenda nt gener ally argue s that the trial court did not give proper co n s ideration to alternative sente ncing. The D efe ndant makes another gener al argume nt that the trial court should not have imposed a sentenc e of five ye ars, ne ar the maximum of six ye ars. The Def endant does specific ally argue that the trial court f ailed to make

app ro pria te fi nd ing s r e ga rd ing the imp os iti on of

c on sec uti ve se nte nc e s. In re sp on se , th e Sta te contends that the trial court a ppropriate ly applied enha nceme nt fac tors to support the imposit ion of the f iv e

- y e ar s e n te n c e s b u t th a t th e c a s e s h o u ldb e r e man d e d f o r ap p r o p r iate f

in d in g s r e g ar d ing

consec utive sentenc ing. Foll owing our re view, we agre e with the State.

An appe llate cour

t’s revie w of sente ncingis de novo on the record with a presumption that
t h e t ri al court’s determinations are corr ect. Te nn. Code Ann. § 40-35- 401(d). A s th e Se n te n c ing Commi ssion Com ments to this section note, on appea l the burden is on the De fenda nt to show that the sentenc e is improper. This mea n s t h at if the trial cour t followed the statutory

sentenc ing pro c e d u r e , ma d e f

in d in g s o f f

a c t th a t ar e a d e qu a te ly s u p p o rte d in th e r e c o r d
, an d g ave due consideration a

nd proper weig ht to the fac tors and principles that are rele vant to sentenc ing unde r the 1989 S entencing A ct, the cour t may not disturb the sentence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

.

Ho we ve r, “ the pr e sumpt ion of c or re c tne ss whic h a c c omp anie s th e tr ia l cour t’ s act ion is conditioned upon the af

firmative showingin the rec ord that the trial court consider ed the se ntencing principles and a ll releva

nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). In this respec t, for the pur pose of mea

ningf ul appellate r eview,

[T] he trial c o u rt m u s t place on the re cord its re asons for a rrivingat the fina l sentenc ing de cision, identify the mitigatingand enha

nceme nt fac tors found, st ate the specific fac ts supporting e ach e nhance ment fac tor found, and ar t i culate how the mitigatingand enha

nceme nt fac tors have be en e v a lu a te d a n d b a la n ced in de termining the sentenc e.

State v. J ones, 883 S.W.2d 597, 599 (Tenn. 1994) (c itation omit ted); see Tenn. Code Ann. § 40-35- 210(e)

.

Te nn e sse e ’s se nte nc inga c t pr ov ide s:-10-

(c) The c ourt shall impose a sentenc e within the rang e of punishment, dete rmined by whether the defendant is a mitigated, standar d, persistent, ca ree r, or r epeat violent offe nder. In imposing a spe cific se ntence within the rang e of punishment, the court sh a ll c on sid e r, but is no t bo un d b y , th e fo llo wi nga dv iso ry se nte nc ingg uid e lin e s:
(1) Th e m i n i m um sentence within the rang e of punishment is the sentenc e that shoul d be imposed, bec ause the g ener al assembly set the minimum lengt h o f sentenc e for eac h felony

class to re flec t the relativ e seriousness of e ach c riminal offe nse in the fe lony classifications; and (2) The sentenc e leng th within the rang e should be a d j u s t ed, as ap p ropriate , by

the pre sence or abse nce of mitigatingand enhanc ement fa ctors set out in §§ 40-35-113 a nd 40-35-114.

Tenn. Code Ann. § 40- 35-210(c )(1) -(2)

.
The we ight to be a ffor ded an e nhan ceme nt or mitigatingfac tor is left to the trial cour t’s discretion so long as its use complies with the purposes a nd principles of the 1989 SentencingAct and the c ourt’s find i n gs ar e ade quately supported by

the re cord. I d. § (d)- (f) ; State v. Carter, 254 S.W .3d 335, 342-43 (Tenn. 2008) . “An a ppellate c ourt is theref

ore bound by

a trial c ourt’s dec ision as to the leng th of the sentenc e imposed so long as it is impos ed i n a m an n er co n s istent with the p u r p o s e s an d p r i n c i p l e s s e to u ti n

. . . t h e S e n t e n c i n g A c t

. ” C art e r , 2 5 4 S

. W

. 3 d a t3 4 6

. A c c o r d i n g l y, on appea l we may only revie w whether t he enhance ment and mi tigating factors were supported by the re cord a

nd their application was not otherwise ba rre d by statute. See id.

I n imposing a se ntence , the tri al court may only consider e nhance ment fac tors that are “appr opriate f

or the off ense” and “not a lrea dy

. . . essential element[s] of the offe nse.” Te nn. Code Ann. § 40-35-114. These limit ations exclude enhanc ement fa ctors “ba sed on fa cts which a re use d to prove the of

fense ” or “ [f] acts whic h establish the elements of the offe nse cha rg ed.” Jones, 883 S.W. 2d a t 60 1. Our s up re me c ourt ha s st a te d th a t “ [t]he purp os e of th e lim itatio ns is t o avo id enhanc ing the leng th of sentenc es base d on fac tors the leg islature took into considera t ion when establishing the rang e of punishment for the offe nse.” State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997); J ones, 883 S.W.2d at 601.

In c o n d u c t i n g i t s d e n o v o r e v i e w , t h e a p p e l l a t e c o u rtm u s tc o n s i d e r ( 1 ) t h e e v i d e n c e , i f

an y,
rec eived at t h e t ri al and sente ncinghear ing, ( 2) the pre sentenc e re port, (3) the principles of sentenc ing a

nd ar gu m ents as to sentenc ing a lternatives, ( 4) the nature a nd char acte ristics of the criminal conduc t, (5) any mitigating o r st atutory

enhanc ement fa ctors, (6) any statement that the defe ndant made on his own be half, (7) the defendant’s potential for r ehabilitation or treatment, and (8) a ny statistical inf

ormation provided by

the Administrative Off

ice of the Courts as to sentenc ing pr a c tic e s f

or sim ila r o ff e ns e s in Te nn e sse e . T e nn . Co de An n. §§ 40 -35 -10 2, -1 03 , - 21 0; s e e a lso Ashby , 823 S.W .2d at 168; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986)

.-11-

The re cord r efle cts that the trial cour t e nhance d the leng th of

the def endant’ s sentence s based upon his c riminal history and the number of victims involved in the offense s. See Tenn. Code Ann. § 40-35-114( 1) and ( 3). The tr ial court ba sed the a pplicatio n o f t h es e factors, in par t, upon the defe ndant’s admitted re peate d use of mar ijuana. The trial court d i d n o t m i t iga te the leng th of the sentenc es base d upon the def endant’ s asserte d health conc erns, instea d finding that the def endant

“ a pp e ars to b e , q

uit e fran kl y , a

he a lthy ind ivi du a l. S tout lo ok ing . M ay be a ll o f h is t

re a tme nt i s keepinghim in pretty

g ood shape.”

The re cord r efle cts that the trial cour t erre d in its application of the sentenc ing f actor perta ining to multiple victims because the Def endant was convicted of separ ate of fense s involving

e a c h v ic tim . St a te v. Mc Kn ig ht, 90 0 S. W.2 d 3 6 ( Te nn . Cr im. Ap p. 19 94 )( wh e n th e de fen da nt i s convicted se parately

of off enses involving eac h victim, the application of this fac t o r i s not appropr iate), a

pp. denied ( Tenn. 1995) . Under the revised sentencing act, this court may not review the weig ht affor ded the e nhancingand mitigating f actor s provided the tria l court followed the principles of se ntencing . Carter , 25 4 S

. W

. 3 d at 342-43. F urthermor e, the De fenda nt’s history

of crimina l c o n v ic ti o n s c o n s is ts o f o n ly o n e p r io r

c o n v ic ti o nf

o r a s s a u lt th a t o c c u r

r e d in 2001. Howeve r, the for

ty -seve n y ear -old Def

endant did a dmit to repe ated marijuana use since the a g e of
t we n t y -f o u r. Ad d i t i o n al l y , as wi l l b e d i s cu s s ed
, t h e t ri al co u rt fa i l ed t o m ak e ap p ro p ri at e f i n d i n gs
re gar d i n g co n s ec ut i v e se n t en ci n g n ec es s i t at i n g t h e re m an d o f th i s ca s e fo r r e s en t en ci n g. Acc ording ly , under the se circ umstances, we conclude that the ca ses should be rem an d ed for a
rec onsideration of the leng th of the De fenda nt’s sentenc es as we ll.

Reg ardingthe Def

endan t ’s gene ral a ssertion that the trial cour t failed to g ive prope r consideration to al ternative sentenc ing in this ca se, we note that the trial c ourt did impose a probationary s en tence of five year s for one of the a g g ravated assault convic tions. The trial court

c on sid e re d th e c ir c ums tanc e s o f t he of fe ns e s in de nyingfu ll p ro batio n, statin g that

[t]he u s e o f

r a t h e r e xtr e m e f

o r c e b y a f a i r l y s t o u t

- l o o k i n g m a l e i n d i v i d u a l a g a i n st three rathe r sm all, and this may not be eve n be in the re cord, but the vic tims are not bigwo me n b y

any str e tc h o f t

he ima g inatio n. Th is w a s q ui te an ass aul t on

the se
wo me n th a t r e a lly

did n’ t ha ve to t ake pla c e a t a ll.

Under these c ircumstance s, we cannot conclude t hat the trial c ourt err ed in deny ing f ull probation in this case.

Ho we ve r, our r e vie w o f t he re c or d a lso le a ds us to c on clud e tha t th e tr ia l c ourt

fa ile d to make the a

ppropriate finding s reg arding consec utive sentenc es. Although the rec ord re flec ts that the State argued that the Def

endant should be considered a dang erous of fende r wa rra nting c onsecutive

s en t en ce s , s ee T en n es s ee C o d e A n n o t at eds ec t i o n4 0 -3 5 -1 1 5 (b )( 4 ), t h e tr i al co u rt m ad e n o fi n d i n gs reg ardingwhich statutory basis it relied upon in imposing the consec utive sentenc e in this case

. See State v

. Wi lk e r s o n , 9 0 5 S. W. 2 d 9 3 3 ( T e n n

. 1 9 9 5 ) ( d is c u s s io no f r e qu ir e d f in d in g s f o r d an g e r o us offe nder) . There fore , we r emand the c ase to the tria l cou rt for r econside ration of the se ntencing l en gt h s an d

co n s ec u t i v e s en t en ci n g.-12- CONCLUSION

Upon consider ation of the fore going and the rec ord as a whole, the judgment of the trial court is a ffirme d in pa

rt and reve rsed in pa

rt. Upon rema nd, the trial court shall reconside r the lengths of the sentenc es and c onsecutive imposition of sentence s consistent with this opi nion.

___________________________________ D. KELLY THOMAS, JR., JUDGE