# FILED
September 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE SEPTEMBER 1 995 SESSION STATE OF TENNESSEE, ) ) Appellee, ) NO. 03C01-9501- CR-00018 ) ) COCKE COUNT Y V. ) NO. 5803 ) ) HON. BEN W. HOOPER, II, JUDGE JAMES GRADY

BALL, ) ) attempt to commit first degree murder ) (one count), aggravated assault (on e ) count), resi sting arr est (one count) Appellant. )
FOR THE APPELLANT : FOR THE APPELLEE : Edward C. Miller Charles W. Burson Public Defender Attorney Gen eral and Repor ter Fourth Judicial District P. O. Box 416 Christina S. Shevali er Dandridge, Tennessee 37725 Assistant Att orney Gener al 450 James Roberts on Parkway John Bunnell Nashvil le, Tennessee 37243 Assistant Publ ic Defender 102 Mims Avenue Alfred C. Schmutzer, Jr. Newport, Tennessee 37821 Distric t Attorney General 125 Court Avenue, Room 301-E Sevierv ille, Tennessee 37862 Richard Vance Assistant D istrict A

ttorney Gener

al 339-A East Mai n Street Newport, Tennessee 37821

OPINION FILE D: _______________
Affirmed in part an d dismissed in part
LEE RUSSELL, SPE CIAL JUDGE2 

### OPINION The Appellant appeal s from convic tions for attempt to

commit first deg ree murder, aggravated assault, and resisting arrest, and t he Appellant appeal s the sentences that he received for each of these three offenses. We reverse the convicti on for attempt to commit murder on the g rounds that the c rime of attempting to c ommit murder as proscribed by Tennessee C ode Anno tated § 39-13-202(a)(3) does not exist in Tennessee. The convict ions for agg ravated ass ault and resi sting arr est are affirmed, and the senten ces impo sed by the trial judge for aggravated assault and resisting arrest are affirmed.
The Appellant

was indi cted on July 19, 1993, by the C ocke County Grand Jury

for attempted first degree murder in v iolation of Tennessee Code Annota ted § 39-13- 202(a)(3), for aggrav

ated assault, and for resistin g arrest. Prior t o a jury trial, the Ap pellantmoved to dis miss Count I of theindictment char ging attempt ed first degre e murder, but the motion was overruled by the trial jud ge. A jur y trial was conduc

ted on January 28, 1994, and the Appel lan t was convict ed on all threecounts. A sent encing hearing was held on the same day, and the Appellant w as sentenced totwenty-five years
on attempted first deg ree murder, f ift een ye ars on agg ravated ass ault, and eleven months and twenty-nine days on resisti ng arrest, al l to be served concurrentl y. A motion fora new tri al was filed o n February 3, 1994, and was overr uled on September 16, 1994.
The Appellant rai ses six issues on appeal. He con tends that the trial cour t erred in not dismissi ng the indictment for attem pt to commit first degree murder on the grounds that the indictment fai ls to state a cause of action. M ore specifical ly, the Appel lant allegesthat Tennessee does no t recogniz e as a crime an attempt t o com mit reckless killing in viol ation of Tennessee Code A nnotated § 39-13-202 (a)(3). Se cond , the Appellantallegesthat the trial court erre d in allow ing the v ictim to ex hibit phys ically to the juryburns he received in the attack by the Appell ant. Thir d, the Appellant alleges that the evidence in the recor d is insufficient

to support the convictions forattempt to commit first degreemurder and agg ravated ass ault. Fourth, the Appellant al leges that he was3

subjected to double jeopar dy by being tri ed for both attempted murd er and aggr avated assault for one attack

on the v icti m. Fifth, the Appellant arg ues that the tri al judge er red in not requir ing the State to produce in di scovery certain notes

taken by the State’s ars on in vestigator. Sixth, the Appellant asserts that the trial judge impro perly co nsidere d certain enhancement factors and should not h a ve given the Appellant t he maximum sentences for the c rimes of whi ch he was convicted.
T he State presented p roof that the vi ctim of this cr ime went to t h e home of th e Appellantbecause the victim had been told that the Appellant bel ieved that the victi m had stolen money

from the Appellant. The purpose of the v isit w as for the victim t o deny the allegation. The victim then attempted to leave the Appellant’s home in the victim’s car. The Appellant entered the car on the pass enger side, and the v ictim drove up the road. The Appellant conti nu ed to demand the return of his stolen mon ey. Whe n the victim persisted in his denial tha t he had sto len any money from the Appellant, the Appellant threw a container of pai nt thinner on thevictim and intentionally set it on fire. The victim habitually inhaled paint thinner for its psy choactive qualities , and the vi ctim had a container of the pai nt thinner in his car for th at purpose.
The victim was th e onl y wi tness at trial to describe the meet ing betw een the Ap pellant and t he v ict im an d theonl y w itne ss t o des cri be th e bur ninginc iden t it sel f. However, the State produce d a witnes s who test ified thaton the day before the i ncident, the Appellant aske d the witness if he had ever

seen anyone burned up. Th e witness said that the Appell ant was flipping a cigarette lighter when he, the Appellant, said th is. Evidence was produced by the State that the victim’s vehicle was found approximately 350 to 400 yards

from the Appellant’s

residence, that the vi ctim was picked up at that site in a severely

burned conditi on and was dr iven to the hospital, and th at the victim’s
car was burned from the insi de out in a fire i n which an accelerant had been used.
The State’s ars on expert testified that the car burned from the ins ide out, that the right-ha nd side of the car was less heavily burned than the l eft side, and t hat th e passenger

door was probably open ed immediat el y after the fire began and remai ned4

open. The State’s expert testified th at it was an acc elerated fire, that there were no accelerated burn patternson the passenge r side of the automobil e, that something was t hrown between the s eats and across the driver’s seat. The expert tes tified th at ther e was no evidence that the fire st arted in theashtray or that the carpet had been soaked with an ac cele rant , tha t the burn patt erns in th e car were co nsis tent wi th paint thi nner being poured or spl ashed out of a six teen-ounce plast ic bo ttle, and that the expert’s findin gs were consistent with the victim’s version of the facts. The Appell ant’s arson expert te stified t hat it could not be determined w ith certaint y whethe r the car was intentionally set on fire, testified that the fire involved the use ofan accelerant, and testified that flammable li quid was present in thecar, but he testified that there were no discernible burn p att erns and that pai nt thinner stor ed in the car could ignit e under
norm al operation. H owever , the Appellant’ s expert conceded that there w as n o evidence that a sparkor the turn signal i gnited the pai nt thinner in this partic ular incide nt.
At the time of this i ncident, and prior to its amendment in 19 95, Tennessee Code Annotated § 39-13 -202(a) read in part as follows: First degree murder. -- (a) First degree murder is:

. . . (2) A reckless ki lling of another committed in the perpetration of, o r attempt to perpetrate, any first deg ree murd er, a rson , rap e, ro bbe ry, burgl ary, t hef t, kid nap ping o r airc raf t pira cy; ( 3) A reckl ess killi ng of another commit ted as the resul t of the unlawful throwing , placing or discharg ing of a destru ctive dev ice or bomb . .

. . The crime of cri minal attempt was and is defined in Tennessee Code Annotated § 39-12- 101 as follows: Crimi nal attemp t. -- (a) A person commits c riminal attempt who, acti ng with the k ind of culpabili ty otherw ise requi red for the offense: (1) Int entio nally engages in action or causes a result that would constitute an offense if the circumstances surrounding the condu ct were as the person beli eves them to be; (2) Acts w ith intent to cause a result that is an ele mentof the offense, and believe s the conduct w ill cause t he result w ithout further conduct on the per

son’s part; o r (3) Acts w ith intent

to complete a cour

se of action or cause a result that would constitute the offense, under the circumst ances surround ing the5 conduct as the person be lieves t hem to be, and the conduct consti tuted a substantial step toward the commission of the offense . . . . Tennessee Code Annotated § 39-1 1-106(a)(31) states as follows with regard to the meaning of the word “ reckless” as used in TennesseeCode Annotated § 39- 11-101, et seq.: ‘Reckless’ re fers t o a person w ho acts reckl essly w ith respect t o circumstances

surrounding the conduct or the result of the conduct whe n the person is aw

are of but consci ously dis regards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a natur e and degreethat its d isregard constitutes a gross deviation from the standard of care th at an ordinary person would exercise under all of t he circums tances a s viewed from the accused person’s stan dpoint. . . . The Appellant rel ies on the case of State v. Kim brough , 924 S.W.2d 888 (Tenn. 1996), which hel d that Tennessee does not recognizethe crime of an att empt to commit first degree murder

as defined in Tennessee CodeAnnotated § 39-13- 202(a)(2) pr ior to the statute’s amendment in 199 5. Our Supreme Court in Kimbrough pointed out that all thre e alt erna tive versions of criminal att empt as set out in Tenness ee Code Annotated § 39-12-101(a) (1)-(3) involve a specific i ntent. Id. at 889. The Court observed that traditio nallyin Tenn essee t he inte nt req uired for an attempt is an i ntent t o commi t th e conte mplated crime, cit ing Gervin v. St ate , 371 S.W.2d 449, 451 (Tenn. 1963)

. Kimbrough at 890. The Supreme Cour t recites t hat under Tennessee Cod e Annotated § 39-11-106(a) (18), apers on ac ts “in tent iona lly” with respect to the nature of the con duct
or its cons eque nces when t he pe rson has a cons ciou s obj ecti ve or desire to engage in the cond uct or to caus e the result. Kimbrough at 890. The Court recites the sta tutory definition of “recklessness” given above and points out that felon y-murder, as defined in Tennessee Code An not ated § 3 9-12-10 1(a)(2), is by defin ition an uninte ntiona l killing. Kimbr o ugh at 890. The Court conc lude s, “Ob vious ly, a ch arge o f ‘at tem pted felo nymurder’ is inherentl y inconsi stent, in that i t requires that the actor have intended to commit what is deemed an un intentional act.” Id.
The Suprem e Court h eld tha t althou gh murder may becommitted wi thout an intent to kill, an at

tempt to commit murder requires a spec ifi c intent to ki ll. Id. at 891. This6

assertion was made w ith regar d to attempts to co mmit murder in g eneral and was not limited to attempts to commit felony -murder. Id. Finally , the Supreme Cour t concludes as follows: Of course, it goes w ithout sayi ng that if an accused actual ly posses ses the requisit e int ent to kill, he or she may be charged with attempted m urder. We simp ly beli eve th at it is logi cally a nd legally impossible t o attempt to perpet rate an uninte ntiona l killing. Id. at 892. These statem ents by the Court we re also made w ith general reference to attempts to kill unintention ally and not merely to attempts to comm it felony-murder.
The log ic o f Kimbrough applies inescapably to an attemptto commit first degree murder as defined in Tennesse e Code Annotated § 39-13-20 2(a)(3). Murder defined in § 39-13-202(a)(3) uses the same ad jective, “reckle ss,” that is used i n the definition of felony-murder

in § 39-13-202(a)(2). “Reckless” is defined for bot h statu tes in the sa me way, as set out in Tennessee C ode Annotated § 39-11-106(a) (31). The same cr iminal attempt statute applied in Kimbrough defines criminal attempt in the cas e sub judice. If it is a logical and legal impossibility to attempt to kill unintentionall y in the s tealing of an airplane, as proscri bed by § 39-13-202(a)(2), then it is a logi cal and lega l impossibi lity to attem pt to kill unintentionall y by thr owing a destructive device at someone, a s proscribed by § 39-13- 202(a)(3). In both instanc es, t he logi cal impossibility is intentionally attempting to do som ething which by definition is unintentional.
The State argues that the record reveals that the Appellant did in fact intend to kill the victim. This court is inclined to agree that had the Appellant been indicted for atte mpt to commit murder as

defined in Tennessee C ode Annotated § 39-13-202(a)(1), which is intentional, pr

emeditated, and deliberate killing , and had a jury convicted the Appellant
on the record i n this case, t hen the record w ould have supp orted such a convi ction. However, the indictment i n the case sub judice was for an attempt to kil l reckles sly, not
an attempt to kill intentionall y, and this court cannot s ustain a conv iction on the g rounds that the record w

ould have sustained a co nviction for something else. The St ate’s decision to indict under Tennessee Code Annotat ed § 39-13-202(a) (3), instead of under Tennessee Code Annotated § 39-13- 202(a)(1), was made before t he Kimbrough case7

decided in the Court of Criminal Ap peals in 1994. Ther efore the State was notaware at the time ofind ictment that an att empt to commit an uni ntentional kil ling was not cognizable in Tennessee. The co nviction for attem p ted first degr ee murder w ill be reversed, and Count I of the i ndictment is di smissed.
The Appellant’s second issue i s whether the trial court erred in allow ing the State to have the victim physically display to the jury the burns that h e suffered. The Appellant objected at trial to introduction of the evidence , and the tria l judge heard ar gument outside the jury ’s hearing . The State arg ued that the degree of injury was relevant on the charge of attempted murder, and the State argued in the hearing that the vie wing of the victim’s body wo u ld reveal g reater injur y to the front and on the rig ht side compared to the injury on the left side. This pattern of injury would cor roborate the v ictim’s version of the facts of the crime. T he appearance of the scars fro m the burns was also rel evant to p rove that t he victi m received “serious bod ily inj ury” as required for convicti on for aggravated assault under Tennessee Code Annotate d § 39-13-102(a)( 1)(A). The Appellanta ppa rent ly d oes not argue that the evidence was not relevant and th erefore should not have been admitted under R ule 401 of the TennesseeRules of Evi dence, but
r at her the Appellant ar

gues that the ev idence was prejudicia l and that the prejudicial value outweig hed t he probative value under Rule 403. The Appel lant argues that the State had other and pres uma bly les s pre judi cial wa ys to prove the extent and the pattern of the burns. The trial jud ge conceded that the photographs

might be prejudicia l, but he found that their pr

obative value outwei ghed their pr ejudicial effect.
The determination of whether evidence is relevant, and, if relevant, whether it should be excluded forone of the reasons s et forth in Rul e 403, addresses itself to the sound discretion of the trial court. State v. Hil l, 885 S.W .2d 357, 361 (Tenn . Crim. App.), per. app. denied

(Tenn. 1994). State v. Willia mson, 919 S.W.2D 69, (Tenn. Crim. App. 1995) (aff irme d adm issio n of phot ograp hs of dead fet us to prove viability of fetus at birth). In deciding t hese issues, t he trial court must cons ider, among ot her things, the questions of fact that the jury will have to consider in determini ng the accused ’s guilt as well as8

other evidenc e that has been introduc ed during thecourse of the tr ial. See State v. Dulsworth, 781 S.W .2d 227, 287 (Tenn . Cr im. App., 1 989) perm. app. denied (Tenn. 1989). If a trial court in the exercise of its discretion find s that evidence is relevant within the meaning of Rule 401, and the accused is not entitl ed to have the evidence excluded forone of the grounds set forth in Rule 403, this court will not interfere with the exercise of this discretion unless it appears on the face of the record that the trial court clearly abused its discr

etion. State

v. Burdis, 905 S.W.2d 214 (Tenn. Crim. App. 1995) , perm. app. denied

(Te nn. 19 95) (affirmed admiss ion of post-mortem pho tographs of chi ld to show visibl e signs of malnut rition and dehy dration); State v. Bigbee, 885 S. W .2d 797, 807 (Tenn. 1994) (affirmed admission of photographs of dead body of vic tim after seve ral hours and showing “unpleasant” post-morte m lividity and some rigor mortis).
The fact that relevant evidence is prejudic ial does not mean the evidence mu st be autom aticall y excl uded. This court said in State v. Duls worth, as follows : “Any evidence wh ich tends to establish t he guilt of an ac cused is hig hly prej udicial to t he accused, but this does not mean th at the evidence is inadmissible as a matte r of law.” 781 S.W.2d at 287; State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. A pp . 1993), perm. app. denied

(Tenn. 1994). As

Rule 403 states , the “danger of unf air prej udice” must “substantially outweig h” the probati ve val ue of the evidence before the accused is en titled to have the evidence excluded. Even if the evidence is meant to dram atize the injuryto the victi m and ten ds as much to ar ouse the passions

of the fact-finders as

to present prob ative evidence, t his court has not rever

sed the admission of such evidence when it touches on an element of the offense an d when the evidence was not particularly harmful
or unduly pre

judicial. S tate v. Gayl or, 862 S.W.2d 546, 557 (Tenn. Cr. App. 1992) (affirmed admission of physician descr ibing thephysiology of drowning where cause of death not an issue ).
In the case sub judice , the vict im testified that the Appellant threw an accelerant
on him from the pass enger s ide of a car. A p attern of burns on t he front and the ri ght side of the victi m’s body would tend to cor roborate that des cription of th e incident and9

would tend to dispute the theo ry mentione d at trial t hat a spark or other source ignited the paint thinner spontaneously . Therefore the burns were c ertainly relevant. As the
case turned in large part on the believability of the victim’s version of the incident, the prob ative value of theevidence w as very great rel ative to i ts prejudic ial valu e. The fact that other evi dence was admi tted on the degree and pa tte rn of the burns makes the prejudicial impact of the displ ay less r ather than greater . See Gaylor, 862 S.W.2d at 557; State v. Jeffer

son , 938 S.W .2d 1 (Tenn. Cr. App. 1996 ).
In the case of State v. Hil l, 885 S.W.2d 357 (Tenn. Cr. App. 1994), the defendant was charg ed with ag gravated assault for al legedly cutting a v ictim wi th a straight razor. There was a sti pulation between the State and the d efendant th at the vic tim had sustained bodily injury. The trial judge allowed the victim to remove hi s shirt and display his four large s cars to the j ury. The defendant ar gue d that t he prejudicial effe ct
overw eighed the probative value of the ev idence, particularly given the stipulation. This court affirmed a dmi ssion of the ev idence on the g rounds that “v iewing the scars may have been relevant to the jur y in determining the truth of what occurred o n the night in question”and to determine whether the def endant’s version of the inciden t or the victim’s version was accur

ate. Id. at 361. In the case sub judice, the value of v iewing the burns to determine w hat occurred o n the night i n question outweig hed any prej udicial effect on the jury.
The Appellant’s fourth issue is that he was subjected to double jeopardy b y being convicted of a nd rece iving sentences for both at tempted first-deg ree murder and aggravated assault. This question i s resolved by our hol ding on thefirst issu e, the dismissal of the attempt to commit murder count. The Appellant’s third issueis that the evidence in the case d oes n ot support conv ictions for att empt to commit first -degree murder and for aggravated assault . That i ssue of whether the evidence supp orts a convicti on for attempted murder is prete rmitted by our ruling on the Appellant’s first issue. The issue then become s whether or not the evid en ce in the record supports a convicti on for aggra

vated assaul t.10 The standard of review when the sufficiency of the evidence is quest ioned o n appeal is “ wh ether, after v iewing the evidenc e in the lig ht most favorabl e to the prosecution, any rational trier of fact could have found theessent ial el ements of the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789, 61 L.Ed. 2nd 560 (1979). In determining the suf ficiency of the evidence, this court does not rewei gh or reev aluate the evi dence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Cr. App. 1990). Th is court must presume that the jury has resolved all conflic ts in the testimony and drawn all reasonable inf erences fro m the evidence in favor of the Stat e. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbag e, 57 1 S.W.2d 832, 835 (Tenn. 1978) . Questions concerni n g the credi bility of witnesses , the weight and value to be g iven to the evidence, and all factual is sues raised b y the evidence are res olved by the trier of fact, not

by the appell ate court. Cabbage at 835. “A guilty verdict by the jur

y, approved by the tr ial jud ge, accre dits the testi mony of the witnesses

for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Because averdict of guilty removes the presumption of innocence and rep laces it w ith a presumption of guilt, th e accused has the burden to ill ustrate tothe appellatecourt why the evidence is insufficient to support the verdict

returned by

the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982).
Tennessee Code Annotated § 39- 13-102(a) defines aggravated assault in part as follows: Aggrav ated assault. -- (a) A person commits aggrav ated assault w ho: (1) Commit s an assault as defined in § 39-13- 101, and: (A) Caus es serious bo dily inj ury to anothe r; or (B) Us es or displ ays a deadly weapon. . .
Tennessee Code Annotated § 39- 13-101 defines assaul t, as incorpo r ated in the definition of a ggravated assault, as follows:11 Assau lt. -- (a) A person commits as sault who: (1) Intentionally, knowingly or reckle ssly cau ses bodily injury to another; . . . or . . . (3) Intentionally or knowingly causes phys ical contact with anothe r and a reasonable person would regard the co ntact a s extremel y offensive or provocati ve.
The victim in this case testified that, in the midst of an arg ument over an al leged theft by the v ictim, the Appel lant intentiona lly thr ew c ombustible paint thinner on the victim and intentional ly set the victi m on fire. This i s the only direct evidence in the record of events in the victim’s car. The severity of the resulting burns is confirmed by the testimony

of a nurse at

the hospital, by the victim’s testimony, by the display to the jury of the scars from t he burns, and by the testimony

of other eyew itnesses. It is undisputed in the record th at the vic tim’s car bu rned on that evening and that the car burned i n the vicini ty of the Appellant’s resid ence. The testimony of the State’s arson investig ator supported the victim’s version of the f acts.
The Appellant’s challenge to the proof in this

case focused on al leged prior description s o f the incident by the victim which were allegedly inconsistent with his testimony

at trial, centered on the testimony of an aunt of the Appellant, and ce ntered on the testimony of the Appellan t’s arson investigator. The victi m’s prior statements about the incide nt al ways named the Appellan t as the assailant and always involved the use of an accelerant

to burn the victim intentionall y. The prio r statements si mply var ied in the details of how the burni ng was a ccomplished by the Appellant. These earlier statements
were made very shortly after the incident, while the victim was still in shock and still in the hospital and s till suffering the immediate effects of the burns, and while the victim had I.V.’s in both arms. A jury could very reasonably have believed that a man in the condition of the victim would not articul ate with complete clari ty the details of the assault, while able to recount the crime in g eneral t erms and with a clear and specific identification of the Appellant as t he assailant.12 The Appellant’s aunt testified that she saw the victim l eave the App ellant ’s residence in his car

alone, wi thout the Appellan t. The aunt also testi fied concerning representation s made to her by an officer whic h, under the other proof in the case, the officer simply could not have made at the time the aun t said he made them. Given the aunt’s relationshi p to the Appel lant a nd her demonstrabl y false testi mony on another factual po int, the j ury could reasonably decline to bel ieve the aunt on the issue of whether the Appellant was in the victi m’s car. See Tennessee Crimina l Pattern Jury Instruction no. 42.06. Fina lly, the Appellant’s ar son expert did little to undermine the State’s proo f, a nd th e jury wo uld c erta inly ha ve bee n ent itle d to gi ve the State’s expert
more credibili ty than the App ellant’s ex pert. The r ecord supports the convic

tion for aggravated assault.
The Appellant’s fifth i ssu e is the asser tion that the tr ial court er red in failingto require the State to prod uce during trial the ha ndwritten notes of the State’s arson expert. Prior to trial, theAppellant filed a discover y motion and a motion for the State ag ents to retain their roug h notes. In neit her of these motions di d the Appell ant request t o be allowed to vie w or to r ecei ve a copy of these rough notes. The Appellant’s counsel first asked to see the note s in question dur ing the tri al, during counsel’s c ross-examination of the ex p ert, when it was determined that the notes were in Knoxville and not at trial. The trial judg e de clined to ord er the notes to b e produced, and the Appellant did not move for a conti nuance in the tr ial. At the he aring on the Appellant’ s Motion for a New Trial, the notes

were pr oduced.
Had the Appellant moved in timely fashi on to receive a copy of or to view the notes he w ould have b een entitled to do so under Rul e 16(1)(C) and (D). H owever , the Appellant did not

seek to do so before tr ial. Arg uably the Appel lant could have sought th e notes durin g the trial under Rule 2 6.2 of th e Rule s of Cr iminal Proce dure. Th e Appellantdid have before trial the ty ped report that the State’s expert had p repared after examining the burned car and investigatin g the inc ident, whi ch had incorpor ated information in the handw ritten notes . In thi s context, the trial j udge was justified in not13

interruptingthe expert’s testimony t o have him tr avel toanother city to locate his notes. The Appellant did not m ove for a cont inuanc e of th e trial an d there fore th e trial jud ge cannot be faulted for hav ing failed to grant a conti nuance.
The Appellant

received the handwri tten notes after the trial and has been unable to identify any

contradict ion between t he notes and the ty ped report or between the handwritt en notes and the ex pert’s testi mony at tri al. The Appellant merel y argues that the handwrit

ten notes wer

e only onepage long and the typed report eleve n pages long, and he argues th at one page coul d never be ex pan ded in to eleven pag es, suggesting that the exper

t manufactured most of the information in the typed repor t to support the State’s theory of the case. The exper t testified, however, that he prepared the ty ped report in longhand in a separate document, whi ch document was typed verbatim. Even if the judge’s

refusal to order pro duction ofthe handwri tten notes after compl etion of the expert ’s testimony un der Rule 26.2 w as error, a bsent signi ficant vari ance between t h e contents of the handwri tten notes and the contentsof other evide nce given by the ex pert, and absent proof of any substantial us e to which the Appellant could have put the handwritt en notes, it was harmless er ror.
The sixth and final error a lleged by the Appellant i s that the tri al j udge erred in givingthe Appellant th e maximum sentenc es for both the attempt to commit first-degr

ee murder convicti on and the agg ravated ass ault convi ction. As the attempted murder convicti on has been dis missed, t he remaining issue is w hether the sentenc e of fifteen years, the maximum for aggrava ted assa ult fo r a Range III offender, was excessi ve. The Appellantalleges specifically that the trial court erred in applying the enhancing f actors set out in TennesseeCode Annotated § 40-35-114(5), (6), and (10). The App ellant also complains that the trial judge announced a sentence and only subsequently specified the enhancing factors that he considered. Fi nally, theAppellant compl ains that the trial judge based his sentenc e on a speculati ve parole d ate.14 The standard of rev iew

of the denial of probati on and of the length of the sentence given in this cas e is set out in Tennessee CodeAnnotated § 40-35- 401(d) as bein g a de
novo review

on the record with a presumption that the determinations ma de by the court from which the appeal was taken are correct. The requirement that the app ellate court presum e the correct ness of the deter minat ions made by t he trial cour t is conditi oned upon the a ff irma tive showing in the record that the trial court consi dered the sentenci ng principles

and all rel evant facts and circum stances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The bur den is on the defendant t o show that the sentence imposed
was improper. State v. Fletc her, 805 S.W.2d 785, 786 (Te nn. Crim. App. 1991) In conducting this de novo review of a sentence, the appellate co urt mu st consider any evidence received at the sentenci ng hearing , the presentencerep ort , the princi ples of senten cing, the arguments of coun sel relative to sentencing alternatives, the nature and characteristics of the offense, an y mitig ating and enhanc ing factors, any statements made by the defendant i n hi s own beha lf, and the defendant’s pot ential or l ack of potential for rehabilit ation or treatment, t he factors set out in Tennessee Code An notated § 40-35-2 10(b) f or the tri al judge to cons ider in sett ing the spec ific sentence and the appropriatese nte ncing alter natives. Ashby; State v. Thomas, 755 S.W.2d 833 (Tenn. Crim. App. 1988).
The tri al judge applied a total of six enhance ment factors f ound in Tenness e e Code Annotated § 40-35-11 4. It is undisputed that the f ollowing three factors were presentand w ere properly considered by

the trial court: (1) an extensive prior cr iminal hist ory; (13)(B) the offense was commit t ed whil e the Appellant w as on parole from another felony conv iction; and ( 16) the crime w as committed under circumstanc es under which the potential for bodily i njury to a victim was great. The Appellant contends th a t the trial judge erred in applying these three factors: (5) the Appel lant treated thevictim with exceptio na l cruelty during the commission of the offense; ( 6) the personal injuries inflicted on the vic

tim were p articularl y great , and (10) the d efendant had no hesitati on about committing a crime w hen the risk to human life was high.15 Facto rs that are inherent in a parti cular offense, even if not design ate d as a n element, may not be applied to enhanc e the length of a defendant’s sentence. State v. Clay brooks, 910 S.W .2d 868, 872 (Tenn . Crim. App. 1994) perm. app. denied, (Tenn. 1995). Our Supreme Court has held that factor (10) , involv ing a hig h risk to human life, is not inherent i n the offense of aggravated assault and therefore can i n an appropriate
ca se be us ed to enhance a senten ce for aggr avated assaul t. State v. Jones , 883 S.W.2d 597, 602 (Tenn. 199 4). However, this court has hel d that a high risk to human lifeis inherent in aggrav ated assault committed wi th a deadly weapon, asopposed to aggravated assault resulting in serious bodi ly injur y. State v. Hil

l, 885 S.W.2d 357, 363 (Tenn. Crim. App.) perm. app. denied (Tenn. 1994).
Our Suprem e Court held i n Jones that factor (6) , involv ing parti cularly great personal injuries, is inherent in the crime of aggravated assault and theref ore generally cannot be considered as an enhancing factor in such a case. Jones at 602. However, this court has hel d that factor (6) can be used to enhance in an appropriate case where the aggravated assault was based on the use of adeadly weapon, rather than based on serious bodil y injur

y. State v. Frank

lin, 1996 Tenn. Crim. App

. LEXIS 701, N o. 01C01- 9511-CR-0383(Tenn. Crim. App. at Nashville, Nov. 8, 1996). However, in a case where the aggrav

ated assault con viction relies on use of a deadly weapon, enhance ment factor (10) cannot be used beca use it is i nherentin the cri me. Id. This court has al so held that in a case in which thevictim o f an aggravated assault al so suffered “signi ficant property damage”, factor (6) can be used to enhance the punishment. State v. Turner, 1995 Tenn. Crim. App. LEXIS 906, No. 01C01-9402 -C R-00 068 (Tenn. Crim. App. at Nashv ille, Nov. 15, 1995) This court h as hel d that fa ctor ( 5), excepti onal c ruelt y to t he vi ctim, is not necessarilyan essential element of aggr avated assault and can therefore be appli ed to enhance a sentence in such a case

. State v. Bennett, 1994 Tenn. Crim. A pp. LEXIS 798, No. 03C01-9403- CR-104 (Tenn. C rim. App. at Knox ville, Dec. 8 , 1994); S tate v. Chadwick, 1995 Tenn. Crim. App. LE XIS 816, No. 01C01- 9501-C C-004 14 (Tenn . Cri m. App. at Nashv ille, Oct. 4, 1995); State v. Caudil l, 1997 Tenn. Crim. App . LEXIS 8, No.16

03C0 1-9510-CC- 00338 (Tenn. Crim. App. at Knoxv ille, Jan. 9 , 1997). In B ennett, “exceptio nal cruelty

” wasdefined as “cruelty above that needed to effectuate the cri me.” Bennett.
The indictment in the case sub judice alleged ag gravated assault that resulted in serious bodily i njury. Ther efore enhancement factors (10) and (5) can be applied in the appropriatecase. T hrowing an ac celerant on a l arge part of a v ictim’s body , while the victim is seated in a car, and then setting the victim on fire is clearly both exceptionally cruel and cruel beyond what was necessaryto effectuate the crime. Appellant obviously acted without hes itation w hen the risk to human life was extremel y high. Fac tor (6) arguablyshould not have been applied by the trial j udge, a lthough the re was h eavy property damage to the victim’ s automobile. Ev en without

application of factor (6), the application of the other five enhancement factors present in this case was certainl y sufficient to suppor

t the trial judge’s se ntence of fifteen years for aggrav

ated assault.
The trial j udge announced his sen tences before he dis cussed the enhanci ng factors which he applied. It does not follow t hat the trial jud ge necessaril y arri ved at a sentence on other

criteria and then sought enhancing f actors to justify his conclusions. It appears from the record that the tr ial judge first a ppl ied the enhancing factors and sentencing considerati ons, then ann ounced his sentenc es, and then announced the enhancing factors that he had previousl y applied in his mind to arrive at the sentence he had previous ly announced. The procedure is not improper per se

and was not improper in th is case. The tr ial judge did mention on the r ecord that the App ellant wou ld be subject to parole at a

date earlier than some would expect, the record d oes not support the conclusion t hat the trial judge rel ied on that concl usion to determi ne the sentences he gave. The State in a footnote i n its brief on appea l has poin ted out that th e trial jud ge did not order that the sentences gi ven i n these cases be served cons ecutively to the sentence for which the Appellant was on parole at the time that he co mmitted these new offenses. Rule 32(c) (3)(A) of the Tennessee Rule s of Criminal Procedure req uires that17

a new sentence for a felon y be served consecutiv ely to previ ously impos ed felony sentences which are not yet full y served and forwhich thedefendant was on pa role at the time of the commissi on of the new felony . The new sen tence is to be served
co nsecutively “whether the judgment ex plicity so orders or

not.” Tenn. R. Crim. P. 32(c)(3). Therefore the State i s correc t in requestin g that this court make cle ar in our judgmentrendered here that the ne w sentences a re to be served consecutively to the prior sentenc e for which the Appellant was on parole. The convicti on for attempt to commit first degree mur der is dismiss ed. The convicti ons for aggrav

ated assault and resisting arrest areaffirmed, and the sentenc es forthese two convictions are affirmed. T he Appellant is sentenced to fifteen years as a Range III offende r for aggravated assault, to be served consecutively to the Appellant’s prior sentence imposed fol lowing convicti on for aggra vated assaul t in Cocke Co unty Criminal Court case n umber 500 3. The Appe llant is s entenced to eleven months and twenty- nine days for resisti ng arrest, which s entence wil l be served concurrentl y wi th the Appellant’s new

sentence for agg ravated ass ault.

LEE RUSSELL, SPE CIAL JUDGE

CONCUR:

____________________________ WILLIAM M. BARKER, JUDG E

____________________________ JOHN K. BY ERS, SENIOR JUDGE