# FILED August 21, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MAY SESSION, 1998

STA TE O F TEN NES SEE , ) C.C.A. NO. 02C01-9710-CR-00404 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. CHRIS CRAFT, JUDGE MAR IO SC OTT , ) ) Appe llant. ) (THEFT; AGGRAVATED ASSA ULT )

FOR THE APPELL

ANT : FOR THE APPELLEE : A.C. WHARTON JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter TONY N. BRAYTON PETER M. COUGHL AN Assistant Public Defender Assistant Attorney General Criminal Just ice Center, Suite 201 2nd Floor, Cordel l Hull Bui lding 201 Poplar Avenue 425 Fifth Avenu e North Memphis, TN 38103 Nashville, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral DANIEL S. BYER Assistant Distri ct Attor ney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED-2-

THOMAS T. WOODALL, JUDGE-3- 

# OPINION
The Defen dant, M ario Sco tt, appeals as of righthis convict ions of aggr avated assa ult and theft of prope rty over the value of one thousa nd dollars following a jury trialin the Shelby County Cr iminal Court . The tri al court s entenced Defendant as a Range I Standard offender to four (4) years conf inement on the thef t convict ion and six (6) years conf inement on each aggravated assaul t conv iction. The trial court ordered the t

wo (2) aggravatedassault convi ctions to be served concurr ently, b ut consecutive to t he the ft convicti on, for an effect ive sentence of ten (10) years. Defe ndan t prese nts the followin g two (2) issu es on appe al: 1. Whether the evidence was su ffici en t to convi ct Defendant of aggravated assault; and 2. Whether the trial court properly or

dered Defendant’ s aggravat ed assau lt convicti ons to be served cons ecutive to his thef t convict ion.
We a ffirm the jud gmen t of the trial cou rt.

The facts presented at trialreveal that on March 22, 1995, Marcus Wilson was driving a blue car when i t was stoppe d by the p olice. The Defen dant, M ario Sco tt, was a passenger in t he vehicle. Marcus Wilson testif ied at trial that he bel ieved that the car belonged to Defendant and that Defendant offered to sell the car to him for $1700 .00.

Officer Halfacreof t he Memphi s Pol ice De part ment wa s prev io usly given a photo of Defendant and t he blue vehicl e from the serge ant in aut o theft on t he m orning of March 22, 1995. Halfacre was told that t he vehicle Defendant wa s-4-

drivi ng was stolen and t hat the vehi cle ident ificat ion number (VIN) had be en changed. The vehicle was parked at the hom e of D efendant’s mother. Offi cer Ha lf acre was told to wait un til Defend ant got into the vehic le before attemp ting to make a stop.

About 2:20 that afternoon, Officer Halfacre was obser ving traf fic i n front of NorthsideHigh School when Defendant and Marcus Wilson passed by he ading westbound in the stolen vehi cle. Off icer Halfacre then notified Off icers Boyce and Murray that thestolen car had just passed her going west on Nort hside. The t hree officers followed i t to Breedl ove and Volli ntine where t hey attempt ed to pull the vehic le over. The driver, Marcus Wil son, pulled ov er to the curb and re mained in the car. Officer

Halfacre pul led crossways i n front of the vehi cle so that it coul d not pull away. Officer Halfac re exite d her c ar and Defe ndan t got ou t of the s tolen v ehicle and pointed a nine milli meter automatic handgun at Officers Halfacr e and Murray.

Officer Boyce pulled i n directly behind thestolen vehi cle and was attempting to exit his p olice cr uiser w hen h is drive r’s side door w as hit b y Office r Murr ay’s cruiser, causing Officer M urray’s pa sseng er side w indow to shatter. Officer Boyc e’s door bounced back and hit him in the chest, stunning him momentarily. By t he t ime Officer B oyce re covere d from th e blow, D efenda nt had e scape d on foo t.
Hearing the win dow of Offic er Mu rray’s car shatter, Officer Halfacre bel ieved that a gunshot had been fi red by Defendant at Officer Murray. Half acre broadcast overthe radio t hat her part ner had been shot at by Defe ndant. Halfacre ran over to-5-

Murr ay’s cruise r to see if she ha d been shot. After d iscoverin g that a gunshot was not the cause of the br oken window and that Off icer Murray was unharmed, Officer Halfacre realizedthat Defendant had taken off runni ng. Offi cer Boyce chased after Defendant on foot . Defendant escap ed but was later captured.

Of ficers Halfacre and Murr ay testi fied at t rial t hat Defendant poi nted a n in e milli meter autom atic hand gun at t hem ove r the roof of the stolen vehicl e. Offi cer Half ac re testified that s he really “b elieved s he mig ht be fired a t by Ma rio Scott.” Neither Marcus Wilson nor Off icer Boyce were able t o testif y that they saw Defendant with a

gun on March 22, 1995.

I. S UFFICI ENCY OF THE EVI DENCE

Defendant argues that the evidence pr esented a t tr ial was ins ufficient to supp ort hi s convicti ons of aggravated assault. When an accused challenges t he suffic iency of t he convicti ng evidence, t he standard i s whether, af ter revi ewing the evidence in the l ight most favorable to the prosecti on, any rati onal tri er of fact c ould have found the ess ential elem ents of the crime b eyond a reaso nable d oubt. Jackson v. Virgin ia , 443 U.S. 307, 319 (1979). This standard is applicab le to findings of guilt pr

edicated upon direct evidence, ci rcumstantial evidence o r a combination of direct

and circumstant ial evi dence. Stat e v. Matth ews , 805 S.W.2d 776, 779 (Te nn. Crim . App. 19 90). On appea l, the State is entitled to the strongest legitimate view of the evid ence a nd all infere nces the refrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Because a ver dict of guilt r

emoves the presumption-6-

of innocen ce and replaces it with a presumption of guilt, the accused has the burden in this co urt ofillustr ating why the evidence is insuf ficient to support the verdict re turned by th e trier of fact. State v . Wi ll iams , 91 4 S. W.2d 940, 945 (Te nn. Cri m. App. 1995 ) (cit ing State v. Tug gle , 639 S.W .2d 913 , 914 (Te nn. 198 2)); State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3).
Questions concerning t he credibi lity of the wit nesses, the wei ght and valueto be given the evide nce, as we ll as all factual issues raised b y the evidenc e, are resolved by the trier o f fact, not this c ourt. State v. Papp as , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied , id . (Tenn. 1987 ). Nor may this court reweigh or reeva luate the e vidence
. Cabbage , 571 S. W.2d at 835. A j ury ve rdic t approved by the trial jud ge acc redits the Sta te’s witn esse s and resolv es all conflicts in favor of th e State. Grace , 493 S.W.2d at 476.

In th is case, the Sta te mu st prov e that D efend ant inte ntiona lly or kn owin gly committed an assault as d efined i n Tennessee Code Annotated sect ion 39-13-101, and us ed or disp layed a d eadly w eapon . Tenn. C ode An n. § 39-1 3-102(a )(1)(B).

Officer Halfacre , a ten (10) year vete ran of the police de partme nt, unequivocall y stated t hat when the stolen car w as pulled ove r, Defendant stepped out of the passenger

side of t he car and pointed an “automatic weapon” over the r

oof of the car at the officer s. Offi cer Halfacr

e was standing behind her vehi cle with an unobstructedview of Defendant, who was standing only fourteen (14) feet away. Officer Murray, an eig ht (8) year veteran of t he police depar tment, als o testif ied that-7-

Defendant had a gun and pointed i t at the of ficers. Officer

Murray believed that she had been sh ot at whe n her window shattered. She proceeded t o lay down on the seat of her

cruiser in o rder to av oid being shot by D efenda nt. Officer Halfacre al so believed thatOfficer Murray had been shot at by Defendant. Off icer Halfacre even went so far as to broad cast over h er radio that her partner

had been shot at by Defen dant. Officer Boyce and Marcu s Wilso n testif ied that t hey never saw Defen dant w ith a gun.

When view ing the eviden ce in the light mos t favorable to the S tate, the jury justif iably coul d have found beyond a reas onable doubt t hat Defendant committed aggravated assault. The jury heard conf licti ng st ories and chose to credi t the testimony

of Offic ers M urray a nd Ha lfacre. T he res olution of dis c repan cies in testimony, whether caused by an i ntentionalattempt to mi slead the j ury, or by variati ons in witness percep tion, is a m atter for the ju ry to decid e. State v. She ffield , 676 S .W.2 d 542, 5 47 (Ten n. 1984 ). The jury h ad mo re than e nough evidenc e to convict D efenda nt of aggr avated assau lt. This issue is without m erit.

II. CONSECUTIVE SENTENCING

Defendant does not contest the le ngth of hi s sentences, but he does challenge the manne r in which they a re to be served. The trialcourt sent enced Defendantto four(4) years conf inement on thetheft con victi on and six (6) years confi nement on each aggravated assaul t convict ion. The trial court ordered the t

wo (2) aggravated assa ult convicti ons to be served conc urrentl y, but consecut ive to t he theft con victi on-8-

foran effect ive sentence of ten (10) year

s. Defen dant argues that the trial court erred in ordering him to se rve his co nvictions for aggra vated a ssault co nsecu tive to his convict ion for t heft. Defendant contends that the sentences should have been ordered to run con currently ra ther than conse cutively.

When an accused chall enges the lengt h, range, or the manner of serviceof a sentence, t his court has a duty to con duct a de novo review of the sentence with a presumption t hat the determinations made by th e trialcourt are cor rect. Tenn. Code Ann. § 40-35 -4 01(d). This presumption is “conditioned upon the affi rmative showing in the record that t he trialcourt consi dered the sente ncing pri nciples and all relevant f

acts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 ( Tenn. 1991). There are, however, excepti ons to the presumption of cor rectness. First, the record must d emon strate that th e trial court c onsidered the senten cing prin ciples and all relevant fa cts and c ircums tances . Id. Seco nd, the presu mptio n doe s not a pply to th e legal co nclusions r eached by the tr ial court in sentenci ng. Third, the presumption does not ap ply when the determination s made by the trial court are predicated upon u ncontro verted fa cts. State v. S mith , 898 S.W.2d 742, 745 ( Tenn. Crim. A pp. 199 4), perm . to appeal denied , id . (Tenn. 1 995).

Our review requi res an analysi s of: (1)The evidence, if any, recei ved at the trialand sentencing hea ri ng; (2) t he presentence report; ( 3) the pri nciples of sentencing and the argum ents of co unsel rela tive to sentencing alternat ives; (4)the nature and characteri stics of the offens e; (5) any mit igating or enhancing factors; (6) any statements made by th e defen dant in his ow n beh alf; and (7) the d efend ant’s-9-

potentialfor rehab ilitation or treatm ent. Ten n. C ode Ann. §§ 40-35- 102, - 103, & - 210; see Sta te v. Sm ith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If o ur review ref lects t hat the trial court followed t he statutor y sentencing procedure, imposed a lawful sentence after havi ng given due consi deration and properweight to t he facts and pr incipl es set out under the sentenci ng law, and that the trialcourt’s findings of fact are adequately supported by t he record, then we may not modif

y thesent ence even i f we would h ave pre ferred a d ifferent resu lt. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon revi ew of the recor d, we find that

the tri al court f

ollowed prope r statuto ry sentenci ng procedure, and therefore, revi ew by this Court is de novo with a presumption of correctness.

Consecutive sentences shou ld be im pose d only after t he proof establ ishes (1) thatthe terms i mposed are reasonably r elated to the severity of the off

enses committed; (2) the sentenc e is necessa ry to protect the publi c from furt her criminal acts by the offende r; and (3) that the defendant meets at least one of

the criteria as set forth i n Tennessee Code Annota ted sectio n 40-35 -115(b). State v. Wil kerson , 905 S.W .2d 933 (Te nn. 1995).

The trialco urt recognized Defendant’s l ong-term pattern of cri minal activit y. See T enn. C ode Ann. § 40-35-115( b)(2). Defendant’s criminal record inclu des convicti ons for assaul t, receiving stol en property, driving on a revoked li cense, and unlawful posse ssion of a weap on. Wh il e on bond for t he revoked li cense and weapons offenses, Defendant was convicted for dri ving on a revoked l icense and-10-

reckless driving. Defendant then r eceived two (2)more convicti ons for driving on a revoked license. Defendant also has three (3)convicti ons for sel ling cocai ne or possession of co cain e wit h intent to sel l. De fend ant wa s on parole for those convicti ons when he committed the pr esent offen s es. The tri al court f ound Defe ndan t’s repeated vi olations of the l aw to be a “steady stream of crimes . . . with appa rently no contr ol.” We agree with the trial cou rt and fin d that th is proo f is suffic ientto suppo rt a finding th at Defen dant’s crim inal activity has been extensive. See , e.g. , State v. Chri sman , 885 S.W .2d 834 ,839 (Te nn. Crim . App. 19 94).

In orderi ng consecutive s entencing, the trial cou rt explic itly stated, “I’ve also considered whether or not that’s a sentence disproportionate to t he gravity of these offensespursuant to case law.” Thetrialcourt found the crimes i n the instant case to be se vere. P oli ce officers attempted to stop Defendant becaus e he was in a stolen car, and a s a result, Defen dant pulled a g un on the officers . The trial court also found Defendant to have “a consci ous disregard for the saf ety of ci tizens and a disregard f

or the court

s and orders of

the co urt.” Ce rtainly it can be r easoned from the foregoing statements that the trial court found consecutive s enten cing to be reaso nably relat ed to the sev erity of the cr imes a nd also fo und it nec essary to protect the public f rom future crim es by this Defen dant. See Wilkerson , 905 S.W.2d at 939 . We agree with the trialcourt’s fi nding that consecutive sentenci ng i s appro priate in this cas e. This issue is withou t merit

Based on all t he foregoing, the judgment of the tri al court i s affirmed.-11- ____________________________________ THOMAS T. WO ODALL, Judge CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ PAUL G. SUMME RS, Judge