1 In a “Sentencing Opinion” file

d by the court,

the followi

ng ruling is noted: “The two aggravated assa ult convictions merge into o ne as they arise o ut of the same c ourse of eve nts.” Subsequent to this ruling, t he trial court entered sep arate judgments of conviction for both aggravated assault by use of a deadly weapon (Count 1) and (continu ed...) 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE July 2000 Session
STATE OF TENNESSEE v. THOMAS EDWARD FORD
Direct Appeal from the Circuit Court for Warren County

No. F-7601, Charles D. Haston, Judge

No. M1999-2362-CCA-R3-CD - Filed October 13, 2000

The appellant, Thoma

s Edward Ford, w

as convicted of Cl

ass C felony ag

gravated assa

ult and Class D van dalism. The Circuit Court of Warren County sentenced the appellant to five y ears for aggravated

assault and two years

for vandalism.The sen ten ces w ere o rder ed t o ru n co nse cut ive ly. Upon appeal, the appellant raises the following issues for review: (1) propriety of the five-yea

r sentence; (2 ) impo sition of consecutive sentences; (3) sufficiency of the evidence for aggravated assault; and (4) misleading jury instruction. After review, we find n o error. Accordingly, the judgment of the Circuit Court of Warren County is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which T HOMA S T. W OODALL , J. and N ORMA M C G EE O GLE , J., joined.
Bernard K. Smith, McMinnville, Tennessee, for the appellant, Thomas Edward Ford.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor Gener al, Todd R. Kelley, Assistant A

ttorney Genera

l, Dale Potter, District Attorney General, and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Thoma

s Edward Ford, w

as convicted in the

Circuit Court of War

ren County
on three counts: (1) aggravated assault with a deadly weapon; (2) aggrava ted assault by causing serious bodily injury; and (3) vandalism over $1,000. The trial court sentenced

the appellant to five yearsfor aggrava

ted assault and to t

wo years f

or vandalism. 1 The trial court further ordered that the1 (...continued)

aggravated assault causing seri ous bodily injury (Count 2).

2 A fifth iss

ue was raised in the appellant’s brief challenging

the indict

ment’s vali

dity based

upon an im properly

sworn or a ppointed jury foreman . This issue wa s withdrawn.
-2- sentences run consecutively, resulting in an effective sent ence of sevenyears. On appeal, the appellanta sserts the following errors: (1) The trial court erred in sentencing the appellant to fi v e yearsfor the aggravated assault count; (2) The trial court erred in order ing the appellant’s sentences to run consecutively; (3) The trial court erred in convicting the a ppellant for ag gravated assa ult because there was no evidence that theappellant ever struck the victim with the bat; and (4) The trial court’s jury charge was co nfusing and misleadin g. 2 After re view, we find no error . Thus, these issues are without merit, and the judgment of the Circuit Court of Warren County is affirmed.

Background

In 1993, Linda Ford was involved in a romantic relationship with David N u nley. Soon thereafter, Linda became pregnant with Nunley’ s child and gave birth toa baby girl named Chelsea. Nunley and Linda never married. In July of 1 994, Linda married Thomas Edward Ford, the appellant. At the time of their marriage, Chelsea was approximately six months old.

On November 16, 1997, the appellant and his wife, Linda, he lped a frien d move a sto rage building. During this time period, the appellant

consumed two beers. On this particular day, fouryear-old Chelsea was with her father, Nunley, for visitation. As the appellant and L indawere driving hometo meet Nunley for the purpose of picking up Chelsea, the appellant beg an asking Lind a questions about Nunley. In response to the appellant’s questions, L inda replied, “Nunley

has been good to me and the kids about loaning us a vehicle and about helping us get a home.” The appellant became enraged at

Linda’s response, shoved her against the door of the truck, and informed her that he was going to “whip” Nunley when he ar rived to drop Chelsea off at their home.

When the appellant

and Linda arrived at their house, Nunley wa s already there. Nunley

was sitting in his vehicle and Chelsea was in his lap. The appellant ran over to Nunley’s vehicle, jerked open his truck doo r, and began hit ting Nunley

through the driv

er’s side window.

At some point, Linda was able to retri

eve Chelsea fro

m Nunley’s v

ehicle and left the scene. The appellant sprayed
mace in Nunley’s

face and contin

ued to punch and kick him. The appellant then took a pocketknife and slashed al l four of th e tires on Nu nley’s vehicle . He then ret urned to ki cking and beating Nun ley. The appellant nex t retrieved a baseball bat from his car and began to break all of the windows out of Nunley’s 1989 GMC Jimmy. The appellant threw the bat down and retur nedt o punching and kicking Nunley. The blows left Nunley with substantial injuries, including a broken left arm. Throughout the encounter, Nunley did not fight back and r

efused to exit

his vehicle for fear of his life.-3-

Seve ral minutes later, the appellant calmed down and convinced Nunley to go inside the house and clean up. Nunley tried to use the phone, but was unable to dial the number. The appellant then offered to driveNunley where he needed to go. Nunley eventually accepted the offer, and the appellant drove Nunley

to a nearby

relative’s home.

Nunley’s r

elative took him to

the emergency room, where Nunl

ey was tre

ated for his injuri

es. I. Sentencing on Aggr

avated Assault The appellant contends that the trial court erred by sentencing him to five y ear s f or aggravated

ass aul t. S peci fic all y, he asserts that the trial court placed impr oper emphasis on h

is past criminal record since “t

hoseo ffenses occurr

ed more than elev

en years b

efore the incide

nt in this case.” Second, he asserts that the trialcourt erred by relying on “uncharged assaults” which we re notexplored by the State, but were mentioned briefly a t the sentencing hearing. Third, the appellant argues that the trial court erred by considering the appellant’s violation of the trial court’s order not to visit with orcontact Linda or Chelsea. Lastly , the appellant contends that the trialcourt erred by finding that no mitigating factors were supportedby the evidence presented. After review, we find all of these issues

to be without merit.

The appellant bears the burden of establishing that the sentence imposed by the trial court
was erroneous. State v. Ashby , 823 S.W.2d 166, 168 (T enn. 1991); State v. Boggs , 932 S.W.2d 467, 473 (Tenn. Crim. App. 1 996); State v. Fl etcher , 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). Appellate review of a sent

ence is de novo , with a presumption that the determinations made by the court from which the appeal is taken are correct. T enn. Code Ann. § 40-35-401( d); Ashby , 823 S.W.2d at 169. In determining whether the appellant has carried the burden, this court must consider the evidence received at the trial and the sentencinghearing, the presentence report, the principles of sentencing, the arguments of counsel, the nature and charac teristics of the offenses, existing mitigating and enhan cing f actors, statements made by the offender, and the potential for rehabilitation. Ashby , 823 S.W.2d at 169 ; Tenn. Code Ann. § 40-35-210.

In the pres ent case , th e app ell ant was con vic ted of ag grav ate d as sau lt, a Cl ass C fe lon y. Tenn. Code Ann. § 39-13-102(d). Because he is a Range I Standar d offender, the appropriate sentencing range for

the appellant on the aggravated assault conviction is three to six years. Tenn. Code Ann. § 40-35-112(a) (3). Furthermore, the presumptive sentence would be the minimum sentence in that range if

there are no en

hancing or mitig

ating factors p

resent. Tenn. Code Ann. § 40- 35-210(c). Thus, the presumptive starting point in the present case is three years. I f there are enhancing andmitigatin g factors pres ent, the tr ial court m ust “enhanc e the senten ce within t he range
as appropriate for

the enhancemen

t factors, then r

educe the sente

nce within the ran

ge as appropri

ate for the mitigating f

actors.” Tenn. C

ode Ann. § 40-35-2 10(e). The appe llant's sentenc

e is no t determined by

the mathematical

processof

adding the sum total of enhancing factors present then subtracting from this figure the mit igating fac tors present for a net number of years. Rather, the weight to be afforded an existing fact or is lef t to the trial court's discretion so long as the court complies withthe purposes and principles of the 1989 Sentencing Act and its findings are adequately supportedby the record. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). The weight t o be afforded m itigating an d enhancemen t factors de rives from b alancing rel ative degr ees o f-4-

culpability

within the totality of the circumstances of the case involved. State v. Boggs , 932 S.W.2d at 476; See also State v. Marshall , 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993).

The appellant contends that the trial court placed improper emphasis on his past criminal record, since his last conviction occurred more than eleven years befor e the present incident. A sentence may be enhanced if the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range. Tenn. Code Ann. § 40-35- 114(1). In the present case, the appellant’s past criminal history included (1) a 1980 misdemeanor conviction for assault; (2) a 1986 conviction fo

r se cond-degree murder; (3) a 1986 misdemeanor conviction for throwing a m issi le calc ulated to produce injury; (4) a 1986 malicious mischief conviction, and numerous traff ic offens es. There is no set time period by which an appellant’s previous convictions become moot, for purposes of Tenn. Code Ann. § 40-35-114(1). Instead, the trial court has gre at discreti on when cons idering and w eighing past offenses du ring sentencing. Even if the tria l court weigh ed this fact or more heav ily than the ap pellant fee ls appropri ate, the cou rt's decision to do so is proper g iven th e disc retion allowed a trial court in considering enhancement factors. State v. Moss , 727 S.W.2d 229, 238 (Tenn.1986) ; State v. B oggs , 932 S.W.2d at 475. Since the record

clearly su pports the trial court’s decision to enhance the appellant’s sentence based
on his prior criminal history, we find it unnecessary to a ddress the appella

nt’s allegations that the sentence was improper

because the trial court considered “uncharged assaults.” Enhancement factor (1) is unequivocally met.

The appellant next contends that the trial court erred by considering his violation of the trial court’s warning. Following his conviction, the appellant was warned by the trial court to stay away from Linda and Chelsea. On Christmas Eve, after conviction and before sentencing, the appellant knockedon Linda’s ba

ck door and infor

med her that he wa

s leaving prese

nts for Chelsea on the front porch. Such conduct

was in direc t vio latio n of th e tria l cour t’s or der. In the trial court’s sentencing opinion, it lists the appellant’s conduct as an example of the a ppellant’s “comp

letelack of remorse andongoing hatre

d for th e vi ctim and the defendant’s wife.” We do not find that the trial court’s inclusion of this information was for the purpose of enhancing the appellant’s sentence,but rather
was included primarily as a condition of bail pending appeal. Indee d, the record reflects that the appellant’s bond was revoked based upon a violation of this no-contact condition. Con seq uen tly, this issue is also with

out merit.

Fin all y, the appellant asserts that the trial court erred by fi nding that no mitigating factors
were present. Specifi

cally, the a

ppellant contends

that the trial c

ourtshould have utilized the following factors to mitigate his sentence:
(3) Substantial grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; (8) The defendant was suffering from a mental or phy sical c ondition that significantly

reduced his culpability for the offense; however, thevoluntary use of intoxicants does not fall within the purview of this factor;-5-

(11) The defendant, although guilty of the crime, committed the offense und e r such unusual circumstances that it is unlikely that a sustained intent to follow the law motivated h

is conduct; (12) The defendant acted under duress or under the domination of another person,
even though the duress or the domination of another person is not sufficient to constitute a defense to the crime; (13) Any other factor consistent with the purposes of this chapter.

See Ten n. Code An n. § 40-35-113. In effect, the appellant argues that fac tors (3) and (12) above should have been used to mitigate his sentence because “Nunley ’s con tinuous, unwarranted interference

with the Fo rds ’ marriage drove [him] to commit this crime” and because “Nunley placed incredible duress” upon him.

The appellant als

o asserts that factor (8) above should have been used because he “simply

snapped.” He al

so asserts that fac

tor (11) above sh

ould have been use

d because “he had been a law abidin g citizen since 1986.” Finally, the appellant contends that factor (13) above is applicable because the appe llant di d not leave Nunley after attacking him, but “assisted Nunley by transporting him to a relative’s house so that he could seek

medical a

ttention. ” We disagree that these mitigatio n factors wer e appropria te and find n o error with the trial co urt’s ruli ng. First, there was no proof in the record that any “improper” r elationship e xisted between Nunley and the appellant’s wife. Accordingly , it can not be said t

hat the appellant

’s sentence shou

ld be mitigated based

solely on his d

efense that he “thought

” something was going on between his wife andNunley. Second, the appellant asserts he was under duress. The record simply does not support this position. The appellant was suspicious of anaffair. Without any proof or provocation, the appellant went up

to Nunley an

d began beating

him sen sel ess ly. There was no dur ess under these circumstances. Third, the appellant contends that he is entitled to mitigation factor (8) because he “simply snapped.” The appellant was not suffering from a mental or physical condition, but

simply became angry. He understood what he w as d oing and even told his wife what he intended to do several minutes before they arrived. Fourth, the appellant’s assertion that he is entitled to mitigation factor (11) because he has been a law abiding citizen since 1986 also fails. Although it is true that the appellant had not been convicted of a crime since 1986, the appellant did, however, testify that he had been in

volved in numerous barroom fights. Moreover, at the time of this incident, t h e appellant had been

discharged from his parole on the murder conviction for less than five month

s. Add iti ona lly, this crime was not c ommitted under unus

ual circumstanc

es. Therefore

, miti gat ion factor (11) would not apply. Finally, the appellant asserts that mitigation factor (13) should apply because he drove the victim to a relative’s house after he severely be at him. We are not persuaded that the appellant’s “kindness,” which followed the victim’s unprovoked beating, sup port s mitigation. Therefore, these issues are without merit and the sentence of five y ears for aggravated assault was proper.

II. Consecutive Se ntencing The appellant argues that

the trial court erred by

ordering his ag

gravated assa

ult sentence to be served consecu

tively to his

sentence for va

ndalism. Specifically, he asks this Court to reverse the tri al c our t’s jud gmen t an d or der t hat the sen ten ces r un c onc urr ent ly.-6-

With reference to the particular facts of this case, Tenn. Code Ann. § 40-35-115(b)(1)-(7) prov ides th at t he co urt may o rder sen ten ces t o ru n co nse cut ive ly if the cou rt f ind s by a preponderance

of the evidence

that:
(2) The defendant is an offender whose record of criminal activity is extensive; (4) The defendant is

a dangerous off

ender whose beh

avior indicates li

ttle or no regard for human life, and no hesitationabout committing a crime in which the risk to human lif

e is great.

This court’s review o

f the manner of se

rvice of a sente

nce is de novo with a presumption that the determination made by the t rial court is corr

ect. Te nn. Code Ann. § 40-35-401(d). Likewise, the appellantbears the burden of proving the impropriety of the consecutive na ture of the sentences imposed. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).

Before consecutive sentences can be imposed, the trial court must (1) first determine that one
or more of the statutorily enumerated criteria of Tenn.Code Ann. § 40-35-115 exists, see also Gray
v. State , 538 S.W.2d 391, 393 (Tenn. 1976); and(2) if the defen dant is found to be a dangerous offender, find that the agg regate sentence is

reasonably

related to the se

verity of th

e offenses and is necessary to protect the public from further criminal activity of the

offender. State v. Wilkerson , 905 S.W.2d 933, 937 (Tenn. 1995); See also State v. Lane , 3 S.W.3d 456 (Tenn. 1999)(holding Wilkerson factors were limited to sentencing of “dangerous offenders”). N otwithstanding proof of these criteria, a sentencing

court r etains the discretion of imposing consecutive sentences. On appeal, th e e xercise of the trial court’s discretion is afforded great weight, provided the court correctly applied the principles of

consecutive sentencing. Moreover, in determining whether the trial court providently exercised its discretion, “t he overr iding concern” is the fairness of the resulting sente

nce under all the

circumstances.

In its sentencing opinion, the trial court sentenced theappellant to consecutive sentences and reasoned in par

t as follows:

The defendant’s sentences of 5 and 2 years shall be served consecutively one to the other. The court finds by a pr eponderance of the evidence that the defendant is an offender whose record of

criminal activity

is extensive. He ha

s no hesitation to commit a crime in which th

e risk to human life is high. He has previously committed murder. In the case at bar he assaulted an individual with such violence as to break
a bone and displayed a deadly we apon during the course of the assault...Defendant indicates no remorse for his offenses and believes he was justified in committing this
ass aul t an d mu rder . He pos es an ongo ing d ange r to the com mun ity.
Although the trial court’s

findings allude t

o both classifications of “extensive criminal history” and “dangerous offender,” the rec ord clear ly supports the finding that the appellant is a dangerous offender. As such, any

review of the ap

pellant’s class

i fication as an offender possessing an extensive criminal history is unnecessary. Moreover , al thou gh the trial court appeared to co-mingle the-7-

classifications,

we find the court’s references to the appellant’s criminal history were primarily made wi thin the context of finding the appellant a dangerous offender. Clearly the trial court was warranted in considering the fact

that the appellant was previously convicted of assault and murder when finding him to be a dangerous offender.

The appellant argues that the trial court erred by finding that the appellant had no hesitation to commit a crime wher e t he risk to human life is high. Specifically, the appellant states, “Here Defendant

punched and kicked Nunley several times, and destroy ed his car w ith a baseb all bat. These actions, while ce

rtainly reprehensible, do not evidence an intent to place human life at risk.” We disagree. The appellant decided he was going to “whi p” N unl ey during his drive home. The
a ppellant followed through with his plan and severely beat Nunley without any prov ocation o r reason. The appellant also risked injuring or killingChelsea, as she was sitting in Nunley’s lap when the appellant starte

d beating him.The appellant then pr oceeded to take

a baseball bat an

d demolish Nunley’scar. In the process, he broke Nunley ’s arm. The trialcourt did not err by finding that the appellant exhibits no

hesitation to commit c

rimes where the r

isk to human life is g

reat.

Fin all y, the appellant asserts that the trial court erred by finding that the appe llant poses an ongoing danger to the community. Specifically , the appellant asserts that “this crime was prompted by a discrete, unusu

al set of circumst

ances, Nunley’s persistent and unwarranted int

erference wi

th the Ford’s marriage over a number of y ears.” We disagree with the appellant’s assertion and once again find the trial court’s ruling correct. This incident was not “prompted by a discrete, unusual set of circumstances,” as the appellant suggests. Rather, the appellant dec ided to beat a man s

enselessly because he had a suspicion that his wife and the man w

ere having an a

ffair. The appe

llant’s past convictions, along with the present incident, clear

ly reveal that the appellant is an ongoing danger to t he co mmu nit y. Sentencing is inescapably a human process th

at neither can no

r should be reduced to

a set of fixed and mechanical rules. State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). The trial court imposed consecutive sentences of five years for the ag gravated assault charge and two y ears for the vandalism

charge, for an effective sentence of seven years. Upon de novo review, we conclude that the imposition of consecutive sentences was appropriate, as the proof established that the aggreg

ate sentence imposed

is reasonably

related to the se

verity of th

e offenses and w

as necessary

to protect the public from fu

rther criminal a

cts of this appella

nt. Accordingly

, this issue is without m

erit.
III. Sufficiency of the Evidence The appellant argues that his conviction for aggravated assault must be reversed

because “there is no clear evidence that [he] struck Nunley wi th the bat.” In effect, he argues that the evidence produced at trial was insufficient to convict him of aggravated assault. We disag ree.

A jury conviction

removes the presumption of innocence with which a defendant is cloaked andreplaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the suf fic ien cy o f the evidence, this Court does not reweigh or reevaluate the-8-

evidence. Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewi se, it is not the duty

of this Courtto revisit questions of witness credibility on appeal, that func

tion being within

the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (Ten n. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant mus t establish that the evidence presented at trial wasso deficient that n o reasonable tri

er of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S.Ct. 1368 (1993).

In the present case, the appellant argues that his conviction for aggra vated assau lt cannot stand because there was no “clear evidence” that he ever struck Nunley with the baseball bat. The appellant was convicted of

aggravated assault under

Tenn. Code Ann. § 39-13-102(a)(1)(B), which provides that a “person co mm its agg ravated assault who intentionally or knowingly commits an
as sault as defined in § 39- 13-101 and uses or displays a de

adly weapo

n.” Thus, there is

n o requirement

under Tenn. Code Ann. § 39

-13-102(a)(1) (B) that the app ellant must actual

ly use the bat to be convicted of aggravated assault. The fact that the appellant display ed the baseball bat is sufficient to convict. When ask

ed whether he wa

s actually hit by the baseball bat,

the victim testified, “as far as I know, the bat hit me right there [in the left arm]. It had to, because it was in and outof the cab, and he tried it several times.” Moreover, the appellant himself admitted to using the baseball bat during this incident. Consequently, a rational trier of fact could have found the appellant guilty of aggravated assault under Count 1, pursuant to Tenn. Code Ann. § 39-13-102(a)(1)(B ), and guilty of aggravated a ssault und er Count 2, causing serio us bodily injury, pursuant to Tenn. Code Ann. § 39-13-102(a)( 1)(A). Ac cordingly , we find the evide

nce legally

sufficient to supp

ort both aggravated assault convictions charged in Counts 1 and 2.
IV. Jury Instructio

ns The appellant argues that the court’s jury charg e was “hopelessly confusing and misleading to the jury.” In response, the State asse

rts tha t “while the trial court did initially misstate which count of the indictment charged the defendant wi

th aggravate

d assault by c

ausing bodily

injury by
use or display of a deadly wea pon the issue was clarified by the Assistant District Attorney.” At trial, the following dialogue between the trial court and the State took place during the trial court’s jury instruc

tions:

THE COURT: Aggravated assault is defined thusly in the law: Any person who commits the offense of aggravat

ed assault is guil

ty of the crime. For you to find the d efen dant guilty of this offense, the Statemust have proved beyond a reasonable

doub t the existence of the-9- following ess ential elements. Under CountNo. 1. you have

got tofind that the defendant

- allright. I am g

oing to re-start that a little bit. Ladies and gentlemen

of The Jury, for you

to find this defendant

guilty under Count

No. 1, it is incumbent upon th e State to prove to you these e

lements : (1) That the defendant acte

d intentionally or knowingly

causing bo d ily injury

to another. Under Count No. 2, aggravated

assault bydisplay of a deadly weapon, the State mus t prove to you beyond

a reasonable doubt

this element: That t he defendan t intentionally

or knowingly caused another person to reasonab lyfear imminentbodily inju

r y and that the defendant used or displaye d a deadly weapon.

MR. MINOR: You may have gotten them ba ckwa

rds.

THE COURT: Okay. Now, under Count 1 -

MR. MINOR: Deadly weapon count is fi

r st. I t hink you correctly stated the law.

THE COURT: Oka y. Under Cou nt 2 that th e

def endant caused serious -

that is und erCount 1- right - caused serious bodi ly injury to ano

ther. That i s Count 1.

MR. MINOR: No. Count1 is did cause bodily injury byu se of a deadly weapon. Your honor, I h ave the statute that reads
mor e cl earl y.
THE COURT: Yeah. Just give me t he stat ute, an d

let’s see if that is not more clear. A l l right. I w ill try again. Any person who commits th e offense o f3 Initially, the trial court inter changed Count 1 w ith Count 2. Count 1 should ha ve charged the defenda nt with

aggravated assault by the use or display of a deadly weapon, Tenn. Code Ann. § 39-13-102(a)(1)(B ). Count 2 sh ould have charged the defendan t with aggravate d assault b y causing seri ous bodily injury , Tenn. Code Ann . § 39-13- 102(a)(1)(A). The tri

al judge late

r corrected his

mistake and corre

ctly st ated the law.
-10- aggravated

assault is guilty of

a crime. For you to find this defendant guilty of this offense, the State mu st have provedbeyond

a reasonable

doubt the existence of t he following essential elem ents: That the defendan t intentionally

or kno wingly com mits an assault and causes serio

us bodily injury to ano the r or use s or dis pla ys a deadly weapon or reck

lessly commits
an ass ault and causes se rious bodily injury to another or

uses or displays a deadly weapon.

The appellant contends that because the trial judge read straight from the statute, Tenn. Code Ann. § 39-13-102, and “did not explain that the ‘deadly weapon’ type of aggravated assault formed the basis of Count I and the ‘serious bodily injury ’ type formed the basis of Count II,” that the char ge was confusing and misleading to the jury. We disagree.
Although, the trial j udge did initially interchange Counts 1 and 2, the State pointed out the mistake, and the tri al judge corrected the error by correctly stating the law. 3 Mor e im por tan tly, however, is the appellant’s failure to include

in the record the written instructions submitted to the jury for their use in deliberations. The written charge would have contained the trial co urt ’s instructions as to the essential elements required to be proven for the alternative counts of aggravated assault. A bsent those jury instructions, we must presume that the trial court’s written charge was correct. Ther

efore, this issue

is without merit.

CONCLUSION

The evidence presented at trial was sufficient to find the appellant guilty of either indicted count of aggravated assault, and the sentence imposed by the trial court was proper. Furthermore, the jury charge was not mis lea din g or c onf usi ng. A ccor din gly, all issues presented by the appellant
are w ith out mer it. The refo re, w e aff irm the jud gmen t of the Cir cui t Co urt of W arre n Co unt y.

___________________________________ DAVID G. HAYES, JUDGE