# FILED July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9703- CR-00092 ) Appellee, ) ) ) JACKSON COUNTY VS. ) ) HON. J. O. BOND ROBERT FARLEY, ) JUDGE ) Appe llant. ) (Direct Appe al - Simple As sault)

FOR THE APPELLANT : FOR THE APPELLEE : STEVEN A. C ASSETTY JOHN KNOX WALKUP P. O. Box 815 Attorney Generaland Reporter 204B East Hull Avenue Gainesboro, TN 38562 DARYL J. BRAND Assistant Attorney General EDWIN SADLER 425 Fifth Avenu e North One S. Jefferson Avenue, Suite1 Nashvill e, TN 37243 Cookevill e, TN 38501 TOM P. THOMPSON, JR. Distri ct Attorney General ROBERT HIBBETT Assistant Distri ct Attorney Lebano n, TN
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION On April 19, 1996, a J ackson C ounty jury found A ppellant, Robe rt Farley, guilty of two c oun ts of simp le assau lt, upon an indictme nt charg ing him w ith aggravated rape, aggrava ted assa ult by use o f a deadly weapon, and aggravated assa ult by cau sing se rious b odily injury. After a sentencing h earing, the trial court sentenced Appellant t o eleven months and t wenty-nin e days, ninet y days of which was to be served in jai l and the remaining t ime to be served on supervised probation. Appe llant ap peals both th e judg men t and th e sen tence , raisin g seve ral issues: 1) whether the State presented s uffici ent evide n ce at tri al to sustain the conviction s on two counts o f simple a ssault; 2) whetherthe trial court erroneously prevented Appel lant fr om presenting an alibi defense; and 3) whetherthe tri al court approp riately sentenced Appellant to nine ty days in jai l foll owed by probati on. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS
According to testi mony presented at t rial, Shar on Rayme r and Rob ert Farley had an inti mate relat ionship f rom about February 1994 until July 1994. They lived tog ether in hertrail er in Jackson Count y untilapproximatel y July 1994 after which they had a “on again, off again ” relati onship. Ms. Ray mer stated that by March of 1995, Mr. Farley wasjust bot hering her when he came by her house, and she d id not want him to visit her.-3- Ms. Raymer testi fied that on the night

of March 25, 1995, Mr. Farley came to her trail er, drunk. He accused her of havi ng affair s with sever

al men in the neighborhood. Then he, “threw me on the ground and put his boot on my throat and kicked me in t he head. After that he tor

e my clothes of

f and rape d and sodom ized m e.” According to Ms. Raym er’s testimony, Mr. Fa rley ha d a gu n in a holster, which he indi cated he had brou ght with hi m in order to k ill her. After raping h er, Mr. Fa rley left.

Ms. Raymer stated t hat she did not leave her t railer

at all the foll owing day out of fearthat Mr . Farley would kill her. S he sta ted tha t he ha d threa tened to kill her if she told anyone of t he p receding night’s events. A ne ighbor, Barba ra McAvoy, stopped by to visi t, and Ms. Raymer only admitted her into the trail er after extract ing a promise t hat she would not call t he police. Ms. McAvoy described that Ms. Raymer “ ha d bee n bea t up or b ruised , or look ed tha t she’d been b eat up, ba d.”

Ms. Raymer testi fied that late on t he night of Marc h 26, M r. Farle y again came to her house. He damaged a sliding glass doo r to the trailer, and then went to the fr ont door and broke t hrough t hat door . Mr. Fa rley dragged Ms. Raymer from bed by the hai r, pull ed he r arms, slapp ing, kicking and p unching he r. Acco rdin g to Ms. Raymer, af ter beati ng her, he agai n tore off her clothe s and raped and sodom ized her.

Ms. Raymer further

testified that

on the afternoon of March 27, Mr. Farl ey returned to her

residence athird t ime. Ms. Raymer admit ted that s he had drunk a number of beers that afternoon, so that when he hur t her again s he would not-4-

feel anything. Acc ording to Ms. R aymer, Mr. Farley agai n accused her of bei ng with other men , beat her, ripped her clothe s off and “had h is way” with her, raping and sodomizing her. She also stated th at he was armed, and that he pat ted the gun an d said, “do n’t forget I go t this.”

Ms. Raymer stated t hat after the assault , Mr. Farl ey went across the st reet to Tommy Mansell’s house. He returned, bl eeding f rom a stab wound. Ms. Raymer ran across the street and aske d Mr. C alla han, a neighbor , to cal l an ambulance.

Kenn eth Bean, an officer at the Jackson county Sheri ff’s Depar tment, went to the scene of t he stabbing on Marc h 27, 199 5. He found M r. Farley at Mr. Callah an’s house , b leeding f rom a wound in his arm. Officer Bean learned that Mr. Farley had posses sed a gun, and searchedfor the gun , checkin g the site of the stabbing and followi ng a trail of Mr. Farley’s b lood ba ck to M s. Ray mer’s trailer. The gun w as never found. Officer Bean observed Ms. Raymer at her house and noted that she appeared to beintoxi cated or on medicat ion. He fur ther observed that she a ppeare d to have severalbruises and scr atches. Ms. Ray mer began to have s eizures a nd an a mbula nce wa s called.

A register

ed nurse from Jackson County Hospitaltestified that h e treated Ms. Raymer

when s he ar rived at

the h ospi tal on March 27. He had treated her forseizures on t

wo or three ot her occasions. The nurse noted that Ms. Raymer suffered bruisingon her arms and face and had an open wound on her face. She also had “one fai rly l arge bruise noted to the right lateral hip, j ust above th e belt.” He opined that, j udging from the col oration of the bruise s, some were two to three-5-

days old, while others we re more recent. Thenurse test ified t hat on the prev ious occasions when he had treated Ms. Raymer for sei zures she had not had such injuries.

Donna Wis ehart tes tified that she was a g ood frien d of Mr. Fa rley’s a n d remembered that he was with her at her work until pretty late i n the evening of March the 27th. The defense w as prevented from develop ing her t e stimony by a ruling of t he trial court excluding alibitestimony. The trialcourt st ated on the record that attorneys in hi s court di d not foll ow the Rules of Cr iminal Procedure, “I know what the not ice says, and in this distri ct you’ve always sai d you’ve got open files

with the di strict

attorney

and that th e formal rul es didn’t a pply in th is district. N ow, if you allwant to go back to the formal rul es and want to practice under the formal rules, then we’l l do that. ” The trialcourt stated that he ref used to admit test imony regardi ng where App ellant was on the nights of the al leged incidents as alibi , because the defense counsel had not provi ded the State with notice thatit intend ed to re ly upon an alib i, stating that the State d id not have to reques t notice of su ch an inte nt.

I. Suffi ciency of t he Evidence
Appellant

contends that

the evidence introducedat tri al was insu fficient to convictAppellant of ass ault, arguing that the jury obviou sly did not accredi t the testimony

of the al leged vict im and other t han her testi mony there is no evidence placing him at the sc ene of the i ncident. When an appellant chall enges the suffic ien cy of th e evidence, t his Court i s obliged to review t hat chall enge-6-

according to cert ain we ll- settled principles. A verd ict of guilty by the jury, approved by the tri al judge, accredits the test imony of theState’s wi tnesses and reso lves all conflicts in th e testimo ny in favor o f the State
. State v. C azes , 87 5 S.W.2d 253, 259 (T enn. 19 94); State v. Harris, 839 S.W .2d 54, 75 (T enn. 1992 ). Although an accu sed is o riginally cloaked with a p resump tion of innocenc e, a jury verdictremoves this pres umptio n and re places it w ith one of g uilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982 ). Henc e, on appeal, the burden of proofrest s w ith Appell ant to demonstrate the ins uffici ency of the convicti ng evi den ce. Id. On appeal, “t he [S]tate is enti tled to t he strongest legiti mate view of the evide nce as well as all rea sonab le and leg itimate inferences that may be drawn therefrom .” I d . ( c iting State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). Where the suffici ency of the evidenc e is contested on appeal , the relevant question for the reviewi ng court is whether any r

ational trier of fac t could have found the accused g uilty of ev ery e lement of t he offense beyond a reaso nable doubt. Harris , 839 S.W.2d 54, 75; Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) . In conduct ing our eval uation of the co nvi cting evi dence, thi s Court is pr ecluded from rewei ghing or reconsideri ng the evide nce. State v. Morgan , 929 S.W.2 d 380 , 38 3 (Te nn. Cri m. App. 1996) ; State v . Mathews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). Moreover, this Court

may not substi tute it s own inferences “for t hose drawn by the trier of fact from circum stantial evidence.” Id. at 779. Finally , the Tennessee Rules of Appellate Procedure, Rule13( e) provides, “findi ngs of guil t in cri minal actionswhethe r by the trial co urt or jury sha ll be set a side if the evid ence is insuffi cientto support the finding s by the trier o f fact beyon d a reas onable doubt.” See also State v . Mathews , 805 S.W.2d at 780.-7- In the ma tt er sub ju dice , the jury con victed Ap pellant of s imple as sault, crediti ng the victi m’s testi mony to some degree. The fact that thejury app arently did not cred it her testim ony rega rding the rape do es not en title this Cou rt to invade the provin ce of the ju ry in mak ing these distincti ons. The weight and credibility of the witnesses’ testimony ar e matters entrusted exclusively to the jury as triers of fact. State v. She ffield , 676 S.W .2d 542 (Te nn. 1984); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978 ). The re is no require men t in Tennessee that jury verdicts be consiste nt. State v. Denson , 71 0 S. W.2d 5 24 (Tenn . Cr im. App. 1985) ( citing Wig gins v. Sta te , 498 S.W.2d 92, 93 (Tenn. 1973 )). I t was entirely proper fo r the jury to ex onerate Appella nt as to the rape charges and yet credit the vic tim’s testim ony rega rding the assau lt. This issu e is withou t merit.

II. Notice of

Alibi

A ppella nt argues that the tri al court i mproperly ref used to all ow alibi testimony

and misapplied Tennes see Ru les of Crim inal Proc edure R ule 12.1 when it enforce d an unw ritten local cust om of requiri ng the defense to give the State notice of

intent t o use an alibiev en withou t a demand by the district attorney. We agree. When Appellant at tempted to elicit

testimony from defense witness Donn a W isehart reg arding A ppellant’s wherea bouts th e nig ht of the alleged crime, the trialcourt, sua sponte, i nterrupted the questi oning to ask whetherthe defense had fi led a noti ce of ali bi. The defense counsel asked if t he ma tt er could be disc ussed outside t he presence of t he jury, a request th e trial court denied . The trial jud ge state d in the pre senc e of the jury that he wo uld adm it the evidence, “except I’ m not going to l et it i n for ali bi.” Af terthe witnesses’ testimony

the defen se attempted to create a record as to what the rule of-8-

procedure regarding alibi provi des. Defe nse counselsaid, “Your hon or, now we would at this time reques t again, if I could for the record , You honor- ” Th e trial court again interrupted, berating t he defense counsel for his r eliance on t he Rules of Criminal Procedure. The diatri be culminated with defens e counsel attempting to point out

that the rule specif ies that notice need be given only upon wri tten request and the trial court interrupting “No, sir, You hush. Hush. Now, we’re not going to get into tha t. I’ve ruled, an d if it’s in error, they ’ll reverse it. But if I’m not in error, they ’ll let it go.”
Tennessee Rules of Criminal Procedure, Rule 12.1 states:
Upon written demand of the dist rict at torney gener

al statingthe ti me, date, and pl ace at which t he alleged offense was committed, t he defen dant s hall se rve with in ten days, or

at such different tim e as the c ourt ma y direct, upon the dist rict at

torne y gen eral a wri tten noti ce of an intenti on to offer a defen se of a li bi. Such notice by the defendantshall state the speci fic pl ace orplaces at which the defendantcl aimsto have been at the time of the alleged offense and t he names and addresses of t he w i tnesses upon w hom th e defen dant inten ds to rely to estab lish suc h alibi.
The rule fur

ther provi des for the State to dis close, within ten days of receiving the defense notice, the names and addresses of the witnesses upon whom the State intendst o rely to establi sh the defendant ’s presence at the scene and any witnessesupon whom the Sta te will rely to rebu t th e def endant’s al ibi . Tenn . R. Crim. P . 12.1(b).

Tenn . R. Crim . P. 12.1(e ) allows the trial court, for good cause shown , to grantan exception to any of t he requi rements ofRule 1 2.1. H owev er, her e it-9-

appears that the t rial cour t was attempting to enforce anunwritten local cust om of wide open discov

ery on the par

t of allpartiesin a criminal case rather t han relyi ng on Rule 12 .1 (e). I ndeed, the State in thi s appeal does not contest the erroneous nature o f the tri al court’ s ruling, but argues t hat the err or was harmle ss.

We agree that t he erro r was, in f act, harmles s. Appella nt stated on the record he wished t o show only that for part of the ti me Ms. Raymer claimed he assau lted her, A ppellant w as elsew here. He was ab le to prese nt this evidence to the jury. Fur ther, App ellant argu ed in his clo sing argu ment t hat the proof showed that Ap pella nt w as elsewhe re for part of the time the offenses we re alleged to have occurr ed and would not have h ad t ime to commit them as Ms. Raymer alle ge d. Finally, nothi ng in thi s record or Appel lant’s brief al leges that he had o ther ev idenc e of alib i he was preven ted from pres enting to the jury. Under these circumstances we find the trialcourt’s ruling to be harmless and that reversal is not required . Tenn. R. A pp. P. 36(b).

III . Sentenci ng
Appellant

also co ntend s that th e trial court erred in senten cing him for a period of confi nement in excess of the m inimu m tim e within the ap plicab le range. When a defe ndan t com plains of his or her sentence, we must conduct a de novo review with a presu mption of correctn ess. Te nn. Co de Ann . § 40-35-401(d). The burden of showing that the sentenc e is imprope r is upon the ap pealing party. Tenn. Code Ann. § 40-35-401(d)Sentencing Commission C om men ts. Th is presumption, however, is condit ioned upon an aff irmative showing in t he record-10-

thatthe tri al court considered the senten cing princ iples and all the releva nt facts and circu mstan ces. State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

The Sentencing Reform Act of 1989 established specifi c procedures which must be follo wed in sentencing. These procedures, co dified at Tennessee Code Annotated § 40-35- 210, mandated the cour t’s consi deration of

the foll owing:
(1 ) The evidence, i f any, r eceived at t he trialand the sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he principl es of senten cing and argum ents as to sentenci ng alternatives; (4) [ t]he natur e and characteri stic of the cr imi nal conduct involved; (5) [e]v idence and information offered by the parti es on the enhancementand mitigat ing factors in §§ 40-35-113 and 40-35-114; an d (6) [a] ny statementthe defendant wishe s to m ake in his ow n beh alf about sentenci ng. Tenn. Code Ann. § 40-35-210.

Unlike felony sen tences , a misde mean or sente nce do es not c arry with it the presumption of

a minimum senten ce. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Cri m. App. 1994). I n determining the porti on of the sentence to be served in co nfinem ent, the t rial cour t must consider

the enhancement and miti gating fac t ors, as well as the othe r purposes a nd principles of the S entencing R eform Act. Id . at 833. The wei ght to be gi ven each facto r is left to t he discret ion ofthe trial judge. State v. Shelton , 854 S.W .2d 116, 123 (Tenn. Crim . App. 1992 ).

The Sentencing Reform Act also provi des that t he trialcourt shal l place on the record either o rally or in writing w hat en hanc eme nt or m itigating factors , if-11-

any, it found. These findings are crucialfor revi ew of the trial cou rt’s de cision upon appe al.

In the matter sub judice , Appellant was c onvicte d on tw o cou nts of s imple assau lt, a Class A misdemeanor. Tenn. Code Ann. 39-13-101(b). Appellant was sentenced to an 11 month and 29 day sentence , but the t rial court order ed that all but 90 days o f the sentence be serv ed on probation. The record of t he sentencing hearing demonstr ates that the tri al court ob served the sentencing principl es and the factors and circumstances li sted in Tennessee Code Annotated § 40-35-21 0(b), acco rdingly we review the trial cour t’s senten ce with a presumption of correct ness. In l ight of t he number of enhancement fact ors the trialcourt found, includi ng Appe l lant’s prior hi story of

12 misdemeanor convictions, we find that the trial court properly

imposed a sentence of 11 months and 29 days. Th is issue is w ithout me rit.
Therefore, for the re ason s state d abo ve, the ju dgm ent of th e trial co urt is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:-12-

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE