### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001
STATE OF TENNESSEE v. DONALD STEVE SIKES
Direct Appeal from the Circuit Court for Madison County

No. 00-51 Donald H. Allen, Judge

No. W2000-02960-CCA-R3-CD - Filed September 6, 2001

As the result

of an altercation with the manager of a fast food restaurant, the defendant was convicted by a jury of agg r avated assault, a Class C felony; assault, a Class A misdemeanor; unlawful po ssession of a handgun while under the influence, a Class A misdemeanor; and the unlawfu l possession of a weapon

with the intent to go armed, as a Class C misdemeanor. He was sentenced by the trial court to an effective sentence of

four and one-ha

lf years, with 150

days in confineme

nt, and the remainder of his time on intensive probation. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raisingthe issues of whether the evidence was sufficient to support his convicti ons of possession of a weapon with the intent to go armed and possession of a handgun while under the influence, and whether the trial court erred in enhancing his aggravated assault sentence to four and one-half years and sentencing him to intensive probation. Based on a careful review, we conclude that the evidence was sufficient to support the defendant’s convictions,

and that the trial c

ourt did not err in enhancing thedefendant’s sentence for aggravated assault. Accordingly, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); George Morton Googe, District Pu blic Defender; and Vanessa D. K ing, Assistant Public

Defender (at trial and on a

ppeal), for the a

ppellant, Donald Steve Sikes.

Paul G. Summers, Attorney Generaland Reporter; J. Ro ss Dyer, Assistant

Attorney Genera

l; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION-2- DISCUSSION On the evening of September 28, 1999, the defendant, Donald SteveSikes, placed an order at the drive-through of a Church’s Chi cken in Jackson, Tennessee. Church’s Assistant District Manager Charles Helloms, who was inside when the defendant was served, n oticed as he was leaving the restaurant that the defendant was still at the drive-through window. Concerned about the length of time that t

he defendant ha

d been in the drive

-through line, He

lloms approached

to ask if there was a problem. Ac

cording to Helloms,

the defendant re

sponded with

anger and violen

ce, first pulling out a handgun and th reatening to shoot

him, and then follow

ing Helloms as he re

treated to his car and striking h

im in the face with

his hand. The defe

ndant was subsequ

ently charged wi

th aggravated ass

ault, assault,

unlawful possession of a handgun while under the influence, unlawful possession of a weapon with the intent to go armed, and public intoxication.

At trial, Helloms testified t hat when h e left the restaurant he pulled into the drive-through lane, where he saw the

defendant still at

the drive-throug

h window talking to

two employees. Since he knew that the de

fendant had bee

n in the lane appro

ximately twenty

to twenty-five minutes and had already been se

rved, he pulled hi

s car alo n gside the defendant’s pickup truck, got out, and walkedover to inquire if

everything was a

ll right. Helloms said that he was in uniform, and that he introduced himself as the restaurant’s assistant district manager. The defendant responded by asking him “who in the fuck”

he was. Helloms repeated that he was the assistant district manager and was trying to determine if

there was a prob

lem. The defenda

nt replied that he

did not care who he

was, and that he would shoot

him because he was standing too close to his truck. When Helloms failed t o move, the defend

ant, reaching be

hind him, pulled out a

small, black handg

un, pointe d it a t Helloms, and said something along the lines of “You don’t believe I’ll shoot?” Helloms testified that, without thinking, he replied, “Go ahead,” but he was immediatel y fearful th at the defendant would, in fact, shoot him. Instead, the defendant laid his gun down, and Helloms said, “Okay, fine,” and walked back to his

car and got in. As h

e was about to

close his car door, the defendant, who had followed him, struck him in the face with his han

d. The defendan

t then returned to

his truck at the drive-through window, where store employees engaged him in conversation until the police arrived.

Helloms acknowledged that the defen dant had asked him to move his car when he fir

st approached

him at the drive-through window, and that he had refused.

He denied, howev

er, that his
car had been blockin

g the defendant’s vehicle, testifying that he had parked on the outside of the drive-through lane. Helloms also denied that he had had a gun in his car.

Melissa Ray, an employee of theChurch’s Chicken restaurant in September 1999, witnessed
a portion of the encounter between the defendant and Helloms. She testified that the defendant had been in the drive-thro

ugh about twenty-f

ive to thirty minute

s an d had already been served when Helloms approached and introduced himself as the district manag er. She heard the

defendant reply that he did not care who Helloms was, and that Helloms “needed to move away from his ‘MF’ truck” before he ran him over. Sh e watched Hellom

s walk to his car, and then went to the back of the restaurant to call the police.

When she return

ed to the window, th

e defendant told

her, “I slapped the MF boy.” Ray said that she saw a gun beside the defendant on his truck seat, and that she later-3-

saw him place it in his glove box. Although she had not smelled alcohol, she thought that the defendant had been drinking because he was “hostile and edgy.”

Officers Chad French and Douglas Manaseri of the Jackson Police Department responded to the incident. Both testified to smelling a strong odor of alcohol about the defendant. Officer French described the defendant’s eyes as “bloodshot and a little glassy” and said that the defendant admitted that he had been drinking. Officer Manaseri said that the defendant’s eyes were very red and that his speech was slurred. A loaded .22 semi-automatic handgun was recovered from the glove box of the defendant’s vehicle. The officers acknowledged that they did not find any alcohol in the vehi cle, and that no field sobriety, Breathalyzer, or blood alcohol tests were perform ed on th e defendant. They also admitted that they had not searched Helloms’s car for a gun.

The defendant testified that he had stayed in the drive-through lanebecause he had placed
a second order while at the drive-through window. He said that Helloms was standing beside th e wall of the restaura

nt, near the drive-through, and Helloms’s car was blocking the e

xit path of his truck, when he first pulle

d up to pick up his order.

Helloms was staring in his window, and he asked if he could help

him. Helloms told him that he was trying to catch his employees giving away free food. He told Helloms that they were not giving any free food to him and to “get out of [his] face” and move his car. Helloms failed to move, however, and they b eg an arguing and cursing at each other. The defendant said that in the midst of the argument, he lifted up his armrest to make room for his food, in the pr ocess expos ing his handgun that his ex-wife had returned to him earlier that day. He claimed that he had forgotten he had the gun and that when he sa

w it, he put it in his glove compartment. After

he put the gun awa

y, Helloms told him tha

t he had “something

” for him in his
car. Thinking that Helloms had a gun, and wanting to prevent him from reaching it, he got out of his truck and followed Helloms to his car. At the car, Helloms shoved him, and he shoved back.

The de fendant denied that he eve r pointed the gun a

t Helloms or threa

tened to shoot him. He acknowledged that he had told the officers that he had been drinking, but testified that hehad had only two mixed drinks approximately four or five hours earlier

in the evening. The

defendant said that he suffers from diabetes, and had stopped by the res

taurant because

he could feel his blood sugar getting low and knew he needed to eat. He explained that one symptom of low blood sugar is slurred speech, and said that his red face and eyes were caused by a medical condition called rosacea. He testified that he and his wife had divorced three years earlier, but

she had not returned his handgun to him until that day. He admitted that he had no permit to c arry a handgun, but denied that he carried the gun with him on a regular basis.

After deliberating, the jury found the de fendant guilty of a ggravated assa

ult, assault, possession of a handgun while under the influen

ce, and possess

ion of a weapon with th

e intent to go armed, and not guilty of public intoxication. T h e jury imposed a fine of $2500 each for the aggravated

assault and possession of a handgun while under the influence convic

tions, and a $50 fine for the possession of a

weapon with

the intent to go armed conviction. No fine was imposed for the assault conviction. At the con clusion of the sentencing hearing, the trial court sentenced the defendant to concurre nt sen tences of four years, six months on the aggravated assault conviction;-4-

eleven months, twenty-nine days on the assault conviction; eleven months, twenty-nine days on the possession of a handgun while under the influence conviction; and thirty days on the possession of
a weapon with the intent to go armed conviction. The defendant w as ordered to

serve 150 days in the county workhouse, with the remainder of his time on intensive probation. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court.

ANALYSIS
I. Sufficiency of the Evidence

The defendant first

raises the issue o

f whether the ev

id e nce was sufficie

nt to support his convictions for

possession of a handgun while under the influence and possession of a weapon with the intent to go armed. When the sufficiency of the convicting evidence is challenged on appeal, the relevant question of the re

viewing court is “w

hether, after v

iewing the eviden

ce in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense charged beyond a

reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn . 1992); State
v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal action

s whether by the tr

ial court or jury sh

all be set aside if

the evidence is insufficient

to support the fin

dings b y the trier of fac

t of guilt beyond a r

easonable doubt. ”). All questions involving the cred ibility of witnesses , the weight and value to be given the evidence, and all factual issues are

resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdic t by the jury, appro

ved by the trial jud

ge, accredits

the testimony 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). A jury conviction removes the presumption of innocence withwhich a defendant is ini tial ly cloaked and replaces it with one of guilt, so that on appeal, a convicteddefendant

has the burden of

demonstrating tha

t the evidence is i

nsufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

A. Possession of a Handgun While Under the Influence Tennessee Code Annotated Section 39-17-1321, prohibiting the possession of a handgun while under the in

fluence, provid

es: (a) Notwithstanding whether a person has a permit issued pursuant to § 39-17-1315 or § 39-17-1351, it is an offense for a person to possess a handgun while under the influence of alcohol or any controlled substance.
(b) A violation of this section is a Class A misdemeanor.-5-

The defendant contends that by expressly referring to the statutory scheme by wh ich a private individual can become

licensed to carry a handgun, the introductory clause of the statute limits its application to those individuals who hold handgun carry permits, thus making it inapplica ble to him. He argues that this is t

he only reasonab

le interpretatio

n of the statute, a

sserting that if the

statute is held to apply to an individual without a handgun carry permit, “the statute reaches every person in Tennessee who owns handguns who is at one time or another under the influence of alcohol while actually or constructively possessing the handgun.” We disagree with the defendant’s analysis as to the limitation on thi

s statute, or its bro

ad reach if we d

o not accept his an

alysis.
A court’s role in construing a statute is to ascertain and give effect to legislative intent. State v. Flemming , 19 S.W.3d 195, 197 (Tenn. 200 0); Schering-Plough Healthcare Prods., Inc. v. Stat

e Bd. of Equalization , 999 S.W.2d 773, 775 (Tenn. 1999). Whenever possible, legislative intent is to be ascertained from the natural and ordinary meaning of the language used. Flemming , 19 S.W.3d at 197; Carson Creek Vacation Resorts, Inc. v. State, Dep’t of Revenue , 865 S.W.2d 1, 2 (T enn

. 1993). “The legislative intent and purpose are to be a scertained pri marily from the natural and ordinary meaning of statuto ry language, with

out a forcedor subtle interpre tation that would limi

t
or extend the statute’s application.” State v. Blackstock , 19 S.W.3d 200, 210 (Tenn. 2000) (citing Statev. Pettus , 986 S.W.2d 540, 544 (Tenn. 1999)). If the language of a statute is ambiguous, then this court mus t look beyond the language to adopt a reasonable construction that provides for harmonious operation of the laws. Lipscomb v. Doe , 32 S.W.3d 840, 844 (Tenn. 2000). However, if the language is not ambiguous, we may apply the plain language of the statute

to resolve the issue. Id.

There is no ambiguity in the statute at issue here. Rathe r than limiting its app

lication to those individuals

who hold handgun c arry permits, the statut e’s introductory

phrase merely r

emoves a possible ex ce ption by expressly p roviding that those

individuals who hold

handgun carry pe

rmits
are also subject to

prosecution under the statute if they are found in possession of a handgun while under the influence of alcoholor a controlled substance. We are “required to construe statutes in a reasonable

and logical fashion.” Statev. Ralph , 6 S.W.3d 251, 256 (Tenn. 1999) (citing McClellan
v. Bd. of Regents of Sta te University , 921 S.W.2d 684, 689 (Tenn. 19 9 6)). A reasonab le interpretation of this statute is that the Legislature, recognizing the danger of a pe rson under the influence of an intoxicant not merely owning but being in possession of a firearm, criminalized such behavior.

The defendant also su

ggests that applyin

g the statute

to individuals not having handgun carry p ermits is unreasonable because it leads to the “unavoidable result” that the mere possession of a handgun while under the in fluence, as a Cla

ss A misdeme anor, is a more serious offense than possession of a we

apon with the inten

t to go armed, a Class C m isdemeanor. It is n

ot this court’s role, however, to question the reasonableness of the Legislature’s grading of offenses. See Gleaves
v. Checker Cab Transit Corp. , 15 S.W.3d 799, 803 (Tenn. 2000). “Instead, cour ts must ‘presume that the legislature sa

ys in a st atute what it means and means in a statute what it says there.’” Id. (quoting BellSouth Telecomms., Inc. v. Greer , 972 S.W.2d 663, 673 (Te nn. Ct. App. 1997)). The statute’s plain langu a ge provides that it is a Class A misdemea

nor for an individu

al to possess a-6-

handgun while under the in fluence of alco

hol or any controll

ed substance. As w

ritten, the statute clearly applies

to this defendant.

To find the defenda

nt guilty of the unla

wful posse ssi on of a handgun while under the influence of alcohol, the jury had only to find: 1) that he had possession of a handgun, and 2) that he was under the influence of alcohol. Viewed in the light most favorable to

the State, the evidence in this case was sufficient to support the defendant’s conviction of this offen se. The defendant admitted at

trial that he hadthe handgun with him and that, while at the drive-through window, he moved it from its location b y his side to the glove

compartme

nt of his tr

uck. Church’s Chicken employee Melissa Ray, who en gaged the defen

dant in conversa

tion until the police arrived, testified that, based on his demeanor and attitude, the defendant appea red to have been drinking. Officers French and Manaseri tes

tified that there

was a “strong odor” of

alcohol about the d

efendant,that his eyes were red and

bloodshot, and thathis speech was slurred. In addition, although no blood alcohol
or Br eathalyzer tests were performed, the defendant admitted to Officer French tha t he had bee n drinking. Thus, sufficient evidence was presented from which the jury cou

ld find that the defendant met both elements of th

e offense of possession of a handgun while under the influence of alcohol. This issue is without m

erit.

B. Possession of a We

apon with the Intent t

o Go Armed

The d efendant also ch

allenges the suff

iciency of the ev

idence in support o

f his convic

tio n for possession of a wea

pon wi th the intent to go ar med. Specificall

y, he contends tha

t the State failed to prove that he had the specific intent to go armed. Again, we disagree.
Tennessee Code Annotated Section 39-17-1307, which prohibits the unlawful carrying or possession of a weapon, states in pertinent part that “[a] person commits an offense who carries with the intent to go armed a firearm, . . . .” Tenn. Code Ann. § 39-17-1307(a)(1) (1997). The intent of
a defendant may be

inferred from b

oth direct and cir

cumstantial evidence. S ee Hill v. State , 298 S.W.2d 799, 800 (Tenn. 195 7); State v. Washington , 658 S.W.2d 144, 146 (Tenn. Crim. App. 1983); Cole v. State , 539 S.W.2d 46, 49 (Tenn. Crim. App. 1976). Thus, a def endant’s intent of going armed may be proven by the circumstances surrounding his carrying of the weapon. See Hill , 298 S.W.2d at 800; Cole , 539 S.W.2d at 49; Bennet v. State , 530 S.W.2d 788, 792 (Tenn. Crim. App. 1975).
In our view, the State introducedsufficient evidence in this case from which a rational trier of fact could infer the defendant’s intent to go armed. Helloms testified that the defendant pulled the gun from behind his sea t, pointed it direct

ly at him, and threatened to shoot. Ray testified that she saw the gun beside the defendant on his truck seat, and that after she had talked with him and calmedhim down, he put it into the glove box. When officers arrived, they found the gun to be fully loaded. From these facts and circumstances, the jury was entitled to conclude that the defendant was notjust transporting the gun from his ex-wife’s home to his, as he claimed, but instead was carrying it with the specific

intent of going arm

ed. This issue is with

out merit.-7- II. Sentencing

The defendant conte

nds that both

the length and manner of service imposed by the trial court
was excessive. He argues that the trial court erroneously applied enhancement factor ( 16), and failed to give ap propriate weight and consideration to the mitigating factor of his long history of steady employment,

in enhancing his sentence for aggravated

assault to four y

ears and six

months. He also argues that the trial court erred in ordering tha t he ser ve 1 50 d ays in confinement, with the remainder of his time on intensive probation. Since his period of confinement has already been served, he asks that this court reduce

his sentence to three years, and order that the rema inder of his time be served on ordinary supervised probation.

Tennessee Code Annotated Section 40-35-401(d) provides that when an accused challenges the length, range, or manner of service of a sentence, this court is to conduct a de novo review on the record with a presumption that “the determinations made by the court from which the appeal is taken
are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). This presumption, however, is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles
an d all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Since the trial court in this case failed to clearly articulate the enhance ment and mitigating factors applicable, or

how the y were eva

luated and balan

ced in determinin

g the sentence

, we review this issue de novo , with no presumption of correctness given to the trial court’s sentencing determinations. See State v. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994).

In conducting a de novo review of a sentence, this court must consider (a) any evidenc e receiv ed at the trial and/or sentencing hearing, (b) the presentence report, (c ) the principles of sentencing, (d ) the arguments of counsel relative to sentencing alternatives, (e) the nature a nd characteristics of the offense, (f) any mitigating or enha ncing factors, (g) any statements made by the accused in his own behalf, and (h) the accused 's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35-103 and -210 ; State v. Scott , 735 S.W.2d 8 25, 829 (Tenn. Crim. App. 1987).

The party challenging the sentences imposed by the trial court has the burden of establishing that the sentences are erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby , 823 S.W.2d at 169 . In this case, the defendant has the burden of illustrating the sentences imposed by the

trial court are e

rroneous.
The sen tence to be imp osed by the trial c ourt for a Class B, C,

D, or E felony is presumptively

the minimum in the range unless there are enhancement factors present. Tenn. Code Ann. § 40-35-210(c) (1997). Procedurally, the trial court is to increase thesentence within the range based on the existence of

enhancement factors, and then reduce the sentence as appropriate for any mitigating factors. Tenn. Co de Ann. § 40-35-21 0(d) & ( e) (1997). For his agg ravated assault conviction, a Class C felony, the defendant was subject to a se

ntence ranging f

rom three to six

years. Tenn. Code Ann. § 40-35-112(a)(3) (1997). Although it is not completely clear from the record, the trial court apparentl

y applied enhancement

factors (1), that the defendant has a previous history of-8-

criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, and (16), that the

crime was committe

d under circumsta

nces under whic

h the po tential for bodily injury to a victim was great, see Tenn. Code Ann. § 40-35-114(1) & (16) (1997), to enhance the defendant’s sen

tence for aggra

vated assault to f

our years, six months. Factor (16), however, may notbe applied when the “pro of that the potential for bodily injury was great would also prove an essential element of the offense charged.” Jones , 883 S.W.2d at 603. We agree with the defendant that the trial court’s application of enhancement factor (16) in this case was error, since the factor was inherent in his offense of aggravated assault.

The trial court

applied enhancement factor (1) based on the defendant’s 1987 misdemeanor conviction for DUI. The tria l court apparent

ly gave this facto

r substantial weig

ht, expressing its
concernthat the defendant’s pri or conviction, simil

ar to his present o

ffenses, also

involved the abuse of alcohol. Th e defendant argues that the trial court erred in assuming facts about his prior conviction that were not in the record. We disagree. The tr anscript of the se

ntencing hearing

reveals that the trial court me

rely noted, appr

opriately, that the

defendant’s pre

vious conviction fo

r DUI also involved his consumption of alcohol and driving. We find no error in the trial court’s application of this factor, or in the heavy weight to which it was apparently assigned.

The defendant argues that t he trial court erred in failing to give greater weight to the mitigating fac tor of hi s long history of steady employment and good work ethic. The trial court noted the defendant’s “pretty good work history,” but obviously gave it little weight. We find no
error in this determination. At the time of his sentencing hearing, the defendant was employed at
a furniture store. According to defendant’s counsel, he was se lf-employed fro

m 1995 to 1999. His presentencereport shows that from 1993 to 1995 he worked a s a deputy jailer w ith the Carroll County Sheriff’s Department, and from 1989 until 1993, as a guard at the M adison C ounty Penal Farm. In o ur view, the d efendant’s wor k history was entitl

ed to very little, if

any, weight in mitigation.

In sum, we conclude t

hat although enha

ncement factor

(16) was inappro

priately applied

to the defendant’s sentence

for aggravated

assault, enhancement factor (1) was applicable and entitled to great weight. We further conclude that the defendant’s history of employment was entitled to very little, if any, weight in mitigation. The applicability of enhancement factor (1), combined

with the absence of any strong factors in mitigation, justifies the enhanced sentence of four years, six mo

nths.

The de fendant also argues that the trial court abused its discretion in ordering that he b e placed on intensive proba

tion foll owing his re lease from confinement, and asks that this court modify his sentence to “ordinary supervised probation.” As part of the conditions of his probation, the trial court ordered, inter alia , that the defendant attend an alcohol counseling and treatment program; participate in an anger manageme

nt class; and be sub

ject to a 6:00 p.m. to 6:00 a.m. curfew. The record ref

lects that the tria

l court considere

d the facts and ci

rcumstances of t

he case and the defendant’s hist

ory, including his

prior alc ohol-related conviction, in ordering the special conditions and ter

ms of his probation.

The trial court is g

ranted broad disc

retion in its imposition of conditions of probation. See Tenn. Code Ann. § 40

-35-303(d) (199

7); Stiller v. State , 516 S.W.2d-9-

617, 620 (Tenn. 1974). Under the circumstances of this case, we find no abuse of discretion by the trial court, and therefore decline to modify the conditions of the defendant’s probation.

CONCLUSION

Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE