### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 1, 2002
STATE OF TENNESSEE v. CINDY GENTRY
Direct Appeal from the Circuit Court for Dickson County No. CR-5380 Robert E. Burch, Judge

No. M2002-00415-CCA-R3-CD - F iled March 14, 2003

The defendant was convicted of aggra vated assault, a Class C felony, and wa s sentenced by the trial court as a Range I , standard offender to three y ears in the Department of C orrection, with the sentence to be sus pend ed and the defenda nt place d on proba

tion afte r one y ear in the county workhouse. She raises two issues on a ppeal: (1) whether the evidence was suff icient to support her conviction; and (2) whether the trial court erre d in ordering that sheserve one y ear of her sentence in the cou nty workhous e. Base d on our re view, we affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., deliver ed the opi n ion of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined.

William B . Lo ckert, II

I, District Public Defender; and Christopher L. Young, Assistant District Pu bl ic De fe nd er , f or th e a pp el la nt , C in dy G en tr y.
Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Dan M. Alsobrooks, District Attorney G eneral; and Kim G. Menke, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

At approxima

tely 2:00 p.m. on

Mo nday , Octo ber 2, 20 00, the victim in this ca se, Danita McCord, was walking across the travel lanes of a shopping center parking lot in Dickson when she heard the so un d of squealing brakes and looked up to see a sma ll, white rental car driven by the defenda nt, Cindy Gentry , scree ch to a ha

lt just s hort of hi ttin g her. According to the victim, the defendant had threatened

to kill her just a day or two bef ore. She testifiedthat on the immediate

ly preced i ng weekend, the defendant and a woman na med Shelly Blanks had c ome uninvited to her1 The defen dan t app arently believed that t he victim was havi ng an affai r with her hus band. This information, how ever, w as no t impa rted to the jury.
-2- homeand that before they left, the defendant had told her, “I ’m going to get y ou, you fucking bitch. You just wait, I’m going to kill y ou.” 1

Several witnesse s, includi ng the victim, atte mpted to de scribe th

e area in which the October 2, 2000, inc ident occ

urred. F rom their testimony, which was not altog ether clear, it appears that the shopping center at issue is comprised of a line of stores, including a Kroge r anda Dollar

Genera l, with larg e parkin g area s in front of the buildings. Two travel lanes and a fire lane immedia

tely in front of the buildings separate the parki ng areas fro m the store entrances. I n addition, there are appare ntly

small curb-enclosed areas of shrubbe ry, which the victim re

ferred to as “medians,” marking the borders between the parking areas and the travel lanes. The victim testified she pa used at one of those “medians” to look in both directions for traffic before starting from the parking area to the Dollar General Store. She saw a light-colored vehicle by

the Kroger, but it was a “far distance and it wasn’t

moving,” so she ste pped fro m the cur

b and pro ceeded

to cross. She said she was about halfway across when she heard “tires squealing.”When she “frantically started looking around,” she
saw what appeared to be the same vehicle she had just seen in fron t of th e Kroge r “right next to [her] ” and the defendant exiting from the driver’s side door. The

victim tes tified she

initially chose to move back to the median because the defe ndant had not completely e xited from the driver’s door and she was afraid she would step on the accelerator ag ain. When the victim did so, the defendant startedscreaming, “Don’t worry , I’m going to get you .” At the s ame time, the victim said she was frantic ally

scream ing to the Dollar General

Store emp loy ees that

the defe ndant had just tried to kill her and to please call 9-1-1. The victim testified that the door to the Dollar General Store was open. When she not ic ed that the store’s employ ees were pay ing attention to her, she hurried past the defendant’s vehicle into the store and asked the m anager to call the police. At that point, the defendant sped away

. The victim tes tified she

was fami liar with

the vehicle the defendant normally drove, which
was “a black Jeep Grand Cherokee with gold pin striping and Kentucky plate s.” She later testified that she had not recognized the defendant as the driver of the small white car whe n she saw

it
s topped in front of the Kroger and that there had been nothing about the vehicle to draw he r attention. She said she h ad been sure when she stepped from the c urb that she had more than adequa te time to cross the lanes safely and agreed that the

defenda nt had to ha

ve acce lerated quickly to reach her position. The victim was confident she would have been hit h ad the defendant not stopped the vehicle. She testified she was approximately in the ce nter of the defendant’s lane and that the car was possib ly a s close a s six inches f rom her w

hen it ca me to a co mplete sto

p. She said she was very

scared througho ut the inc id ent and still had not completely rec overed from the experience.

Dickson Police Officer David Cole, who responded to the report of the assault, testified that the victim was visibly upset, “cry ing,” and “ very ag itated” when he arrived at the scene at-3-

appr oxi mate ly 2:08 p.m. Neither th

e defendant nor t

he vehic le was sti ll there, but the vic tim told him that she had recognized the driver and provided him with the def endant’s name. Kathy Davis tes tified tha

t s he was worki ng as a cashier at the Dollar Ge neral Store on the afternoonof October

2, 2000. She said she was at her cash reg ister at the front of the store, with her back to the door, when her attention was cau gh t b y the sound o f a car ’s “scr eeching ” brake s. Believing that someone had just been hit, she ran to the door, where she saw the defendant getting outof her vehicle and the victim crossing the lane he aded toward the Dollar Genera l Store , about to step up o nto the sid

ewalk. D avis testi fied tha t the victim was “near” the defendant’ s car, about halfway across the lane, when she first saw her, a nd that she heard the defendant twice scre am to the victim that she was going to “kick [her] a-s-s.” The defendant then got bac k into her car

and drove off. At the same time that the defendant was screaming , the victim, who appeared to be “scared” and “in a frenzy,”

hurried into the store, telling the employees to call 9-1-1.

After the trial court de nied her motion for

judgmen t of acqu itt a l, the def

endant te stified in her own behalf. According to her testi mony, sh e was dr ivin g a whit e Dodge Neon, which she had been renting for two weeks, at approximately twenty miles per hour throug h the parking lot with the intention of going to the Dollar General Store to g et a sweatshirt. She said she h ad just turned the
corner to go to the Dollar General Store when the victim walked out in front of her vehicle. Upon seeing her, she

immediate

ly s lammed on

the brak es, stoppin g the car fo ur or five feet from the victim. After first stepping backwards onto the cur b, the victim then continued forward in front of her vehicle and up onto the opposite curb. The defendant said she partially g ot out of the car at that point and yelled

at the victim, but that she never completely exited the vehicle because her g irlfriend, who was in the passenger seat, grab bed onto her shirt. She emphatically denied that she had ever had the intent to scare the victim or run her over with her ve hicle.

On cross-e

xamination, the defe

ndant tes tified tha

t the victim was lying whe n she said she had seen her car in front of the Krog er because she had not driven past that store when she entered the parking lot. She claimed she had been on the lookou

t for ped estrians , but had n ot seen the victim until she stepped out in front of her car as she was turning the corner. Asked why she had told the victim that she was going to “kick her ass,” the defendant

replied , “Bec ause I

wanted to ,” but sai d that she would not have done it right then.

Two witnesses testified at the defendant’s sentencing hear ing: Jeff Walden, the probation of ficer who p repared her presentence report, and the defendant. Walden testified that the defe ndant’s official version o f the inc ident w as t hat the victim was dating her husband and had fabr icated the allegationto try

to help him g aincustody of their childre n. Walden said the defendant gave him no indication of anything

specific ha ving ha ppened o n the day of the inc ident to pr

ovoke he r and, in fact, denied that the incident had occurred.2 The defen dan t’s prese ntmen t c harged her in seven sep arate counts wit h various offens es committed either al one
or with Shelly Blanks aga inst th e sa me vi cti m. Count three, chargi ng the defendant wit h aggravated assault , and count four, char ging her with reckl ess endangerment, were both based on the parking lot i ncident. These two counts were subse que ntly severed from the others, resulti ng in the trial in the in sta nt c ase a nd th e def endant ’s convi cti on for aggra vated assault.
-4- The defendant testified she had other ch argespending

relating to the same

victim. 2 She said withregard to those charg es, however, that shehad “never laid [her] h ands on tha

t lady .” She als o claimedthat she had not had any contact with the victim since the incident . She thought she was
curre ntly controlling her

anger very well and d

id not nee d ange

r manag ement counseli ng. Sh e conceded, however, that counseling “might” be beneficial to her, and said she was willin g to comp ly with any conditions of probation the trial c ourt might impose.

On cross-examination, the defendant acknowledge d having gone in January or Februa ry to the victim’s p lace of

employ ment, a mo

bile home lot, but claimed that she had n ot known th

e victim workedthere. She denied that she had gone to the lot more than onc e, or that she had made repeated telephone calls to th

e busines s. The defendant te stified th at s he did not try to run the victim over withher car. She said she had not included any information about the victim’s having had an affa ir withher husba

nd in her c ounterc laim for d ivorce b ecause

she had n ot w anted to b rin g the information up.

At the conclusion of the sentencing he aring, th e trial court found one “relatively minor” enhancement

factor applica ble: the d

efenda nt h ad a p revious history of cr iminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, Tenn. Code A nn. § 40 -35-114( 1) (Supp. 2001), a nd no mitig ating f

actors. The cour

t noted tha

t the def endant h a d previous ly

been on a sentenc e involvin g rele aseinto the community, which had not been suf ficient to prevent her from violating the law in the instantcase. The trial court further found that the fa ct the defendant continued

to maintain her innocence of the instant offense reflected unfavora bly upon her suitability for probation. There fore, the court denied her request for full probation, sentencing her as a Range I , standard offender to the minimum sentence of three

years, with the sentence to be suspendedand the defendant placed on probation after serving oneyear

in the county workhouse. Following the denial of her motion for a new trial, the defendant filed a timely appeal a s of right to this court, a

rguing that the e

vidence was insuf

ficient t o sust ain her c onvic tion and the trial court erred in deny

ing full probation.
ANALYSIS

I. Sufficiency of the Evidence

The defendant

first contends the evidence was insufficient to support her conviction, arg uing that the conflicting testimony r egarding whether the

incident was intentional or ac cidental was sufficient to create reasonable doubt of her g uilt. The State re sponds tha t the evid ence, viewed in the light most favorable to the State, was more than sufficient for a rational trier of fact to have found-5-

that the State proved the essentia

l element s of the c

rime of a ggra vated as sault bey

ond a rea sonable doubt. We agree with the State.

When the sufficiency

of the convi c ting evidence is challenged on a ppeal, the relevant question of the reviewing court is “whether, a fter viewing the evide

nce in the ligh t most favo

rable to th e prosecution, any rationa l trier of fact could have f

ound the e ssential e

lements of

the crime beyond a reasonable doubt.” Jackson v. Virg inia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 ( 1979); see also State v. Evans , 838 S

. W.2d 185, 19 0-92 (Te nn. 1992) ; State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Find ings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the finding s by the trier of fact of guilt bey ond a reasonable doubt.”). All questions involving the cre dibility

of witnesses, the weight and value to be g iven the evidence, and all factual issues are re solved by

the trier of fact

. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987)

. “A guil

ty v erdict b y the jury , approv ed by the trial judge, accre dits the te sti 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). Our supreme court stated the rationale for this rule:

This well-se

tt l ed rule rests on a sound foundation. The trial judge and the jury see

the witnesses face to face, hear their testimony and observe their demeanor on the stand. Th us t he trial judge and jury are the primary instrumen

tality of justice to determine the weight and credibility to be g iven to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court.
Bolin v. State , 219 T enn. 4 , 11, 4 05 S. W.2d 768, 7 71 (19 66) (ci ting Carroll v. State , 212 Tenn. 464, 370 S.W.2d 523 ( 1963)). A jury convic tion removes the presumption of innocence with which a defendant is initially

cloaked and repl aces it w ith one of guilt , so that on appeal, a convicted defendant has the burden of demonstratingthat the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

The pertine

nt count of

the pres e ntment c ha rg ed th at th e d ef en da nt “d id un la wf

ul ly, fe lo ni ou sl y, intentio na ll y, an d knowing ly c ommit an as sault as d efined i n T.C.A. 39 -13-101 a nd with the use and/or display of a deadly we apon, to-wit: a motor vehicle, did c aus e [the vict im] to
reasona bly fe ar imminent bodily injury , in violation of T.C.A. 39- 13-102, a

Class C F elony .” Thus, to convict the defendant of agg ravated assau lt, th e State ha d to prove

bey ond a rea sonable do ubtthat she intentionally or knowing ly caused the victim to reasonably fea r imminent bodi l y injury with the use or displa

y of a dea

dly weapon. See Tenn. Code Ann. §§ 39-13-101(a)(2); -102(a)(1)(B) (1997). A deadly weapon is defined as “[a] nyt hing tha t i n the manner of its use or intended use is capable of causing deat h or seriou s bodily injury .” Tenn. Code Ann. § 39-11- 106(a)(5)(B) (1997). A motor vehicle can be a deadly

weapon. See State v. Ta

te , 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995).-6-

Here, there wa s ample evidence to show tha

t the victim reason ably

feare d imminent b odily injury as a result of t he incide

nt, and the

defenda nt appar ently conced es that the

State pro ved this element of her offense. I

nstead, she argues that her testimony

that the incident oc curred accide ntally
was sufficie

nt to cre ate rea sonable d

oubt abou t her inte nt to commit

the offe nse
. We respe ctfully disagree. The jury could ha ve reasonably

inferred that the defendant acted e ither intentional ly or know ingly

from evidence that she threatened to kill the victim shortly before the incident and threatened

her again immediately

after narrowly

missing her wi th the car ; that she w as stoppe d in her vehicle in front o f the Kro ger sto re when the victim

started crossing the travel lanes and, in the victim’s opinion, ha

d to have a

cceler ated quic kly in order to reach her posi

tion; and that she w as driving a renta

l car tha t the victim was una

ble to recog nize. View ed in the light most favora ble to the State, the evidence show ed the defendant deliberately drove her rental vehicle directly at the victim, causing

her to re asonably

fear imm

inent bodi ly

injury. By using

the vehicle in such a manner, she converted

it into a de adly

weapon. See Tate , 912 S.W.2d at 788 (concluding defendant
can be convict ed of aggrava ted assault with a deadly weapon if the State can show he or she intentiona

lly or knowin gly

used motor

vehicle to either in

flict bodi ly in

jury on victim or

cause vi ctim to reasonably

fear imminent bodily injury ). We conclude, therefore, that the evidence was sufficient to sustain the defendant’s conviction for agg ravated assault.
II. Senten cing

The defendant next contends the trial court erred i n ordering that she serve one y ear of her thr ee-ye ar

sentence in confinement, instead of gra nting her full probation. When an accused challenges the length and manner of service of a sentence, it

is the duty of this court 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). This presumptionis “conditioned upon the affirmative showing in the record that the trial court considered the sentencing pr inciples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption do es no t a pp ly t o t he le ga l c on cl us io ns re ac he d b y t he tr ial court in sentencing the accused or to the determinations made by the trial court which are predicated upon unc ontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Ten n. Crim. Ap

p. 1994); Statev. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by Statev. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give grea

t weight to the trial court’s determination of c o ntroverted facts as the trial court 's determin ation of th ese facts is predica

ted upon the witnesses’ demeanor and appear ance when testi fying.

In conducting a de novo review o f a sente nce, thiscourt mus tconsider (a) any evidence received at the trial and/or sentencing hearing , (b) the presentence repor t, (c) the principles of sente ncing, (d) th e arguments of counsel relative to sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or

enhancement factors, (g) any statements made by the accused in his own behalf, and (h) the acc used's potential or lack of potential for rehabilitation
or treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; State v. Sc ott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987)

.-7-

The party cha

llenging the sentences imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, S entencing Commission Cmts.; Ashby , 823 S.W.2d at 169 . In th is case, the defe

ndant hast he burden of illustrating the sentence imposed by the trial court is err oneous.
As a R an ge I, s ta nd ar d o ff en de r c on vi ct ed of

a C la ss C f el on y, the defenda nt was sub

ject to
a sente nce ran gin g from three to six ye ars. See Tenn. Code Ann. § 40-35-112(a)(3) (1997). The sentence to be impos ed by the trial court fo r a Class C

felony is presumptively

the minimum in the range when the

re are no enhancement o

r mitiga ting fa ctors pr ese nt. I d. § 40-35-210(c). Pr oc ed ur al ly, the trial

court is to increase the sentence within the rang e based upon the existence of enhancement

factors and then reduce the sentence as appropriate for a ny mitigating

factors. Id. § 40-35-210(d), (e). The weight to be affor ded an applica

ble factor is left to the trial court’s discretion
so long as it complies with the purposes and principles of the 1989 Sentencing Act and its f indi ngs are adequately

supported by the record. Id. § 40-35-2 10, Sente ncing Co mmission Comm ents; State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

Becau se the defendant’s present ence re port ref lects thr ee prior misdemea

nor convictions in 1994, we conclude that the tr ial cour t did not er

r in findin g enha

ncement factor (1) appl icable, or in assigning it minimal weight. We further conclude that the tr ial court did not err in finding no mitigating factor s applica

ble in this case. We note, however, that thedefendant’s sentence is already the minimum in the range, as the trial cou rt appar ently found en hanceme nt facto r (1) ca rried too little weight to justifyenhancing the

defenda nt’s sente nce fro m the pre sumptive minimum of thr ee years.
The defendant contends the trial court should ha ve gr anted her full probation, given her history and background and

the unusual circumstances of her crime, which included her belief that the victim was having an

affair with her husband. However, a lthough the trial court

was required to con sider probation in this cas e, the defendant was not a

utomatica lly e ntitled to r

eceive it as a matter of law. SeeTenn. Code Ann. § 40-35-303(b) (1997). The burden is upon the defenda nt to show that she is a suitable candidate for probation. Id. ; Statev. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997 ); Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996) . In order to meet this burde n, the def endant “ must

demonstrate that probation will ‘subserve the ends of justice and the best interest of both the public and the defendant.’ ” State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quot ing State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

There is no bright line rule for determining when a de fendant should be granted probation. Bingham , 910 S.W.2d a t 4 56. Every

sentenc ing dec ision nec essarily require s a case -by -case analy sis. Id. Factors to be co nsidered i nclude the circumstances surrounding the off ense, the defendant’s criminal

record , the def

endant’ s social h

is tory and pr

esent condition, the need for deterrence, and the best interest of the defendant and the public. Goode , 956 S.W.2d at 527. The trial co ur t m ay also appropriately consider the defendant’s candor and willingness to accept responsi bility for his or her actions when considering whe ther probation should be granted, as these reflect upon the defendant’s potential for re habilitation. See State v. Nunley , 22 S.W.3d 282, 289-8-

(Tenn. Crim. App. 1999); State v. Z eolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).

We conclud e that the trial court did not abuse

its discre tion in den

yin g the de

fendant full pr oba tion in this cas e. The de fendant ’s refu sal to ac cept re sponsibilit y f or her c rime is cl early demonstratedby the officia l version of the incident she provided for her presentence repor t and her testimonyat the sentencing hearing, in which she a sserted that the incident did not happen and that the victim fabricated the allegation ag ai nst her. The def endant a lso faile d to expres s any

remorse for her actions and never genuinely acknowledged

that s he need ed anger managem ent co unsel ing. Moreover, she seem

ed to imply

that it wa s she, ra

ther th an the vic tim, who had been wronged, testi fying, “I am controlling my anger very

well, I think. I

amnot mad about any

thing. I just really want to be left alone.” The defendant denied tha t she had harassed the victim after the incident by purposel y going to her place of employ ment or making repeated phone calls to the business, claiming that it had been a coincidence that she had g one to purchase a mobile hom e at the lo t where the victim worked. In sum, the

defendant’s testimony throughout her se ntencing hearing demonstrated
a lack of candor and rem orse and a comp lete fail ure t o acc ept r

espo nsibi lity

for her cr

ime. We conclude, therefore, that the defendant has fa iled to show that the trial court improperly de nied her request for full probation, under the facts and cir cumstances that existed in this case.
CONCLUSION Having thoroug

hly reviewed the rec ord, we c onclude t hat the evidence

was s ufficie nt to support the defe ndant’s c onviction

and the tr

ial c our t did not er

r in deny ing the d efenda nt full probation. Accordingly , we affirm the judgment of the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE