# FILED
May 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9805- CR-00129 Appellee, ) ) Shelby County V. ) ) Honorable W. Fred Axley, Judg e ) STANLEY O. ABELL, ) (Disorderly C onduct, Assault) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: ROBERT L. J. SPENCE, JR. JOHN KNOX WALKUP KAREN R. CICALA Attorney General & Reporter 67 Madison Avenue, Suite 200 Memphis, TN 38013 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney General RO SE MA RY

AN DR EWS Assistant District A

ttorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: ___________________ AFFIRMED
JOHN EVERETT WILLIA MS, Judge-2- 

### OPINION The defendant, Stanley O. Abell, w as tried by a jury

and convicted of assault and disorderly

conduct. The trial court s entenced him to eleven months and twenty-nine day

s’ confinement for the assault and to thirty days’ confinement for the disorderly conduct. The defendant ap peals, challenging both his convictions and sentences.We AFFIRM the judgment of the trial cour t.

BACKGROUND On September 3, 1996, the defend ant went to the Willow Oaks Elementary School to pick up his daughter from her fifth-g rade class. Despite signs instructing visitors to sign-in at the office, the defendant went directly to his daughter’s classroom and demanded that she be allowed to go with him. His daughter’s teacher, Josephi ne Leatherwood, advised t he defendant that, because it was prior to the end of classes, school pol icy required that he get a dismissal slip from the office before she could let his daughter leave. The defendant retorted that it was his daughter and that Leatherw ood could not stop him from taking her. Nev ertheless, when Leatherw ood insisted, the defendant started toward the office. After a short distance, however, he turned back toward the classroom. Watching this, and alre ady suspecting troubl e, Leatherwood immediately sent her students , except the defendant’s daughter, to another
room.
When the defendant’s daughter saw him returni ng, she began to cry. She told Leatherwood that she w as supposed to go to an after-sc hool program, after which she was to be pi cked up by her mother. Hear ing this, Leatherwood decided to take the defendant’s daught er to the office and address the sit uation there.
Leatherwood put her arm around the defendant’s daughter and started toward the door of her clas sroom. At that point, the defendant enter ed the-3- classroom and began yelling that Leatherwood could not stop him from ta king his daughter. Still cry

ing, his daughter droppe d her book bag, jumped behind Leatherwood, and, holding t o her waist, began sc reaming that she was not supposed to go with the defendant.

Leatherwood testified that the de fendant then grabbed her left arm and dug his fingernails i nto her. Leatherwood calml y told the defendant that he was hurting her and told him to remove his hands. Instead, the defendant seized her left hand and began bending her fing ers back, all the whi le shouting that Leatherwood could not stop him from taking his daughter. Apparen tly still unsatisfied, the defendant then twis ted Leatherwood’s arm behind her back and repeatedly stomped her open-to e shoe and foot.
At that point, another teacher, B arbara McCloskey, a nd the school custodian, Anthony Smith, came t o assist Leatherwood. When McCloskey entered the room, the defendant’s daught er ran to her, grabbed her around the waist, and moved wi

th her into the hall. Smith r eminded the defendant, who continued to behave bellig erently, that he was in a school and told him to be quiet. The defendant retorted that Smith should “mind his own bu siness” and told him, “I’m a professor, and you can’t tell me what to do . . . . You’re jus

t a custodian.”
Eventually the defendant gained control of Monique and led he r to his car, which, as further demonstration of his arrogant disregard for the law and others, he had parked in a handicap spot. During the disturbance, however, the school principal had called the pol ice. Officers arrived and arrested the defendant before he could leave.-4- SUFFICIENCY OF THE EVIDENCE The defendant asserts that the evidence at trial was insufficient to support his conviction of either assault or disorderly conduct. When an accused challenges the sufficiency of the evidence, this Court must dete rmine whether, after viewing the ev

idence in a light most fav orable to the prosecution, any rational trier of fact could ha ve found the essential elements of a c rime beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).The appellee is entitled to the strongest legitimate view of the evidence and all reasonable inferences that may be draw n therefrom. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
The credibility of wi

tnesses, the weight of thei r testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusiv

ely to the trier of fact. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jur y verdict for the stat

e accredits the testimony of the state’s witnesses and resolves all conflic

ts in favor of the state. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty

verdict removes the presumption of innocence enjoyed b y defendants at trial and replaces it with a presumption of g uilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant chal lenging the sufficiency of the evidence bear s the burden of illustrating to this Court why

the evidence is insufficient to support the verdict. See State v. Freeman , 943 S.W.2d 25, 29 (Ten n. Crim. App. 1996).
The defendant has failed to carry this burden. T he disorderly conduct statute provides, “(

a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm: (1) Engages in fighting or in violence or threatening behavior . . . . (b)

A person also violates this section who makes unreasonable noise whi ch prevents others from car rying on lawful-5- activities.” Tenn. Co

de Ann. § 39-17-305(a)(1), ( b). The defendant argues that the state failed to produce evidence of either “intent ,” as required by subpart (a)(1), or “unreasonabl e noise that prevents other s from carrying on law

ful activities,” as r

equired by subpart (b

).
We disagree. W ith regard to the evidence of intent, it is clearly established that a trier of fact may infer the element of intent from circu mstantial evidence. See , e.g. , State v. Chrisman , 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994). The state presented over whelming evidence of the defendant’s truculent behavior, and this evi dence was clearly sufficient for a reasonable trier of fact to infer that the defendant intended to cause publ ic annoyance or alarm. As to subpart (b), the school cus todian testified that he told the defendant to be quiet, reminding him that he was in a school. And, the state’ s proof indicated that at least six school staff members responded to the disturbance by the defendant. This evidence was suffici ent for the jury to reasonabl y conclude that the defendant created “unreasonable noise that prevent[ed] others from c arrying on lawful activities. ” Thus, we find the evidenc e sufficient as to either prov ision of the above cited statute.

As to his assault convi ction, the defendant does not assert that the state failed to produce competent eviden ce of any statutory element. See Tenn. Code Ann. § 39-13-101(1)-(2). Rather, he merely reas sert his version of ev

ents--for example, that he only “g ently touched” Ms. Leather wood’s arm--and arg ues that the jury’s verdi ct was against the w eight of the evidence. The defendant the reby asks this Court to rew

eigh the evidence present ed at trial. This we c

annot do. The credibility of witnesses and the weight to be accorded their testimony are matters reserved to the trier of fact; the jury was entitled to credit the state’s proof and discredit that of the defendant. Thi s issue is without mer it.

JUDICIAL CONDUCT-6- The defendant next argues that cer tain comments of the trial judg e, made in the presence of the jury, were inappropriate and p rejudicial. The defendanttestified at trial but was consistently evasive of the state’s questions on crossexamination. Because of this ev asiveness, the trial judge admonished the defendant to answer the state’s questions directly . On another occasion, the court questioned the defendant to cl arify contradictory responses. In his brief to this Court, the defendant quotes these exchanges from the trial transcript. His entire argument, then, is t hat “[s]uch statements are detr imental to the defendant in that it leaves [sic

] the jury with the

impression that the judge i s ruling that the defendant is not being candid in h is testimony. The judge i n effect is impeaching the defendant’s testimony.”
The defendant cites no authority i n support of this argument. See Tenn. R. App. P. 27(a)(7) (r

equiring citation t

o relevant authority

in appellant brief). This issue is, therefore, w aived. See Tenn. Ct. Crim. App. R. 10(b ); State v. Hammons , 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987).
Notwithstanding w

aiver, we have ex

amined the trial transcri pt, and we find nothing inappropriate in the trial court’s comments. A trial judge possess es broad discretion in contr olling the course and condu ct of trial, as such discr etion is necessary to conduct an orderly proceeding . “[T]he propriety, sc ope, manner and control of testimony . . . is within the sound discretion of the trial court, which will not be reversed absent an abuse of that discretion.” State v. Elroy D. Kahanek , No. 01C01-9707-CC-00298 (Tenn. Crim. App. filed June 30, 1998 , at Nashville) (citing State v. Hutchinson , 8 98 S. W.2 d 1 61 , 1 72(Ten n. 19 94 )) . We find no abuse of discretion. This i ssue is without merit.

SENTENCING FACTORS-7- The appellant next complains tha t his sentences are exces sive. When an accused challenges the leng th or manner of service of a sent ence, it is the duty of this Court to conduct a de nov o review on the reco rd “with a presumption that the determinations made by the court from which the appe al is taken are correct.” Tenn. Code Ann. § 40-35-401(d). In conducting our review, we must consider (1) the e vidence, if any, re ceived at the trial and the senten cing hearing; (2) the presentence report; (3) the principles of sent encing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal condu ct involved; (5) any

statutory mitigatin g or enhancement factors; (6) any statement made by the accused in his ow n behalf; and (7) the potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appell ant carries the burden of showi ng that his sentence is i mproper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
Misdemeanor sentencing is designed to provide the trial court with continuing jurisdict ion and a great deal of flexibi lity. A misdemeanant is no t entitled to a presumption of minimum se ntence. See State v. Seaton , 914 S.W.2d 129, 135 (Tenn. Crim. App. 1995). Further , the trial court is not limited to consideration of the statutory enhancemen t and mitigating factors in determining the appropriate sentence, but should examine mis demeanor offenses in light of the circumsta nces of the offense. See State v. Brannon , No. 03C01-9508-CR-00233 (Tenn. Cr im. App. filed Apr. 3, 1996, at Knox ville). Nevertheless, the tri al court must consider the s tatutory enhancement and mitigating factors and the purposes and principles of the Se ntencing Reform Act when determining the portion of a sentence to be served i n confinement. See Tenn. Code Ann. § 40-35-302; State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).-8- In the present case, two enhancement factors are ap plicable: The offense involved more than one v ictim, see Tenn. Code Ann. § 40-35-114(3); and the defendant committed the offense while on sch ool property, see Tenn. Code Ann. § 40-35-114(17). The trial court recognized no mitigating factors; how ever, the defend ant prop oses tha t the fol lowing app ly: “The defendant’s criminal conduct neither caused nor threatened serious bodily injury,” Tenn. Code Ann. § 40-34- 113(1); The defendant’s criminal history is not extensive; “The defendant, although guilty of the crime, committed the offense under such unusual circumstance s that it is unlikely that a sustained intent to v iolate the law motiva

ted the criminal conduct,” Tenn. Code Ann. § 40-34-113(11); and The defendant exhibited remorse. Although we hesitate to c haracterize Leatherw

ood’s injuries as “ser

ious,” the def endant’ s actions clearly threatened serious injury to b oth Leatherwood and others. Thus, this factor is not applicable.

As for the defendant’s criminal hi story, we agree with the trial court that the defendant’s relative minor record may be insufficien t to warrant sentence enhancement. Nevertheless, neither does this record mer it mitigation. The defendant’s presentence report indi cates one conviction for dr iving on a revoke

d license and an unprosecuted bad check charge. Of greater significance to this Court, the defendant’s ex-w ife testified at his sentencing hearing regarding several previous v

iolent encounters with the defendant arising from a custody dispute between the couple. She stated that on one occasion, police officers had to remove the defendant from her premi ses after he attempted to break into her home. On another occasion, t he defendant took the couple’s two children and barricaded himself in his home until police facilitated the return of the children to Ms. Abell. Finally, she testified that she had sworn out a compl aint against the defendant for allegedl y attempting to run ov

er her with his car

.-9- These incidents clearly indicate a history of cr iminal behavior and, ther efore, preclude application of this fact or in mitigation of the defendant’s sentence.

Neither do we find that the defendant comm itted his offenses “under such unusual circumstances that it is unlikely that a s ustained intent to violate the law motivated the criminal co nduct.” The unusual circumstanc e to which the defend ant would attribut e his beha vior is his o ngoing cus tody dispu te with his exwife. However, a

s noted above, the record i ndicates that the defendant has reacted violently during several previous incidents involving the custody of his children. The continuing na ture of this custody disput e, combined with the defendant’s consistently aggressive responses, hardly suggests that this circumstance is unusual i n his case. Moreover , the instant offense extended over a significant period of time and continued through, by all accounts, remarkably calm respons es from Leatherwood and others s chool staff members. We cannot conclude that the defendant’s offenses were motiv ated by anything other than a sustained intent to terrorize members of the sc hool staff.
Finally here, the defendant as serts that the trial cour

t erred in failing to recognize his all eged remorse as a mitigat ing factor. Our examinat ion of the record reveals no si gnificant expression of r emorse by the defendant. To the contrary, the defendant has nev er even admitted that his ac tions were wrong

ful. He stated only that he w ould abide the jury’s dec ision as to his guilt

.
For these reasons, we find none of the proposed mitigating f actors applicable. The trial cour t did not err in sentencing the defendant to the maximum punishment for each of his offenses.

ALTERNATIVE SENTENCING We next examine the defendant’s challenge to the trial court’s denial of alternative sentencing . We begin by inquiring w hether the defendant is entitled-10- to be presumed a favorable candidat e for alternative sentenci ng. The defendant argues that because one conv icted of a class C, D, or E felony is presumed a favorable candidate, see Tenn. Code Ann. § 40-35-102(6), t his presumption should logically e

xtend to one convicted of a mi sdemeanor. There is case law to support this argument. See , e.g. , State v. B oyd , 925 S.W.2d 237, 245 (Tenn. Crim. App. 1995). Howev er, there is also case l aw to the contrary. See State v. Williams , 914 S.W.2d 940, 94 9 (Tenn. Crim. App. 1995) (“The presumption is limited in scope to an accuse d who is convicted o

f a Class C, D or E felony . It does not apply to an accused c onvicted of a misdemeanor.”). Albeit in parenthetical dicta, the Tenness ee Supreme Court recently cited the Williams holding in State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998). Moreover, the reasoni ng of Troutman is persuasive. Addressing whether a trial court must record findings in misdemeanor sentencing, the Troutman Court stated, “[T] he legislature has indic

ated the ability to clear ly mandate specific findings on the record in felony sentencing. Had the legislature intended this practice in misdemeanor sentencing, it could have so stated.” Id. at 274. Si milarly, we conclude, the legislatur e has indicated the ability to clearly mandate a presumption of favorable candidacy for alternative sentencin g for class C, D, or E felons. Had the legislat ure intended this presumption t o apply to misdemeanants, it could have s o stated. We therefore read the statute for what it says, not what mig ht be inferred, and conclude that th e defendant is not entitled to a presumption of favorable candidacy for alternati ve sentencing.
Moreover, even if the presumption generally applied, we would find it rebutted in this case. The tr ial court found that confinement is nec essary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B). To impose c onfinement based on the seriousness of the offense, “‘the circumstances of the of fense as committed must be especially violent, horrifying , shocking, reprehensibl e, offensive, or otherwis e of an excessive or exaggerate d degree,’ and th e nature of th e offense m ust outweigh-11- all factors favoring a sentence other than confinem ent.” State v. Bingham , 910 S.W.2d 448, 454 (Ten n. Crim. App. 19 95) (quoting State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). Although neither assa ult nor disorderly conduct is inherently h orrifying, viol ent, etc., relative to many other offenses, “the circumstance of the offense[s] as com mitted” were clearly “especially reprehensible ” and “of an excess ive or exaggerated degr ee.” Further, alt hough the defendant is entitled to conside ration of factors, such as his c ommunity service, that tend to fav or alternative sentenci ng, we conclude that the seriousness of the defendant’s offenses outw eighs all such factors.
Finally here, we consider separately the trial court’s denial o f probation, as that analysis differs from the denial of alterna tive sentencing generally. While the defendant is statutorily eligible for probation and mus t automatically be considered, "the defendant is not automati cally entitled to proba tion as a matter of law." Tenn. Code Ann. § 40-35-303(b) sentencing comm’n cmts; see State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). Rather, the defendant has the burden of establishing his suitability for pr obation. See Tenn. Code Ann. § 40-35-303(b); State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
In determining whether to grant or deny probation, the trial courts are directed to consider the ci rcumstances of the offense; the defendant's cri minal record, social histor

y, and present condition; the need for deterrence; and the best interest of the defendant and the publi c. See State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The defendant's credibility, or lack thereof, is also an appropriate consideration and reflects on a defendant's potential for rehabilitation. See State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). And, “[i ]t is well settled that [a defendant’s] lack of candor may serve as the sole basis for den ying probation.” State v. James T. Bingham , No. 01C01-9604-CC-00159 ( Tenn. Crim. App. filed-12- Dec. 15, 1997, at Nashville) (citing State v. Dykes , 803 S.W.2d 250 (Tenn . Crim. App. 1990)).
The trial court duly co nsidered these factors, and the ev idence, particularly the defendant’ s lack of candor and credibil ity, supports the tri al court’s decision.

CONSECUTIVE SENTENCING Finally, the defendant argues that the trial court erred in ordering that his sentenc es run con secutivel y. The sta te correc tly conced es that co nsecutive sentencing is not warranted in this case, as none of the statutory criteria is applicable. See Tenn Code Ann. § 40-35-115. Nev ertheless, although the tr ial court stated at the sentencing hearing that the sentences w ould run consecutively, the j udgment sheet as ultimately completed imposes concurrent service. We therefore find no error, bu t we clarify that the defendant’s sentences are to be served concurrently.

CONCLUSION The judgment of the trial court i s AFFIRMED.

_____________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:

( SEE CONCURRING OPINION) GARY R. WADE , Presiding Judge

_____________________________ THOMAS T. W OODALL, Judge