### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

arch 20, 2001 STATE OF TENNESSEE v. ANDR E DEWAYNE TUCKER Direct Appeal from the Criminal Court for Hamilton County

No. 223978 Douglas A. Meyer, Judge

No. E2000-00932-CCA-R3-CD April 19, 2001
The defe nda nt w as co nvi cte d by a Ham ilt on C oun ty ju ry of aggr avat ed as sau lt, a Cl ass C fe lon y. The defendant

now contends: (1)

the evidence wa

s insufficient to su

stain his conviction; and (2 ) his s entence is excessive. After a thorough examination of the record, we affirm the judgment of th e trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined. Ardena J. Garth, District Public Defender; Donna Rob inso n Miller, Assistant D istrict Public Defender (on appeal); and

Tom Landis, A ssistant District Pub lic Defender (a

t trial), for the a

ppellant, Andre Dewayne Tucker. Paul G. Summers, Attorney General and Reporter ; Patrici a C. Kussmann, Assistant Attorney General; Will iam H. Cox III, District Attorney General; Dean C . Ferraro and K elli Black, Assistant District Attorneys General, for the appellee, State of Tennessee

.

OPINION
A Hamilton County jury convicted the defendant of a ggravated assault. On appeal, he contends the evidence was insufficient to sustain his conviction, and his sentence is excessive. We affirm the judg

ment of the trial c

ourt. FACTS
Due to a domestic dispute, the victim, Anna Marie Suttles, was living in her car and earned money by driving people to and from work. She was an admitted user of coca ine. On July 8, 1998, she agreed t o drop a friend off at a local store. While at the store, the victim met a known drug1 The parties st ipulated prior to trial

that s exual i

ntercour se took place betw een the victim a nd the defen dant. The de fendant claim ed it was con sensual. -2- dealer named Yates, who offered to put gas in her car, get her a hotel room for the night, and provide her with something to e

at i n exchange for the use of her car. Yates stated that he only needed the car for a few hours, and the victim agreed.
Yates had not

returned the vic

tim’s car approxima

tely eight hours later, and t

he victim began looking for him. She was told by someone in the neighborhood that Yates sold d rugs in a nearby parking lot. In route to

the parking lot,

she met the defendant, who told her he had $400 and was looking for a sex partner. She replied that she was not interested. Later, the defendant

returned to the parking lot and r

epeated his

offer. The victim again refused and stated that she was looking for her car and needed to use a telephone. The defendant told the victim she could use the telephone at his sister’s residence, and the victim followed him to an apartment. The victim testified that as soon as she entered the apartment, the defendant pulled out a gun and told her

to go upstairs to the bedroom. The vict im further claime

d that once she wa

s upstairs, the defendant ordered her to take off her clothes and lay on the bed. The victim testified that she was forced to have s

exual intercourse

with the defenda

nt. 1
The victim testified tha

t, thereafter, the defendant began choking her, and she slipped in and outof consciousness. She stated that the defendant continued to hit and choke her, and her body was jerking and shaking. She fur ther testified tha

t she defecated

and urinated on he

rself. The victim testified that when she tried to escape, the defendant hit her in the back of the head with the butt of the pistol. She testified the defendant “pick[ed] my body up” and pushed her out of the second-story bedroom window. She landedon a chain link fen ce, which ripped

a long gash

in her inner thigh. Erica Caldwell, a resid

ent of the complex, s

aw the victim runni

ng naked and sc

reamin g . Thereafter, the police arrived and the victim was transported to the hospital, where she received

a CT scan for h er head injuries and sutures for her head and thigh lacerations. I n addition to th e injuries to her thigh and head, th e victim su ffered a nose bleed, a hem orrhage in her eye, contusions, lacerations,

and abrasions to h

er lip, breast,

thighs, calf, sc

alp, shoulder blad

e, hip and forearm. The nurse from the rape crisis center testified that these injuries were consistent with the victim’s account of the events leading to her admission to the hospital. After a rape examination , the victim was admitted to the trauma intensive care unit. The defendant te

stified at trial an

d denied owning a

gun, denied for

cing the victim

to have sex with him, and denied throwing her from the window. Rather, he testified that he propositioned the victi m and sh e agreed. Thereafter, he gave her mone y for crack, and when she returned, she smoked the crack and they had sex. According to

the defendant, th

e victim then left th

e apartment. However, defendant contends she returned a few minutes later

and tri ed t o se ll h im s ome jew elr y, which he refused. Defendant stated that a f ew m oments later he discovered that the victim was-3-

trying to steal his VCR, and he “gra bbed her, pushed her out the door, smacked her one time, . . . turned around, [and] walked back in the house.” The defendant w as tried on charge s of aggrava ted rape and aggravated assault. A jury acquitted him of the rape charge and found him guilty of a ggravated assault.

I. SUFFICIENCY OF THE EVIDENCE The defendant alleges that the evi d ence was insufficient to sustain his conviction for aggravated

assault. Specifically, the defendant argues that the state fa i l ed to prove the defendant caused “serious bod ily i njury” to the victim. See Tenn. Code Ann. § 39- 13-102(a

)(1)(A) . We respectfully disagree. A. Standard of Review When an a ccused challenges the sufficiency of the e vidence, this Court must review the record to determine if the evid ence adduced during the t rial was suf ficient "to support th e findings by th e trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule i s ap plicable

to findings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Ten n. Crim. App.1996). In determining the sufficiency of the evidenc e, this Co urt does no t reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (T enn.1978). Nor ma

y this Court substitute its i nferences for those drawn by the trier of fact from circumstantial evidenc e. Liakas v. State , 19 9 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the state the strongest legitimate view of the evidence contained in the r

ecord as well as

all reasonable and legitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). B. Analysis
T he de fendant’s challenge to the sufficiency of the e vidence is based on his claim that the victim did not suffer “se

rious bodily

injury.” The pertinent charge allege s that the defenda

nt “did unl awfu lly, intentionally, or knowi ngly caus e serious bodily

injury to Ann

a Marie Suttles, in violation of Tennessee Code Annotated 39-13-102, against the peace and dign

ity of the State.” For reasons not apparent in the record, the defendant was not charged with agg ravated assault by

the use or display of a deadly weapon. See Tenn. Code Ann. § 39-13-102(a)(1)(B). Thus, under the charge the state was required to prove that the assault led to “serious bodily injury.” See Tenn. Code Ann. § 39-13-102(a)(1)(A).-4-

The code defines “s

erious bodily

injury” as “

bodily injury which involves: (A) [a] substantial risk of death; (B) [p]rotracted unconsciousness; (C) [ e]xtrem e physical pain; (D) [p]rotracted or obvious disfigurement; or (E) [p]rotracted loss or substantial impa

irment of a functi

on of a bodily member, organ or

mental faculty.” Tenn. Code Ann. § 39-11-106(a)(34). “B odily injury,” on the other hand, “includes a cut, abrasion, bruise , burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, or gan, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2). The defendant

pri marily relies upon this court’s decision in State v. Sims , 909 S.W.2d 46 (Tenn. Crim. App. 1995). In Sims , the defendant, during a robbery, struck the victim with his gun, causing her to suffer from a bruised cheekbone and a broken nose. Id. at 47-48. This court applied the doctrine of ejusdem generis , concluding that the enumerated portions of the definition of serious bodily injury

should be read as

coming from the s

ame class of injuries. Id. at 49. This Courtheld that “the pain commonly

associated with a

broken nose

is [not] extreme enough” to establish serious bodily inj ury. Id. at 49. The defendant claims the same result should be reached in the instant case. We find the defendant’s reliance on Sims is misplaced.
In State v. Darren Matthew Lee , C.C.A. No. M1999-01625-CCA-R3-CD, 2000 WL 804674 (Tenn. Crim. App. filed June 23, 2000, at Nashville), perm. to app. denied (Tenn. 2000), this Court again addressed this issue. In Lee , the defendant h it the victim several times until he fell on the ground and continued kicking the victim. Id. at *1. This court distinguished Sims stating that the “victim in Sims was struck once with a handgun and received a broken nose, a laceration across her nose, some facial swelling and a bruised cheekbone.” Id. at *3. In contra

st, the victim in Lee

was kicked repeatedly in the face, received two black e yes, severe facial swelling, and his lip was torn. Id. at *4. The victim missed a week of work and suffered extensive physical pain. This court found the victim suffered serious bodily injuries. The case sub judice is more similar to Lee

. The defendant lured the victim into an apartment under the guise that

she could use the telephone. Upon entry into the apartment, the defendant drew a pistol. He put the gun in her mouth and choked her. The defendant then “popped[her] from the side and [her] e yes come (sic) o pen.” The def endant cont inued stri king and cho king her to such degre e that her feet began “jerking,” and she urinated and defe cated on herself. The victim then removedthe fan from the w indow in an attempt t

o escape, but whil

e she was removing the fan, the defendant struck her in the back of her head with the pistol. The choking and repeated blow s lef t the victim in a condition that she was “semi going in and out of consciousness.”The defendant then picked her up and threw her out of the second-story window. The victim landed on a

chain link fence causing a long gash in her inner thigh. Fea ring the defendant would shoot her, the

victim took cover a

nd th en f led the scene. After attempting to get assistance, the victim collapsed in a grassy area. She testified that she “started feeling [herself] getting weaker and weaker, . . . bleeding, and [she] just lay (sic) there.”-5-

Officer Iran Meadows testified tha t the i njury to the victim’s leg was a “real deep” g ash. Also, the victim had a gash in the back of h er head from being struck with the pistol, and she had abrasions and contusions o n he r bo dy. A fireman who responded to the scene said he had “never seen nothing (sic) like it before.” Furthermore , during the v ictim’s transport to the hospital, she testified that when the paramedics could not get her blood pressure, one stated, “we’re losing her, we’re losing her,” and they solicited information from her in the event she died. The victim further testified that she “thought [she] was dying,” she “was in a lot of pain,” and she had never been in that much pain before. The victim also had a scleral hemorrhage and a scalp lace ration that had to be stapled. The victi

m was admitted to the

trauma intensive c

are unit of Erlan

ger Hospital. Sims held that “the pai

n commonly ass

ociated with a bro

ken nose is [not] extreme enough” to constitute “serious bodily injury.” 909 S.W.2d at 49. However, the nature and extent of injuries suffered by Anna Mar

ie Suttles clearly

distinguish this ca

se from Sims . Viewing the evidence in the light m ost favorable to the state, her injuries are more akin to the categories described in “ser ious bodily injury” rather than “bodily injury .” See Tenn. Code Ann. §§ 40-11-106(a)(2), -106(a)(34). Thus, a rational jury could find the defendant guilty of aggravated assault.

II. LENGTH OF SENTENCE Th e de fendant contends the trial court inappropriately sentenced him to the Range I maximum sentence of six years for aggrava ted assault, a Class C felony. Spe cif ica lly, he argues that the trial court improperly applied enhancement factor (9), the de fendant possessed or employed a firearm during the commission of the offense. See Tenn. Code Ann. § 40-35-114(9). The defendant argues that the possession or use of a weapon is an

element of the offense of aggravated assault and, thus, cannot be used to enhance his sentence. A. Standard of Review This Court’s review of

the sentence imposed by the tr ial court is de novo witha presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an af f irmative showing in the re cord that the tria

l judge consider

ed the sentencing

principles and al

l relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). A trial court

should start at the minimum sentence, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is pre scribedby the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes andprinciples of the sentencing act and its findings are supported by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.2 Prior to the start of trial,

the state sought to amend th

e original i

ndictment, wh

ich alleged at

tempted firs

t degree murder, to reflect the charg e of aggrava ted assault. T he defend ant agreed to the amend ment. -6- B. Trial Court’s Findings The pre-sentence report reflects that defendant had a prior conviction for felo ny theft and three prior convictions for driving on a revoked license. The trial court applied two enhancement fact ors: previous history of crimin al convictions (Tenn. Code Ann. § 40-35-114(1)), and employment of a firearm during the

commission of the offense (Tenn. Code Ann. § 40-35-114(9)). The trial court further found that defendant’s attendance of a nger m anagement classes was a miscellaneous mitiga ting fac tor. See Tenn. Code Ann. § 40-35-113(13). After weighing the enhancement and mitigating factors, the trial court set the sentence at six years in the Depa rtment of Correction.
C. Analysis The trial court properly applied enhancement factor (9). The amended indictment charged the defe ndant with agg

ravated assault

. 2 The agreed amended indictment alleged the defendant caused “serious bodily inj ury” to the victim and does not a llege the use or

display of a

deadly w eapon. Use of a deadly weapon is an elem

ent of the offens

e of aggrava

ted assault

under Tenn

. Code Ann. § 39-13-102( a)(1)(B); how

ever, aggra

vated assault ma

y a lso be committed when the assault results in serious bodily injury. See Tenn. Code Ann. § 39-13-102(a)(1)(A). Th e use of adeadly weapon is not an essential element of an agg ravated assault causing serious bodily injury

and can be an enhancement factor. State v. Carter , 986 S.W.2d 596, 598 (Tenn. Crim. App. 1998). At trial, the victim testified that the defendant struck her in the head with the butt of a gun and pointed the weapon at her during the assault. Accordingly, the use of a deadly weapon was properly considered by the tria l court as an enhancement factor. See Tenn. Code Ann. § 40-35- 114(9). Furthermore, we do not find the de fendant’s sente

nce to be excessive. Whilethe trial court didfind one mitigating factor in addition to the two enhancement factors, the weight given to each factor is left to the discr

etion of th

e tria l court, and we will not disturb the sentence as long as the trial court complies with the purpos es and principles of the sentencing act and its findings are supported by the

record. Moss , 727 S.W.2d at 238. We c onclude that the de

fendant has fail

ed to demonstrate that his sentence is excessive.

III. CONCLUSION Upon a thorough review of the record, we conclude: (1) the evidence wa s sufficient

to prove the defendant

committed aggr

avated assault by

causing seriou

s bodily injur

y to the victim; and (2) the trial court properly sentenced the defendant. The judg ment of the trial court is affirmed.-7- ___________________________________ JOE G. RILEY, JUDGE