# FILED
October 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE AUGUST 1998 SESSIO N

STATE OF TENN ESSEE, ) ) NO. 03C01-9707-CR-00259 Appellee, ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLIS H. MILLER, HAGAN PAUL ROBE RTS, II, ) JUDGE ) Appellant. ) (Reckless Aggrav ated Assault)

FOR THE APPELLANT : STEPHEN M. WALLACE District Public Defender TER RY L. JOR DAN (at trial) Assistant Dist. Public

Defender P.O. Box 839 Blountville, TN 37617-0839 B.C. McINTURFF (on appeal) 132 Broad Street P.O. Box 583 Kingsport, TN 37662-0583 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter SANDY C. PATRICK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General J. LEWIS COMBS Assistant

DistrictAttorney

General P.O. Box 526 Blountville, TN 37617-0526

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION
The defendant, Hagan Paul Roberts, II , appeals as of right his c onviction by a Sullivan County jury of reckless aggravated assault by the display and use of a deadly weapon. He w as sentenced as a Range II, multiple offender, to seven (7) years i mprisonment. On appeal, the defendant pres ents the following issues f or review:

(1) whether the evi dence was sufficient to support the jury’s verdict ; (2) whether the trial

court properly admitted photographs of the victim i nto evidence; (3) whether the trial

court erred in allow

ing the state to question a defense witness about her gender; (4) whether the trial court erred in allowing the victim to testify regarding

prior altercations w

ith the defendant; (5) whether the cane used in the commission of the offense could be considered a deadly weapon; and (6) whether the trial

court properly sentenc ed the defendant. After a careful consideration of the record, the judgment of the trial court is AFFIRMED.

FACTS

The victim, Teresa Gillenw ater, was the defendant’s gi rlfriend. She described their 3 1⁄2 y

ear relationship as stor my and believed it w

as nearly over when the assault occurr ed. Although the couple once l ived together, they maintained separate residences at the time of the incident.
On the evening of May 1, 1996, the victim called the defendant and asked him to come to her apartment to dis cuss his courtship of another woman. The victim testified that she h ad several drinks of v odka waiting for the defendant.3

The defendant arrived around midnight and ent ered the victim’s bedroom where she was sleeping. They began arguing about the w oman the defendant was supposedly seeing. The defendant attemp ted sexual intercourse, but the victim resisted by scratchi ng him. The defendant then punched the vi ctim, knocking her down. When she attempte d to get up using a cane, the defendant grabbed it and began to strike the v ictim with the cane.
The victim apparently l ost consciousness during the incident. She testified that the next thing she remembered was waki ng up the following morning with the defendant sti ll in her apartment. After hav ing consensual sexual intercourse w

ith the victim that morni ng, the defendant showered and le ft.

The victim did not initi ally intend to seek medic al attention for the injuries she received in the incident. However, the following evening she lost vision in her left eye and it became very painful. Her daughter took her to the emergency room. Hospital personnel c alled the police after seeing the victim’s injur

ies. Kingsport police officers q uestioned the victim at l ength and took photographs of her injuries. Her face and neck were bruised, and she had multiple linear marks on her back consistent with being struck w ith a cane.
The jury was charg ed as to the indicted offense of intentional aggravated assault. They returned a verdict of guilty for the lesser offense of reckless aggravated assault.

SUFFICIENCY OF THE EVIDENCE
The defendant contends the evidence pres ented at trial was ins ufficient to support a verdict of gui lt for reckless aggr avated assault. The defendant asser ts that he was defending himself from an unprovoked attack by the victim.4 When an accused challen ges the sufficiency of the evidence, this Court must review the rec

ord to determine if the evidenc e adduced during the trial was sufficient "to support the findings by the trier of f act of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to f indings of guilt predicated upon direct evi dence, circumstantial ev idence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,19 (Tenn. Crim. App.1996).

In determinin g the sufficie ncy of the eviden ce, this Court do es not reweigh or reevaluate the evi dence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978). Nor may this Court substitute its infer ences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, thi s Court is required to afford the state the strongest leg itimate view of the ev idence contained in the recor d as well as all reasonabl e and legitimate inferences w hich may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 93 2 (Tenn. Crim. App.1995).

The victim testified that she resisted the defendant while he attempted to perform sexual intercours e. The defendant became angry and punched the victim. The victim t

estified that after the defendant knocked her down with punches she attempted to use a cane in order to stand up. The defendant grabbed the cane and began beating her with it. The cane was made an exhibit at trial. Photographs admitted into evidence show linear bruises on the victim’s back consistent with mul tiple blows from a cane. Vi ewing the facts in a li ght most favorable to the state, ther e is sufficient evidence for the jury to have found the defen dant gui lty of r eckles sly ca using the victim bodil y inju ry by use of a deadly weapon.

This issue is without merit.1 The witness testif ied that she met the

defendant one ( 1) month prior to the incident. She testified that she had seen the victim at the defendant’s apartment “ranting and raving.” The witness further testified that the victim acted as if she believed the defendant and the witness were romantically involved. 5 PHOTOGRAPHS

The defendant contends the trial court erred in admitting photog raphs of the victim showing

injuries not inflicted by the deadly weapon. The defendant also asserts the photograp hs depict injuries not i nflicted on the night in que stion.
The defendant failed to object to the admissi on of the photographs at trial. The trial court, consequently, was not afforded the opportun ity to determine their potential for unfair prejudice. Therefore, the issue is wai ved. Tenn. R. App. P. 36(a). Furthermore, ev en if the issue were not w aived, we would c

onclude that the trial court did not abus e its discretion in admit ting the photographs. See State v. Stephenson , 878 S.W.2d 530, 54 2 (Tenn. 1994).

This issue is without merit.

SCOPE OF CROSS-EXA MINATION
The defendant alleges as his third issue that the trial court erred in allowing the state to cross-examine a witness as to her gender. The witness testified for the defendant regarding the victim’s prior conduct at the defendant’s apartment. 1 The defendant claims the questions were an impermissible attempt to impea ch the witn ess’ cred ibility.
On cross examination, the prosecutor asked the witness, “Now, is it, it’s Mr. Sierra West, is that correct?” The witness replied, “No, sir, it’s Sierra W est.” The prosecutor replied that he n eeded to refer to the witness as either “Mister” or “Miss.” The witnes

s responded, “Miss.” Defense counsel objected,2 This anatomical condition is known as hermaphrodism or

hermaphroditism.

3 As to marking “male” on the drivers license application and subsequently

claiming to be fe

male, the probati

ve value of such e

vidence is clearly ou tweighed by

its prejudicial ef

fect even if it we

re deemed “rel

evant” to credibility. Tenn. R. Evid. 403. 6 contending the state was attempting to “slur” the witness.
During a jury-out

hearing, the prosecutor stated that the witness w as listed as a male on her driver’s license, but dressed as a female in court. The witness testified in the jury-out hearing that she was born with the sexual organs of both
sexes. 2 The witness preferred to be addressed as a female and was currently “taking care of that proble m.”
The prosecutor argued “[i]f she’s one sex and she’s dressed as anothe r, then she’s portraying

herself as something she’s not . . . I think it has to do with her credibility.”

Defense counsel vociferousl y argued this line of q uestioning was irrelevant and demeaning to the witness.
At the conclusion of the jury-out hearing, the trial court, while noting this matter to have “some relev ance to this case,” stated th at the jury would be instructed to disregard the prosecutor’s question. Defense counsel, nevertheless, stated that h e intended to give the w itness an opportunity to explain her condition. The trial court then responded that the prose cutor would be allowed to ask the w itness if she was list

ed as a male on her driver ’s license, and the witness would be given the opportunity to explain her condition. This procedu re was foll owed when t he jury hea rd her tes timony.
This Court concludes that an attempt to utilize hermaphrod ism as a ground for general impeachment would be improper. 3 However, defense counsel desired to allow the witness to expl ain her condition. This w as done.4 Canon 3B(6), Code of Judicial Conduct, Sup. Ct. Rule 10, provides as

follows: A judge shall re

quire lawy

ers in proceedin

gs before the ju

dge to refrain from manifesting, by words or conduct, bias or pre judice based upon race, sex, religion, national origin, disability, age, sexual orientation,

or socioeconomic

status, against p

arties, witnesses, counsel, or others. This Section 3B(6) does not preclude legitimate advocacy when rac e, sex, religion, national origin, disability

, age, sexual ori

entation, or socio

economic status, or other si milar facto rs, are issu es in the pr oceeding. 7 We conclude there was no prejudice to the defendant. See Tenn. R. App. P. 36(b). 4

PRIOR INCIDENTS

The defendant contends the trial court also erred by allow ing the victim to testify to prior vi olent episodes by the defendant on r edirect examination. Defense counsel asked the vic tim on cross-examination about a contempt citation that she received for “filing a false warrant against [the defenda nt].” Counsel then asked the vic tim, “You all hadn’t had any violent confrontations or anything of that sort?” The victim responded, “There ha d been other times that he had slapped me.”
When the state attempted to rehabilitate the vi ctim’s testimony by inquiring into the pr

ior violent episodes, the defendant objected, arguing that the prior incidents were overly prejudicial.
The prosecution replied that the defense had opened the door to the testimony by asking

whether there had been pri or violent episodes betw een the defendant and the victim. The tria l court agreed with the state that the defendant had opened the door to the testimony on prior violent epis

odes. The victim was able to testify to three (3) instances of violence by the defendant and the injuries she received on those occasions.8 The admissibility of testi mony and other evidence, as well as the scope of redirect examination, i s within the discretion of the trial court, w hich will not be reversed absent demonstrati on of an abuse of that discretion. State v. Barnard , 899 S.W.2d 617, 62 4 (Tenn. Crim. App. 1994).

The trial court did not abuse i ts discretion allow

ing the victim to tes

tify on redirect to the prior i ncidents as the defendant “opened the door.” The state, attempting to avoid any potential prejudice to the defendant , had avoided reference to the prior incidents on direct examination. The de fendant, however, created an impression on cro ss-examination that no pri or violent incidents occurred between them. The victim’s testimony on redirect was appropriate in light of the circumstances.

This issue is without merit.

DEADLY WEA

PON

The defendant raises as his fifth issue the characterization of the cane as a deadly weapon. The defendant all eges the state failed to prov e the mens rea of the crime as it failed to prov e his intent to use the cane as a deadly weapon.
According to statute, "'[d]eadly weapon’ means: [a]ny thing that in the manner of its use or intended use is capable of cau sing death or serious bodily injury[.]" Tenn. Code Ann. § 3 9-11-106(5)(B). "Seri ous bodily injury" results from bodily injury i nvolving "(A) [ a] substantial risk of death; ( B) [p]rotracted unconsciousness; (C) [e] xtreme physical pain ; (D) [p]rotracted or obvious disfig urement;or (E) [p]rotr acted lo ss or su bstanti al impai rment of a functio n of a bodily member, organ or mental faculty[.]" Tenn. Code Ann. § 3 9-11-106(34).9 The trial co urt correc

tly instr ucted the jur

y as to the e lements of the crime charged and applicable definitions. The jury found the defendant gu ilty of reckless aggrav

ated assault, which neces sarily included a findi ng that the cane was a deadly weapon. It is clear that the jury could have found the manner in which the defendant used the cane made it capa ble of causing serious bodily injury.

This issue is without merit.

SENTENCING

In his final issue, the defendant cont ends trial court erred i n denying probation and setting an ex cessive sentence. The defendant submi ts that the majority of his past conv ictions were drug related, and that the victi m was the instigator of the subject i ncident.
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative showing i n the record that the trial judge considered

the sentencing principl es and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991).

A. Probation
Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use alternativ es to incarceration. An especially mitigated or standard offender convicted of a Cla ss C, D or E felony is

presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).10 In determining if incarcer ation is appropriate, a tr ial court may consider

the need to protect society by restraining a defendant hav ing a long history

of criminal conduct, the need to av oid depreciating the ser iousness of the offense, whether confinement is parti cularly appropriate t o effectively deter others likely to commit similar offenses, and whether less restrictiv e measures have often or recently been unsuccessfull y applied to the defendant. Tenn. Code Ann. § 40- 35-103(1); see also State v. Ashby , 823 S.W.2d at 169.
The defendant, although convicted of a C lass D felony, was s entenced as a Range II, multiple offender becaus e of prior felony convic tions. The presumption of alternative se ntencing, therefore, does not appl y. Tenn. Code Ann. § 40-35-102(5), (6). In determining that incarc eration was appropriate , the trial court explicitly found that less restrictive measures had been unsuccessfully applied to the defendant previousl y, that he had a long hist ory of criminal conduct, and that confinement was nec essary to avoid depr

eciating the seriousness of the offense.
The defendant had over ten (10) pri or felony convictions and over ten (10) misdemeanor convictions from 1971 until the present. On numerous prior occasions, he had receiv ed alternative sentencing . He has continued to vio late the law. Th e trial cou rt proper ly conside red the re levant cri teria fo r alterna tive sentencing. The denial of alter native sentencing is entitled to a presumption of correctness and was proper.

This issue is without merit.

B. Length of Sentence

The def endant a lso conte nds the t rial court imposed an excessi ve11

sentence. The burden is upon the appealing party to show that the sen tence is improper. Tenn. Code Ann. § 40-35- 401(d) Sentencing Commissi on Comments.
If no mitigating or enhancement factors for sentencing are pr esent, Tenn. Code Ann. § 40-35-210(c) pro vides that the presumptiv e sentence shall be the minimum sentence within the app licable range. See State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). Howev er, if such factors do exis t, a trial court should start at the minimum sentence, enhan ce the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-3 5-210(e). No particular weight

for each factor is prescribed by the statute, as the w eight given to each factor is left to the discretion of the trial court as long as the trial cou rt complies with the purposes and p rinciples of th e sentencing act and its findings are supported by the recor d. State v. Moss , 727 S.W.2d 229, 23 8 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35- 210 Sentencing Commission Comments.
The range of the defendant’s sentence w as 4-8 years. Tenn. Code Ann. § 40-35-112(b)(4). In deter mining the length of sentence, the trial court applied three (3) enhancement factors and one (1) mitigating fa ctor. The trial court found the defendant had an extensive cr iminal history as ev

idenced by numerous convictions other than those relied upon to establ ish the defendant as a Range II, multiple offender. Tenn. Code Ann. § 40-35-114(1). The trial court further found the defendant was on probati on at the time of the instant offense.5 The trial court also found the defendant had previously shown an

unwillingness to comply with conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(8). The record does not support the application of this

enhancement fa

ctor. In spite

of the multitude of c

onvictions, the record does not reveal that any offense or prove n violation was committed while the defendant was on probation or while on any other condition of a sentence involvin

g release into t

he community . However, the tr ial court expressly stated at the sentencing hearing that it was giving this factor little weight. Accordingly, we see no need in reducing the defendant’s sentence. 12 Tenn. Code Ann. § 40-35-114(13)(C). The trial court enhan ced the defendant’s sentence to eight (8) years. 5 The trial court then found that a s ustained intent to violate the law did not motivate the defendant’s conduct and mitigated the sentence down to seven (7) years. Tenn. Code Ann. § 40-35-113(11).
Based upon the trial court’s findings, the sentence of seven (7) years was appropriate. This issue is without merit.

CONCLUSION
In summary, there was s ufficient evidence for a rational trier of fact to find the defendant guilty of reckless aggravated assault. Further, the trial court correctly denied probation and arrived at an appr opriate sentence of incarceration. Accordingly, the judgment of the trial court is AFFIRMED.13 _________________________ JOE G. RILEY, JUDGE

CONCUR:

___________________________ JOSEPH M. TIPTON, JUDG E

___________________________ THOMAS T. WOOD

ALL, JUDGE