# FILED
October 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE, 1997 SESSION

STATE OF TENN ESSEE, ) ) No. 03C01-9609-CR-00351 Appellee, )

) vs. ) Hamblen County ) RICKY LEE JA RNAGIN , ) Honorable James E. Beckner, J udge ) Appellant. )

) (Reckless Aggrav ated Assault)

FOR THE APPE LLANT: FOR THE APPELLEE: CHARLES G. CURRIER JOHN KNOX WALKUP 709 Market St. Attorney General & Repor ter Knoxville, TN 37902 MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General 109 E. Main St., Ste. 501 Greenville, TN 37743 VICTOR VAUGHN Assistant District A

ttorney General 520 Allison St. Morristown, TN 37814 OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE
OPINION1 We note that the transcript of the proceedings and the defendant’s brief

shows his

last name to be “Jarnig an.” The poli cy of this c ourt is to u se the name under which a defendant was indicted. In this case, the indictment identifies the defendant as “Ricky Lee Jar nagin.”
2 The Eagle’s Club is a pr ivate social club lo

cated in Morristown , Tennessee. 2

The defendant, Ricky Lee Jarnagin 1 , was convicted in a jury trial in the Hamblen County Criminal Court of reckless aggravated assault, a Class D felony. As a Range I, standard offender, he received a fo ur-year sentence in the Department of Correction and a one thousa nd dollar fine. In this direct appeal, the defendant challenges the sufficiency of the evidence and c ontends that he received an inapprop riate sentence.

We affirm the judgment of the trial court.
The grand jury retur

ned a two-count indictment a gainst the defendant for intentionally and know ingly causing se rious bodily injur y to Bobby Joe Hayes (Count 1) and Edward Myers (C ount 2). Tenn. Code Ann. § 39-13- 102(a)(1)(A). The case arose out of an incident that occurred on Ju ly 2, 1995 in the parking lot of the Eagl e’s Club 2 in which the defendant struck Bobby Hayes once and Edward Myers twice. The defendant pleaded guilty to simple assault in the attack on Edward My ers, and the state dismissed C ount 2 of the indictment prior to trial. On M arch 12, 1996, the jury ac quitted the defendant of aggrav ated assault as defined by Tennessee C ode Annotated section 39-13-102(a) (1)(A) and found him guilty of reckl ess aggravated assaul t. Tenn. Code Ann. § 39-13- 102(a)(2)(A)(Supp. 1996)

.

According to testimony submitted at trial, the defendant ar rived at the Eagle’s Club during the evening of July 2. As he was not a member of the3

private club, he rang the bell at the back door. A friend, who was a member, agreed “to sign him in” as a guest. Of the approximately 20 members in attendance that evening, some w ere shooting pool, others were drinking in the bar, and others were jus t socializing. Several members testified as to the events they observed during

the course of the evening. Peggy Hayes, the victim’s wife, observed the defendant going from table to table and talking loudly. She overheard him tell Eddie Myers that there was some guy there that he could “whoop.” Other wi

tnesses testified that the defendant ask ed them whether everyone in the place was scared or if they were just stuck up. Eddie Myers, who had worked wi

th the defendant, had a friendly conv ersation with him. At some point, however, the bar manager became uneasy about the de fendant’s behavior, and the friend w ho had agreed to be responsibl e for the defendant as a guest decided to withdraw his signature. At the request of the manager, Eddie Myers told the defendant that he would have to leave and walked with him t o the back door. As the defendant stepped out into the parking lot, Myers turned back to speak to someone, and when he turned around again, the defendant hit him twice in the face with his fist. Carol Cody reported hearing something hit the building, and when she opened the door, she saw the defenda nt hit Myers.

At least four or five other member s came out into the parking lot. Cody testified that she pull ed the defendant’s hair and shoved him away from Myers. Sh e said that t he defendant sl apped her, and , after exch anging som e heated words, he turned to w alk toward his car. Bobby Hayes, who s ometimes served as bar manager, followed closely behind him. According to the state’s witnesses, the defendant suddenly turned around and punched Hayes in the face. Hayes fell backwar ds striking his head ha rd against the pavement. The defendant jumped in his car and left the p arking lot.3 For example, he may not r emember the doctor from one visit to the next. 4 The defendant’s statement to the police and his testimony at trial confirmed the fact that he was asked to leave the club and th at Eddie Myers walked with him to the door. However, the defendant alleged that Myer s had taken his arm and shoved him out the door. When he protested, they got int o a scuffle in which he hit My ers two times. After his confrontation with Cody , she and the victim followed h im to his car. They w ere walking ver

y closely behind him. The defendant said that he was frightened because several club members had pursued him into the parking lot, and when someone slapped hi m on the side of the head, he turned and struck the person closest to him. H e did not know Bobby

Hayes and h ad never sp oken to him.
Hayes was serious ly injured. He w as semi-conscious when he arrived at the local h ospital. From there he w as taken by helicopter to the trauma center at Univer sity of Tennessee Hospital i n Knoxville. He s uffered a fracture to the base of his skull , various abrasions and bruises to the soft-tissue of the brain, and fractured bones in hi s face. His condition w as complicated by the fact that he had a steel plate in his skull from a previous injury although his doctor testified that the current injury was to a different area of the brain. His permanent injuries include a limited grip in his right hand, serious short term memory loss, 3 and a decreased ability to control his frustration and anger. He spent six weeks in

the hospital and another month in a rehabilitation center. Medical expenses exc

eeded $150,000.
Based on this evidence, the j ury acquitted the defendant of an intentional or knowing aggravated assault but found him guilty of reckless aggravated assault pu rsuant to Tennessee Code Annotated sec tion 39-13-5

102(a)(2)(A) and recommended a fine of one thousand dollars. The defendant now contends that the evi dence does not establish beyon d a reasonable doubt all the elements of the crime. We respectfully disagree.
When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is, whether after considering the evidence in the light m ost favor able to th e prosecu tion, an y rational trier of f act could have found the essential elements of the cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule is applicable to f indings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evi dence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990). In determining the sufficiency of the evidence, this court should not reweigh or reev

aluate the evidence. State v. Ma tthews , 805 S.W.2d 250, 253 (Tenn. Crim. App. 1990). Nor may this court substitute its inferences f or those drawn by the trier

of fact from the evidence. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956), cert

. denied 325 U.S. 845, 77 S.Ct. 39 (1956) ; Farmer v. State , 574 S.W. 2d 49, 51 (Te nn. Crim. App. 1978). On the contrary, this court is required to afford the State of Tennessee the strongest l egitimate view of the evidence contained in the record as well as al l reasonable and legitimat e inferences which may be dr awn from the evidence. Cabbage , 571 S.W.2d at 835.
The appellant was tried and convicted by a jury. A guilty verdict from the jury, approved by the trial judge, accredits the testimony of the State's witnesses and resolv

es all conflicts in favor

of the State. State v. Willia ms , 6574 Even if one credits the defendant’s testimony that he was s lapped on the side of the head, the defendant admitted that he di d not know for certain w ho had hit him. 6 S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett , 560 S.W.2d 627, 639 (Tenn. 1978). Since a verdic

t of guilty removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of demonstrating why the evidence is insufficient, as a matter of law, to support the verdict. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

A person commits an aggrav ated assault pursuant to Tennessee Code Annotated section 39-13-102( a)(2)(A) when he recklessly causes ser ious bodily injury to anoth er. A pe rson ac ts reck lessly when th e person

is awa re of a substantial and unjustifiable risk that a given result will occur but consciously disregards that risk. Tenn. Code Ann. § 39-11-302(c) (1990). The nature and degree of the risk must be suc h that its disregard c

onstitutes “a gross dev iation from the standard of care an ordinary person would recognize.” Id

.

In this instance, the record contains more than adequate evidence to support the defendant’s convi ction. The defendant, in plain vi ew of several witnesses, swung

around and hit the victi m full force in the face with hi s fist. None of the witnesses saw the victim, who is

twenty years ol der than the defendant, make any aggressi ve gestures or touch the defendant. The defendant did not know the vic tim and had never exchang ed any words with him. Without question, the defendant acted recklessl y by slamming his fist into the face of a man whom he did not know and who had done not hing more threatening than walk behind him in a parking lot

. 47 The defendant excuses his actions on the grounds that he was frightened by the five or six people who had come out of the club. He thought that they were “all going to come out on me,” and, therefore, he was justified in attacking Mr. Hay

es. The trial court instr ucted the jury on self-defense, and the jury rejected that defense. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues rai sed by the evidence are resolv

ed by the trier of fact. State v. Cabbage , 571 S.W.2d 833, 835 (Tenn. 1978). The jury accredited the state’s witnesses and disregarded the defendant’s testimony. All factua l conflicts have been resol ved in favor of the state. State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983). The defendant’s action constitutes a “gr oss deviation” from the stand ards imposed by a civ ilized society.
As result of the defendant’s reckless act, the victim spent weeks in the hospital and will never fully recover from his injuries. The defendant’s reckless act caused ser ious bodily injury . Any rational juror could have found the elements of reckless agg ravated assault beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e).
As his second issue, the defendant q uestions whether the tri al court imposed the appropriate sentence. The d efendant’s brief in this respect is totally inadequate. It contains one paragraph on the sentencing issue and lacks any meaningful legal arg ument or citation to authoriti es. Issues which are not properly supported may be treated as waived. Tenn. R. Ct. Crim. App. 10( b). However, we cho

se to discuss briefly the defendant’s single complaint.5 In the trial court, the defendant did not dispute the accuracy of the record

included in the presentence r eport. He contended only tha t some of the convictions were more than ten years old and should not be used to enhance his sentence. He has not raised this issue on appeal. 8 When a defendant appeals a sentencing issue, the law requires this court to conduct a de novo review of the record. If the record affirmatively demonstrates that the trial court considered the senten cing principles and all relevant facts and circums tances, the review i s conducted with a presumpti on that the determinations made by the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d); State v. Ashby , 823 S.W.2d 166, 169 (Tenn.1991); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The defendant has th e burden to show that his sentence i s improper. State v. Gregory , 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).

The gist of defendant’s complaint is that the trial judge incorrectly considered the misdemeanor conviction arising out of his attack on Ed die Myers, and that the trial judge pl aced inordinate weight on that conviction in ar riving at the four-year sentence. The tr anscript of the sentencing hear ing is not clear as to whether the trial judge actually considered the conviction in question in his sentencing dec ision. However, the re cord does show tha t when the trial jud ge made the reference to the weig ht, he was referring no t to one conviction, but to the emph asis he was placing on the def endant’ s entire re cord which shows convictions for driv

ing while impaired,striking a police officer, and assault and battery. 5 Even without the questioned conviction, the trial court was justified in placing great wei ght on the defendant’s previous history of criminal c

onvictions or criminal behavior. Tenn. Code Ann. § 40-35-114(1) (1990).9 The defendant raises no objection to the other two enhancement factors or to the trial jud ge’s denial of alternativ e sentencing. Therefore we d o not address those issues in detail. We have carefully revi ewed the record, the presentence report, and the transcript of the sente ncing hearing. The trial court found that the evidence supported thr ee enhancement factors: (1) that the defendant has a previous histor y of criminal convic

tions or criminal behav ior beyond that necessary to establish the appropriate r ange; (8) that the defendant has a previous history

of unwillingness to c

omply with conditions

of release into the communit y; and (10) the def endant had no hesitation abo ut committing a crime when the risk t

o human life was high. Tenn. C ode Ann. § 40-35-114 (1),(8), (10) (1990) . Although we find the appli cability of enhancement factor 10 to be questionable in this case, we conclude that the d efendant’s proven propensity for violence, his inability to accept any responsibility for his actions, and his failure to complete successfully a previous probationary period are sufficient to justify a four-year sentence in the Departme nt of Correction as a Range I offender.

We affirm the defendant’s conviction for reckless aggravated assault and the sentence imposed by the trial court.

__________________________ CURWOOD W ITT, Judge

______________________________ JOHN H. PEAY, Judge

______________________________ JOSEPH M. TIPT ON, Judge