State of Tennessee v. Christopher Alan White

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 22, 2003

STATE OF TENNESSEE v. CHRISTOPHER ALAN WHITE

Appeal from the Circuit Court for Blount County

No. C-11580 D. Kelly Thomas, Jr., Judge

No. E2002-00716-CCA-R3-CD

June 3, 2003

The defendant, Christopher Alan White, appeals as of right his conviction by a Blount County

Circuit Court jury for aggravated assault and the resulting ten-year sentence as a Range II, multiple

offender. He contends that (1) the evidence is insufficient to support his conviction, (2) prosecutorial

misconduct during closing argument required a mistrial, and (3) his sentence is excessive. We affirm

the trial court’s judgment of conviction.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, Jr. and

NORMA MCGEE OGLE , JJ., joined.

Raymond Mack Garner, District Public Defender (on appeal); and Eugene B. Dixon, Maryville,

Tennessee (at trial), for the appellant, Christopher Alan White.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;

Michael L. Flynn, District Attorney General; and Ellen Lee Berez and William Reed, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case arises out of the beating sustained by Jennifer White, the defendant’s wife, late in

the afternoon of December 26 through early on the 28th, 1998. The victim testified that during the

summer of 1998, she and the defendant were separated and that she had filed for divorce. She said

that during their separation, she dated other men and frequently drank alcohol and smoked marijuana

for a month and one-half. She said that her mother cared for her and the defendant’s five-month-old

son while she was drinking and using drugs and that the baby was not neglected. She said that when

the defendant, who had been away for three months, returned, they reconciled, and she told him that

she had dated other men.

The victim testified that on December 26, 1998, she, the defendant, and their son returned

from a Christmas visit with her family and, following a nap, prepared to go visit the defendant’s

family around 4:00 p.m. She said that the defendant was angry because they had not visited his

family on Christmas and that he began to yell at her about the events of the preceding summer,

calling her a “stupid whore” and a “G. D. slut.” She said that she returned the baby to his crib

because she did not want their son around the defendant when he was angry. She said that upon her

return to the bedroom, the defendant continued to yell at her and that his eyes were “evil looking”

and filled with hatred and rage. She said she grew afraid, started to leave the room, and was so upset

that she could not stop shaking when he ordered her back onto the bed. She said that her shaking

made him angrier and that he said he would “knock the shit out of” her if she did not stop shaking.

She said he threw his fist back, broke a lamp, and then accused her of not caring about the lamp,

which had been a wedding gift, because she had never really cared about their marriage. She said

that he threw a piece of the broken glass at her, cutting her arm. He slapped her backward, she fell

onto the bed, and he began slapping and knocking her around while continuing to yell and make

accusations.

The victim testified that she wanted to leave the bedroom because she feared the defendant

might retrieve the gun from the closet and shoot her. She said he knocked her to the floor and kicked

her in the back, legs, stomach, face, and arms as she tried to crawl away. She said that as he kicked

her, he ordered her to get up but that he had knocked the breath out of her. She said he yanked her

up by her hair, threw her into the wall, held her there yelling at her, and then threw her onto the bed.

She said that the defendant continued to beat her and that she attempted to kick him off her. She said

he began slapping her face, which frightened her because he usually refrained from hitting her face

in order that no one would see her injuries. She said she was crying and asking him not to hit her

face. She said he believed that she did not want him to hit her face because she wanted people to

look at her and began choking her. She said he threatened to bruise her face or pour acid on it to

prevent anyone from ever looking at her again. She said that she passed out briefly and that when

she regained consciousness, he was still choking her. She said that she could not breathe and that

that her face was bleeding. She said he knocked her over, and as she tried to crawl away, he punched

her back, which hurt badly. She said that the defendant kneed her between her legs causing her to

“arch up” and that he bit her on her back and neck. She said that at this point, she felt searing pain

all over that was worse than the pain of childbirth. She said that every muscle hurt and that she felt

as if every bone were broken. She said that her nose and neck were bleeding and that she was

coughing up blood.

The victim testified that the defendant told her she needed to clean up and took her to the

bathroom. She said he retrieved an ice pack and applied it to her injuries. She said he apologized

but then became angrier, asked if she were afraid of him yet, and said he bet that she would never

cheat on him again. She said that he pushed her into the bathtub where he hit and slapped her and

that she slipped on some spilled Noxema and fell. She said he yanked her by her hair and hit her

face into the faucet three or four times. She said that when she asked to get out of the tub, he pushed

her out, grabbed her head, and knocked it onto the bathroom floor. She said that the defendant

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gripped her waist-length hair and threw her head against the sink and toilet. She said that she was

crying and begging to leave the bathroom because she knew the beating was going to continue.

The victim testified that the defendant knocked her into the hallway and that her head hit the

wall. She said that she ran out the backdoor because she knew the defendant would not hit her

outside. She said the defendant ordered her back into the house saying that he was punishing her for

what she did last summer. She said he allowed her to stay outside for a little while because she was

vomiting. She said that after he told her to come inside, she ran into the kitchen where he knocked

her onto the floor and began kicking her again. She said that the baby was crying and that she

begged to be allowed to care for him. She said the defendant told her he was not finished with her

yet; knocked her head into the stove, denting it; and knocked her into the table. She said that

eventually, he allowed her to prepare the baby’s bottle but continued to beat her while she heated the

water. She said that she began to change the baby’s diaper but that the defendant refused to allow

it, knocked her around while she was holding the baby, and tossed the baby into his crib. She said

she went into the living room to draw the defendant away from the baby.

The victim testified that the defendant continued to yell at her about the events of the summer

and threw their Christmas gifts at her, including his new boots. She said that she ran toward the front

door and that the defendant caught her, threw her to the floor, and kicked and choked her until she

passed out. She said that when she regained consciousness, the defendant was dragging her to their

bedroom by her hair. She said that at this point, it was 11:00 p.m. or midnight and that the defendant

had been beating her for seven or eight hours. She said she was still in pain, crying, and begging him

to stop. She said he threw her onto the bed and pushed her face into a pillow until she could not

breathe. She said the defendant continued to punch, bite, kick, and slap her. She said that at one

point, he allowed her to feed the baby but slapped her out of her chair while she was feeding him.

She said the defendant scratched the baby while slapping her because she was taking too long to

change the baby’s diaper. She said she told the defendant to leave the room because she was afraid

the baby would get hurt.

The victim testified that when she returned from putting the baby to bed, the defendant was

waiting for her on the sofa and told her to sit down because they were going to discuss the events of

the past summer. She said that she answered the defendant’s questions and that they went over

everything again. She said the defendant said he should get her high and drunk because she would

“party” with everyone but him. She said the defendant had used “crank” earlier and used some more

then. She explained that crank was crystal methamphetamine, a drug that gives one a lot of energy

and prevents sleep. She said that she refused to use crank with him and that he knocked her

backward causing her head to hit a table. She said she smoked marijuana with him because he

threatened to kill her if she refused. She said that the defendant resumed beating her and that she

ran outside where she vomited blood and coughed up blood. She said that although he brought her

ice packs, he continued to yell at her. She said that once they were back inside, the defendant beat

her again in the bedroom and the kitchen. She said the defendant stopped beating her to allow her

to feed and change the baby again but resumed the beating after she put the baby to bed. She said

he beat her again in the living room and the kitchen before she went outside to get some air and to

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vomit. She said when she came back inside, the defendant put ice on her eye because he wanted it

to heal faster. She said that the defendant went to sleep and that after she fed the baby, she went to

sleep in the bed beside him. She said at this point, it was 6:00 a.m. on December 28, 1998.

The victim testified that she did not run away during the times that she escaped outside

because she would not leave the baby. She said that she knew the defendant could catch her. She

said the defendant hid her car keys and made sure her car had very little gas to prevent her from

leaving while he was gone. She explained that she did not leave with the baby after the defendant

had fallen asleep because she was afraid. She said that she had left before and that the defendant

knew where to find her. She said the defendant sent her to the baby’s room when his mother came

to their house between 11:00 a.m. and noon on December 28 but then allowed her to come out

because his mother knew she was hurt. She said that while the defendant was at the grocery store,

his mother encouraged her to see a doctor but that she declined because the defendant had not given

her permission to leave the house. She said that her face, head, back, and ribs hurt and that it hurt

to breathe, cough, talk, or walk.

The victim testified that she was asleep and the defendant was watching television when the

police came around 12:00 or 12:30 a.m. She said that an officer followed the defendant toward the

bedroom but that he told the officer that she was not decent even though she was fully dressed. She

said the defendant came into the bedroom and said if she told the police what had happened, that he

would kill her and that she would never see her son again. She said the defendant sat on the sofa

beside her and held her hand while the officers questioned her. She said when they asked her what

happened, she looked to the defendant and said she did not know. She said the defendant told them

that some unknown women had attacked and beaten her outside their home. She said she told the

police this was true because she knew that the defendant would find her where ever she went.

The victim testified that one of the officers took the defendant outside while the other

questioned her alone. She said she could hear the defendant objecting loudly and saying that men

were not allowed to be alone with her. She said the officer told her that he knew the defendant

caused her injuries and that if she allowed them to take the defendant to jail, she would not have to

go through this anymore. She said she thought that if the defendant went to jail, he would quickly

make bond, find her, and kill her. She said she told the officer that she had told him the truth, that

the defendant did not touch her, and that she did not know who had caused her injuries. She said one

of the officers photographed her facial injuries before she went to the emergency room in an

ambulance. She said the defendant followed her to the hospital and sat in the lobby with their son

while she was examined. She said she told the emergency room doctor that she did not know who

did this to her because she knew the defendant was just outside with her son.

The victim testified that Shannon Carswell from the Domestic Violence Unit called their

home sometime after the incident. She said that the defendant was sitting across from her and that

she told Ms. Carswell she did not know who hurt her, the defendant had not laid a finger on her, and

to leave her alone. She said that on February 4, 1999, while at a battered woman’s shelter, she spoke

with Ms. Carswell again and told her the truth about the beating.

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The victim testified that she had to have surgery to push her left eye back into its socket. She

said she could not see out of that eye, which remained swollen and mostly shut for a month. She said

she continued to see double and was sometimes unable to see out of her left eye. She said the left

side of her face was swollen each morning, that she had muscle spasms, and that her teeth tingled.

She said that she had pain in part of her face and inside her mouth at the site of the surgical incision.

On cross-examination, the victim testified that after the defendant left town in the summer

of 1998, she stayed with his uncle and aunt, the Bennett, Sr., family, for two or three weeks before

she filed for divorce. She said she left because his aunt and uncle made it clear they did not want

her and because the defendant’s mother came to town and needed a place to stay. She said the

defendant’s relatives never said they disapproved of her conduct around her child or suggested it was

inappropriate for her and the baby to leave the house after midnight and not return until the next

morning. She said they had understood that she was leaving to be with her sister who had recently

been raped. She said she had felt that it was okay to date after filing for divorce. She said that in

December 1998, she did not see Jason Jones or the other men whom she had dated the previous

summer. She admitted that once when she was late returning Mr. Jones’ car, he had pushed her into

his door. She said she told Mr. Jones that she would not put up with that and never saw him again.

The victim agreed that when she spoke with the officer alone on December 29, she could

have told him that the defendant had threatened to kill her. She agreed that she told Dr. Kiriluk, the

emergency room doctor, that she was getting out of her car at her house when someone hit her in the

back of the head, choked her, and beat her head with a board. She explained that she gave this

account because this was the story she and the defendant had already told the police and because an

officer was in the room while the doctor questioned her. She said the police interviewed her again

at the hospital without the defendant around. She said she also told this story to her next-door

neighbors Tanya and Gene Bennett, Jr., who were related to the defendant. She agreed that she had

a telephone in her home and that the defendant left the house on occasion after the incident. She said

he did not leave often because at the time of the offenses, he supported their family by selling drugs

to Gene Bennett, Jr., who then resold them. She said the defendant did not begin working

construction with Mr. Bennett, Jr., until the January after the incident.

The victim admitted that on February 11, 1999, the defendant filed for divorce and asked for

joint custody of their son. She said this surprised her because the defendant had not previously said

he would file for divorce or seek legal custody of their son. She said that she did not want the

defendant to have anything to do with their son and that she wanted sole custody. She said she told

Ms. Carswell the truth about the incident on February 4, 1999, before the defendant filed for divorce.

The victim said she refused to sign an affidavit prepared by defense counsel that gave the same

account of the cause of her injuries that she had given to the police, Dr. Kiriluk, her neighbors, and

emergency room personnel. She denied asking the defendant to have his attorney draw up the

affidavit and said that the defendant told her he was having his attorney prepare a document, which

she must sign or he would kill her. She said that at the time, the defendant was in jail for the present

charges but was having someone follow her. She acknowledged that she and the defendant were still

married at the time of trial but said that she had talked with attorneys in Blount County and in

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Dalton, Georgia, where she was now living, about getting a divorce. She said that she saw her

surgeon about her double vision before she moved to Georgia. She said she had not seen a doctor

about her continuing symptoms after she moved because she had no insurance and could not afford

it.

Patrolman Scott Spicer of the Blount County Sheriff’s Office testified that on the evening

of December 28, 1998, he and Officer Russell Hatcher were dispatched to investigate a possible

domestic assault. The defendant invited him into the house and summoned the victim, whom the

defendant said was lying down. Officer Spicer testified that upon seeing the injuries to the victim’s

face and neck, he believed she needed medical attention. The victim said she did not think she

needed medical care but seemed “very unsure.” The defendant and victim sat on the couch together

holding hands. Officer Spicer said the defendant seemed nervous and the victim seemed confused

and afraid. When he asked the victim a question, she would look at the ground or at the defendant,

and the defendant would quickly answer the question for her. The defendant told him that the

victim had been “jumped” in the front yard by unknown assailants who then ran away, but the couple

gave no reason for the assault. After he asked the defendant to stop answering his questions to the

victim, the victim would only respond “like he said” to Officer Spicer’s questions. When asked if

the defendant caused her injuries, the victim looked at the floor and said “No.” Officer Hatcher

spoke with the defendant outside while Officer Spicer spoke to the victim. Officer Spicer said the

victim was still reluctant to speak and answered only “It’s like he said.” He called an ambulance to

take the victim to the hospital, and the defendant drove his own car to the hospital and remained

there while the victim was treated.

On cross-examination, Officer Spicer testified that the defendant voluntarily went outside

with Officer Hatcher and that the victim agreed with the defendant’s explanation of her injuries. He

said he did not recall seeing any bruises on the defendant’s hands. He said that the defendant asked

to ride in the ambulance with the victim but that he did not allow it. On redirect examination, he

said that the defendant gave the first explanation of how the victim was injured.

Dr. Randy Kiriluk, an emergency room physician at Blount County Memorial Hospital,

testified that he treated the victim on the evening of December 28, 1999. He said she was shaking,

upset, nervous, and crying. She had bruises and abrasions on her face and neck, abrasions on her

back, and bruises on her body. She had a “blow-out” fracture of the orbit around her left eye

accompanied by a lot of swelling and bruising. Dr. Kiriluk could not determine whether she had

sustained nerve damage to the area because she could not open her left eye. He said her eye injury

was painful and could present a substantial risk of death if a bone fragment penetrated her brain.

On cross-examination, Dr. Kiriluk acknowledged that the victim told him that she was hit

in the back of the head by an unknown assailant as she was getting out of her car at her house. He

said she told him the assailant choked her and beat her head with a board. He agreed that the

victim’s patient history states that she emphatically denied that her husband had attacked her and that

she gave a similar account to police officers who interviewed her at the emergency room. He

admitted that a bone fragment did not penetrate the victim’s brain. He agreed that his notation on

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the victim’s records that her pupils were equal, round, and reacted to light indicated that the victim

did not have a neurological problem. He said that the victim’s injuries could have occurred over a

period of time but that her eye injury was less than two or three days old. He agreed that the victim

did not need a narcotic for pain or to be admitted to the hospital. He admitted that the records did

not reflect that he instructed the victim to take over-the-counter medicine for pain but explained that

he might have simply failed to document this. He agreed he had seen boxing matches in which a

boxer was allowed to continue boxing despite having an eye swollen shut.

Gene Allen Bennett, Sr., the defendant’s uncle, testified that the victim and her infant son

had lived in his home for a couple of weeks in the summer of 1998 while the defendant was out of

town. He said that the victim would regularly leave with the baby in the middle of the night and not

return until daylight. He said he did not approve of this and ultimately asked the victim to leave.

He said he was not aware of the victim and defendant being legally separated during this time. He

said that when he saw the defendant again, he told the defendant about the victim’s leaving in the

night with the baby. He said the defendant told him that the defendant was going to file for divorce

and seek custody of his child.

Mr. Bennett, Sr., testified that upon the defendant’s return, the defendant worked in his

roofing and remodeling business in October, November, and December 1998. He said that from 9:00

a.m. to 4:30 p.m. on December 26, 1998, he and his employees, including the defendant, installed

baseboards and trim in a house that he was repairing for resale. He said the defendant was on the

job site all day and left only briefly for lunch. On cross-examination, he said he was asked to

remember the events of December 26, 1998, only a couple of weeks before trial. He acknowledged

that he did not know where the defendant and victim spent Christmas Day or who injured the victim.

Gene Bennett, Jr., testified that in December 1998, he and his wife lived next door to the

defendant and victim and that their mobile homes were about fifty feet apart. He said that he and

the defendant worked in his father’s roofing and remodeling business and that the defendant rode

to work with him. He said that when he went to the defendant’s house on December 26, 1998, to

awaken him for work, the defendant was lying on the couch while the victim made coffee. He said

that the defendant and victim were not having any problems that morning and that the victim did not

look like she did in the photographs taken by the police. He said that he and the defendant left work

around 5:30 p.m. or earlier and that it took thirty minutes to drive home. He said he went outside

about thirty minutes after he returned home from work and saw the victim drive up to her trailer and

go inside. He said that even though her hair was down, he could see that the left side of her face was

swollen. He said the sun was setting but it was not yet dark. On cross-examination, he said that he

noticed the victim’s swollen face while she was on her porch about to enter her home and that she

had her child with her. He said that he and defense counsel had discussed the events of December

26, 1998, a lot over an extended time period and that his father had discussed it with them.

The Reverend Ron Oliver, a Church of God minister and grading contractor, testified that

he had known the victim since she was a small girl and that she had attended churches where he was

a minister. He said that he had known the defendant for three or four years and had performed the

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defendant’s and victim’s marriage ceremony two or three years ago. He said that the victim’s

reputation for truthfulness in the community was bad and that she should not be believed under oath.

On cross-examination, he said that he had talked with the defendant but not the victim about the facts

of the case.

Based upon this evidence, the jury convicted the defendant of aggravated assault.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his aggravated assault

conviction. He argues that the victim repeatedly told numerous people that she was attacked outside

her home by an unknown assailant and that this evidence outweighs her uncorroborated testimony

that the defendant beat her. In support of this assertion, he notes that the victim did not tell anyone

that the defendant had caused her injuries until some six weeks after the incident. The state argues

that the evidence is sufficient. We agree with the state.

Our standard of review when the sufficiency of the evidence is questioned on appeal is

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but

presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the credibility of the

witnesses were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Aggravated assault as charged in the present case is the knowing assault of another that

causes serious bodily injury. See Tenn. Code Ann. § 39-13-102(a)(1)(A). “Serious bodily injury”

is defined as “bodily injury which involves: (A) A substantial risk of death; (B) Protracted

unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E)

Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.”

Tenn. Code Ann. § 39-11-106(a)(34). Taking the evidence in the light most favorable to the state,

the victim testified that she was hit, punched, slapped, kicked, bitten, and knocked around by the

defendant over the course of approximately thirty-six hours. During this time, the victim repeatedly

escaped outside to vomit or cough up blood. She often begged the defendant to stop the beating or

to move to other rooms in their home in order to avoid additional injury or to draw him away from

their child. She said the defendant applied ice packs to her injuries yet resumed the beating. She

testified that as a result of the beating, she felt a searing pain that was worse than the pain of

childbirth. Regarding her injuries, the victim testified that she could not see out of her swollen left

eye for a month and continued to experience periods of double vision or blindness in that eye. Dr.

Kiriluk testified that the victim’s eye injury presented a substantial risk of death in that a bone

fragment from her fractured orbit could have penetrated her brain. This evidence is sufficient to

support the aggravated assault conviction.

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The defendant essentially argues that the jury should not have believed the victim’s trial

testimony but, instead, should have accredited the initial explanation of her injuries that she gave

police, Dr. Kiriluk, her neighbors, and Shannon Carswell in the hours and weeks following the

offense. He emphasizes that she did not tell anyone that he caused her injuries until six weeks after

the incident. He argues that in the absence of corroboration of the victim’s trial testimony, her

statements to police and her treating physician that he did not injure her outweigh her testimony.

Generally, a conviction may rest upon the uncorroborated testimony of a single witness. State v.

Wyrick, 62 S.W.3d 751, 767 (Tenn. Crim. App. 2001). In the present case, the victim’s testimony

that she lied to police and Dr. Kiriluk because she was afraid of the defendant is corroborated by

Officer Spicer’s testimony that she was afraid and looked to the defendant to explain her injuries to

him. Also, defense witness Gene Bennett, Jr.’s testimony that he saw the victim drive to her trailer

and enter her home with a swollen face contradicts the victim’s account to Dr. Kiriluk that she was

attacked outside her home as she was getting out of her car. It is the province of the jury to weigh

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

that the credibility and weight to be given to a witness’s testimony are issues to be resolved by the

trier of fact). The jury heard the defendant’s theory of the case and obviously accredited the victim’s

testimony at trial. The defendant is not entitled to relief on this issue.

II. PROSECUTORIAL MISCONDUCT

The defendant contends that the trial court should have granted a mistrial when the

prosecutor commented upon his silence during closing argument. The state contends that the

defendant did not object to the argument at trial and that the argument in question was not a

comment upon the defendant’s decision not to testify. During rebuttal argument, the prosecutor

noted that Reverend Ron Oliver had talked with only the defendant about the facts of the case. He

then argued: “And let me ask you . . . to consider this as well: Reverend Oliver was asked about his

opinion about Mrs. White’s reputation for truthfulness. But did [defense counsel] ask him about

anyone else’s reputation for truthfulness? That’s the question that wasn’t asked.” The defendant’s

failure to object to this argument at trial waives our consideration of this issue on appeal. See

T.R.A.P. 36(a) (providing that relief is not required for a party who failed to take reasonably

available action to prevent or nullify an error); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim.

App. 1992) (holding that the defendant’s failure to object to the state’s alleged misconduct during

closing argument waives that issue). Furthermore, we discern no plain error upon the record as the

argument in question does not comment upon the defendant’s silence but upon that of Reverend

Oliver, who testified that he had discussed the facts of the case with the defendant yet gave no

opinion of the defendant’s reputation for truthfulness.

III. SENTENCING

The defendant contends that his ten-year sentence is excessive because the trial court

misapplied enhancement factor (8), that he has a previous history of unwillingness to comply with

the conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-

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114(8) (Supp. 2001) (amended 2002).1 He argues that the trial court applied factor (8) because he

was on parole when he committed the present offense. He concludes that this does not constitute

a “previous history” of unwillingness to comply with a sentence of release. He also suggests that

the trial court should have given more weight to mitigating factor (11) and asks this court to reduce

his sentence to seven years. The state argues that the trial court properly sentenced the defendant.

At the sentencing hearing, Crystal Bailey, the defendant’s first wife, testified that she and the

defendant were married from October 1988 to September 1992. She said that when she was

seventeen years old and not yet married, the defendant choked her in the back room of a business

where he worked, leaving marks on her neck. She said that after they were married, he hit her with

his fist in several rooms of their apartment over the course of two hours because she had discovered

him at a restaurant with another woman earlier that day. She said that she suffered black eyes and

a bloody nose as a result of the beating. She testified that on another occasion, the defendant

smacked her on the head and threw a hotdog at her because it had coleslaw on it. She said that in

late September 1991, the defendant beat her over the course of several hours in several rooms of their

home. She said he kicked her while she was on the bathroom floor and hit her head against the wall

causing a large hole in the wall. She said that when he tried to hit her head with a chair, he caused

a metal curtain rod to cut her head. She said that in addition to the cut on her head, she had bruises

on the side of her face and was sore from being kicked in the stomach. She said the defendant used

marijuana, cocaine, and another drug during their marriage. On cross-examination, she said she was

too afraid to call the police after the violent incidents because she feared her situation would be

worse when the defendant got out of jail. She admitted she used cocaine but not as frequently as the

defendant. She denied that she did not want the police to come to her home because she had drugs

there.

The victim testified to four incidents of violence at the hands of the defendant other than the

beating for which he was convicted at trial. She said that after they had been married two weeks,

the defendant slapped her in the car causing her head to hit the car window and busting her lip

because he did not like her comments about a church sermon. She said that on one occasion, the

defendant awakened her by “whooping” her with a belt because she had gone to sleep without

putting the dishes on the drainboard away. She said that before Thanksgiving in 1997, the defendant

choked her against the kitchen wall because he did not want to go to her mother’s home. She said

that she did not keep a January 10, 1999 doctor’s appointment for a checkup following the surgery

on her left eye because the defendant had hit her in that eye and blackened it again. She said she did

nothing to provoke any of these incidents and that she did not go to the hospital because she feared

the defendant’s anger. On cross-examination, she admitted that she had no exterior scars from the

injuries relating to the present case and had not been told that her eye was permanently injured. She

said that her vision did not prevent her from driving.

1

The legislature’s 2002 amendment, not applicable here, added as the new enhancement factor (1) that the

“offense was an act of terrorism ” but changed the existing enhancement factors only in increasing their designating

numb er by o ne.

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Jane Lynell Bennett, the defendant’s aunt, testified that he was always very gentle and loving

with his infant son and participated in feeding, diapering, and caring for the baby. She said that she

saw the defendant’s son around the time of his last birthday and that the child insisted on seeing a

photograph of the defendant before he would go to sleep. She said that she and her husband helped

the defendant and his family by allowing them to live on their property but that otherwise, the

defendant supported his family. She said she never thought that the defendant had a substance abuse

problem or saw him intoxicated. On cross-examination, she said that when she picked up the

defendant’s mother at the defendant’s trailer after the offenses, the victim’s face was swollen, and

the victim looked bad.

The then thirty-one-year-old defendant testified that he spent nearly five years in prison

during which he was involved in programs for substance abuse and anger management as well as

church and religious activities. He said he then successfully served two years on parole and passed

numerous drug screens. He said he had to serve ninety days for missing a parole appointment, a

technical violation of his parole. He said that during this time, the victim expressed her love for him

in letters and telephone calls and brought their son to visit him at the prison in Nashville. He said

that she was married to him during this time and that her trial testimony was the first he had heard

of their separation or her filing for divorce. He said she later told him she had many affairs while

he was incarcerated. He said that sometimes she would be with other men when he called her from

prison and that she later admitted that her boyfriend was waiting in the car when she came to visit

him. He said that upon his release, he tried to forgive her and reconcile in order that his son would

have a father. He said the victim continued to give him graphic details of what happened in his

absence and it “destroyed [his] mind.”

The defendant testified that they spent Christmas Day with the victim’s father in Georgia but

returned to their Blount County home late that night because he had to work the next day. He said

he returned home from work between 4:00 and 5:00 p.m. on December 26. He said that in the early

morning hours of December 27, the victim told him that she had needed money for drugs and had

performed oral sex on a man while their son crawled on the floor nearby and pulled her hair. He said

that he “snapped” and blacked out for a few seconds or minutes. He said he did not know what

happened during his black out, but he admitted hitting the victim with his fist and causing her

injuries. He denied the beating had lasted thirty-four hours.

The defendant testified that the victim had become pregnant with their son about a month

after they married and that he had attended Lamaze classes and supported the victim through her

pregnancy. He said he enjoyed a close bond with his son from birth and had worked to provide for

him. He said that although he was working, he would get up in the night to feed and diaper his son.

He admitted that because of the present conviction, his parole had been revoked on a sixteen-year-

sentence. He said that he knew he had to pay for the serious mistakes he had made but asked that

he not be kept away from his son for the rest of his life.

On cross-examination, the defendant acknowledged that in 1991, he received probation for

two robbery convictions. He agreed that while on probation, he committed and was convicted of

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aggravated robbery for which he received a consecutive ten-year sentence as a Range I offender. He

said he began serving his effective sixteen-year sentence in 1992 and served close to five years

before being paroled. He denied using drugs or drinking at the time of the present offenses. He said

that the victim had fabricated a lot of her testimony about the incident and denied preventing her

from tending to their son when he cried.

The defendant testified that he did not dissuade the victim from telling about her injuries and,

in fact, told his mother to call an ambulance. He said the victim refused to seek treatment because

she feared that he would get into trouble and be taken from her and their son. He agreed that the

victim told the police that she was mugged by someone else and said that he was nervous and went

along with her story. He said that while he was outside with one of the officers, he agreed with the

officer that the victim’s story was unbelievable. He admitted that he did not tell the officer that he

injured the victim. He said the victim wrote him a letter after the offense saying she and their son

loved and missed him and wanted to do whatever it took to get him out of prison. He said she asked

him to send an affidavit for her to sign.

The presentence report reflects that the defendant graduated from high school in 1987. He

did construction work for Gene Bennett, Sr., periodically from 1996 through 1999 and worked at

Advanced Restorations from May 1997 until May 1998. The defendant reported taking prescription

medicine for depression. He said he began drinking alcohol and using marijuana at age eleven or

twelve. He reported that he had not used alcohol heavily since 1991 and had last used a small

amount of alcohol about eighteen months before the report was prepared. He said he tried cocaine

twice in 1990 and used marijuana twice a week until 1992, but he denied any other drug use. In

addition to two 1991 robbery convictions and a 1993 aggravated robbery conviction, the defendant

was convicted of misdemeanor possession of marijuana in 1991. The report confirms that the trial

court revoked his probation for the 1991 robbery convictions. His parole stemming from his 1993

aggravated robbery conviction was revoked in August 1998, and he was again placed on parole in

October 1998.

The trial court sentenced the defendant as a Range II, multiple offender and imposed the

maximum ten-year sentence for his Class C aggravated assault conviction. It enhanced the

defendant’s sentence with factors (1), the defendant has criminal convictions or behavior in addition

to that necessary to establish his range; (8), he “has a previous history of unwillingness to comply

with the conditions of a sentence involving release in the community;” and (13), he committed the

present felony while on parole for a prior felony conviction. See Tenn. Code Ann. § 40-35-114

(Supp. 2001) (amended 2002). It weighed enhancement factor (8) very heavily. Although it

believed that it must “stretch[] the proof” to find any mitigating factors, it observed that factor (11),

the defendant “committed the crime under such unusual circumstances that it is unlikely that a

sustained intent to violate the law motivated the criminal conduct,” arguably applied. See Tenn.

Code Ann. § 40-35-113. It concluded that this mitigator did not carry sufficient weight to drop the

sentence below the ten-year maximum. It found that Rule 32(c)(3)(A), Tenn. R. Crim. P., required

the present sentence to be served consecutively to his previous sentence.

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Appellate review of sentencing is de novo on the record with a presumption that the trial

court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing

Commission Comments to this section note, the burden is now on the defendant to show that the

sentence is improper. This means that if the trial court followed the statutory sentencing procedure,

made findings of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The sentence to be imposed by the trial court for a Class C felony is presumptively the

minimum in the range if neither enhancement nor mitigating factors are present. Tenn. Code Ann.

§ 40-35-210(c). Procedurally, the trial court is to increase the sentence within the range based upon

the existence of enhancement factors and then reduce the sentence as appropriate for any mitigating

factors. Tenn. Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing 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 findings are adequately supported by the record. Tenn. Code Ann. § 40-35-

210, Sentencing Commission Comments; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The defendant contends that the trial court erroneously applied enhancement factor (8)

because the fact that he committed the present offense while on parole does not reflect a “previous

history” of refusal to comply with a sentence of release. The state points out that the trial court

applied this factor because the defendant’s probation for his 1991 robbery convictions had been

revoked. We agree that the record supports the trial court’s application of this factor. See State v.

Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995).

The defendant argues that mitigating factor (11), that his conduct does not reflect a sustained

intent to violate the law, is supported by his testimony that he committed the offense during an

argument with the victim in which she admitted fellating a third party in order to get money for

drugs. He contends that the trial court should have given this factor more weight. The trial court

gave little weight to factor (11) because it had scant factual support:

Looking at mitigating factors, it’s stretching the proof to find

any mitigating factors. The only one that’s arguably applicable is . .

. based completely on [the defendant’s] testimony–and that is

[although the defendant is] “guilty of the crime committed, the

offense, under such unusual circumstances that it is unlikely that a

sustained intent to violate the law motivated his conduct.” Taking

what [the defendant] said about those things as true, that could be

considered in mitigation; but, it does not weigh heavily enough to

drop the sentence down below the ten years.

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The state questions the application of factor (11) because the present beating lasted over a period of

hours and the defendant had beaten the victim before. We also note that Crystal Bailey’s testimony

about the defendant’s violence toward her during their marriage contradicts the application of

mitigating factor (11). In any event, if the factor is properly applied, the weight it receives is within

the trial court’s discretion. See Moss, 727 S.W.2d at 237. We may not give it more weight even if

we were to prefer a different sentence. The evidence supports the trial court’s application of

enhancement factors (1), (8), and (13) and justifies the great weight it afforded factor (8). The

maximum ten-year sentence imposed by the trial court is not excessive.

Based upon the foregoing and the record as a whole, we affirm the judgment of conviction.

____________________________________

JOSEPH M. TIPTON, JUDGE

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