State of Tennessee v. Matthew A. Webb

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 4, 2003

STATE OF TENNESSEE v. MATTHEW A. WEBB

Direct Appeal from the Circuit Court for Weakley County

No. CR 79-2002 William B. Acree, Jr., Judge

No. W2002-03048-CCA-R3-CD - Filed January 2, 2004

After a jury trial, the defendant was found guilty of aggravated assault and sentenced as a Range I,

standard offender to five years in the Tennessee Department of Correction. He contends on appeal

that 1) the evidence was insufficient to sustain the conviction, 2) the trial court erred in admitting

a photograph of the victim, and 3) the trial court erred in denying any form of alternative sentencing.

The judgment of the trial court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE

G. RILEY, JJ., joined.

Joseph P. Atnip, District Public Defender (on appeal); Didi Christie (on appeal), Brownsville,

Tennessee; and Charles S. Kelly and Charles S. Kelly, Jr. (at trial), Dyersburg, Tennessee, for the

appellant, Matthew A. Webb.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and

Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Matthew A. Webb, was convicted of aggravated assault in violation of

Tennessee Code Annotated section 39-13-102(a)(1)(A), a Class C felony. Following a sentencing

hearing, the trial court sentenced the defendant as a Range I, standard offender to five years in the

Tennessee Department of Correction (TDOC). This appeal timely followed. The defendant

contends on appeal that 1) the evidence was insufficient to sustain the conviction, 2) the trial court

erred in admitting a photograph of the victim, and 3) the trial court erred in denying any form of

alternative sentencing. The judgment of the trial court is affirmed.

Facts

During the late evening hours of January 27, 2002, a group of ten to fifteen young men had

gathered in the dormitory room of Lucas Ingram on the campus of the University of Tennessee at

Martin (UTM) to watch a boxing match on television. Although not a student at UTM, the

defendant had driven to Martin from Union City to visit Ingram in his dorm room. The defendant

was accompanied by Robert Taylor and Estes Mitchell. Most of the people present in the room were

football players at UTM. After watching the boxing match on television, the defendant challenged

Frankie Doss, a student and two-hundred-seventy-pound football player, to a boxing match. The

men put on boxing gloves and began boxing in the hallway of the dorm. After the noise level

escalated, the group moved outside, and the fight continued. Doss knocked the defendant down on

two different occasions. The defendant became upset after the second knock down and stated that

he was going to his car to get a gun. Doss and a few of the other men, including the victim, Andrew

Garrett, ran after the defendant to prevent him from reaching the parking lot. The defendant was

pushed to the ground, and he and Doss wrestled in the grass until the others broke up the fight.

Everyone then shook hands and apologized for what had happened. The victim apologized to the

defendant for pushing him down. The defendant, along with his friends Taylor and Mitchell, left

Martin and returned to Union City.

Jerome McElrath and Jeffrey Shields, co-defendants, testified that the defendant returned to

Union City and told them what had transpired in Martin. The men said that the defendant asked

them to return to Martin with him. The defendant said that he had lost his wallet during the fight and

wanted to go back and look for it. According to Shields, the defendant said that if they saw anybody,

they were going to fight. The defendant drove Shields, Taylor, and McElrath back to the UTM

campus. As the defendant’s group claimed to be outside the dorm looking for the missing wallet,

the victim and another student, Shane Williams, arrived back at the dorm from a trip to a local

convenience store.

The victim testified that he and Williams returned to the dorm around 12:30 a.m. As they

walked toward the building, a group of three men, including the defendant, approached them. One

of the men was in front of the victim to the right and the other was in front to the victim’s left. One

of the men, later identified as Shields, hit him in the face and dazed him. After being hit again, the

victim was knocked unconscious. The victim assumed that the defendant hit him the second time,

but did not know for sure, because the defendant was standing on the side where the victim was hit.

The victim was taken by ambulance to the emergency room in Martin. He was later transported to

Vanderbilt Medical Center in Nashville. The victim testified that he sustained numerous injuries,

including a broken jaw in two different places, a broken nose, a black eye, a gash on the back of his

head, a cut on his ear, and lacerations and tears to the inside of his mouth. Upon arriving at

Vanderbilt, the victim underwent over four hours of reconstructive surgery to his jaw. Four metal

plates and wire mesh were permanently implanted into the victim’s jaw. His mouth was completely

wired shut for approximately two months, during which time he had to ingest food through a straw.

He said that he was in excruciating pain, had constant headaches, and had trouble breathing. The

victim stated that he was in constant pain for about seven weeks and lost thirty pounds.

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Teresa Garrett, the victim’s mother, first saw her son around 7:00 a.m. in the emergency

room at Vanderbilt. She said that she probably would not have even recognized him, because his

face was so distorted. The victim was sitting up and continually spitting blood and tissue into a cup.

His jaw was distorted and he had a badly bruised eye. She or the victim’s father took a picture of

the badly beaten victim before he underwent the surgery. The State introduced the picture, over the

defendant’s objection, in order to assist in establishing that the victim suffered serious bodily injury.

Shane Williams stated that as he and the victim approached the dorm, the defendant pointed

at the victim and said “that’s the kid that was talking shit.” He initially saw only three of the men.

A fourth person later came from around the building. One of the men, other than the defendant, told

Williams to stay out of it and kept him back while he attempted to assist the victim. As Williams

was running around, he heard a bottle break. He looked around and saw the victim lying on the

ground with at least two of the men kicking and stomping on the victim’s face and sides of his body.

The men were kicking the victim’s head into the concrete curb. He testified that he saw the

defendant kick the victim. The victim was not fighting back and appeared to be unconscious.

Williams ran around the corner of the building and hid until the incident was over.

Robert Taylor testified that as the group began looking for the defendant’s wallet near the

dorm, Taylor walked around the side of the building to use the bathroom. He said that he came back

around the building and saw the defendant standing over the victim while the victim was lying near

the concrete curb. He saw the defendant hit the victim once in the victim’s shoulder area while he

was lying on the ground. The victim was not moving. Taylor told them “that’s enough,” and the

group got in their car and left. He said that he only saw the end of the fight and did not see anyone

else hit the victim.

The defendant testified that his only intention in returning to Martin was to locate his wallet.

He said that he approached the victim to ask him about his wallet, and the victim pushed him. The

defendant stated that Shields hit the victim, and then the victim fell and hit his head on the curb. The

defendant testified that he only struck the victim once in the ribs while he was on the ground. Both

McElrath and Shields stated that the defendant asked them to return to Martin with him to look for

his wallet. Having already been convicted, both of the witnesses admitted to hitting the victim.

According to them, the defendant also hit the victim numerous times during the altercation.

McElrath said that after they realized that the victim had stopped moving, they returned to their car

and left.

Analysis

The defendant contends on appeal that 1) the evidence was insufficient to sustain the

conviction, 2) the trial court erred in admitting a photograph of the victim, and 3) the trial court erred

in denying any form of alternative sentencing.

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I. Sufficiency of Evidence

The defendant contends on appeal that the evidence was insufficient to establish that the

defendant was the person who inflicted the injuries upon the victim. When a defendant challenges

the sufficiency of the evidence, the standard of review is whether, after viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,

319, (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992). On appeal, the State is entitled

to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). This Court will not

re-weigh the evidence, reevaluate the evidence, or substitute its evidentiary inferences for those

reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in

a criminal trial, great weight is given to the result reached by the jury. State v. Johnson, 910 S.W.2d

897, 899 (Tenn. Crim. App. 1995).

Once approved by the trial court, a jury verdict accredits the witnesses presented by the State

and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

The credibility of witnesses, the weight to be given their testimony, and the reconciliation of

conflicts in the proof are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

A jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and

raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant

then bears the burden of overcoming this presumption of guilt on appeal. State v. Black, 815 S.W.2d

166, 175 (Tenn. 1991).

In Tennessee, a conviction may not be based solely upon the uncorroborated testimony of an

accomplice. State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); State v. Allen, 976 S.W.2d 661, 666

(Tenn. Crim. App. 1997). Furthermore, accomplices cannot corroborate each other. State v. Boxley,

76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). In order to qualify as corroborative evidence,

[t]here must be some fact testified to, entirely independent of the accomplice’s

testimony, which, taken by itself, leads to the inference, not only that a crime has

been committed, but also that the defendant is implicated in it; and this independent

corroborative testimony must also include some fact establishing the defendant’s

identity.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (citations omitted).

The corroborative evidence may be direct or circumstantial and is not required to be

sufficient standing alone to support a conviction. Id. The corroborative evidence is sufficient if it

fairly and legitimately tends to connect the defendant with the commission of the crime charged.

State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). In addition, corroboration is sufficient even

though the evidence is slight and entitled, when standing alone, to but little consideration. State v.

Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). The corroboration need not extend to all

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portions of the accomplice’s evidence. Bigbee, 885 S.W.2d at 803. The sufficiency of the

corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903.

The defendant does not argue that the State failed to establish the elements of aggravated

assault. See Tenn. Code Ann. § 39-13-102(a)(1)(A). He contends that the evidence did not

sufficiently establish that the defendant was the person that inflicted the injuries sustained by the

victim. The defendant avers that the only evidence establishing that he struck the victim was the

uncorroborated testimony of his accomplices. Shane Williams, the student accompanying the victim,

unequivocally testified that he saw the defendant kick the victim. This testimony alone is sufficient

to corroborate the accomplice testimony. Additionally, the defendant admitted to striking the victim

on at least one occasion. A rational trier of fact could have properly found that the evidence

sufficiently established that the defendant committed aggravated assault. This issue is without merit.

II. Admission of Photographs

Tennessee courts follow a policy of liberality in the admission of photographs in both civil

and criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (citations omitted).

Accordingly, “the admissibility of photographs lies within the discretion of the trial court” whose

ruling “will not be overturned on appeal except upon a clear showing of an abuse of discretion.” Id.

Notwithstanding, a photograph must be found relevant to an issue at trial, with its probative value

outweighing any prejudicial effect, before it may be admitted into evidence. See State v. Vann, 976

S.W.2d 93, 102 (Tenn. 1998). Notwithstanding this broad interpretation of admissibility, evidence that

is not relevant to prove some part of the prosecution’s case should not be admitted solely to inflame the

jury and prejudice the defendant. Banks, 564 S.W.2d at 951.

The defendant argues that the photograph introduced through the victim’s mother showing his

injuries before he underwent surgery was more prejudicial than probative and was cumulative because

the mother had already testified about the extent of the injuries. Even though injuries have been

graphically described, it is not necessarily an abuse of discretion to allow photographs depicting the

injuries. State v. Brown, 836 S.W.2d 530, 531 (Tenn. 1992). The photograph complained of was

relevant to assist in establishing serious bodily injury. The defendant remarked in his opening statement

that the injuries sustained by the victim were as a result of his falling and hitting his head on the curb.

The trial court did not abuse its discretion in admitting the photograph of the victim after the altercation

in order to show serious bodily injury and rebut the defendant’s claim that the injuries were caused by

a fall. We cannot conclude that the trial court abused its discretion in finding that the probative value

of the photograph outweighed any prejudicial effect. This issue is without merit.

III. Sentencing

The defendant contends on appeal that the trial court erred in denying him alternative sentencing.

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 in the record that the trial judge considered the sentencing principles and all relevant facts and

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circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with

the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann.

§ 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are required,

pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors in

sentencing:

(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he

presentence report; (3) [t]he principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to

make in the defendant’s own behalf about sentencing.

Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use

alternatives to incarceration. An especially mitigated or standard offender convicted of a Class 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).

In determining if incarceration is appropriate, a trial court should consider the need to protect

society by restraining a defendant having a long history of criminal conduct, the need to avoid

depreciating the seriousness of the offense, whether confinement is particularly appropriate to effectively

deter others likely to commit similar offenses, and whether less restrictive measures have often or

recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State

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

A court may also consider the mitigating and enhancing factors set forth in Tennessee Code

Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.

Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation when

determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); Boston,

938 S.W.2d at 438.

With certain statutory exceptions, probation must be automatically considered by the trial court

if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). In determining whether

to grant or deny probation, a trial court should consider the circumstances of the offense, the defendant’s

criminal record, the defendant’s social history and present condition, the need for deterrence, and the best

interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.

Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The defendant’s lack of credibility is also an

appropriate consideration and reflects on a defendant’s potential for rehabilitation. State v. Nunley, 22

S.W.3d 282, 289 (Tenn. Crim. App. 1999).

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There is no mathematical equation to be utilized in determining sentencing alternatives. Not only

should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. § 40-35-

103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized

punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim.

App. 1994). In summary, sentencing must be determined on a case-by-case basis, tailoring each sentence

to that particular defendant based upon the facts of that case and the circumstances of that defendant.

State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

After reviewing the record, we conclude that the trial judge considered the sentencing principles

and all relevant facts and circumstances; therefore, our review is de novo with a presumption of

correctness. As a Range I offender, the applicable range for the Class C felony committed by the

defendant is three to six years. Tenn. Code Ann. § 40-35-112(a)(3). The trial court enhanced the

sentence from three to five years based on the presence of four enhancement factors and no mitigating

factors. See id. -210(d). The defendant does not challenge the trial court’s findings concerning the

applicability of enhancement and mitigating factors. The trial court ordered the sentence to be served

in the TDOC based on two grounds. First, the court found that confinement is necessary to avoid

depreciating the seriousness of the offense. See id. -103(1)(B). For this provision to apply, the

circumstances of the offense “as committed, must be ‘especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’ and the nature of the

offense must outweigh all factors favoring probation.” State v. Cleavor, 691 S.W.2d 541, 543 (Tenn.

1985); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).

The evidence established that the perpetrators of this aggravated assault kicked the victim’s head

against a concrete curb as he was unconscious on the ground. As noted above, the victim testified that

he sustained numerous injuries including a broken jaw in two different places, a broken nose, a black eye,

a gash on the back of his head, a cut ear, and the inside of his mouth was lacerated and torn. The victim

underwent over four hours of reconstructive surgery to his jaw. Four metal plates and wire mesh were

permanently implanted into the victim’s jaw. His mouth was completely wired shut for approximately

two months, during which time he had to ingest food through a straw. He said that he was in

excruciating pain, had constant headaches, and had trouble breathing. The victim stated that he was in

constant pain for about seven weeks and lost thirty pounds. We conclude that the aggravated assault

committed by the defendant was especially violent and reprehensible. The trial court did not err in

finding that confinement is necessary to avoid depreciating the seriousness of the offense.

Second, the trial court also found that any form of alternative sentence should be denied because

there is a need for deterrence to others likely to commit similar offenses. See Tenn. Code Ann. § 40-35-

103(1)(B). The Tennessee Supreme Court has held:

[A] trial court’s decision to incarcerate a defendant based on a need for deterrence [will

be presumed to be correct] so long as any reasonable person looking at the entire record

could conclude that (1) a need to deter similar crimes is present in the particular

community, jurisdiction, or in the state as a whole, and (2) incarceration of the defendant

may rationally serve as a deterrent to others similarly situated and likely to commit

similar crimes.

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State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). To determine whether there is a need for deterrence, the

following nonexclusive list of factors should be considered: (1) whether other incidents of the charged

offense are increasingly present in the community, jurisdiction, or state as a whole; (2) whether the crime

was the result of intentional, knowing, or reckless conduct or was otherwise motivated by a desire to

profit or gain from criminal behavior; (3) whether the alleged offense received substantial publicity

beyond that normally expected in a typical case; (4) whether the defendant was a member of a criminal

enterprise, or substantially encouraged or assisted others in achieving the criminal objective; and (5)

whether the defendant has previously engaged in criminal conduct of the same type as the offense in

question, irrespective of whether such conduct resulted in previous arrests or convictions. Id. at 10-12.

“[A] court need not find that all of these factors are present before ordering incarceration based on a need

to deter similar crimes.” Id. at 12. The court found that there was a need for deterrence based on the

following factors: the increasing number of assaults and aggravated assaults “coming through the court,”

the crime was committed as a result of intentional conduct, the defendant encouraged others in achieving

a criminal objective, and there was substantial publicity in this case beyond that in a typical case. The

record adequately supports a finding that denial of any form of alternative sentence was appropriate in

this case based on the need for deterrence. The defendant is not entitled to relief on this issue.

Conclusion

Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.

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JOHN EVERETT WILLIAMS, JUDGE

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