State of Tennessee v. Christopher Dewayne Henson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 11, 2015

STATE OF TENNESSEE v. CHRISTOPHER DEWAYNE HENSON

Appeal from the Circuit Court for Maury County

No. 21745 Stella L. Hargrove, Judge

No. M2013-01285-CCA-R3-CD – Filed June 2, 2015

The Defendant-Appellant, Christopher Dewayne Henson, was convicted by a Maury

County jury of reckless endangerment. The trial court sentenced the Defendant to 11

months and 29 days and ordered that he serve 45 days in confinement, with the remainder

of his sentence to be served on supervised probation. On appeal, the Defendant argues

that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in

admitting color photographs of the victim‟s injuries; and (3) the trial court abused its

discretion in sentencing the Defendant. Discerning no error, we affirm the judgment of

the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR. and ROGER A. PAGE, JJ., joined.

William C. Barnes, Cordova, Tennessee, for the Defendant-Appellant, Christopher

Dewayne Henson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Mike Bottoms, District Attorney General; and Dan Runde, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

On April 1, 2012, the victim, Jeff Roberts, became involved in an altercation with

his nephew, Dylan Henson.1 The altercation began as a verbal dispute between Dylan

1

Because several witnesses share the same last name, we will refer to them by their first names.

We intend no disrespect in doing so.

and the victim, but it eventually turned physical and involved several other family

members, including the Defendant. During this altercation, the victim was struck on the

head with an metal bar and had to receive stitches and staples in the top and side of his

head.

At trial, the victim testified that on the evening of April 1, 2012, he and his

girlfriend, Yolanda Hill, were sitting on the front porch of her house when he saw Dylan

and several of his friends arrive in a pickup truck. The group of teenagers parked in a

field across the street from Ms. Hill‟s home and began throwing rocks in the field. The

victim did not want the teenagers to throw rocks in the field because he mowed the field

and feared the rocks would damage his lawn mower. When he asked Dylan to stop

throwing rocks, Dylan and his friends walked into the road and began cursing at and

threatening the victim. The victim‟s mother, Annie Spears, lived next door to Ms. Hill

along with the victim‟s sister, Kelly Henson; Kelly‟s husband, the Defendant; and the

Hensons‟ two children, Dylan and Casey. Upon hearing the verbal dispute between

Dylan and the victim, Ms. Spears came onto her porch and told Dylan to come home.

When he refused, Ms. Spears went inside her home and asked Kelly and the Defendant to

break up the dispute. Kelly tried to persuade Dylan to come home, and the victim left

Ms. Hill‟s porch and walked Dylan and Kelly back towards the road. When the victim

turned to walk back to Ms. Hill‟s porch, he saw Ms. Hill run past him and attack Kelly.

While the victim tried to break up the fight between the two women, Dylan hit him in the

face with a walking cane three or four times. The victim stumbled a few steps back and

saw the Defendant holding a metal bar in his hand. The Defendant told the victim to “get

[his] hands off his kid” and then hit the victim on the head twice.

The victim identified the Defendant in court as the person who hit him with the

metal bar. He denied that he pulled out a knife during the altercation and insisted that he

did not threaten Dylan, Kelly, or the Defendant in any way before the Defendant hit him.

He agreed that after being hit by the Defendant, he retrieved a “shepherd‟s cane” from his

yard and swung it at the Defendant and Dylan to get them to leave Ms. Hill‟s property.

He was uncertain whether he hit the Defendant, although he acknowledged that it was

possible. The victim and Ms. Hill called 911 after the altercation. The police responded

to the scene that night, and the victim and Ms. Hill went to the police station the next day

to give a statement.

Annie Spears, the victim‟s mother and the Defendant‟s mother-in-law, testified on

behalf of the Defendant. She agreed that a verbal altercation broke out between Dylan

and the victim because Dylan refused to stop throwing rocks in the field across the street.

According to Ms. Spears, the victim pulled a knife out of his pocket and Dylan retrieved

Ms. Spears‟s walking cane out of her car. She told the victim, “[Y]ou better not cut . . .

-2-

one of my grandkids,” and he put the knife back in his pocket; however, Dylan continued

“backing [the victim] up” towards Ms. Hill‟s house so the victim retrieved a shepherd‟s

cane out of the yard. Ms. Spears observed Dylan hit the victim with the walking cane.

She testified that she sent Kelly and the Defendant to break up the altercation, and when

the Defendant walked into Ms. Hill‟s yard to make Dylan come home, “it just went

crazy.” Ms. Hill retrieved a metal bar from her house and walked into the yard, and the

victim continued to swing the shepherd‟s cane at Dylan and the Defendant. Ms. Spears

testified that a physical fight broke out between the Defendant and the victim after the

victim hit the Defendant with the shepherd‟s cane. Ms. Spears agreed that the Defendant

and the victim were “knuckling it out,” but she testified that she never saw the Defendant

hit the victim with a metal bar.

On cross-examination, Ms. Spears acknowledged that the Defendant could have

hit the victim with a metal bar, but she did not see it happen. She agreed that she “really

[did not] know what the circumstances were, at the time, when [the victim] got hit with

the bar . . . [b]ecause there was so much confusion” and added, “It could have been

anybody that hit [the victim].” She also agreed that the victim showed her his head

injuries that night after the altercation.

Joshua Braden, a police officer with the Mount Pleasant Police Department,

responded to the scene on April 1, 2012. According to Officer Braden‟s incident report,

Dylan reported that the victim had a knife in his hand at some point during the

altercation, but no other witnesses reported seeing a knife. He confirmed that Ms. Spears

never told him that she saw the victim with a knife that night. Officer Braden testified

that he observed several injuries to the victim‟s head and face, including a swollen eye

and a “big cut” on the top of his head. Officer Braden recovered a walking cane from

Ms. Spears after being informed by witnesses that it was used to hit the victim. The

victim told Officer Braden that the Defendant also hit him with a metal bar, which

Officer Braden found in a trailer attached to the Defendant‟s car. On cross-examination,

Officer Braden stated that the Defendant reported that the victim initially attacked him

with the metal bar and that he took it away and hit the victim with it. He conceded that

he could not recall whether he asked Ms. Spears if the victim had a knife during the

altercation.

Following deliberations, the jury convicted the Defendant of reckless

endangerment as a lesser-included offense of aggravated assault. A sentencing hearing

was held on April 11, 2013, after which the trial court sentenced the Defendant to 11

months and 29 days and ordered him to serve 45 days in confinement with the remainder

of his sentence to be served on supervised probation. On April 18, 2013, the Defendant

-3-

filed a timely motion for new trial, which was denied by the trial court on May 16, 2013.

Subsequently, the Defendant filed a timely notice of appeal.

ANALYSIS

On appeal, the Defendant challenges the sufficiency of the convicting evidence.

He also argues that the trial court abused its discretion in admitting color photographs of

the victim‟s injuries and in sentencing the Defendant. The State responds that the

evidence is sufficient to sustain the Defendant‟s conviction for reckless endangerment

and maintains that the trial court did not abuse its discretion in the admission of evidence

or in sentencing the Defendant. We agree with the State.

I. Sufficiency of the Evidence. The Defendant argues that the evidence is

insufficient to sustain his conviction for reckless endangerment. He asserts that the

evidence establishes that the altercation was “mutual combat,” and given that he did not

start the altercation and was the last person involved in the fight, he is “clearly . . . the

least culpable.” The State responds that the evidence is sufficient to sustain the

Defendant‟s conviction.2

When considering the sufficiency of the evidence on appeal, the State is entitled to

the strongest legitimate view of the evidence and all reasonable inferences which may be

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing

State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the

sufficiency of the evidence, the standard of review applied by this court is “whether, after

reviewing 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 (1979). Similarly, Rule 13(e) of the Tennessee

Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the

trial court or jury shall be set aside if the evidence is insufficient to support the finding by

the trier of fact of guilt beyond a reasonable doubt.” “Because a verdict of guilt removes

the presumption of innocence and raises a presumption of guilt, the criminal defendant

2

In addition to addressing the sufficiency of the evidence supporting the Defendant‟s conviction,

the State‟s brief also thoroughly addresses the trial court‟s role as the thirteenth juror. See Tenn. R. Crim.

Pro 33(d) (providing that the trial court “may grant a new trial following a verdict of guilty if it disagrees

with the jury about the weight of the evidence”). The Defendant‟s brief does not clearly challenge the

trial court‟s actions as thirteenth juror, although his argument appears to suggest that the jury‟s verdict is

against the weight of the evidence. In any event, the trial court properly fulfilled its role as the thirteenth

juror in this case, stating on the record, “As Thirteenth Juror, the [c]ourt accepts and approves the verdict

of this Jury.” Accordingly, this issue is not subject to appellate review, and our review is limited to the

sufficiency of the evidence. See State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995) (citing State v.

Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)).

-4-

bears the burden on appeal of showing that the evidence was legally insufficient to

sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “„is the same whether the conviction is based upon direct or

circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of

the witnesses, determine the weight given to witnesses‟ testimony, and reconcile all

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury

determines the weight to be given to circumstantial evidence and the inferences to be

drawn from this evidence, and the extent to which the circumstances are consistent with

guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331

S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When

considering the sufficiency of the evidence, this court shall not reweigh the evidence or

substitute its inferences for those drawn by the trier of fact. Id.

Here, the Defendant was charged with aggravated assault but was convicted of the

lesser-included offense of misdemeanor reckless endangerment. A person commits

reckless endangerment “who recklessly engages in conduct that places or may place

another person in imminent danger of death or serious bodily injury.” T.C.A. § 39-13-

103(a). A person acts recklessly “when the person is aware of but consciously disregards

a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

Id. § 39-11-302(c). This “risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the accused person‟s standpoint.”

Id. Serious bodily injury includes bodily injury that involves a substantial risk of death,

protracted unconsciousness, extreme physical pain, or protracted or obvious

disfigurement. Id. § 39-11-106(34).

In challenging the sufficiency of the evidence, the Defendant does not specifically

contest any elements of the offense of reckless endangerment; rather, he simply claims

that as the last person involved in the altercation, he was the “least culpable.” Even if

true, however, this fact has no bearing on the jury‟s finding that the Defendant‟s reckless

conduct placed the victim in imminent danger of death or serious bodily injury. Viewed

in the light most favorable to the State, the evidence at trial established that during an

altercation involving several family members, the Defendant struck the victim at least

-5-

two times in the head with a metal bar. As a result, the victim sustained two large cuts to

his head that required stitches and staples. Although witnesses provided somewhat

conflicting accounts about the altercation, the jury‟s verdict of guilt resolved all conflicts

in the evidence in favor of the State‟s theory. See State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). We will not

reweigh or reevaluate this evidence on appeal. See Dorantes, 331 S.W.3d at 379. Based

upon the record, we conclude that a rational juror could find beyond a reasonable doubt

that the Defendant‟s reckless conduct placed the victim in imminent danger of death or

serious bodily injury. He is not entitled to relief on this issue.

II. Admission of Color Photographs. The Defendant next asserts that the trial

court erred in admitting eight color photographs of the victim‟s injuries because they

were unfairly prejudicial. He argues that the color photographs were cumulative in

nature given that three black and white photographs of the victim‟s injuries had already

been introduced, and the only purpose in admitting the color photographs was to inflame

the jury. The State responds that the photographs were relevant to show the victim‟s

injuries and that the trial court did not abuse its discretion by allowing their admission.

The admissibility of photographs lies within the sound discretion of the trial court,

and the court‟s ruling on admissibility will not be overturned on appeal absent a showing

that the trial court abused that discretion. State v. Odom, 336 S.W.3d 541, 565 (Tenn.

2011) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). To be admissible, a

photograph must be relevant to an issue in dispute. State v. Vann, 976 S.W.2d 93, 102

(Tenn. 1998) (citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564

S.W.2d at 951). Relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.

However, a relevant photograph “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined by the

Tennessee Supreme Court as “an undue tendency to suggest decision on an improper

basis, commonly, though not necessarily an emotional one.” Banks, 564 S.W.2d at 951.

Photographs must never be used “solely to inflame the jury and prejudice them against

the defendant.” Id.

After reviewing the photographs in the instant case, we conclude that they were

relevant to show the extent of the victim‟s injuries, and the probative value of the

photographs was not substantially outweighed by the danger of unfair prejudice. Initially

we note that “a relevant photograph is not rendered inadmissible merely because it is

-6-

cumulative.” State v. Morris, 24 S.W.2d 788, 811 (Tenn. 2000); see also State v. Van

Tran, 864 S.W.2d 465, 477 (Tenn. 1993), cert. denied, 511 U.S. 1046 (1994) (color

photographs of deceased victims at crime scene were not unnecessarily cumulative or

prejudicial despite admission of color videotape showing victims‟ bodies as they were

found); State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992) (photographs of the victim‟s

body were admissible despite oral testimony graphically describing the victim‟s injuries).

Although three black and white photographs also showing the victim‟s injuries were

introduced, the color photographs more clearly depicted the extent of the victim‟s

injuries, which was essential to the State‟s case.3 See State v. Melissa J. Pewitt, No.

01C01-9706-CR-00229, 1998 WL 410883, at *5 (Tenn. Crim. App. July 23, 1998)

(photographs of victim‟s injuries were relevant in prosecution for especially aggravated

burglary because the State was required to prove the victim suffered “serious bodily

injury” and were not unnecessarily cumulative despite victim‟s display of the scars on her

body to the jury). Further, the photographs were not particularly gruesome or

inflamatory. Accordingly, we discern no abuse of discretion by the trial court in allowing

the photographs‟ admission.

III. Sentencing. In his final issue on appeal, the Defendant argues that the trial

court imposed an excessive sentence. The Defendant again emphasizes that he “was the

last person to join into this fight” and maintains that “[j]ustice requires a different

outcome.” However, the Defendant failed to support this issue with sufficient argument

or citations to authority. As such, this issue is technically waived. See Tenn. Ct. Crim.

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court.”); see also

Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the

contentions of the appellant with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief, with citations to the

authorities and appropriate references to the record . . . relied on.”). Waiver

notwithstanding, we conclude that the trial court did not abuse its discretion in sentencing

the Defendant.

Recently, the Tennessee Supreme Court concluded that a trial court‟s sentencing

determinations in felony cases should be reviewed under “an abuse of discretion standard

of review, granting a presumption of reasonableness to within-range sentencing decisions

that reflect a proper application of the purposes and principles of our Sentencing Act.”

State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Shortly thereafter, the Tennessee

Supreme Court applied the abuse of discretion standard, accompanied by a presumption

3

Although the Defendant was convicted of reckless endangerment, which does not require proof

of bodily injury, the Defendant was indicted and tried for aggravated assault, which required the State to

prove that the victim suffered serious bodily injury. See T.C.A. § 39-13-102.

-7-

of reasonableness, to “questions related to probation or any other alternative sentence.”

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). To date, the Tennessee Supreme

Court has not addressed whether the abuse of discretion standard with a presumption of

reasonableness applies to misdemeanor sentencing. Notwithstanding, the reasoning

espoused in State v. King, that Bise applies to “all sentencing decisions,” suggests that it

is the appropriate standard of review to apply to misdemeanor sentencing cases as well.

See King, 432 S.W.3d 316, 324 (Tenn. 2014) (emphasis added). Moreover, this court has

recently applied the Bise standard of review to misdemeanor sentencing cases. See State

v. Michael Glen Walsh, No. E2012-00805-CCA-R3-CD, 2013 WL 1636661, at *4 (Tenn.

Crim. App. Apr. 17, 2013); State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-

CD, 2013 WL 1088341, at *7 (Tenn. Crim. App. Mar. 14, 2013). Therefore, we will do

the same in this case.

Pursuant to the 2005 amendments to the sentencing act, a trial court must consider

the following when determining a defendant's specific sentence and the appropriate

combination of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing

alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant‟s own

behalf about sentencing.

T.C.A. § 40-35-210(b) (2012). The defendant has the burden of showing the impropriety

of the sentence on appeal. Id. § 40-35-401(d) (2012), Sentencing Comm‟n Comments.

Misdemeanor sentencing is governed by Tennessee Code Annotated section 40-

35-302, which provides, in part, that the trial court shall impose a specific sentence that is

consistent with the purposes and principles of the 1989 Sentencing Reform Act. See

T.C.A. § 40-25-302(b). The sentencing court is granted considerable latitude in

misdemeanor sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999)

(citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). The trial court must

consider the purposes and principles of sentencing and the appropriate enhancement and

mitigating factors, but the court is not required to place specific findings on the record.

-8-

T.C.A. § 40-35-302(d); Troutman, 979 S.W.2d at 274. “Rather, the court must only

avoid arbitrarily imposing incarceration.” State v. Heath Baldwin, No. W2005-02906-

CCA-R3-CD, 2007 WL 845911, at *4 (Tenn. Crim. App. Mar. 21, 2007) (citing

Troutman, 979 S.W.2d at 274).

Unlike felons, “misdemeanants are not given the presumption of a minimum

sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Further,

those convicted of a misdemeanor are not presumed eligible for alternative sentencing.

State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995) (citing Creasy, 885

S.W.2d at 832-33). The misdemeanor sentencing statute requires that the trial court

consider the purposes and principles of sentencing when calculating the percentage of the

sentence to be served in confinement prior to “consideration for work release, furlough,

trusty status and related rehabilitative programs.” T.C.A. § 40-35-302(b), (d) (2012).

However, there is no strict requirement that the trial court make findings on the record

regarding the percentage of the defendant‟s sentence to be served in confinement.

Troutman, 979 S.W.2d at 274.

In the instant case, the trial court‟s oral sentencing findings show that it considered

the purposes and principles of the sentencing act and complied with the misdemeanor

sentencing statute in imposing the Defendant‟s sentence. The record establishes that the

court reviewed the presentence report and considered the victim‟s testimony and the

nature of the offense when determining the manner and length of the Defendant‟s

sentence. The court noted that the Defendant refused to take responsibility for his

conduct, and it emphasized the serious injuries suffered by the victim. Although the

court did not place its findings regarding its consideration of the applicable enhancement

and mitigating factors on the record, it was not required to do so in a misdemeanor

sentencing case. See Troutman, 979 S.W.2d at 274. The record reflects that the trial

court properly considered the sentencing principles and imposed a sentence that was not

arbitrary. Accordingly, we discern no abuse of discretion. The Defendant is not entitled

to relief.

CONCLUSION

Based on the foregoing authorities and analysis, the judgment of the trial court is

affirmed.

_________________________________

CAMILLE R. McMULLEN, JUDGE

-9-