State of Tennessee v. Johntel Billings

10/02/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 7, 2020 Session

STATE OF TENNESSEE v. JOHNTEL BILLINGS

Appeal from the Circuit Court for Madison County

No. 19-6 Roy B. Morgan, Jr., Judge

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No. W2019-01596-CCA-R3-CD

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The defendant, Johntel Billings, was indicted for one count of aggravated assault (Count

1), one count of attempted aggravated robbery (Count 2), one count of simple assault

(Count 3), and one count of vandalism (Count 4). A Madison County jury convicted the

defendant of aggravated assault, simple assault, and vandalism. The trial court imposed a

four-year sentence with the Tennessee Department of Correction. On appeal, the defendant

argues the evidence was insufficient to support her aggravated assault conviction. The

defendant also argues the trial court erred in sentencing her to four years of confinement,

rather than probation. Upon review, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

P.J., and CAMILLE R. MCMULLEN, J., joined.

Brennan M. Wingerter, Appellate Director, Tennessee Public Defenders Conference,

Franklin, Tennessee (on appeal); Jeremy B. Epperson, Assistant Public Defender, Jackson,

Tennessee (at trial), for the appellant, Johntel Billings.

Herbert H. Slatery III, Attorney General and Reporter; Katherine H. Decker, Assistant

Attorney General; Jody Pickens, District Attorney General; and Lee R. Sparks, Assistant

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

OPINION

Factual and Procedural Background

Mangu Patel and her husband, Umesh Patel, were nightshift employees at the

Executive Inn in Jackson, Tennessee, on the morning of September 2, 2018. As such, Mr.

Patel’s duties included inspecting the hotel property every two hours. Between 4:00 and

5:00 in the morning on September 2, Mr. Patel received a complaint about noise coming

from the parking lot. When he left the office to respond to the complaint, he found the

defendant, Johntel Billings, and her friend, Scotty Rowe, sitting on the hotel steps facing

the hotel’s parking lot. Mr. Patel approached the two and told them to “go in [their rooms].”

When he turned to leave, Mr. Patel was attacked by the defendant and Mr. Rowe. The

altercation was recorded by Executive Inn video cameras. The recording was played for

the jury.

Mr. Patel testified the defendant and Mr. Rowe pushed him to the ground twice and

hit him multiple times. The two then reached into his pockets and repeatedly demanded,

“give me some money.” He confirmed the video recording showed him bleeding badly

from the attack. While the defendant and Mr. Rowe attacked Mr. Patel, Mrs. Patel heard

noises coming from the parking lot, left the hotel office, and approached the altercation.

The defendant hit Mrs. Patel and threw her phone on the ground. When the attack finally

ended, Mrs. Patel called the police, and Mr. Patel was taken to the hospital. Mr. Patel

sustained a broken right wrist and injuries to his right leg and eye. Mr. Patel testified that

he underwent surgery during which “needles” were placed in his wrist and were removed

three months later. Mr. Patel’s doctor also instructed him to wear a brace on his wrist for

three more months. Mr. Patel still needed, and was wearing, his wrist brace eight months

after the attack. Though he could walk, Mr. Patel’s doctor instructed him to refrain from

extraneous activity. As a result, Mr. Patel was unable to work for six months.

Mrs. Patel confirmed the video recording came from the Executive Inn’s security

system and accurately recorded the defendant hitting her and throwing her phone on the

ground. She also confirmed that she and Mr. Patel were able to walk back to the office

after the attack and that the video recording showed the same. Shortly after returning to

the office, Mrs. Patel called 9-1-1.

Officer Jeremy Dunlap with the Jackson Police Department arrived at the scene and

observed that both Mr. and Mrs. Patel had “multiple very large knots, bruises and abrasions

on their face, facial area.” Officer Dunlap’s investigation revealed the defendant and Mr.

Rowe were the aggressors and caused Mr. and Mrs. Patel’s injuries. The State then rested.

The defendant testified in her own defense. On September 2, 2018, the defendant

was 19 years old and had been living at the Executive Inn for around eleven months. The

morning of the incident, the defendant and Mr. Rowe were sitting on the steps of the

Executive Inn when Mr. Patel came out of the hotel office and stated: “What is your kind

doing out? What are you doing out at this time of night? You’re scaring away customers.”

Upset by the racial slur, the defendant and Mr. Rowe began arguing with Mr. Patel and

asked what he meant by “our kind.” According to the defendant, Mr. Patel then spat on

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her. It was Mr. Patel’s comment combined with his conduct that led the defendant to attack

Mr. Patel, and later Mrs. Patel.

In reviewing the video recording of the incident, the defendant explained she

primarily fought with Mrs. Patel and noted the recording only showed Mr. Rowe going

through Mr. Patel’s pockets. Though the defendant did not go through Mr. Patel’s pockets,

she did hit him and kick him in the head. The defendant stated the altercation was not

planned or intentional, she did not instruct Mr. Rowe to rob Mr. Patel, and the two did not

discuss robbing Mr. Patel before the altercation occurred.

The defendant expressed remorse for her actions, acknowledged she should not have

behaved in such a violent way, and recognized her conduct was not an appropriate way to

handle her anger. The defendant also admitted she vandalized Mrs. Patel’s phone and

assaulted Mr. and Mrs. Patel. However, she disagreed that she committed aggravated

robbery and aggravated assault.

After reviewing all of the evidence, the jury found the defendant guilty of

aggravated assault against Mr. Patel, simple assault against Mrs. Patel, and vandalism

against Mrs. Patel. The jury found the defendant not guilty of attempted aggravated

robbery against Mr. Patel. Because the defendant was nine months pregnant at the time

of trial, the trial court allowed the defendant to remain on bond until her sentencing hearing

and ordered the defendant to contact the Tennessee Department of Correction in order to

be interviewed for her presentence report.

Sentencing Hearing

A sentencing hearing was held on July 8, 2019, at which the State introduced the

defendant’s pre-sentence report. The report stated the defendant was allowed to remain on

bond after her conviction because she was nine months pregnant, but she was ordered to

contact a probation officer for a pre-sentence interview. The report showed the defendant

failed to contact the probation officer and had a criminal history for driving without a

license, violation of the financial responsibility law, and public intoxication.

The defendant testified at the sentencing hearing and requested the trial court place

her on probation. She recalled the trial court ordering a pre-sentence report and telling her

someone would be contacting her to obtain her statement. The defendant had a working

phone at the time of trial, on May 17, 2019. However, shortly after being convicted, she

went on maternity leave and could no longer afford her cell phone service. The defendant

gave birth to her son on May 28, 2019, during which time her phone was “off” and

continued to be inoperable at the time of the sentencing hearing on July 9, 2019. Because

her phone was not “on,” the defendant never contacted her probation officer.

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From the time her child was born until the day of the sentencing hearing, the

defendant spent her time at home “trying to get things together” for her child. According

to the defendant, the city bus was her main form of transportation, and she used it to get to

her doctor’s appointments and her attorney’s office. If placed on probation, the defendant

would take the bus or have a relative drive her to meet with her probation officer. The

defendant explained she would soon be seeking employment as her maternity leave ended.

As such, she expected to be able to afford a cell phone and maintain contact with her

probation officer.

The defendant explained she had many altercations with the Patels prior to the

incident on September 2, 2018, and admitted that the police were usually involved. The

defendant again recognized that her actions on the day of the incident were not the

appropriate response to being spat on by Mr. Patel.

On cross-examination, the defendant confirmed that she lived with her grandmother

who has a working phone. The defendant’s mother and sister were present at the hearing,

and the defendant admitted they too had working phones. When asked why she did not

use a family member’s phone to contact her probation officer, the defendant stated she was

occupied with making plans for her child and her “mother and sister work a lot.”

The trial court then questioned the defendant. The defendant stated no phone

records associated with her phone number exist from May 17, 2019 to July 9, 2019. She

did, however, admit her phone worked for a short period of time after trial before she ran

out of minutes. She explained the phone was not active, and if someone were to call her

phone number, they would not get a response. She admitted, however, that she had a “text

app” on her phone that, when connected to WIFI, allowed her to send and receive text

messages.

The defendant considered asking her attorney about the meeting with her probation

officer but did not because she was told the probation officer would contact her for an

interview. The defendant acknowledged she could have asked her attorney to help her set

up a meeting but did not take the initiative to do so. The defense then rested.

The trial court weighed the evidence, and after finding the defendant committed a

“vicious” and “horrible” attack, sentenced the defendant to four years in confinement for

the aggravated assault conviction against Mr. Patel. For the assault and vandalism

convictions against Mrs. Patel, the defendant was sentenced to eleven months and twenty-

nine days. All sentences were to run concurrently.

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The defendant filed a motion for new trial on August 12, 2019, which was denied

by the trial court. The defendant filed a timely notice of appeal on September 6, 2019.

Analysis

On appeal, the defendant argues the evidence is legally insufficient to support her

conviction of aggravated assault against Mr. Patel. While the defendant concedes she

assaulted Mr. Patel, she asserts there was insufficient evidence to prove serious bodily

injury, an element of aggravated assault. The defendant also contends the trial court erred

in sentencing her to four years in confinement. The State, however, asserts that the

evidence was sufficient to support the defendant’s conviction for aggravated assault and

that the trial court property exercised its discretion in sentencing the defendant to four years

in confinement. After our review, we agree with the State.

A) Sufficiency of the Evidence

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court 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 (1979); see also Tenn.

R. App. P. 13(e) (“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 findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions

involving the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme

Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus, the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). “A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted

defendant has the burden of demonstrating that the evidence is insufficient.” State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

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

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). 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)).

This Court, when considering the sufficiency of the evidence, shall not reweigh the

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

The defendant was convicted of aggravated assault, a Class C felony. Tennessee Code

Annotated sections 39-13-101(a)(1) and 39-13-102(a)(1)(A)(i) provide that a person

commits aggravated assault by intentionally or knowingly committing an assault that

results in serious bodily injury to another. A person commits assault by intentionally,

knowingly, or recklessly causing bodily injury to another. Tenn. Code Ann. 39-13-

101(a)(1). “Serious bodily injury” is defined as bodily injury that involves: (A) a

substantial risk of death; (B) protracted unconsciousness; (C) extreme physical pain; (D)

protracted or obvious disfigurement; (E) protracted loss or substantial impairment of

function of bodily member, organ or metal faculty; or (F) a broken bone of a child who is

twelve (12) years of age or less. Tenn. Code Ann. § 39-11-106(a)(36). “Protracted” in this

context means “delayed or prolonged in time.” State v. Carroll, No. E2013-01781-CCA-

R3-CD, 2014 WL 1759101, at *5 (Tenn. Crim. App. Apr. 30, 2014). In contrast, “bodily

injury” involves “a cut, abrasion, bruise, burn or disfigurement, and physical pain or

temporary illness or impairment of the function of a bodily members, organ, or mental

faculty.” Id. § 39-11-106(a)(3). Concerning these definitions, this Court has stated:

While the phrase “serious bodily injury” . . . is not susceptible to precise legal

definition, it must describe an injury of a greater or more serious character

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than that involved in a simple assault. The distinction between “bodily

injury” and “serious bodily injury” is generally a question of fact for the jury

and not one of law.

State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).

This Court has explained that when determining whether a victim’s injuries amount

to serious bodily injury the “subjective nature of pain is a question of fact to be determined

by the trier of fact.” State v. Ryan Love, No. E2011-00518-CCA-R3-CD, 2011 WL

6916457, at *4; see State v. Eric A. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL

448653, at *5 (Tenn. Crim. App. Feb. 23, 2006) (“The difference between ‘physical pain’

and ‘extreme physical pain’ is analogous to the difference between ‘bodily injury’ and

‘serious bodily injury,’ and as such, determining the severity of pain suffered is within the

province of the jury.”); see also State v. Holly Lack Earls, No. 01C01-9612-CC-00506,

1998 WL 15896, at *7 (Tenn. Crim. App. Jan. 16, 1998) (finding serious bodily injury

where the victim’s injuries include a broken finger, a broken arm--requiring a metal plate,

injuries to his shoulder, legs, and ankles, loss of “a lot of blood,” was in pain “for a long

time,” and was hospitalized “for a couple of days”); State v. Darren Matthew Lee, No.

M1999-01625-CAA-R3-CD, 2000 WL 804674, at *4 (Tenn. Crim. App. June 23, 2000)

(holding serious bodily injury occurred where the victim was kicked “repeatedly” in the

face, resulting in two black eyes, severe facial swelling and a torn lip, was unable to work

for a week, suffered headaches for three to four weeks, and suffered “extreme physical

pain”); State v. Cheaster Dale Gibson, NO. M2005-01422-CAA-R3-CD, 2006 WL

770460, at *11 (Tenn. Crim. App. Mar. 24, 2006) (finding the victim suffered serious

bodily injury after experiencing repeated blows to the face causing fractures to the nasal

and eye area, two black eyes, a bruise to the right temple, a bruised lip and swollen and

bloody nose, and was in “extreme physical pain”), perm. to appeal denied (Tenn. Aug. 28,

2006).

The defendant contends the proof at trial did not establish serious bodily injury. She

asserts Mr. Patel was unable to verbalize his injuries at trial and “because the State did not

introduce any medical records in this case, there was no proof to support the speculation in

the pre-sentence report that ‘at least one of the victims . . . would have had medical care.’”

The State argues the evidence at trial was sufficient for any rational juror to conclude

beyond a reasonable doubt that Mr. Patel suffered serious bodily harm.

Viewing the evidence in the light most favorable to the State, the record reveals the

defendant kicked Mr. Patel as he was trying to escape the attack from the defendant and

Mr. Rowe. The defendant admitted to the same. Officer Jeremy Dunlap testified Mr. and

Mrs. Patel had “multiple very large knots, bruises and abrasions on their face.” Mr. Patel

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testified he sustained injuries to his face, wrist, and leg. Mr. Patel was hospitalized and

had to have surgery on his broken wrist. He had “needles” surgically placed in his wrist

for three months and still required a brace on his wrist as he testified at trial eight months

later. Due to his injuries, Mr. Patel was unable to work for six months. The attack, which

the trial court characterized as “vicious” and “horrible,” was captured on video and played

for the jury.

The record reflects the defendant’s actions amounted to assault because she,

admittedly, intentionally kicked Mr. Patel and caused injuries to his face, wrist, and leg.

The injury that resulted from the defendant’s attack was prolonged in time because Mr.

Patel’s wrist was broken, required surgery, and “needles” were placed in his wrist for three

months. The injury was so severe that Mr. Patel’s still needed to wear a brace eight months

after the attack, and he was unable to work for six months due to his injuries. Based on the

evidence presented not only did the defendant assault Mr. Patel, but Mr. Patel’s wrist injury

was so severe that he suffered “protracted loss or substantial impairment of function” to

his wrist, which elevated the harm suffered to “serious bodily injury.” As a result, the

evidence is sufficient to satisfy the serious bodily harm element necessary for an

aggravated assault conviction.

Based on the verdict returned by the jury, it is clear the jury found Mr. Patel’s broken

wrist and the supporting video evidence of the defendant kicking Mr. Patel in the head as

sufficient to find the defendant inflicted serious bodily harm on Mr. Patel. This Court will

not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990). Accordingly, the evidence was sufficient for the trier of fact to find

beyond a reasonable doubt that the defendant’s violent actions on the day of the incident

caused Mr. Patel to suffer serious bodily harm. The defendant is not entitled to relief.

B) Sentencing

The defendant argues the trial court erred in sentencing her to four years in

confinement. In addition to noting that she is a new mother, the defendant argues the trial

court failed to make a “common sense determination” that confinement was necessary to

provide effective deterrence to others. She also argues confinement was not appropriate

because the facts and circumstances of the case are no more egregious than any other

aggravated assault involving an allegation of serious bodily injury. The State contends the

trial court properly exercised its discretion in finding the defendant was not a suitable

candidate for probation. We agree with the State.

In determining an appropriate sentence, a trial court must consider the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

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pre-sentence 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 mitigating and enhancement factors; (6)

any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement the defendant

makes on her own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed

should be the least severe measure necessary to achieve the purposes for which the sentence

is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See id.

§§ 40-35-114, -210(c). Although the application of the factors is advisory, a court shall

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

enhancement factors set out in sections 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5).

The trial court must also place on the record “what enhancement or mitigating factors were

considered, if any, as well as the reasons for the sentence, in order to ensure fair and

consistent sentencing.” Id. § 40-35-210(e).

When an accused challenges the length and manner of service of a sentence, this

Court reviews the trial court’s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,

707 (Tenn. 2012). This Court will uphold the trial court’s sentencing decision “so long as

it is within the appropriate range and the record demonstrates that the sentence is otherwise

in compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,

under such circumstances, appellate courts may not disturb the sentence even if we

preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The

party challenging the sentence imposed by the trial court has the burden of establishing that

the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n

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

The 2005 revised sentencing statutes advise that a defendant is no longer presumed

to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347 (citing

Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing guidelines provide

that a defendant “who is an especially mitigated or standard offender convicted of a Class

C, D or E felony, should be considered as a favorable candidate for alternative sentencing

options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). No

criminal defendant is automatically entitled to probation as a matter of law. State v. Davis,

940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant bears the burden of proving his

or her suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing

Tenn. Code Ann. § 40-35-303(b)). The defendant must show that the alternative

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sentencing option imposed “will subserve the ends of justice and the best interest of both

the public and the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled

on other grounds, State v. Hooper, 29 S.W.3d 11, 9-10 (Tenn. 2000).

Before imposing a sentence of full confinement, the trial court should consider

whether “[c]onfinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;” “[c]onfinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses;” or “[m]easures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the defendant[.]”

Tenn. Code Ann. § 40-35-103(1)(A)-(C).

As noted, the defendant was convicted of aggravated assault, a Class C felony. As

a Range I offender, the defendant faced a sentencing range of three to six years. The State

submitted the following enhancement factors applied to the defendant: (1) the defendant

has a previous history of criminal convictions or behavior; (2) the defendant was the leader

in the commission of the offense; (3) the offense involved more than one victim; (5) the

defendant treated, or allowed a victim to be treated, with exceptional cruelty during the

commission of the offense; and (8) the defendant, before trial or sentencing, failed to

comply with the conditions of a sentence involving release into the community. Tenn.

Code Ann. § 40-35-114(1), (2), (3), (5), and (8). The State argued that while the

defendant’s criminal history was not significant, the video footage of the incident showed

two people attacking the victims, and the defendant attacking Ms. Patel and kicking Mr.

Patel in the head. Under these circumstances, the State requested the defendant receive the

maximum sentence of six years in confinement.

The defendant requested the trial court place her on probation and consider

mitigating factors when determining her sentence. The defendant asserted two mitigating

factors were applicable: she acted under strong provocation after being spat on by Mr.

Patel and the catchall factor, which is “any other factor consistent with the purpose of the

sentencing guidelines.” Tenn. Code Ann. § 40-35-113(2), (13).

In determining the defendant’s sentence, the trial court considered the defendant’s

testimony, the evidence offered at trial, the pre-sentence report, the sentencing principles,

arguments of counsel, the nature and characteristics of the criminal conduct, and the

enhancement and mitigating factors submitted by the parties. Concerning the mitigating

factors, the trial court found the proof did not support the defendant’s claim that she acted

under strong provocation. The trial court found that the video footage did not show the

defendant being spat on, and even if the defendant was spat on, that act did not mitigate

the fact that the defendant viciously beat and kicked Mr. Patel. The trial court found no

other mitigating factors applied to the defendant’s case.

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Concerning the enhancement factors, the trial court found the defendant’s criminal

history was not significant enough to be given serious weight. As to whether the defendant

was the leader in the commission of the crime, the trial court found that the defendant and

Mr. Rowe were “pretty much leading each other,” and both “viciously attacked” the Patels.

Yet, the trial court found the defendant was “a little more vicious” than Mr. Rowe and, as

a result, weighed the factor against the defendant. The trial court did not give any weight

to the “more than one victim” factor because the aggravated assault was against one victim,

Mr. Patel, and the assault was against a different victim, Mrs. Patel. Based on the

enhancement and mitigating factors, the evidence produced at trial and during the

sentencing hearing, the sentencing principles and guidelines, and the arguments of counsel,

the trial court imposed a sentence of six years.

Next, the trial court considered whether probation or some other type of alternative

sentencing would be appropriate. Initially, the trial court expressed great concern with the

fact that the defendant did not give just cause for why she failed to contact her probation

officer despite being ordered to do so by the trial court. The trial court noted the defendant

had an attorney and she knew where his office was located, and yet failed to enlist his help

in setting up a meeting with her probation officer. Moreover, the defendant has a

supportive family, and while the defendant’s phone may not have been working, phones

were widely available to her. Yet, the defendant did not attempt to comply with the trial

court’s order to contact her probation officer. Based on the defendant’s lack of effort and

concern regarding the pre-sentence report, the trial court found the defendant would not

abide by the terms of probation, was unable to follow court rules, and was not amenable to

correction. The trial court weighed the defendant’s total disregard for the court’s orders

against the defendant.

Regarding the defendant’s physical and mental condition and social history, the trial

court noted the defendant had a minimal criminal history and a newborn child that was

healthy, safe, and under the care of a family member. However, the facts and

circumstances surrounding the attack showed “horrible conduct” that resulted in a

“vicious” verbal and physical attack. The trial court weighed those facts and circumstances

surrounding the offense and the nature and circumstances of the defendant’s criminal

conduct heavily against the defendant. For those reasons, the trial court determined the

defendant was not a candidate for alternative sentencing and less restrictive measures than

confinement would take away from the seriousness of the offense. The trial court also

found the defendant’s prison sentence would deter others from committing such a violent

attack and that it would be an injustice not to impose a prison sentence.

The trial court did not err in denying probation based on its determination that the

defendant’s incarceration would avoid depreciating the seriousness of the offense and

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provide an effective deterrence to others. Further, the record reflects the trial court properly

considered the relevant purposes and principles of Tennessee’s sentencing statutes and

imposed a sentence within the applicable range for the defendant’s Class C felony offense

of aggravated assault. Bise, 380 S.W.3d at 709-10. The trial court then made the requisite

findings on the record in support of its ruling. Accordingly, the trial court did not abuse its

discretion and we affirm the defendant’s sentence of four years’ incarceration.

Conclusion

Based on the forgoing authorities and reasoning, the judgments of the trial court are

affirmed.

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J. ROSS DYER, JUDGE

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