State v. Lonnie Cannon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 March 17, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CR-00005 ) Appellee, ) KNOX COUNTY ) V. ) ) HON. RICHARD BAUMGARTNER, LONNIE CANNON, ) JUDGE ) Appe llant. ) (AGGRAVATED ASSAULT)

FOR THE APPELLANT: FOR THE APPELLEE:

W. ZANE DANIEL JOHN KNOX WALKUP DANIEL & OBERMAN Attorney General & Reporter Nationsbank Building, Suite 950 550 West Main Avenue ELLEN H. POLLACK Knoxville, TN 37902 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

RANDALL E. NICHOLS District Attorney General

MARSHA SELECMAN Assistant District Attorney General City-County Building Knoxville, TN 37902

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

The Defe ndan t, Lonn ie Can non, a ppea ls as of r ight follo wing h is conv iction and sentencing in the Knox County C riminal Court. De fendant was charged in a sixcount indictme nt with offen ses ran ging from attempted murder to aggravated assau lt. The jury acquitted the Defendant of all charges except for reckless aggravated assault. The trial court held a sentencing hearing and sentenced the Defendant as a Ra nge I Sta ndard O ffender to serve a to tal senten ce of four (4) years, served by split con fineme nt com prising nin e (9) mo nths in the Knox C ounty Jail with the balance suspended on intensive probation. Defendant argues the sentence imposed by the trial court was exc essive, with improp er applica tion of both enhancement and m itigating factors. He also argues that he should have been granted full probation . We affirm the ju dgme nt of the trial co urt.

When an accused challenges the length, range or the manner of service of a sentence, this co urt has the duty to conduct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upo n the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circums tances .” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this co urt must con sider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of senten cing and argum ents as to sentencing alternatives;

-2-(d) the nature and characteristics of the criminal conduct involved ; (e) any statutory mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , and -21 0; see State v. Smith , 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).

If our review reflects that the trial court followed the statutory sentencin g procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact adequately supported by the reco rd, then w e may n ot mod ify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A brief summary of the facts is helpful for our review. Defen dant, a twentynine (2 9) yea r old lifelong resident of Knox County, went into the Tekoa Lounge at appro ximate ly 10:30 p .m. While Defendant was apparently not intoxicated, he may have been drinking. Defendant attempted to shoot pool for money, but he was unab le to find anyone to play with and began to crea te a dis turban ce. Th is disturbance became very loud and obnoxious, eventu ally disrupting the patrons of the establishment. The victim, the owner of the bar, advised the victim that “[he had] had enoug h tonight . . . come back tom orrow. I will bu y you a be er . . . You ne ed to leave,” and escorted the Defendant to the door. A s Defe ndan t was le aving, h e spit on one of the customers in the bar with whom he previously had a confrontation earlier that sa me e vening. That same customer became angry and hit the Defen dant.

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Defendant got inside his vehicle parked directly outside the door of the bar and backed it up. He drove back and forth in the parking lot several times, revving his engine at a high speed. A witness who was in the rea r seat o f the D efend ant’s car testified that he was being thrown around in the back seat of the vehicle. All the testimony reflected that the victim then came out of the bar into the parking lot and held up his hand in the a ir to indic ate tha t Defe ndan t shou ld stop. Defend ant drove his vehicle in a line toward s the victim . His car hit th e victim, with the victim going up over the hood, hitting the windshield, traveling over the top of the car and coming to rest in the parking lot. Defendant’s testimony at the time of the trial and the sentencing hearing was tha t he did no t know tha t he had hit anyon e. The trial court reasoned that it would be difficult to hit an adult individual, “have them come across your hood, h it your winds hield, and fly over the top of your car, and not know that you hit anything.”

After striking the victim, the Defendant drove out of th e park ing lot to wards his home. Instead of driving home and parking his car, he drove to a nearby home which was vacant and parked his car on the far side of an embankment. The Defendant then walked home and went to bed. When Detective Mike Upchurch later arrived at Defendant’s home, Defendant told him that he had n ot been to an y bar, but had been home watching television that night and had been in bed for over four (4) hours. The trial court stated “that goes to further show not only tha t [Defend ant] was aware o f the fact tha t he had hit somebody u p at tha t bar, an d that h e was in trouble, but he took active steps to conceal his conduct and lied to the police when initially confronted with this revelation.”

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The trial court first no ted that it was “compelled to follow the sentencing statute,” and that the total range of punishme nt for a Clas s D felon y is two (2) to twelve (12) years. Ten n. Code A nn. § 40-35-1 11(b)(4). As a R ange I Stan dard Offender, the proper range of punishment is two (2) to four (4) years. Tenn. Code Ann. § 40-35-112(a)(4). The trial court stated that it took into account the testimony at trial, the statements of the victims and the Defendant at the sentencing hearing, and the presenten ce report. The only enhancem ent factors the trial court determined as app ropriate w ere that the personal inju ries inflic ted up on the victim were particularly great and that the Defendant used a dead ly weapon, his vehicle, in the com mission of the offen se. Ten n. Cod e Ann. § 40-35-1 14 (6) an d (9).

W hile the trial court agreed that aggravated assau lt involve s serio us bo dily injury as an element of the offense, he based the application of factor (6) upon the fact that proof showed the victim’s injuries were far in excess of those contemplated by the statute defining “se rious bodily injury.” The trial co urt reaso ned tha t the fifty (50) year old victim nearly died as a result of these injuries, and that as a result of these injuries he had not only permanent physical impairment, but permanent neurological deficits whic h serious ly limit his phys ical and m ental abilities . In applying factor (9), the trial court stated that this offense was committed by virtue of Defe ndan t’s car. The trial court noted that if the Defendant had been found guilty of aggravated assau lt by the u se of a dead ly weap on, his vehicle , then th is enhancement factor would not apply because it would be “part and parcel of the offense itself.” Howeve r, the Defendant was found guilty of reckless conduct causing serious bodily injury, therefore the applica tion of e nhan cem ent fac tor nine (9) is appropriate.

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With regard to mitigating factors, the trial court found that the only prior criminal conduct indicated on Defendant’s record was a charge of public intoxication. This wa s the only m itigating facto r the trial cou rt deem ed app ropriate.

As the State correctly concedes within its brief, the record supports the application of one of the enhan ceme nt factors a pplied by th e trial court, but not both. The trial court may not consider an element of the crime as an enhan cemen t factor. State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). The aggravated assault offense for which Defenda nt was convicte d occurs whene ver a pers on reck lessly com mits an assault and causes serious bodily injury to another or uses or displays a dead ly weapon. Tenn. Code Ann. § 39-13 -102(a)( 2). The jury found the Defe ndant g uilty of recklessly causing bodily injury to another and that such bodily injury was serious pursuant to the fifth cou nt of the ind ictment aga inst the Defendant. Thus, the imposition of enha ncem ent factor (6 ) was ina ppropria te. State v. Crowe, 914 S.W.2d 933, 940 (Tenn. Crim. App. 1995). The application of enhancement factor (9), that the De fenda nt use d a de adly weapon during the commission of the offense, was correctly im posed . A motor vehicle may properly be determ ined to be a d eadly weapon. State v. Tate, 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995) (citations omitted).

While one enhancement factor was incorrectly applied, this court has reviewed the evidence and finds that an additional enhancement factor should have been applied. Testimony indicated that the victim’s wife was in the direct vicinity of the victim when he was assaulted by the Defendant. In fact, she had to jump out of the way of the oncoming ca r in order to escape serious injury. Therefore, as proof established that there was risk to life to the victim’s wife, enhancement factor (10)

-6-applied as a person other than the victim was in the area and was potentially subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995) (citations omitted).

Based upon the review of the applicable mitigating factors, this court finds no error in the trial c ourt’s a pplica tion of o nly one (1) mitig ating fa ctor. T estim ony reflected that it was the Defendant who began the disturbance at the bar that night and continued the disturbance until he was ask ed to leave by the victim. On his way out of the bar, th e Defe ndant s pit at anoth er custom er. W hen the Defen dant had escaped the scene, he continued to cause the disturbance by revving his motor and attempting to ram the victim’s b ar with his ve hicle. W hen the victim ask ed him to stop, he drove his vehicle directly towards the victim, hitting him, and then fled the scene. Even though some testimony indicated that Defendant was hit by a customer of the ba r, there is not su fficient e videnc e to m itigate th e Def enda nt’s sentence due to his own actions.

Based upon the application of two (2) enhancement factors and one (1) mitigating factor, a sentence of four (4) years is amply justified by the record. The weight to be afforded each mitigating and enhancement factor is determined by the trial court. There is no merit to Defendant’s argument regarding the length of the sentence imposed.

Defendant further argues that he was un justly denied any type of alternative sentence. Howe ver, as the record a nd judg ment a ptly reflect, the trial court suspended all of the Defendant’s four (4) year sentence except for nine (9) months. Defendant was therefore given an alterna tive sen tence involving split confinem ent.

-7-Convicted of a Clas s D felon y, Defen dant was entitled to the presumption that he was a favorable can didate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). While the trial court was required to automatically consider the Defendant for an alternative sentence, including proba tion, the Defe ndan t bore th e burd en of e stablishing both his s uitability and that an alternative to incarceration would “subserve the ends of justice and the best interest of both the public and the defenda nt.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations omitted). The Defendant bears the burden of establish ing suitab ility for full probation . Tenn. C ode An n. § 40-3 5-303(b ).

In deciding whe ther to grant or den y probation, a trial court should consider the circumstances of the offense, the defendant’s potential or lack of potential for rehabilitation, whether full probation will unduly depreciate the seriousness of the offense, and wheth er a se ntenc e othe r than fu ll proba tion wo uld provide an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), -1 03(1)(B ); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In determining that Defendant’s sentence would involve nine (9) months of confineme nt, the trial court based his decision upon the fact that confinement was necessa ry to avoid depreciating the seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B). Also, the trial cou rt found that the Defendan t was n ot cred ible and had tried to hide his crime. A lack of truthfu lness is indica tive of a d efend ant’s lack of “potential for rehabilitation.” State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993). In sentencing Defendant to serve nine (9) months, with the remainder to be served on probation, the trial court reasoned that the injuries sustained by the victim were e xtensiv e while the victim was merely trying to diffuse the situation. Furthermore, the trial cou rt again relied u pon th e Def enda nt’s actions of attempting

-8-to conceal the car on the night of the offense and then refusing to accept any respon sibility for his actio ns.

W hile Defendant argues that he was denied alternative sentencing, that is not correct. Defendant was given alternative sentencing in the form of probation for the majority of his se ntenc e, with o nly nine (9) mo nths to be se rved in the co unty jail. Sentencing must be determined on a case-by-case basis, with each sentence tailored to that particular defendant based upon the facts and circumstances of that defend ant. State v. Moss, 727 S.W.2d 229, 235 (T enn. 1986 ). The trial court concluded that Defendant did not meet his burde n of estab lishing suita bility for full probation, and our review of the trial court’s findings is de novo with a presumption of correctn ess. Boggs, 932 S.W.2 d at 476. Based upon the nature and circumstances of this offense and the Defendant’s lack of rehabilitative potential due to his established lack of credibility, we c onclud e that De fendan t has failed to meet his burde n of entitlem ent to total p robation .

The Defenda nt also alludes to the argume nt that the trial court should h ave sentenced him to the Com munity Altern atives to Prison Prog ram (C APP ), which is the Com mun ity Corre ctions Prog ram e stablished pursuant to Tennessee Code Annotated section 40-36-101 et seq in Knox Cou nty. From the record, it appears that Defendant did not urge this alternative sentence to the trial court until after the sentencing hearing was co mplete and the trial court ha d impo sed the senten ce. In any event, the record ind icates tha t the eligibility criteria fo r CAP P, acco rding to its own report concerning Defendant, requires for a defendant to be eligible, that there be no serious bodily harm to the victim. Tenn. Code Ann. § 40-36-106(a)(3). For

-9-this reason and under the circ ums tance s of this case , the trial c ourt did not err in declining to allow service of the sentence under the CAPP program.

After a thorough review of the record, the briefs and the applicable law in this case, we find no error in the D efendant’s sentence and affirm the judgment of the trial court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ DAVID H. WELLES , Judge

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