State of Tennessee v. Nathaniel Shelbourne

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 5, 2012

STATE OF TENNESSEE v. NATHANIEL SHELBOURNE

Appeal from the Circuit Court of Lake County
No. 09-CR-9299 R. Lee Moore, Jr., Judge

No. W2011-02372-CCA-R3-CD - Filed December 26, 2012

Nathaniel Shelbourne (“the Defendant”) was convicted by a jury of intentional or knowing
aggravated assault causing serious bodily injury. After a sentencing hearing, the trial court
sentenced the Defendant to a term of eight years in the Tennessee Department of Correction,
to be served consecutively to his prior sentence. In this appeal as of right, the Defendant
claims that (1) the trial court erred in admitting photographs of the victim’s injuries; (2) the
trial court erred in refusing to charge the jury on the lesser-included offense of misdemeanor
reckless endangerment; (3) the evidence is not sufficient to support his conviction; and (4)
his sentence is excessive. After a thorough review of the record and relevant authorities, we
have determined that the Defendant is not entitled to relief on any of these issues.
Accordingly, we affirm the trial court’s judgment.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN,
J., joined. T HOMAS T. W OODALL, J., filed a concurring opinion.

Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Nathaniel Shelbourne.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Philip Bivens, District Attorney General; and Lance Webb, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

Factual and Procedural Background

The Defendant was indicted in March 2009 for one count of aggravated assault
committed in July 2008 in Lake County, Tennessee. At the Defendant’s jury trial conducted
in September 2011, the following proof was adduced:

David Burkeen, a sergeant at Northwest Correctional Complex, testified that, on July
3, 2008, he just had finished passing out “[c]ommissary” to the inmates. Sgt. Burkeen
explained that inmates were allowed to purchase toiletries, snacks, etc., out of monies in their
accounts and that these items were known as “commissary.” Sgt. Burkeen was in Unit 6,
which consisted of sixty-four cells. Thirty of these cells were downstairs, and the remainder
were upstairs.

Sgt. Burkeen was standing at the bottom of the staircase that led up to the second floor
when he heard Officer Staggs yell, “[H]ey, look!” Sgt. Burkeen looked up and saw an
inmate “punching” Officer Miller. Sgt. Burkeen identified the Defendant as the inmate.

Sgt. Burkeen ran upstairs. The Defendant was punching Officer Miller “on top of the
head” while Officer Miller was kneeling on the floor and trying to “cover up.” Sgt. Burkeen
told the Defendant to stop. When the Defendant did not stop, Sgt. Burkeen sprayed him.
When the Defendant still did not stop, Sgt. Burkeen “dove for him” and “grabbed him to take
him down.” At that point, Sgt. Burkeen successfully stopped the Defendant’s attack on
Officer Miller. Inmates Relations Coordinator Avery arrived and grabbed the Defendant’s
legs.

Sgt. Burkeen stated that no other inmates were involved in the incident. He also
acknowledged that he did not see how the incident began.

Sgt. Burkeen testified that, prior to the incident, Officer Miller appeared to have all
of his teeth. After Sgt. Burkeen subdued the Defendant, he saw Officer Miller “coming up
and blood was coming out of his mouth.” Sgt. Burkeen did not recall whether he noticed that
Officer Miller was missing any teeth.

Howard Avery, an Inmate Relations Coordinator (“IRC”) at Northwest Correctional,
described his job as “a cross between a counselor and an officer.” He testified that, on the
day in question, the correctional officers had “just finished commissary and they were getting
ready to feed chow, which was lunch.” As IRC Avery was getting ready to leave Unit 6, he
“heard somebody yell that he was – that he was gonna hit him or something like that.” As
IRC Avery turned to see what was happening, he saw Sgt. Burkeen running up the stairs. As

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IRC Avery prepared to follow, he looked up and saw the Defendant “attacking Officer
Miller.” IRC Avery described the Defendant’s actions as “whaling on” Officer Miller,
“hitting him, beating him.” According to IRC Avery, Officer Miller was lying on the floor
and “covering up” by placing his hands over his head.

IRC Avery was about fifteen steps behind Sgt. Burkeen. After Sgt. Burkeen “tackled”
the Defendant, IRC Avery grabbed the Defendant by the legs. The men then “flipped [the
Defendant] over” and handcuffed him.

IRC Avery stated that he saw no other inmates involved. He did not see or hear
Officer Miller provoke the Defendant.

IRC Avery noticed that Officer Miller was bleeding from the mouth and nose. He
also noticed that Officer Miller was missing some teeth. He accompanied Officer Miller to
the infirmary and subsequently returned to the scene to look for Officer Miller’s teeth. He
found one and took it to the infirmary.

On cross-examination, IRC Avery acknowledged that he did not see what prompted
the Defendant’s actions. He did not know what the Defendant was thinking at the time. He
admitted that, in a statement he gave to Internal Affairs about the incident, he referred to the
Defendant as “a mental case.” IRC Avery explained this description as being based on the
way the Defendant acted, adding, “he act[s] like a nut.” IRC Avery added that he
“assume[d]” that the Defendant was being administered medication.

Scott Miller testified that he was a Special Agent with the Tennessee Department of
Correction Internal Affairs. He investigated the incident. While interviewing the Defendant,
the Defendant explained that he had been “expecting to receive commissary.” When he did
not, he inquired of Officer Miller as to the reason. The Defendant told Special Agent Miller
that, when Officer Miller told the Defendant that he did not know why, the Defendant “just
went at” Officer Miller. Special Agent Miller testified that, at the end of the interview, the
Defendant “acknowledged that he was sorry for what he did and he hoped the officer was
okay because he hit him really hard, was [sic] his exact words.” Special Agent Miller stated
that the Defendant also said that he hoped Officer Miller got “his attitude straight.”

On cross-examination, Special Agent Miller acknowledged that he taped his interview
with the Defendant and had reviewed a transcript of the conversation. When given a copy
of the transcript and asked at what point the Defendant explained his actions, Special Agent
Miller referred to the Defendant’s transcribed statement, “I said I sent out a commissary sheet
and I just went at him.” Special Agent Miller also acknowledged that the Defendant told
him, “Man, I’m sorry, I apologize. I was just coming slowly out of my medication.” Special
Agent Miller also acknowledged that the Defendant had expressed remorse.

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 Chris Miller, the victim, testified that he was a correctional officer at Northwest
Correctional Facility on July 3, 2008. At the time of trial, he no longer was working at the
prison but instead was making modified asphalt sealant.

Officer Miller testified that, on the morning in question, “[w]e had just got [sic]
through finishing up handing out commissary and was [sic] fixing to start lunch chow.” He
explained that the distribution of commissary involved releasing a few inmates from their
cells at a time and then locking them back up after they had retrieved their items. After
commissary was finished, they started releasing a few inmates at a time for lunch. When
Officer Miller opened the Defendant’s cell, the Defendant approached the door and asked
Officer Miller why he did not get his commissary. Officer Miller told the Defendant he
would check on it after lunch got started. Officer Miller began walking to the next cell, and
the Defendant followed a little behind and to Officer Miller’s left. The Defendant did not
appear angry or agitated.

As Officer Miller went to open the next cell door, the Defendant struck him in the
head, knocking him unconscious and to the floor. When Officer Miller came to, he found
himself “on all fours on the ground.” The Defendant was still hitting him, on the back of his
neck and on his head on both sides. After other officers subdued the Defendant, Officer
Miller noticed blood on the floor, wiped his mouth, and stood up. He noticed blood on his
hand after wiping his mouth.

Officer Miller went to the infirmary and was given a mirror. At that point, he saw
“that these teeth were knocked out and [his] nose [was] busted and [he] had cuts on [his]
upper lip area.” One of his teeth “was hanging down by the nerve” and part of his gum was
missing. The nurse took Officer Miller to the hospital. Officer Miller stated that he got
stitches that day and that, later, he received “a bone graph [sic] on the upper jaw . . . where
they could have something to put implants into so [he] could have some teeth.” Officer
Miller testified that it was eight or nine months before his dental procedures were finished.
He stated that he experienced pain from the bone “graph” and had to take pain medication.
Officer Miller also had to have surgery on his nose.

In conjunction with Officer Miller’s testimony about his injuries, several photographs
of Officer Miller’s mouth, face, and head were admitted into evidence, some taken the day
of the incident and some taken a few days later. The trial court overruled the defense
objection to these photographs.

Officer Miller stated that he still experienced pain in his mouth and had to “cut . . .
everything up in small bite size.”

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 On cross-examination, Officer Miller acknowledged that he had had no previous
problems with the Defendant. He also stated that the Defendant seemed to lose control at the
time of the beating. Officer Miller also acknowledged that, a few days prior to the instant
incident, another inmate had assaulted him and hit him once in the left side of his neck.

On the basis of this proof, the jury convicted the Defendant of one count of intentional
or knowing aggravated assault by causing serious bodily injury, a Class C felony. The trial
court later held a sentencing hearing. At the sentencing hearing, the Defendant testified on
his own behalf. He acknowledged his actions and expressed remorse. The presentence
report was admitted into evidence. Medical records detailing the Defendant’s mental health
history and a forensic psychiatric evaluation also were admitted. At the conclusion of the
hearing, the trial court sentenced the Defendant as a Range II, multiple offender to eight
years in the Department of Correction, to be served consecutively to his previous sentence.
The trial court later overruled the Defendant’s motion for new trial, and the Defendant timely
perfected his appeal to this Court, challenging the trial court’s admission of the photographs;
the trial court’s refusal to charge misdemeanor reckless endangerment as a lesser-included
offense; the sufficiency of the evidence; and his sentence. We will review each of these
issues in turn.

Analysis

Admission of Photographs

Over the Defendant’s objection, the trial court allowed the State to introduce five
color photographs of the victim’s injuries, including three of his open mouth, one of his left
cheek, and one of his right neck. The Defendant contends that the trial court erred in the
admission of the photographs because the photographs were “unfairly prejudicial and
cumulative when supplemented with the victim’s own testimony.” We disagree.

As our supreme court declared many years ago, “the admissibility of photographs lies
within the discretion of the trial court whose ruling in this respect will not be overturned on
appeal except upon a clear showing of an abuse of discretion.” State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978); see also State v. Banks, 271 S.W.3d 90, app. 168 (Tenn. 2008). We
discern no abuse of discretion in the trial court’s admission of the challenged photographs.

A relevant photograph is generally admissible, Tenn. R. Evid. 402, unless 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. In a trial for aggravated
assault causing serious bodily injury, the State must prove that the victim suffered serious
bodily injury. Our criminal code defines serious bodily injury as follows: “bodily injury that

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involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme
physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty.” Tenn. Code Ann.
§ 39-11-106(a)(34) (2006).1 Thus, the State was required to prove, beyond a reasonable
doubt, that the Defendant inflicted upon the victim injuries which satisfied one or more of
these criteria.

While the victim testified in some detail about the injuries he suffered at the
Defendant’s hands, he also testified that the injuries to his mouth had been surgically
repaired. Accordingly, it was not possible for the jury to observe the full extent of the
victim’s injuries simply by looking at him at trial. Therefore, the photographs assisted the
jury in assessing the injuries about which the victim testified. Moreover, the photographs are
not particularly gruesome or offensive. In sum, the admitted photographs were relevant, and
their probative value was not substantially outweighed by any of the criteria set forth in
Tennessee Rule of Evidence 403. See Banks, 271 S.W.3d at app. 168-69; State v. Matthew
A. Webb, No. W2002-03048-CCA-R3-CD, 2004 WL 47092, at *5 (Tenn. Crim. App. Jan.
2, 2004). The Defendant is entitled to no relief on this issue.

Trial Court’s Failure to Charge Misdemeanor Reckless Endangerment

The Defendant contends that the trial court erred in refusing to charge the jury on the
lesser-included offense of misdemeanor reckless endangerment. We hold that any error by
the trial court was harmless beyond a reasonable doubt and that, therefore, the Defendant is
entitled to no relief on this issue.

We begin by examining the indictment, which provides as follows:

THE GRAND JURORS of LAKE COUNTY, TENNESSEE, duly
empaneled and sworn upon their oath, present that NATHANIEL
SHELBOURNE, on or about July 3, 2008, in LAKE COUNTY,
TENNESSEE, and before the finding of this indictment, unlawfully and
intentionally, knowingly or recklessly, caused serious bodily injury to Chris
Miller, in violation of T.C.A. § 39-13-102, a Class C Felony, and against the
peace and dignity of the State of Tennessee.

(Emphasis added). Initially, we note that this language conflates the elements of two
different classes of aggravated assault. A person commits the Class C felony of aggravated

1
The predicate “bodily injury” may consist of “a cut, abrasion, bruise, burn or disfigurement, and
physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental
faculty.” Tenn. Code Ann. § 39-11-106(a)(2) (2006).

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assault when he or she intentionally or knowingly commits an assault and causes serious
bodily injury to another. See Tenn. Code Ann. §§ 39-13-102(d)(1), (a)(1)(A) and 39-13-
101(a)(1) (2006). A person commits the Class D felony of aggravated assault when he or she
recklessly commits an assault and causes serious bodily injury to another. See id. §§ 39-13-
102(d)(1), (a)(2)(A) and 39-13-101(a)(1). This latter offense of Class D felony reckless
aggravated assault is a lesser-included offense of the former offense of Class C felony
intentional or knowing aggravated assault. See State v. Raul T. Garcia, No. E2000-02817-
CCA-R3-CD, 2001 WL 856598, at *2 (Tenn. Crim. App. July 31, 2001).

Although the indictment conflated the two felonies, the trial court properly instructed
the jury that the two offenses were distinct. In accordance with our supreme court’s directive
that juries be instructed to consider offenses sequentially from greater to lesser, see State v.
Davis, 266 S.W.3d 896, 910 (Tenn. 2008), the trial court charged the jury to first consider
the greater offense of intentional or knowing aggravated assault. The trial court also
instructed the jury that, if it determined the Defendant to be not guilty of that offense, then
it must consider the lesser-included offense of reckless aggravated assault.

Misdemeanor reckless endangerment may be a lesser-included offense of reckless
aggravated assault causing serious bodily injury. See W. Mark Ward, Tennessee Criminal
Trial Practice, § 26:6 (2012-13 ed.). Under the facts and circumstances of this case,
however, even if such a charge was appropriate, the jury would have had the opportunity to
consider misdemeanor reckless endangerment only after it had first considered the offense
of reckless aggravated assault and unanimously acquitted the Defendant of that offense. See
Davis, 266 S.W.3d at 910. When the jury has the opportunity to consider an intermediate
lesser-included offense – here, reckless aggravated assault – but convicts of the greater
offense, a trial court’s failure to charge the next lesser-included offense is harmless error
beyond a reasonable doubt. See Banks, 271 S.W.3d at 126. Accordingly, the Defendant is
entitled to no relief stemming from the trial court’s refusal to charge the jury with the offense
of misdemeanor reckless endangerment.

Sufficiency of the Evidence

The Defendant next challenges the sufficiency of the proof supporting his conviction
of intentional or knowing aggravated assault. Our standard of review regarding sufficiency
of the evidence 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). After a jury finds a defendant guilty, the presumption of innocence is
removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why
the evidence was insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913,

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914 (Tenn. 1982). The appellate court does not weigh the evidence anew. Rather, “a jury
verdict, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts” in the testimony and all reasonably drawn inferences in favor of the
State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the
strongest legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty
verdicts based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes,
our Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

As set forth above, the Class C felony of aggravated assault as charged in this case is
committed when the accused intentionally or knowingly commits an assault and causes
serious bodily injury to another. See Tenn. Code Ann. § 39-13-102(a)(1)(A). Our criminal
code defines the relevant culpable mental states as follows:

“Intentional” refers to a person who acts intentionally with respect to
the nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.

“Knowing” refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware
of the nature of the conduct or that the circumstances exist. A person acts
knowingly with respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.

Id. § 39-11-302(a), (b) (2006). As also set forth above, “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; or (E) Protracted loss
or substantial impairment of a function of a bodily member, organ or mental faculty.” Id. §
39-11-106 (a)(34).

The Defendant argues that the proof is insufficient to support his conviction of this
offense because “there was no testimony from any witness that [he] ever struck the victim
in his facial area.” We are not persuaded. The proof at trial established that the victim had
his front teeth prior to the Defendant’s attack on him and that, immediately after the
Defendant attacked him, the victim had lost at least one tooth that was found in the vicinity
of the attack and that another of the victim’s front teeth was “hanging by a nerve.” This is

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sufficient circumstantial proof to establish that the injuries to the victim’s mouth resulted
from the Defendant’s attack. The Defendant is entitled to no relief on this basis.2

The Defendant also argues that the proof is insufficient to establish that he attacked
the victim either intentionally or knowingly, referring to his mental health problems and
asserting that the witnesses “testified that they did not know what was in [his] mind when the
assault occurred.” Again, we are not persuaded. The Defendant adduced no expert proof
that he was incapable of forming either the intentional or knowing mens rea at the time he
attacked the victim. Moreover, the jury had more than enough proof to conclude that the
Defendant acted at least knowingly when he asked the victim a question, followed the victim
some distance, and then began beating the victim when the victim did not answer the
Defendant’s question to the Defendant’s satisfaction. That none of the witnesses was able
to testify as to what the Defendant was thinking at the time does not entitle the Defendant to
relief. Our supreme court has long recognized that there is rarely direct proof of an accused’s
state of mind and that circumstantial evidence thereof may be sufficient. See, e.g., State v.
Davidson, 121 S.W.3d 600, 614-15 (Tenn. 2003); see also State v. Inlow, 52 S.W.3d 101,
104-05 (Tenn. Crim. App. 2000) (recognizing that “[i]ntent, which can seldom be proven by
direct evidence, may be deduced or inferred by the trier of fact from the character of the
assault, the nature of the act and from all the circumstances of the case in evidence”) (citing
State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)). We hold that the proof
adduced at trial was sufficient to establish that the Defendant acted at least knowingly when
he repeatedly struck the victim about the head. The Defendant is entitled to no relief on this
issue.

Sentencing

In his final issue, the Defendant complains that the trial court erred in its application
of enhancement factors, resulting in a mid-range sentence of eight years, and in ordering the
instant sentence to be served consecutively to the Defendant’s prior sentence. The State
disagrees.

At the sentencing hearing, the presentence report was admitted with insignificant
changes by the Defendant. Additionally, the Defendant testified. The Defendant expressed
his remorse and asked the judge to consider his mental health problems. The trial court

2
Although not raised as a distinct issue, we also hold that the proof was sufficient to establish that
the victim suffered serious bodily injury at the Defendant’s hands. See State v. John Wayne Blue, No.
02C01-9604-CC-00124, 1997 WL 284721, at *3 (Tenn. Crim. App. May 30, 1997) (holding that the victim’s
loss of two teeth “constituted ‘obvious disfigurement’ within the meaning of ‘serious bodily injury’”); see
generally State v. Farmer, 380 S.W.3d 96, 100-03 (Tenn. 2012). In this case, the victim required multiple
surgeries and testified that he was no longer able to chew normally.

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admitted numerous mental health and medical records regarding the Defendant’s problems.
The trial court thereafter determined that the Defendant was a Range II, multiple offender
and that four enhancement factors applied: “(1) The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range”; “(11) The felony resulted in death or serious bodily injury, or involved
the threat of death or serious bodily injury, to another person, and the defendant has
previously been convicted of a felony that resulted in death or serious bodily injury”; “(13)
At the time the felony was committed, . . . the defendant . . . [was] [i]ncarcerated in any penal
institution on a misdemeanor or felony charge or a misdemeanor or felony conviction”; and
“(19) If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-
102, the victim of the aggravated assault was a . . . correctional officer, . . . provided, that the
victim was performing an official duty and the defendant knew or should have known that
the victim was such an officer or employee.” Tenn. Code Ann. § 40-35-114(1), (11), (13)(I),
(19) (Supp. 2008). The trial court also applied as a mitigating factor that the Defendant had
been “suffering from a mental or physical condition that significantly reduced [his]
culpability for the offense.” Id. § 40-35-113(8) (2006).

As to its weighing of the various enhancement and mitigating factors, the trial court
explained that it was putting more weight on the enhancement factors than on the single
mitigating factor because the Defendant “knew exactly what [he was] doing when [he] did
it, and [he] knew [he was] attacking a correctional officer, and it was simply because [the
victim] had not brought to [him his] commissary which [he] had requested from the
commissary.” Accordingly, upon taking the mitigating and enhancement factors into
account, the trial court sentenced the Defendant to a midrange sentence of eight years.3 The
trial court then ordered that the Defendant serve the instant sentence consecutively to his
prior sentence on the basis that the Defendant is a dangerous offender.

While the Defendant complains that the trial court did not sufficiently explain the
factual bases for its application of the enhancement factors, the Defendant’s actual primary
challenge to the length of his sentence is the trial court’s refusal to accord more weight to his
mental health problems in mitigation. The Defendant also challenges the trial court’s order
that he serve his sentence consecutively.

Prior to imposing sentence, a trial court is required to consider the following:

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

(2) The presentence report;

3
The Range II sentence for a Class C felony is six to ten years. Tenn. Code Ann. § 40-35-112(b)(3)
(2006).

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 (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.

Tenn. Code Ann. § 40-35-210(b) (2006).

The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (2006). “The sentence imposed should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Tenn. Code Ann.
§ 40-35-103(4), (5) (2006).

Our Sentencing Act also mandates that,

In imposing a specific sentence within the range of punishment, the court shall
consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement factors
set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2006).

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 Additionally, a sentence including confinement should be based on the following
considerations:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement 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

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor
does not remove the presumption of reasonableness from its sentencing decision.” Id. at
709. 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 those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n
Cmts. (2006); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Initially, we discern no error by the trial court in its findings of fact regarding the
enhancement factors. The presentence report reflects that the Defendant has five previous
convictions, including two for especially aggravated robbery. The Defendant raised no
objection to the accuracy of this information. These prior convictions are sufficient to trigger
the applicability of enhancement factor (1). The Defendant’s prior convictions for especially
aggravated robbery are also sufficient to trigger the applicability of enhancement factor (11).
The Defendant’s incarceration at the time of the offense was uncontroverted, resulting in the
applicability of enhancement factor (13). Similarly, the victim’s status as a correctional
officer performing an official duty, and the Defendant’s knowledge thereof, was
uncontroverted, resulting in the applicability of enhancement factor (19).

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 We also discern no abuse of discretion by the trial court in setting the Defendant’s
sentence at the mid-range length of eight years. All four enhancement factors relied upon
by the trial court clearly are supported by the evidence. The trial court could have imposed
the maximum sentence of ten years on the basis of these enhancement factors, but, instead,
the trial court ordered the Defendant to serve only eight years after finding that the
Defendant’s mental health problems established a ground for mitigation. The trial court’s
imposition of the Defendant’s eight-year sentence is in compliance with the Sentencing Act.
Therefore, the trial court clearly did not abuse its discretion in sentencing the Defendant to
eight years. Accordingly, the Defendant is entitled to no relief as to the length of his
sentence.

The trial court also ordered the Defendant to serve the instant sentence consecutively
to his previous sentence upon finding the Defendant to be a “dangerous offender.” The
Sentencing Act contemplates consecutive service of multiple sentences “if the court finds by
a preponderance of the evidence that . . . [t]he defendant is a dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4) (2006).
In deciding to order consecutive service, the trial court found as follows:

You are presently serving a pretty substantial sentence for, again, a
pretty serious offense. And in looking at your record, the offenses that you
have committed are offenses where people get hurt and can get killed and do
get hurt; they’re very serious offenses. Your rehabilitation does not look good.
You’ve got a fairly long criminal history for a young man your age. Potential
for rehabilitation is just simply not there.

....

The sentence will have to be served consecutively. The Court thinks in this
situation a consecutive sentence is appropriate. Quite frankly, you’re a
dangerous offender, and I’m concerned about whether or not you have any
regard for hurting someone or for human life. You are a dangerous offender.

The Defendant’s argument as to how the trial court erred in imposing consecutive
sentencing is limited to the following:

The Court based its decision to order consecutive sentencing upon its
belief that the Defendant was a dangerous offender. However, [the Defendant]
would aver that aggravated assault is NOT a dangerous felony as defined in
2008 under T.C.A. 39-17-1324(i)(1) OR under T.C.A. 40-35-120 which
defines VIOLENT offenses. Moreover, none of the Defendant’s prior

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 convictions are included as “dangerous felonies” according to T.C.A. 39-17-
1324(i)(1).

This argument completely misapprehends the law regarding the imposition of consecutive
sentences. Moreover, the cited statutes are irrelevant to the issue. Therefore, we deem this
issue waived. See Tenn. Ct. Crim. App. R. 10(b). Accordingly, the Defendant is entitled to
no relief on this basis.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

_________________________________
JEFFREY S. BIVINS, JUDGE

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