State of Tennessee v. Steven Shane Neblett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 14, 2012 Session

STATE OF TENNESSEE v. STEVEN SHANE NEBLETT

Direct Appeal from the Circuit Court for Dickson County
No. 22CC-2010-CR-713 Robert E. Burch, Judge

No. M2011-02360-CCA-R3-CD - Filed October 9, 2012

A Dickson County jury convicted the Defendant, Steven Shane Neblett, of aggravated
assault, and the trial court sentenced him to three years, to be suspended after the service of
one year of incarceration. On appeal, the Defendant contends that: (1) the evidence is
insufficient to sustain his conviction, in part, because the State failed to prove that he did not
act in self-defense; (2) the trial court offered the jury vague and inappropriate jury
instructions; and (3) the trial court erred when it sentenced him by not applying applicable
mitigating factors and by imposing an excessive sentence. After a thorough review of the
record and relevant authorities, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Olin J. Baker, Charlotte, Tennessee, for the appellant, Steven Shane Neblett.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General, and Billy Henry Miller, Jr.,
Assistant District Attorney General for the appellee, State of Tennessee.

OPINION

I. Facts
 This case arises from a physical altercation between the Defendant and another man,
Mark Andrew Akin, the victim in this case. For his participation in the fight, the Defendant
was indicted for aggravated assault. The parties presented the following evidence at the trial:
Mark Andrew Akin testified he had been friends with the Defendant for over a year. On
September 3, 2010, Akin attended a party at the Defendant’s home to celebrate another
friend’s, Mitchell Taylor, enrollment in the Army. Akin arrived at the party between 8:00
and 8:30 p.m., and he began consuming alcohol. Akin recalled that he consumed
approximately four or five “Dixie” cups of beer and also a shot of Jack Daniels during the
two and a half hours that he was at the party.

Akin described the time he spent at the party, saying that when he arrived he was
talking to other people there and having a good time. About an hour or an hour and a half
later, he went from the front of the trailer to walk around the back. When Akin arrived in the
back, Jason Wall “came up to the side of my face hollering and screaming at my ear.” Akin
explained that he had a hearing impairment, which was a result of his suffering spinal
meningitis as a child, and he wore a hearing aid. He said that Wall screaming in his ear
“hurt” him. Akin testified that he pushed Wall away from him, shortly after which the
Defendant came from behind Akin and “sucker punched” him. Akin said that this caused
him to fall face first onto the ground. The Defendant then rolled Akin over, got on top of
him, and hit him multiple times with his elbows. Akin said that the blows were “with so
much force that it knocked the hearing aid” out of his ear. Akin said that the Defendant
broke his cheek bone and his nose. Akin testified that the blows also rendered him
unconscious.

Akin testified that, after he regained consciousness the following morning, he noticed
that he was bleeding “profusely.” Akin said that, when he looked in the mirror, he noticed
that part of the left side of his nose bone was in his eyeball socket. He described the pain
from his broken bones as “excruciating.” Akin testified that, before Wall screamed in his
ear, he and Wall had not had any problems.

Akin said that he went to the doctor approximately one week after this altercation, in
part, because he could not hear properly with his hearing aid. The doctor informed him he
needed surgery to fix his eye socket and, at the time of trial, he still needed another surgery.
Akin said he was being treated for Post Traumatic Stress Disorder related to this incident and
that he suffered memory problems.

Akin further testified that the Defendant’s father attempted to get Akin to “drop” the
lawsuit. He explained that, on Valentine’s day, the Defendant’s father came to his house and
told him a version of events that had occurred. Akin did not agree with that rendition of the
events and asked the Defendant’s father to leave.

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 During cross-examination, Akin conceded that he was hit from behind, so he was
unsure who struck him. He said, however, he had been told that it was the Defendant. Akin
agreed that he was “impaired” at the time of the altercation from the alcohol that he had
consumed. He agreed that he did not seek medical treatment for eleven days after the
incident. After seeking medical treatment, he was referred to Vanderbilt, and his
appointment was scheduled for several days later. He said that his injuries “should have,”
but did not, require “urgent immediate treatment.” Akin said he filed a police report on
October 20, 2010.

Akin testified that the Defendant drove him home after this incident. Akin said that
his father was there when he arrived home, and that the Defendant spoke to Akin’s father
when he dropped him off.

Dr. Steven Press, an assistant professor in oral, maxillofacial surgery at Vanderbilt
University, testified that he performed surgery on Akin. He said that this surgery was
conducted September 21, 2010, and he described the surgery as a “closure reduction of nasal
fracture and open reduction of internal fixation of the left orbital rim fracture.” He explained
that this meant that Akin had fractures of the nasal bone and the bottom part of his eye socket
and that, during the surgery, the fractures were reduced and repaired.

Dr. Press described Akin’s orbital bone fracture as “compound,” which required him
to implant titanium plates and titanium screws. Dr. Press described the recovery process
from that surgery as taking six weeks for the average person and as being painful. The
doctor opined that Akin’s fractures were consistent with being struck in the face with an
elbow or being kicked in the face with the toe or heel of a boot.

During cross-examination, the doctor testified that he considered this surgery a
“serious” surgery but conceded that it was not a life-threatening surgery. He agreed that it
was “possible” that Akin’s injuries could have been caused by him flipping over someone’s
back and landing on his face.

Shawna Marie Sweeney testified that, at the time of trial, she was nineteen years old.
She said she was present at the party where this altercation occurred, having been invited
there by her fiancé, Blake Dunn. At the time, she had met the Defendant but the two were
not close friends. Sweeney testified that she and Dunn arrived at the party together between
8:00 p.m. and 10:00 p.m. When she got out of the car, the Defendant’s girlfriend, “Brandy,”
Jason Wall’s sister, “Gaina,” and two other women, “Dana” and “Summer,” “came after her”
and “jump[ed] her.” Sweeney said that Brandy was mad that Sweeney had come to the party
because she believed that Sweeney liked the Defendant. Sweeney opined that “it escalated”
because the four women had been drinking.

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 Sweeney testified that the women punched her and hit her and that she fell down. She
said that she suffered from scoliosis and had a rod and screws in her back, so she fought back
to prevent further injury to her back. During this incident, Sweeney noticed that Akin was
talking to the Defendant and Wall.

Sweeney said that, after the fight between her and the other women ceased, Brandy
went back to the front porch and took her two toddlers inside the trailer. Sweeney then saw
the Defendant hit Akin, who had just been standing there talking to someone else, in the back
of the head. Akin hit the ground and seemed to be unconscious. “[A]ll of a sudden,” the
Defendant got on top of Akin and elbowed and punched him in the face two or three times.
Sweeney said, “It looked awful.” Wall then approached and kicked Akin in the head.
Sweeney said Akin never resisted because he was unconscious. Sweeney recalled that Akin
was “bloody” and that “it looked bad.” She recalled that Akin did not wake for
approximately an hour.

Sweeney said that, while the Defendant was punching Akin, another man, named
Jarred Chester, walked around the trailer. Chester grabbed Akin, and pulled him up onto the
porch and tried to clean some of the blood from him. Sweeney said that a man named Chris
Herrell arrived after the fight had concluded and that she did not recall seeing a man named
Josh Clark at the party.

During cross-examination, Sweeney testified that she stayed at the party after the
women had attacked her because they went inside the trailer while she remained outside. She
said Wall kicked Akin two or three times after the Defendant had stopped elbowing him. She
said, during the altercation, she yelled at the men and told them to “stop.”

Jarred Chester testified about this incident, saying that he had been invited to the
Defendant’s house by his friend Mitchell Taylor, the man for whom the party was being
thrown. The party was in celebration of Taylor being inducted into the U.S. Army. Chester
said that he had known the Defendant most of his life and that the two were “pretty good
friends.” Chester was also friends with Akin. Chester estimated that he consumed six or
seven beers while he was at the party.

Chester said that, before the incident in question, he and Akin exchanged “words.”
He said that Akin was “kind of picking with [him],” and Chester took Akin’s “messing
around” the wrong way. Chester said, however, that the exchange never became physical and
that the two men apologized to each other.

Chester testified that he witnessed the altercation between the Defendant and Akin.
He said he was on the other side of the trailer at the time, and, when he walked around the

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house, the Defendant was on top of Akin. The Defendant “thr[e]w two elbows to [Akin’s]
face.” Chester said he “ran up there and told [the Defendant] that he was done and [the
Defendant] got off of [Akin].” Chester said he carried Akin, who did not appear “all the way
conscious,” up to the porch. There, Chester attempted to clean Akin up because Akin was
very bloody.

During cross-examination, Chester testified that he did not see the beginning of the
fight. He further testified that he did not see Wall during the altercation. Chester said that,
when he and Akin exchanged words, they were “close to coming to blows” and that the
Defendant stepped in and split the two men apart. Chester said that Akin was intoxicated
during the party.

During redirect examination, Chester testified that neither Chris Herrell nor Joshua
Clark were present when the Defendant was elbowing Akin.

Gerald Lee Akin, Akin’s father (“Mr. Akin”), testified that his son lived with him at
the time of this incident. Mr. Akin said that his son had been at a party at the Defendant’s
house on September 3. Between 9:45 p.m. and 10:15 p.m. that evening, the Defendant
arrived at Akin’s house driving Akin’s truck. The Defendant approached Mr. Akin, who was
standing with his other son, and apologized about “what he had done and everything.” The
Defendant said, “I’m sorry” and “I didn’t know it was him and I just started pounding him
and stuff.” The Defendant never mentioned anything about self-defense and, instead, said
he thought Akin was someone else when he attacked him.

Mr. Akin said he did not see Akin until after the Defendant had left. Mr. Akin said
that his son’s eye was swollen and bleeding. His nose was also swollen, and he had marks
on his neck, arms, and back. Akin also had a knot on his head. Mr. Akin said his son was
“in and out of it just like in a daze.”

Mr. Akin testified that he called the police and a deputy arrived at his house with an
ambulance. The ambulance checked Akin and said it looked like he “just got beat up” and
that it was mostly swelling. Mr. Akin said it took a week for the swelling to subside and,
when it did, Akin had a bone protruding from his cheek. At that point, he took Akin to the
doctor.

During cross-examination, Mr. Akin testified that the Defendant and his son were
friends at the time of this incident.

The Defendant presented several witnesses. Casey Lee Harrison, Akin’s cousin,
testified that Akin came to his house on the day after this altercation. Akin had “a black

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eye,” and Harrison asked him what had happened. Harrison said Akin told him that “he was
over at [the Defendant’s] house [and] there was a fight going on and he jumped on [the
Defendant’s] back and [the Defendant] flipped him off, punched him in the face before he
knew who [Akin] was.” Harrison said that Akin asked him to go with him to the Defendant’s
house and “whip him,” and Harrison told Akin that Harrison did not want to get involved.
During cross-examination, Harrison testified that Akin’s face was not swollen or bleeding.

Brandy Jo Hasley, the Defendant’s girlfriend, testified that, on September 3, they were
having a party at the Defendant’s house. Sweeney, she said, was told not to be there because
Sweeney had been stealing from Hasley. Sweeney came to the party despite not being
invited and approached her “screaming and yelling.” Hasley said she “wound up going off
her front porch,” leaving her son on the porch, and punched Sweeney in the face. Hasley said
she and Sweeney began fighting “up and down the driveway.” At the end of the fight,
Sweeney got into her car and left.

Hasley said that the Defendant and Akin got into a physical altercation after Sweeney
had backed out of the driveway. Hasley said she did not see the beginning of the altercation
because she was fighting Sweeney. She said, when she turned around after watching
Sweeney leave, she saw the Defendant hit Akin one time and stand up off of him. Chester
and Taylor assisted Akin to the front porch. Hasley said she went to get something to wipe
off Akin’s face. Hasley asked the Defendant why he had hit Akin because the Defendant and
Akin were best friends. The Defendant said he did not know.

Hasley said she saw Akin consume six beers and Jack Daniels from a bottle before the
altercation.

During cross-examination, Hasley testified that she was the Defendant’s child’s
mother and that she and the Defendant lived together with her two children, a three-year-old
and a four-year-old. She said that she did not call the police when Sweeney stole from her
because the items that Sweeney took were of little value. She was still, however, upset by
Sweeney’s actions. Hasley agreed that she did not see very much of the fight and that she
only saw the Defendant hit Akin one time.

Summer Gail Neblett, the Defendant’s sister, testified that she attended the party at
the Defendant’s trailer and saw Sweeney and Dunn drive up to the house. As soon as
Sweeney arrived, Hasley and Sweeney engaged in a physical altercation because Sweeney
was not supposed to come to the party. People gathered around the two women, who were
fighting. Akin was standing behind the Defendant, and they were both watching the fight.
The Defendant, she said, “g[ot] grabbed,” so he turned and started hitting the person who
grabbed him. Neblett said the Defendant only hit the person two or three times before he got

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off of him and discovered it was Akin.

Neblett said that Akin regained consciousness and got into his truck and said he was
going home. He, however, began driving in the direction opposite of his house. Neblett said
she and the Defendant got into their car to follow Akin and make sure he got home safely.
Akin drove into an embankment, and the Defendant got into Akin’s truck and began to drive.
Neblett said she followed the Defendant, who was driving Akin in Akin’s truck, back to
Akin’s house. She said the Defendant told Akin’s father that he was sorry and that Akin had
grabbed him, so the Defendant punched Akin.

During cross-examination, Neblett testified that, at the time, she was preoccupied,
watching the fight between Hasley and Sweeney, when the fight between the Defendant and
Akin began.

Christopher Todd Herrell testified that he was at the party where Akin and the
Defendant engaged in a physical confrontation. He said that, earlier in the evening, he saw
Dunn and Sweeney at a BP station. The two told him that they were tired of hearing people
talk about them and that they were going to the Defendant’s house so Sweeney could fight
Hasley. Herrell said he thought “all right, cool, I’ll be going up there and watch a girl fight,”
in part because he “hadn’t seen a girl fight in awhile.” When he arrived at the party,
Sweeney and Hasley were fighting. The girls did not have much light, so Herrell left the
lights of his truck on when he exited the truck, in order to better illuminate the fight.

Herrell said he joined in the crowd of people gathered around the fight. Herrell said
that, about fifteen to twenty feet away from the fight, Dunn pushed Wall. The next thing
Herrell knew, Akin grabbed the Defendant from behind. The Defendant flipped Akin over,
and the two started to fight. Herrell said that he did not watch the fight between the
Defendant and Akin because he was more interested in watching the fight between the two
women. He did, however, hear people yelling at the Defendant to get off of Akin. He then
saw his stepson, Mitchell Taylor, and Chester carry Akin over to the porch. Herrell said
Akin’s actions “shocked” him because it was out of character for Akin. Herrell said that the
Defendant did not realize who grabbed him before he flipped him over. Herrell recalled that
the Defendant only hit Akin “a few times.”

During cross-examination, Herrell said he did not know why Chester would have
testified that he was not at the party. He said that he was not drinking the day of the party
and clearly remembered the events that occurred. Herrell said that the Defendant was
“defending himself” when he hit Akin. He conceded that Akin was on the ground when the
Defendant started hitting him.

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 Jason Douglas Wall testified that he was a co-defendant in this case. He described
the events leading to the fight, saying that he was at the party when Dunn and Sweeney
arrived. Hasley and Sweeney began fighting. Wall said he went outside and he and Dunn
began arguing because Wall told Dunn he should not have brought Sweeney to the party.
Wall said, “all of a sudden,” Akin came between Dunn and Wall and grabbed the Defendant
from behind. The Defendant flipped Akin over his back and then punched him. Wall said
that the Defendant did not know who he was punching even after he got up. Wall said that
they were all friends and had been together all night. Wall testified that, while he was
charged with doing so, he never stomped or kicked Akin.

Wall recounted that Akin and Chester got into a verbal altercation earlier in the
evening. He said that Chester spilled beer on Akin’s shoe, and Akin was “bound and
determined he was going to whip his butt over that.” He thought the men were going to have
to make Chester leave, but Akin eventually calmed down.

During cross-examination, Wall agreed that he saw the Defendant strike Akin once
or twice when Akin was on the ground. He said he then turned away to continue watching
the women fighting, so he did not see how the fight between the Defendant and Akin ended.
Wall said that, after the fight concluded, Taylor and Chester assisted Akin to the porch. Wall
went to look at Akin, who was still unconscious, and he saw a cut under his eye.

Joshua Cory Clark testified that he had known Akin for a long time. He said that he
had his “first altercation[]” with Akin a year and a month before the trial. He described the
altercation, saying that he was having a housewarming party with a mutual friend and that
Akin came to the party. He said that, at first, Akin was “nice and playful” and then, as he got
a little more inebriated, Akin wanted to “wrestle around.” Clark said that he and Akin had
a physical altercation that evening. He said that, a month before the trial, he and Akin got
into another physical altercation when Akin struck him.

Based upon this evidence, a Dickson County jury convicted the Defendant of
aggravated assault.

B. Sentencing

The trial court held a sentencing hearing, during which the parties stipulated to the
presentence report and also that Akin’s medical expenses totaled $16,511.58. The parties
then presented the following evidence: Akin testified that, as a result of his injuries, he had
difficulty thinking. He said that it took his injuries several months to heal, resulting in him
being fired from his job. He had not yet, at the time of sentencing, been able to find other
employment.

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 Akin testified that the amount of medical bills stipulated to did not include the $2,500
he was going to have to pay to replace his hearing aid that was damaged in the altercation.
He said that his doctors had also advised him that he was going to need another surgery. He
said that he had not scheduled the surgery because he did not have medical insurance.

Akin agreed that, the weekend before the sentencing hearing, he had been charged
with DUI and simple possession. He said that, at the time, he was on probation for a separate
simple possession conviction. Akin asked the trial court to sentence the Defendant to two
or three years with no probation.

During cross-examination, Akin agreed that he had also been charged with violating
his probation. Akin testified that he and the Defendant were friends before this incident and
that the Defendant drove him home that evening. Akin said that he suffered from bipolar
disorder as a result of this incident. He agreed, however, that the treatment he was seeking
was for more than the mental injuries from this assault.

Akin agreed he asked the Defendant to pay his medical bills before he filed these
charges and, after the Defendant denied his request, he filed charges against the Defendant.
He said the case was more about medical bills than anything else.

The Defendant testified about the events leading to this fight, saying that Sweeney’s
boyfriend had grabbed the Defendant’s fiancé. He said that he went to assist his fiancé when
Akin grabbed him in a choke hold from behind, trying to pull him down. He said Akin
choked him “pretty hard” and he “about lost consciousness.” He said his only option was to
“push up” and when he “pushed up his face just planted the ground.” The Defendant said
he had no intention of hurting Akin, as the two had been friends for two to four years without
any problems between them. The Defendant said he was “sorry it ever happened” and that
“[i]f [he] had known it was [Akin] [he] never would’ve even done anything.”

The Defendant said that, when he took Akin home, Akin’s father told him to leave and
not to come back. He said that was why he had not gone back to Akin’s house to apologize.

The Defendant said that his trailer had recently burned and he lost most of what he
owned. He said that he had purchased another trailer that he was trying to get “setup” for his
fiancé and their two children. He said that he was the sole provider for his family, and, with
his attorney’s fees, he was unable to manage all of his expenses. His father was helping him
financially, and he worked for his father at a carpet installation store. The Defendant
implored the trial court to sentence him to probation. The Defendant assured the trial court
that he would abide by the terms of his probation and report to his probation officer as
required.

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 The Defendant explained that, the night of the fight, after Chester and Taylor took
Akin to the porch to clean him up, he heard a humming noise in the driveway. He followed
the sound and found Akin’s hearing aid. He went to the porch and handed the hearing aid
to Akin.

The Defendant said that, when he drove Akin home that night, he apologized to Mr.
Akin. He said he “was almost in tears [be]cause I was that sorry for hurting a friend of mine
[be]cause I know he had been drinking that night; and you know, I felt bad.” He said he told
Mr. Akin that he never intended for any of this to happen.

The Defendant said he had no prior felony convictions but that he had previously been
convicted of two DUIs and also possession. He clarified that he had not been in trouble for
five years before this incident. The Defendant offered an apology to Akin and Mr. Akin.

During cross-examination, the Defendant said that he had been convicted of “simple
possession” on three prior occasions. The Defendant agreed that he hit Akin in his face once
with his fist and twice with his elbow.

Gerald Akin, Andrew Akin’s father, testified that his son did not come home with his
hearing aid on the night of the fight. Mr. Akin said his other son went to the Defendant’s
house to look for the hearing aid. Mr. Akin did not know whether his son found it or the
Defendant found it and gave it to his son.

Mr. Akin testified that, the night of the fight, the Defendant “c[a]me across the yard
apologizing.” When Mr. Akin saw his son, his son was in the bathroom “all bloody and
disoriented.” Mr. Akin said he went back out in his yard and told the Defendant to leave.

Based upon this evidence, the trial court found that the Defendant had been convicted
of a Class C felony, as a Range I offender, with a sentencing range of not less than three or
more than six years. The trial court applied one enhancement factor, that the Defendant had
a previous history of criminal convictions, having previously been convicted of five
misdemeanors. See T.C.A. § 40-35-114 (1) (2010). The trial court applied two mitigating
factors, first that the Defendant assisted Akin after the fight by driving him home and also
that he was remorseful. See T.C.A. § 40-35-113(13) (2010).

The trial court denied full probation to the Defendant, finding that measures less than
confinement had frequently been applied unsuccessfully to the Defendant and noting that the
Defendant had been on probation five different times and still continued to violate the law.
The trial court found the facts of this case “egregious” in that Akin was lying helpless on the
ground while the Defendant “pummeled” him.

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 The trial court sentenced the Defendant to three years and ordered him to serve one
year of incarceration and the remainder of his sentence on probation. The Defendant appeals
his judgment of conviction and also his sentence.

II. Analysis

On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his
conviction, in part because the State failed to prove that he did not act in self defense; (2) the
trial court offered the jury vague and inappropriate jury instructions; and (3) the trial court
erred when it sentenced him by not applying applicable mitigating factors and by imposing
an excessive sentence.

A. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his conviction for
aggravated assault. He asserts that the evidence does not support the jury’s verdict and also
that the evidence proved that “all acts” he committed were “solely done in self-defense.” He
further contends that it is the State’s burden to prove that he did not act in self-defense and
that the State failed in meeting this burden. The State counters that it presented sufficient
evidence to support the Defendant’s conviction and to refute the Defendant’s claim of self-
defense. We agree with the State.

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see
Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State
v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be given
to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “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)).

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 In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “‘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. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973)). The Tennessee Supreme Court 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.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate view
of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000).

1. Proof of Aggravated Assault

In this case, the Defendant was convicted of aggravated assault. According to our
statutes, “(a)(1) A person commits aggravated assault who: (A) Intentionally or knowingly
commits an assault as defined in § 39-13-101 and: (I) Causes serious bodily injury to another
. . . .” T.C.A. § 39-13-102(a)(1)(A) (2010). “‘Bodily injury’ includes 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.” T.C.A. § 39-11-106(a)(2). “Serious bodily
injury” means bodily injury that involves: “(A) [a] substantial risk of death; (B) [p]rotracted
unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted or obvious disfigurement; (E)

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[p]rotracted loss or substantial impairment of a function of a bodily member, organ or mental
faculty; or (F) [a] broken bone of a child who is eight (8) years of age or less.” T.C.A. § 39-
11-106(a)(34)(A)-(F) (2010).

According to Tennessee Code Annotated section 39-13-101, a person commits assault
who:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;

(2) Intentionally or knowingly causes another to reasonably fear imminent
bodily injury; or

(3) Intentionally or knowingly causes physical contact with another and a
reasonable person would regard the contact as extremely offensive or
provocative.

T.C.A. § 39-13-101(a)(1)-(3) (2010).

The evidence in this case proves that the Defendant intentionally or knowingly caused
bodily injury to Akin, punching him once and elbowing him twice in the face. We turn to
address whether Akin suffered “serious bodily injury.”

The Tennessee Supreme Court recently discussed the statutory definition of “serious
bodily injury” when it addressed whether a gunshot wound that passed through the victim’s
leg constituted “serious bodily injury.” The Court ultimately concluded that the gunshot
wound did not meet the statutory definition of “serious bodily injury” because the injury, as
it occurred, did not involve a substantial risk of death, the victim did not lose consciousness,
the victim did not suffer extreme pain, and because nothing in the victim’s testimony
supported an inference that his injury involved protracted or obvious disfigurement, or
protracted loss or substantial impairment of a function of a bodily member, organ, or mental
faculty. See State v. Farmer, – S.W.3d – , 2012 WL 3594242, at *4-5 (Tenn. Aug. 22, 2012).

We conclude that this case is distinguishable from Farmer, in that Akin suffered
protracted unconsciousness and extreme pain as discussed below, and that the State proved
the necessary elements of “serious bodily injury.” There was much testimony at trial that the
Defendant’s actions of punching and elbowing Akin rendered Akin unconscious. Witnesses
said Akin was “out” and that the Defendant kept hitting him. Other witnesses said they
helped the unconscious Akin to the porch, where they attempted to awaken him. Akin was
in and out of consciousness and had no memory after being hit until the following morning.
Further, he said he suffered memory problems as a result of the blows. This evidence

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sufficiently supports that Akin suffered “[p]rotracted unconsciousness.” Further, Akin
described the pain from his broken facial bones as “excruciating.” We conclude, therefore,
that the evidence sufficiently supports the elements of aggravated assault.

2. Proof Refuting Claim of Self-Defense

The Defendant next contends that it was the State’s burden to prove that he did not
act in self-defense and that the State failed in its burden. The State counters that it presented
sufficient evidence refuting the Defendant’s claim of self-defense. We agree with the State.

Tennessee Code Annotated section 39-11-611(b)(1) and (b)(2) provide that:

a person who is not engaged in unlawful activity and is in a place where the
person has a right to be has no duty to retreat before threatening or using force
against another person when and to the degree the person reasonably believes
the force is immediately necessary to protect against the other’s use or
attempted use of unlawful force. The person must have “a reasonable belief
that there is an imminent danger of death or serious bodily injury[.] The
danger creating the belief of imminent death or serious bodily injury [must be]
real, or honestly believed to be real at the time, and must be “founded upon
reasonable grounds.” There is no duty to retreat before a person threatens or
uses force.

Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn.
Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). It is within
the prerogative of the jury to reject a claim of self-defense. State v. Goode, 956 S.W.2d 521,
527 (Tenn. Crim. App. 1997). When a defendant relies upon a theory of self-defense, it is
the State’s burden to show that the defendant did not act in self-defense. State v. Sims, 45
S.W.3d 1, 10 (Tenn. 2001).

Viewed in the light most favorable to the State, the evidence proves that the
Defendant ran up and punched Akin in the back of the head. Akin then fell onto his back,
and the Defendant hit him in his face with his fists and his elbow. The Defendant presented
testimony that Akin first approached the Defendant from behind and choked him and that,
in response, the Defendant flipped Akin over onto his back. By all accounts, however, the
Defendant elbowed and punched Akin multiple times while Akin was lying on the ground.
The jury was within its province to reject the claim that Akin first attacked the Defendant
from behind, as there were multiple State witnesses who said that the Defendant ran up and
punched Akin in the back of the head first. Further, even if the jury accepted that Akin first
grabbed the Defendant from behind, it was within its province to determine that the

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Defendant did not reasonably believe that there was “an imminent danger of death or serious
bodily injury.” See T.C.A. §39-11-611(b)(2) (2010). We will not second-guess the factual
determinations made by the jury. Therefore, we conclude that the evidence was sufficient
to convict the Defendant of aggravated assault.

B. Jury Instructions

The Defendant next contends that the trial court offered the jury vague and
inappropriate jury instructions. The Defendant contends that the trial court improperly
instructed the jury on the lesser-included offense of reckless endangerment. He states that,
because he was acting in self-defense, he did not possess the requisite mens rea to sustain
reckless endangerment. The State counters, first, that the Defendant has waived this issue.
Alternatively, it asserts that the trial court properly instructed the jury.

The State correctly notes that the Defendant has failed to provide citations to the
record in this section of his brief. Our rules require that each issue raised by a defendant
contain “citations to the authorities and appropriate references to the record.” Tenn. R. App.
P. 27(a)(7)(A). While the Defendant risked waiver, the jury instructions are contained in the
technical record for our review. We, therefore, choose to address this issue on its merits.

The question of whether a given offense should be submitted to the jury as a
lesser-included offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424,
427 (Tenn. 2001) (citing State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of
review for mixed questions of law and fact is de novo with no presumption of correctness.
Id.; see State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). A trial court has a “duty to provide
a ‘complete charge of the law applicable to the facts of the case.’” State v. James, 315
S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn.
1986)). Tennessee law, however, does not mandate that any particular jury instructions be
given so long as the trial court gives a complete charge on the applicable law. See State v.
West, 844 S.W.2d 144, 151 (Tenn. 1992). In determining whether jury instructions are
erroneous, this Court must review the charge in its entirety and invalidate the charge only if,
when read as a whole, it fails to fairly submit the legal issues or misleads the jury as to the
applicable law. State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998).

“In applying the lesser-included offense doctrine, three questions arise: (1) whether
an offense is a lesser-included offense; (2) whether the evidence supports a lesser-included
offense instruction; and (3) whether an instructional error is harmless.” State v. Allen, 69
S.W.3d 181, 187 (Tenn. 2002). In State v. Burns, 6 S.W.3d 453 (Tenn.1999), our Supreme
Court adopted the following two-step process for determining if the evidence justifies a jury
instruction on the lesser-included offense:

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 First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In making
this determination, the trial court must view the evidence liberally in the light
most favorable to the existence of the lesser-included offense without making
any judgments on the credibility of such evidence. Second, the trial court must
determine if the evidence, viewed in this light, is legally sufficient to support
a conviction for the lesser-included offense.

Id. at 469.

In State v. Hatfield, 130 S.W.3d 40, 43 (Tenn. 2004), our Supreme Court held that
felony reckless endangerment is a lesser-included offense of aggravated assault where the
aggravated assault is charged as having been committed by causing actual bodily injury.

We conclude first that felony reckless endangerment was an appropriate lesser-
included offense in this case. The Defendant contends specifically, however, that because
the evidence proved that “he was acting in self-defense at the time of the altercation with
[Akin]” this was not an appropriate jury instruction. As stated above, it was within the jury’s
province to determine whether the Defendant was acting in self-defense. The trial court
provided the jury with an instruction on self-defense. The trial court also provided the jury
with an instruction on felony reckless endangerment and, given the proof, we conclude that
the felony reckless endangerment instruction was proper. The Defendant is not entitled to
relief on this issue.

C. Sentencing

The Defendant contends that the trial court erred when it sentenced him by failing to
apply applicable mitigating factors and by imposing an excessive sentence. The Defendant
asserts that the trial court failed to appropriately consider as a mitigating factor that he
presented “conclusive proof” that his actions were done “solely in furtherance of self-
defense.” See T.C.A. § 40-35-113(2) (2010). He further asserts that the “ends of justice”
would be better served if he were given a fully probated sentence. The State counters that
the trial court properly rejected self-defense as a mitigating factor because the jury rejected
the Defendant’s self-defense claim. The State further asserts that the trial court properly
sentenced the Defendant to a sentence involving incarceration.

1. Mitigating Factors

On appeal, the Defendant argues that his sentence is excessive. He asserts that the
trial court did not properly apply the applicable mitigating factors. Specifically, the

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Defendant contends that the trial court failed to consider his actions as self-defense. The
State argues that the trial court properly rejected self-defense as a mitigating factor.

The Criminal Sentencing Act of 1989 and its amendments describe the process for
determining the appropriate length of a defendant’s sentence. Under the Act, a trial court
may impose a sentence within the applicable range as long as the imposed sentence is
consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006);
see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In order to ensure “fair and
consistent sentencing,” the trial court must “place on the record” what, if any, enhancement
and mitigating factors it considered as well as its “reasons for the sentence.” T.C.A. § 40-35-
210(e)(2010). Before the 2005 amendments to the Sentencing Act, both the State and a
defendant could appeal the manner in which a trial court weighed enhancement and
mitigating factors it found to apply to the defendant. T.C.A. § 40-35-401(b)(2) (2004). The
2005 amendments deleted as grounds for appeal, however, a claim that the trial court did not
properly weigh the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353,
§§ 8, 9.

Our review of a defendant’s challenge to the length, range, or manner of service of
a sentence, has been a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2010). In a recent opinion, our Supreme Court provided a thorough review of
the more recent developments in our sentencing laws and adopted a new standard of review
for sentencing in light of these changes. State v. Bise, - - - S.W.3d - - -, 2012 WL 4380564
(Tenn. Sept. 26, 2012). In announcing the new standard of review the Bise court reasoned:

[W]hen the 2005 amendments vested the trial court with broad discretionary
authority in the imposition of sentences, de novo appellate review and the
“presumption of correctness” ceased to be relevant. Instead, sentences
imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a “presumption of
reasonableness.”

Bise, 2012 WL 4380564, at *19. Therefore, we now review the Defendant’s issue
challenging the trial court’s application of mitigating factors under an abuse of discretion
standard with a “presumption of reasonableness.” Id.

The Defendant fails in his brief to specifically state which mitigating factor or factors
the trial court improperly failed to apply, thereby risking waiver of this issue. Tenn. R. Crim.
P. 10(b). His argument does address two possible mitigating factors. Tennessee Code
Annotated section 40-35-113 states, “If appropriate for the offense, mitigating factors may

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include, but are not limited to: . . . (2) The defendant acted under strong provocation; [or] (3)
Substantial grounds exist tending to excuse or justify the defendant’s criminal conduct,
though failing to establish a defense.” The trial court rejected any notion that the facts
supported the existence of strong provocation. When rejecting that substantial grounds
existed to excuse the Defendant’s behavior, the trial court stated:

Substantial grounds exist tending to excuse or justify the conduct,
although, failing to constitute a defense. I presume that that has to do with the
alleged self-defense aspect of this case. Quite frankly, of course, the jury
rejected that; but . . . using the [D]efendant’s version of the events the so
called flipping really wasn’t the crime. It was what happened after that; and
that the punching in the face with the fist and elbow after [Akin] had been
rendered helpless was the crime in this situation; and there’s certainly no
justification for it and the Court does not find it.

Based on the evidence presented, we agree with the trial court’s conclusion that the
jury’s verdict rejecting the Defendant’s claim of self-defense justified the trial court’s
rejection of mitigating factor (2). See State v. Fred Edmond Dean, No. 03C01-9508-CC-
00251, 1997 WL 7550, at *11 (Tenn. Crim. App., at Knoxville, Jan. 10, 1997), perm. app.
denied (Tenn. Sept. 2, 1997). We similarly conclude that the trial court properly rejected
mitigating factor (3). The State’s version of the events was that the Defendant, without
provocation, punched Akin in the back of the head. The Defendant’s version was that Akin
grabbed him and that he flipped Akin over his back. This, as the trial court noted, was not
the crime. The crime occurred when the Defendant repeatedly punched and elbowed Akin
into unconsciousness while Akin was lying on the ground. Thus, the trial court properly
rejected mitigating factor (3).

Accordingly, the trial court did not abuse its discretion when it declined to apply
mitigating factors (2) and (3) to the Defendant’s sentence. The Defendant is not entitled to
relief as to this issue.

2. Denial of Full Probation

The Defendant next contends that the trial court erred when it sentenced him to a
sentence involving confinement, rather than full probation. The State counters that the trial
court made the proper considerations and properly denied full probation.

To meet the burden of establishing suitability for full probation, a defendant must
demonstrate that full probation will subserve the ends of justice and the best interests of both
the public and the defendant. State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App.,

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2001). The following criteria, while not controlling the discretion of the sentencing court,
shall be accorded weight when deciding the defendant’s suitability for full probation: (1) the
nature and circumstances of the criminal conduct involved; (2) the defendant’s potential or
lack of potential for rehabilitation; (3) whether a sentence of full probation would unduly
depreciate the seriousness of the offense; and (4) whether a sentence other than full probation
would provide an effective deterrent to others likely to commit similar crimes. T.C.A. §§ 40-
35-103(1)(B), -103(5), -210(b)(4) (2010); see also Blackhurst, 70 S.W.3d at 97.

In the case under submission, the Defendant is eligible for full probation because his
sentence is ten years or less (subject to certain statutory exclusions not relevant here). T.C.A.
§ 40-35-303(a) (2010). Although full probation must be automatically considered by the trial
court as a sentencing alternative whenever the defendant is eligible, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2010),
Sentencing Comm’n Cmts.

When rejecting full probation for the Defendant, the trial court found that measures
less restrictive than confinement had frequently been applied unsuccessfully to the Defendant
in that he had been on probation five different times and still continued to violate the law.
The trial court further found that the facts of the case were “egregious” because Akin was
“helpless . . . lying on the ground” and was “pummeled” by the Defendant.

The Defendant either punched Akin in the back of the head unprovoked or flipped him
over his back after Akin grabbed him from behind. The Defendant then punched Akin
repeatedly in the facing, using both his fists and his elbows. Akin was rendered unconscious
for an extended period of time, suffered facial fractures and excessive bleeding, and required
multiple surgeries to correct his injuries. The Defendant has been ordered to probation on
five different occasions. We agree with the trial court that the facts of this case do not
demonstrate that full probation will serve the ends of justice and the best interests of both the
public and himself. We conclude, therefore, that the trial court properly denied the
Defendant full probation, ordering him to serve one year of the three-year sentence in
confinement and the remainder on probation. See Blackhurst, 70 S.W.3d at 97. The
Defendant is not entitled to relief on this issue.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we conclude that
the evidence supports the Defendant’s conviction, that the trial court properly instructed the
jury, and that the trial court properly sentenced the Defendant. We, therefore, affirm the
Defendant’s conviction and sentence.

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 _________________________________
ROBERT W. WEDEMEYER, JUDGE

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