IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 10, 2007
STATE OF TENNESSEE v. JASPER L. VICK
Direct Appeal from the Criminal Court for Shelby County
No. 02-09113 Arthur T. Bennett, Judge
No. W2006-01606-CCA-R3-CD - Filed June 26, 2007
The defendant, Jasper L. Vick, appeals his sentencing classification as a Range II offender, arguing
that the State failed to prove beyond a reasonable doubt that the criminal conduct leading to his
South Carolina conviction for aggravated assault of a high and aggravated nature would have
constituted a Class C felony in Tennessee. Following our review, we reverse the judgment of the
trial court and remand for the defendant to be sentenced as a Range I offender.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
Remanded
ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID
G. HAYES, J., joined.
Robert L. Parris, Memphis, Tennessee, for the appellant, Jasper L. Vick.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendant was convicted of especially aggravated kidnapping and sexual battery and was
sentenced as a Range II, multiple offender to an effective sentence of forty years in the Department
of Correction. In determining that the defendant was a multiple offender, the trial court relied in part
on the defendant’s 1973 guilty plea conviction in South Carolina to the crime of “assault and battery
of a high and aggravated nature.” On direct appeal, this court affirmed the convictions and the trial
court’s application of enhancement factors and imposition of consecutive sentencing. See State v.
Jasper L. Vick, No. W2005-00467-CCA-R3-CD, 2006 WL 722173, at *1 (Tenn. Crim. App. Mar.
22, 2006). However, we remanded for the trial court to determine whether the specific elements of
the defendant’s South Carolina conviction would have constituted a Class C felony in Tennessee
under the state of the law as it existed at the time of the offense. Id. at *11. As we explained:
Merely establishing the existence of Defendant’s prior South Carolina
conviction, however, is not sufficient to satisfy the State’s burden of proof under
Tennessee Code Annotated section 40-35-106(b)(5). The South Carolina offense of
assault and battery of a high and aggravated nature is not a named felony in
Tennessee. Thus, in order to use this conviction to elevate Defendant’s range
classification, the trial court was required to analyze the elements of the out-of-state
offense in order to determine whether the offense of assault and battery of a high and
aggravated nature was analogous to a felony offense under Tennessee’s law as it
existed at the time the offense was committed. See id. § 40-35-106(b)(5); [State v.]
Brooks, 968 S.W.2d [312,] 313-14 [(Tenn. Crim. App. 1997)].
The trial court did not, however, compare the elements of the South Carolina
offense to a comparable offense in Tennessee, but concluded that the South Carolina
offense would have been a Class C felony in Tennessee based apparently on the
offense’s name and the length of Defendant’s sentence for that offense.
The length of sentence a defendant receives for an out-of-state conviction,
however, is not determinative of what grade of felony the out-of-state offense might
be assigned under Tennessee laws, and, as in the case sub judice, may even be
misleading. The common law offense of assault and battery of a high and aggravated
nature is a misdemeanor in South Carolina. [State v.] Hill, 175 S.E.2d [227,] 231-32
[(S.C. 1970)]. Although sentences for misdemeanor convictions in Tennessee may
not exceed eleven months, twenty-nine days, the South Carolina misdemeanor assault
and battery offense is punishable by up to ten years in prison. See State v. Fennell,
531 S.E.2d 512, 516 (S.C. 2000).
Nor is the name of the South Carolina offense particularly helpful. The
offense of assault and battery of a high and aggravated nature is defined by South
Carolina courts as “‘an unlawful act of violent injury to the person of another,
accompanied by circumstances of aggravation, such as the use of a deadly weapon,
the infliction of serious bodily injury, the intent to commit a felony, the great
disparity between the ages and physical conditions of the parties, a difference in the
sexes, indecent liberties or familiarities with a female, the purposeful infliction of
shame and disgrace, resistance of lawful authority, and others.’” Hill, 175 S.E.2d at
230 (quoting State v. Johnson, 198 S.E.2d 1, 2 (S.C. 1938)). Thus, the offense may
be committed in any number of ways, some of which would constitute less than a
Class C felony if committed in Tennessee. See, e.g., Tenn. Code Ann. § 39-3104
(repealed 1989) (Resisting officer serving process is a misdemeanor offense); Pope
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v. State, 528 S.W.2d 54, 56 (Tenn. Crim. App. 1975) (Common law offense of
interfering with an officer while performing his duties is a misdemeanor).
The record does not indicate the particular aggravating circumstance which
supported Defendant’s South Carolina conviction for assault and battery of a high
and aggravated nature. Without such factual findings by the trial court, it is
impossible to know whether Defendant’s criminal conduct in South Carolina would
have constituted a felony in Tennessee, or, if so, whether the offense was of a
sufficient grade to elevate Defendant’s range classification. See, e.g., Reese v. State,
457 S.W.2d 877, 880-81 (Tenn. Crim. App. 1970) (noting distinctions between
felonious assault with intent to kill and misdemeanor assault and battery).
At the time of Defendant’s conviction in 1990, the offense of aggravated
assault in Tennessee was a Class C felony and may be considered in determining
Defendant’s range classification. See Tenn. Code Ann. § 39-13-102(b) (1990).
Based on the foregoing with regard to the South Carolina conviction, however, we
reverse the judgments insofar as they impose Range II sentencing, and remand for a
new sentencing hearing. Before imposing a Range II sentence based in part upon
Defendant’s South Carolina conviction, the trial court must determine the specific
elements of the crime for which Defendant was convicted in South Carolina, and
from that determine correctly that the classification is no less serious than a Class C
felony in Tennessee. The determinative factor is the elements of the conviction
offense, not the facts or the elements of the originally charged offense.
Id. at *10-11 (emphasis added).
At the July 18, 2006, resentencing hearing, the State introduced a certified copy of the
defendant’s South Carolina indictment for assault and battery with intent to kill, as well as a certified
copy of the original arrest warrant and affidavit associated with the case, which alleged that on
September 13, 1973, the defendant committed the offense of assault and battery with the intent to
kill by shooting a man four times with a short-barreled, .22 caliber rifle. Attached to the indictment
was a judgment sheet showing that the defendant pled guilty on October 8, 1973, to the offense of
assault and battery of a high and aggravated nature and received a sentence of eight years. Based
on this evidence, the trial court found beyond a reasonable doubt that the defendant’s South Carolina
conviction would constitute at least a Class C felony in Tennessee. Accordingly, the trial court
resentenced the defendant as a Range II offender. Thereafter, the defendant filed a timely appeal to
this court.
ANALYSIS
The defendant argues on appeal that the trial court erred by relying on the facts alleged in the
original arrest warrant, which led to the charge of assault and battery with the intent to kill, when he
in fact pled guilty to the lesser charge of assault and battery of a high and aggravated nature. He
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asserts that “without some memorialized recitation of the facts surrounding the conviction, not the
original charge, the State cannot prove any analogous or comparable Tennessee statute beyond a
reasonable doubt.” We agree with the defendant.
The trial court may sentence a defendant as a Range II, multiple offender when it finds
beyond a reasonable doubt that the defendant has received “[a] minimum of two (2) but not more
than four (4) prior felony convictions within the conviction class, a higher class, or within the next
two (2) lower felony classes.” Tenn. Code Ann. § 40-35-106(a)(1) (2006). “Prior convictions
include convictions under the laws of any other state, government, or country which, if committed
in this state, would have constituted an offense cognizable by the laws of this state. In the event that
a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of
the offense shall be used by the Tennessee court to determine what classification the offense is
given.” Tenn. Code Ann. § 40-35-106(b)(5).
As we observed when this case first came before us on direct appeal, it is the State’s burden
to prove beyond a reasonable doubt that the defendant has the requisite number of prior felonies to
establish the sentencing range. See Jasper L. Vick, 2006 WL 722173, at *9 (citing State v. Charles
Eberhardt, No. 03C01-9307-CR-00230, 1994 WL 46511, at *2 (Tenn. Crim. App. Feb. 17, 1994).
Here, the State failed to meet that burden, as it did not introduce evidence to show that the
defendant’s guilty plea to assault and battery of a high and aggravated nature was based on the same
facts alleged in the arrest warrant that charged him with assault and battery with intent to kill.
Without proof of the facts underlying the actual conviction, such as the transcript of the defendant’s
guilty plea hearing, there is no way to determine whether the elements of the defendant’s conviction
offense would be the equivalent of a Class C felony in Tennessee.
We recognize that, given the passage of time between the defendant’s plea of guilty and the
State’s seeking information as to his offense, records regarding the specific facts to which he
admitted guilt may have become unavailable. This fact, however, does not alter the necessity of such
evidence.
Accordingly, since the State was unable to show the specific elements of the conviction
offense, it remains unknown whether the facts to which the defendant pled guilty would constitute
a crime in Tennessee. Thus, we remand for the defendant to be sentenced as a Range I offender.
CONCLUSION
Based on the foregoing authorities and reasoning, we reverse the judgment of the trial court
and remand for further proceedings consistent with this opinion.
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ALAN E. GLENN, JUDGE
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