IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 6, 1999
MAY 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9808-CR-00271
Appellee, * HAMILTON COUNTY
VS. * Honorable Douglas A. Meyer, Judge
JAMES TYRONE HARBISON, * (Aggravated Assault)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
RICHARD HEINSMAN, JR. R. STEPHEN JOBE
Assistant Public Defender Assistant Attorney General
Suite 300, 701 Cherry Street 425 Fifth Avenue North
Chattanooga, TN 37402 Nashville, TN 37243
WILLIAM H. COX, III
District Attorney General
C. LELAND DAVIS
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, James Tyrone Harbison, was convicted in 1997 of
aggravated assault and sentenced as a Range III persistent offender to fourteen
years in the Tennessee Department of Correction. See Tenn. Code Ann. § 39-
13-102. In this appeal, the defendant presents the following issues: (1) Whether
the evidence was sufficient to support the jury’s finding of “serious bodily injury”
as an aggravating factor of the defendant’s convicted offense; (2) whether the
trial court abused its discretion in permitting testimony that the defendant had
been released from prison immediately preceeding the instant offense; (3)
whether the trial court erred in failing to instruct the jury on reckless
endangerment as a lesser offense; (4) whether the defendant’s sentence is
excessive; and (5) whether the trial court erred in sentencing the defendant as a
Range III persistent offender. We AFFIRM the judgment from the trial court.
BACKGROUND
While incarcerated in the Northwest Regional Correctional Facility in the
early 1990s, the defendant obtained the name and address of the victim and
wrote to her. The victim was initially hesitant about corresponding with the
defendant, but she felt her religious conviction obligated her to provide him some
comfort. Thus, the defendant and victim began regular correspondence. The
victim also visited the defendant approximately four times at the Facility.
At the defendant’s request, the victim agreed to drive him from the
Facility, on his release, to Chattanooga to visit his family. The victim testified
that the defendant began drinking enroute to Chattanooga. They arrived at the
family’s home at approximately 6:00 p.m., and the defendant continued
consuming alcohol. The victim repeatedly requested to leave as time passed,
stating that she was tired. The defendant refused to leave.
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Eventually, the victim picked up her car keys to leave. The defendant
grabbed her, pushed her backward, took the keys, and stormed from the home.
The victim followed but told the defendant that she would not ride with him
because he had been drinking. Nevertheless, when the defendant cursed at her
and ordered her to enter the car, she complied because she did not want to
abandon the vehicle, borrowed from her sister to transport the defendant. The
defendant then drove around Chattanooga for some time, stopping at the homes
of some of his friends. The victim repeatedly asked the defendant to take her
somewhere to sleep. At one point, she also requested that the defendant stop to
let her use the restroom. The defendant stopped and told her that she could
urinate in the road.
Sometime in the early morning, the defendant stopped at a park and
asked someone for a “rock.” At that point, the victim attempted to grab the keys
and exit the car. The defendant caught her and wrenched the keys from her. He
then circled to the passenger side of the car and repeatedly struck the victim on
her face and head, while swearing at her and threatening to kill her. As the
beating continued, the defendant grabbed the victim by the hair and jumped into
the car on top of her. Eventually he ceased, and the victim asked to go to the
hospital. The defendant replied that she need not worry about that because he
was going to kill her.
The defendant resumed driving and entered the parking lot of a business
to turn around. The victim noticed lights in the business, and as the car slowed
she rolled out of the passenger door and ran to the business for help. The
defendant stopped and pursued her, stating that she was going with him even if
he had to drag her. A man with a rifle then exited the business and ordered the
defendant to leave. The defendant complied, taking the victim’s vehicle.
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The evidence shows that the victim suffered a fracture of her right orbital
area and a fractured mandible and that both injuries required surgery. She also
required stitches for lacerations on her right eye and brow, and the defendant’s
ring left indentions in her forehead. The victim testified that after the incident she
was in extreme pain, and she continued to suffer from intermittent pain for two
months. Her injuries required multiple hospital stays for surgery, and she
testified that she still experiences numbness on the side of her face from the
orbital fracture.
ANALYSIS
The defendant first argues that the evidence was insufficient to support a
finding of “serious bodily injury” as the aggravating factor. When an appellant
challenges the sufficiency of the evidence, this Court must determine 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The state is
entitled to the strongest legitimate view of the evidence and to all reasonable
inferences that may be drawn therefrom. See State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978).
The credibility of the witnesses, the weight of their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted exclusively to the
trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.
Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state
accredits the testimony of the state’s witnesses and resolves all conflicts in favor
of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Moreover, a guilty verdict removes the presumption of innocence enjoyed by a
defendant at trial and replaces it with a presumption of guilt. See State v. Grace,
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493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the
sufficiency of the evidence carries the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. See State v. Freeman, 943
S.W.2d 25, 29 (Tenn. Crim. App. 1996).
The defendant does not contest the state’s proof that he intentionally or
knowingly committed assault. See Tenn. Code Ann. § 39-13-101. He does
argue, however, that the state’s proof insufficiently establishes the aggravating
factor of “serious bodily injury.” For the purpose of the Code’s assault offenses,
“serious bodily injury” means:
bodily injury which 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). “‘Bodily injury’ includes a cut,
abrasion, bruise, burn or disfigurement; 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).
During the defendant’s brutal and unmerciful attack, he fractured both the
victim’s right orbital area and her lower jaw. The lacerations on her right eye and
brow required stitches. The victim, a nurse, testified that she knew full well that
no pain medication would be administered until the hospital staff completed a
medical assessment. Notwithstanding this knowledge, she felt such extreme
pain that she begged for relief during the assessment. The fracture of her right
orbital area required surgical correction. The fracture of her right lower jaw also
required correction by subsequent surgery. Her treatment required wiring shut
her jaw for approximately two months, during which time she suffered
intermittent pain. In the light most favorable to the state, this and other evidence
of the victim’s injuries sufficiently supported a finding of “serious bodily injury.”
See Tenn. Code Ann. § 39-11-106(a)(34)(C).
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The defendant next argues that the trial court erroneously allowed
testimony regarding his release from prison. The defendant, contending that
evidence of his recent release was unduly prejudicial, filed a motion in limine
seeking to prevent the admission of any mention of that release. The trial court
denied the motion, finding that such testimony was essential to accurately and
completely represent the circumstances surrounding the defendant’s offense.
Therefore, the probative value of the evidence outweighed any unduly prejudicial
effect.
The admissibility of evidence is a matter entrusted to the sound discretion
of the trial court, and the trial court’s rulings in that regard will not be reversed on
appeal absent an abuse of that discretion. See State v. Hutchison, 898 S.W.2d
161, 172 (Tenn. 1994); State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). The
trial court found the contested testimony essential to illustrate the victim’s
relationship with the defendant and to describe how she entered the situation in
which she was assaulted. The court found that the probative value of this
evidence substantially outweighed any unduly prejudicial effect. We agree with
this trial court’s assessment and therefore find no abuse of discretion.
The defendant next argues that the trial court erred in failing to instruct the
jury on the lesser offense of reckless endangerment. The defendant relies on
the victim’s testimony that she opened the passenger door of the car and rolled
out of the car as she sought escape from the defendant. The defendant
contends that the jury could have concluded that the victim’s hitting her head on
either the door or the ground actually caused her injuries.
Tennessee law requires a trial judge to instruct the jury regarding lesser
included offenses that are fairly raised by the proof. See Tenn. Code Ann. § 40-
18-110(a). However, it is well established that the trial court need not instruct on
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a lesser offense that is not fairly raised by the evidence at trial. See State v.
Trusty, 919 S.W.2d 305, 310-11 & n.5 (Tenn. 1996). (“A trial judge . . . need
only instruct on lesser offenses in circumstances in which evidence in the record
would support a conviction for the lesser offenses.”).
The state argues that the evidence at trial would not have supported a
conviction for reckless endangerment. The offense of reckless endangerment
requires that an individual “recklessly engages in conduct which places or may
place another person in imminent danger of death or serious bodily injury.”
Tenn. Code Ann. § 39-13-103(a). Conversely, the defendant argues that the jury
could have found him guilty of reckless endangerment by concluding that the
victim suffered her injuries when she jumped from the moving car. The state
responds that the defendant’s actions caused her to jump.
In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the Tennessee
Supreme Court applied a harmless error analysis and held that a trial court’s
failure to instruct a jury as to a lesser offense was harmless error if the trial court
instructed the jury as to another lesser offense and the jury convicted the
defendant of the greatest charged offense. See id. at 105-06. In Williams, the
jury rejected second degree murder, the immediately lesser offense of the first
degree murder charge, despite jury instruction including second degree murder.
See id. at 106. Because the jury determined the proof sufficient to prove all
elements of the greatest charged offense, failure to charge voluntary
manslaughter was harmless error. See id. In the present case, the trial court
instructed the jury on aggravated assault and the lesser offense of assault, and
the jury convicted on the greatest charged offense. Therefore, following
Williams, any error in failing to charge additional lesser offenses was harmless.
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The defendant next argues that the trial court erroneously applied certain
enhancement factors and thus imposed an excessive sentence. When an
appellant challenges the length or manner of service of a sentence, it is the duty
of this Court to conduct 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.” Tenn. Code Ann. § 40-35-401(d). This presumption “is conditioned
upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The appellant carries the burden of showing
that the sentence is improper. See Tenn. Code Ann. § 40-35-401(d) &
sentencing comm’n comments; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn.
Crim. App. 1996).
The trial court found the defendant to be a Range III persistent offender.
Aggravated assault, a Class C felony, carries a Range III sentence of ten to
fifteen years. See Tenn. Code Ann. §§ 39-13-102(d); 40-35-112(c). The
presumptive sentence for a Class C felony is the minimum sentence in the
range, absent enhancement or mitigating factors. See Tenn. Code Ann. 40-35-
210(c). At the defendant’s sentencing hearing, the trial court applied the
following four enhancement factors:
The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range; [and]
The defendant treated or allowed a victim to be treated with
exceptional cruelty during the commission of the offense; [and]
The defendant has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the
community; [and]
The defendant had no hesitation about committing a crime when
the risk to human life was high. . . .
Tenn. Code Ann. § 40-35-114(1), (5), (8), (10). In mitigation, the trial court
considered that the defendant’s prior felonies were all property crimes and did
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not involve violence. See Tenn. Code Ann. § 40-35-113 (13). Based on these
findings, the trial court sentenced the defendant to fourteen years imprisonment.
The defendant challenges only the trial court’s application of
enhancement factors (5) and (10). Regarding enhancement factor (5), the
defendant argues that any cruelty inflicted on the victim was comprised by the
injuries she sustained. Since these injuries were the aggravating element of the
defendant’s convicted offense, the defendant argues, this factor is inapplicable.
We disagree. Application of the enhancement factor for exceptional cruelty
requires a finding of cruelty over and above that inherently attendant to the
convicted offense. See State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App.
1995). Further, the enhancement for exceptional cruelty is not limited to physical
cruelty. See State v. Greg Lee Sword, No. 03C01-9203-CR-00074 (Tenn. Crim.
App. filed March 31, 1993, at Knoxville). The defendant repeatedly struck the
victim in the face and repeatedly threatened to kill her. He refused to leave the
victim alone or provide her with medical treatment. The victim testified that the
defendant stated she ”would not need any medical treatment where she was
going.” The defendant completely dominated, controlled, and terrorized the
victim in a manner clearly over and above that inherently attendant to aggravated
assault. We find that the record supports application of this enhancement factor.
Regarding enhancement factor (10), the defendant cites State v. Hill, 885
S.W.2d 357 (Tenn. Crim. App. 1994), for the proposition that the offense of
aggravated assault inherently comprises high risk to human life. See id. at 363.
However, the Hill decision addresses aggravated assault with a deadly weapon,
and the Tennessee Supreme Court has held that enhancement factor (10) is not
inherent in the offense of aggravated assault by serious bodily injury. See State
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v. Jones, 883 S.W.2d 597, 602-03 (Tenn. 1994). Following Jones, and because
the record clearly supports application of factor (10), we find no error.
Finally, the defendant asserts that the trial court erroeously sentenced the
defendant as a Range III offender. He asserts that the state’s notice to seek
enhanced punishment listed only four prior felony convictions and that at pretrial
the trial court noted the defendant’s apparent qualifications as a Range II
offender. The state points out, however, that its notice to seek enhanced
punishment indicated the defendant’s five prior felony convictions. Since two
sets of two convictions each occurred on the same date, the state conceded that
they would likely be counted as less than five for purposes of determining the
defendant’s range. See Tenn. Code Ann. §§ 40-35-106(b)(4); -107(b)(4). Still,
the state introduced evidence at the sentencing hearing that the defendant
actually has seven prior felony convictions. The defendant contests none of
these prior convictions but contends that the state is bound by its original notice.
“If the district attorney general believes that a defendant should be
sentenced as a multiple, persistent or career offender, the district attorney
general shall file a statement thereof with the court and defense counsel not less
than ten (10) days before trial or acceptance of a guilty plea . . . .” Tenn. Code
Ann. § 40-35-202(a). The state concedes that its notice did not mention all those
prior felony convictions subsequently introduced at the sentencing hearing.
However, the state notes that the defendant did not object to the introduction of
these additional convictions and, in fact, he agreed that he had at least five prior
felony convictions for the purpose of determining his sentencing range.
The Tennessee Supreme Court has held that if the state substantially
complies with Tennessee Code Annotated § 40-35-202(a), then the defendant
has a duty to inquire about an incomplete notice and, absent the inquiry, must
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show prejudice to obtain relief based on that notice. See State v. Adams, 788
S.W.2d 557, 559 (Tenn. 1990). The defendant did not challenge the state’s
incomplete notice when the additional convictions were introduced at the
sentencing hearing. Moreover, the defendant has not shown prejudice. That the
defendant “was sentenced within the proper range, based upon his prior
convictions, does not establish prejudice.” State v. Gilmore, 823 S.W.2d 566,
571 (Tenn. Crim. App. 1991).
CONCLUSION
For the foregoing reasons, the judgment of the trial court is AFFIRMED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
______________________________
JAMES CURWOOD WITT, JR., Judge
______________________________
ALAN E. GLENN, Judge
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State of Tennessee v. James Tyrone Harbison
Combined Opinion