State v. Ball

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

SEPTEMBER 1995 SESSION
FILED
September 19, 1997
STATE OF TENNESSEE, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee, ) NO. 03C01-9501-CR-00018
)
) COCKE COUNTY
V. ) NO. 5803
)
) HON. BEN W. HOOPER, II, JUDGE
JAMES GRADY BALL, )
) attempt to commit first degree murder
) (one count), aggravated assault (one
) count), resisting arrest (one count)
Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Edward C. Miller Charles W. Burson
Public Defender Attorney General and Reporter
Fourth Judicial District
P. O. Box 416 Christina S. Shevalier
Dandridge, Tennessee 37725 Assistant Attorney General
450 James Robertson Parkway
John Bunnell Nashville, Tennessee 37243
Assistant Public Defender
102 Mims Avenue Alfred C. Schmutzer, Jr.
Newport, Tennessee 37821 District Attorney General
125 Court Avenue, Room 301-E
Sevierville, Tennessee 37862

Richard Vance
Assistant District Attorney General
339-A East Main Street
Newport, Tennessee 37821

OPINION FILED: _______________

Affirmed in part and dismissed in part

LEE RUSSELL, SPECIAL JUDGE
 OPINION

The Appellant appeals from convictions for attempt to commit first degree murder,

aggravated assault, and resisting arrest, and the Appellant appeals the sentences that

he received for each of these three offenses. We reverse the conviction for attempt to

commit murder on the grounds that the crime of attempting to commit murder as

proscribed by Tennessee Code Annotated § 39-13-202(a)(3) does not exist in

Tennessee. The convictions for aggravated assault and resisting arrest are affirmed, and

the sentences imposed by the trial judge for aggravated assault and resisting arrest are

affirmed.

The Appellant was indicted on July 19, 1993, by the Cocke County Grand Jury for

attempted first degree murder in violation of Tennessee Code Annotated § 39-13-

202(a)(3), for aggravated assault, and for resisting arrest. Prior to a jury trial, the

Appellant moved to dismiss Count I of the indictment charging attempted first degree

murder, but the motion was overruled by the trial judge. A jury trial was conducted on

January 28, 1994, and the Appellant was convicted on all three counts. A sentencing

hearing was held on the same day, and the Appellant was sentenced to twenty-five years

on attempted first degree murder, fifteen years on aggravated assault, and eleven

months and twenty-nine days on resisting arrest, all to be served concurrently. A motion

for a new trial was filed on February 3, 1994, and was overruled on September 16, 1994.

The Appellant raises six issues on appeal. He contends that the trial court erred

in not dismissing the indictment for attempt to commit first degree murder on the grounds

that the indictment fails to state a cause of action. More specifically, the Appellant

alleges that Tennessee does not recognize as a crime an attempt to commit reckless

killing in violation of Tennessee Code Annotated § 39-13-202(a)(3). Second, the

Appellant alleges that the trial court erred in allowing the victim to exhibit physically to the

jury burns he received in the attack by the Appellant. Third, the Appellant alleges that

the evidence in the record is insufficient to support the convictions for attempt to commit

first degree murder and aggravated assault. Fourth, the Appellant alleges that he was

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subjected to double jeopardy by being tried for both attempted murder and aggravated

assault for one attack on the victim. Fifth, the Appellant argues that the trial judge erred

in not requiring the State to produce in discovery certain notes taken by the State’s arson

investigator. Sixth, the Appellant asserts that the trial judge improperly considered

certain enhancement factors and should not have given the Appellant the maximum

sentences for the crimes of which he was convicted.

The State presented proof that the victim of this crime went to the home of the

Appellant because the victim had been told that the Appellant believed that the victim had

stolen money from the Appellant. The purpose of the visit was for the victim to deny the

allegation. The victim then attempted to leave the Appellant’s home in the victim’s car.

The Appellant entered the car on the passenger side, and the victim drove up the road.

The Appellant continued to demand the return of his stolen money. When the victim

persisted in his denial that he had stolen any money from the Appellant, the Appellant

threw a container of paint thinner on the victim and intentionally set it on fire. The victim

habitually inhaled paint thinner for its psychoactive qualities, and the victim had a

container of the paint thinner in his car for that purpose.

The victim was the only witness at trial to describe the meeting between the

Appellant and the victim and the only witness to describe the burning incident itself.

However, the State produced a witness who testified that on the day before the incident,

the Appellant asked the witness if he had ever seen anyone burned up. The witness said

that the Appellant was flipping a cigarette lighter when he, the Appellant, said this.

Evidence was produced by the State that the victim’s vehicle was found approximately

350 to 400 yards from the Appellant’s residence, that the victim was picked up at that

site in a severely burned condition and was driven to the hospital, and that the victim’s

car was burned from the inside out in a fire in which an accelerant had been used.

The State’s arson expert testified that the car burned from the inside out, that the

right-hand side of the car was less heavily burned than the left side, and that the

passenger door was probably opened immediately after the fire began and remained

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open. The State’s expert testified that it was an accelerated fire, that there were no

accelerated burn patterns on the passenger side of the automobile, that something was

thrown between the seats and across the driver’s seat. The expert testified that there

was no evidence that the fire started in the ashtray or that the carpet had been soaked

with an accelerant, that the burn patterns in the car were consistent with paint thinner

being poured or splashed out of a sixteen-ounce plastic bottle, and that the expert’s

findings were consistent with the victim’s version of the facts. The Appellant’s arson

expert testified that it could not be determined with certainty whether the car was

intentionally set on fire, testified that the fire involved the use of an accelerant, and

testified that flammable liquid was present in the car, but he testified that there were no

discernible burn patterns and that paint thinner stored in the car could ignite under

normal operation. However, the Appellant’s expert conceded that there was no

evidence that a spark or the turn signal ignited the paint thinner in this particular incident.

At the time of this incident, and prior to its amendment in 1995, Tennessee Code

Annotated § 39-13-202(a) read in part as follows:

First degree murder. -- (a) First degree murder is:

. . . (2) A reckless killing of another committed in the perpetration of, or
attempt to perpetrate, any first degree murder, arson, rape, robbery,
burglary, theft, kidnapping or aircraft piracy;

(3) A reckless killing of another committed as the result of the unlawful
throwing, placing or discharging of a destructive device or bomb . . . .

The crime of criminal attempt was and is defined in Tennessee Code Annotated § 39-12-

101 as follows:

Criminal attempt. -- (a) A person commits criminal attempt who, acting
with the kind of culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would
constitute an offense if the circumstances surrounding the conduct were as
the person believes them to be;

(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further
conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result
that would constitute the offense, under the circumstances surrounding the

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 conduct as the person believes them to be, and the conduct constituted a
substantial step toward the commission of the offense . . . .

Tennessee Code Annotated § 39-11-106(a)(31) states as follows with regard to the

meaning of the word “reckless” as used in Tennessee Code Annotated § 39-11-101, et

seq.:

‘Reckless’ refers to a person who acts recklessly with respect to
circumstances surrounding the conduct or the result of the conduct when
the person is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur. The
risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would
exercise under all of the circumstances as viewed from the accused
person’s standpoint. . . .

The Appellant relies on the case of State v. Kimbrough, 924 S.W.2d 888 (Tenn.

1996), which held that Tennessee does not recognize the crime of an attempt to commit

first degree murder as defined in Tennessee Code Annotated § 39-13-202(a)(2) prior to

the statute’s amendment in 1995. Our Supreme Court in Kimbrough pointed out that all

three alternative versions of criminal attempt as set out in Tennessee Code Annotated

§ 39-12-101(a)(1)-(3) involve a specific intent. Id. at 889. The Court observed that

traditionally in Tennessee the intent required for an attempt is an intent to commit the

contemplated crime, citing Gervin v. State, 371 S.W.2d 449, 451 (Tenn. 1963).

Kimbrough at 890. The Supreme Court recites that under Tennessee Code Annotated

§ 39-11-106(a)(18), a person acts “intentionally” with respect to the nature of the conduct

or its consequences when the person has a conscious objective or desire to engage in

the conduct or to cause the result. Kimbrough at 890. The Court recites the statutory

definition of “recklessness” given above and points out that felony-murder, as defined in

Tennessee Code Annotated § 39-12-101(a)(2), is by definition an unintentional killing.

Kimbrough at 890. The Court concludes, “Obviously, a charge of ‘attempted felony-

murder’ is inherently inconsistent, in that it requires that the actor have intended to

commit what is deemed an unintentional act.” Id.

The Supreme Court held that although murder may be committed without an intent

to kill, an attempt to commit murder requires a specific intent to kill. Id. at 891. This

5
assertion was made with regard to attempts to commit murder in general and was not

limited to attempts to commit felony-murder. Id. Finally, the Supreme Court concludes

as follows:

Of course, it goes without saying that if an accused actually possesses the
requisite intent to kill, he or she may be charged with attempted murder.
We simply believe that it is logically and legally impossible to attempt to
perpetrate an unintentional killing.

Id. at 892. These statements by the Court were also made with general reference to

attempts to kill unintentionally and not merely to attempts to commit felony-murder.

The logic of Kimbrough applies inescapably to an attempt to commit first degree

murder as defined in Tennessee Code Annotated § 39-13-202(a)(3). Murder defined in

§ 39-13-202(a)(3) uses the same adjective, “reckless,” that is used in the definition of

felony-murder in § 39-13-202(a)(2). “Reckless” is defined for both statutes in the same

way, as set out in Tennessee Code Annotated § 39-11-106(a)(31). The same criminal

attempt statute applied in Kimbrough defines criminal attempt in the case sub judice.

If it is a logical and legal impossibility to attempt to kill unintentionally in the stealing of an

airplane, as proscribed by § 39-13-202(a)(2), then it is a logical and legal impossibility

to attempt to kill unintentionally by throwing a destructive device at someone, as

proscribed by § 39-13-202(a)(3). In both instances, the logical impossibility is

intentionally attempting to do something which by definition is unintentional.

The State argues that the record reveals that the Appellant did in fact intend to kill

the victim. This court is inclined to agree that had the Appellant been indicted for attempt

to commit murder as defined in Tennessee Code Annotated § 39-13-202(a)(1), which is

intentional, premeditated, and deliberate killing, and had a jury convicted the Appellant

on the record in this case, then the record would have supported such a conviction.

However, the indictment in the case sub judice was for an attempt to kill recklessly, not

an attempt to kill intentionally, and this court cannot sustain a conviction on the grounds

that the record would have sustained a conviction for something else. The State’s

decision to indict under Tennessee Code Annotated § 39-13-202(a)(3), instead of under

Tennessee Code Annotated § 39-13-202(a)(1), was made before the Kimbrough case

6
decided in the Court of Criminal Appeals in 1994. Therefore the State was not aware at

the time of indictment that an attempt to commit an unintentional killing was not

cognizable in Tennessee. The conviction for attempted first degree murder will be

reversed, and Count I of the indictment is dismissed.

The Appellant’s second issue is whether the trial court erred in allowing the State

to have the victim physically display to the jury the burns that he suffered. The Appellant

objected at trial to introduction of the evidence, and the trial judge heard argument

outside the jury’s hearing. The State argued that the degree of injury was relevant on the

charge of attempted murder, and the State argued in the hearing that the viewing of the

victim’s body would reveal greater injury to the front and on the right side compared to

the injury on the left side. This pattern of injury would corroborate the victim’s version of

the facts of the crime. The appearance of the scars from the burns was also relevant

to prove that the victim received “serious bodily injury” as required for conviction for

aggravated assault under Tennessee Code Annotated § 39-13-102(a)(1)(A). The

Appellant apparently does not argue that the evidence was not relevant and therefore

should not have been admitted under Rule 401 of the Tennessee Rules of Evidence, but

rather the Appellant argues that the evidence was prejudicial and that the prejudicial

value outweighed the probative value under Rule 403. The Appellant argues that the

State had other and presumably less prejudicial ways to prove the extent and the pattern

of the burns. The trial judge conceded that the photographs might be prejudicial, but he

found that their probative value outweighed their prejudicial effect.

The determination of whether evidence is relevant, and, if relevant, whether it

should be excluded for one of the reasons set forth in Rule 403, addresses itself to the

sound discretion of the trial court. State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App.),

per. app. denied (Tenn. 1994). State v. Williamson, 919 S.W.2D 69, (Tenn. Crim. App.

1995) (affirmed admission of photographs of dead fetus to prove viability of fetus at birth).

In deciding these issues, the trial court must consider, among other things, the questions

of fact that the jury will have to consider in determining the accused’s guilt as well as

7
other evidence that has been introduced during the course of the trial. See State v.

Dulsworth, 781 S.W.2d 227, 287 (Tenn. Crim. App., 1989) perm. app. denied (Tenn.

1989). If a trial court in the exercise of its discretion finds that evidence is relevant within

the meaning of Rule 401, and the accused is not entitled to have the evidence excluded

for one of the grounds set forth in Rule 403, this court will not interfere with the exercise

of this discretion unless it appears on the face of the record that the trial court clearly

abused its discretion. State v. Burdis, 905 S.W.2d 214 (Tenn. Crim. App. 1995), perm.

app. denied (Tenn. 1995) (affirmed admission of post-mortem photographs of child to

show visible signs of malnutrition and dehydration); State v. Bigbee, 885 S.W.2d 797,

807 (Tenn. 1994) (affirmed admission of photographs of dead body of victim after several

hours and showing “unpleasant” post-mortem lividity and some rigor mortis).

The fact that relevant evidence is prejudicial does not mean the evidence must

be automatically excluded. This court said in State v. Dulsworth, as follows: “Any

evidence which tends to establish the guilt of an accused is highly prejudicial to the

accused, but this does not mean that the evidence is inadmissible as a matter of law.”

781 S.W.2d at 287; State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993), perm.

app. denied (Tenn. 1994). As Rule 403 states, the “danger of unfair prejudice” must

“substantially outweigh” the probative value of the evidence before the accused is entitled

to have the evidence excluded. Even if the evidence is meant to dramatize the injury to

the victim and tends as much to arouse the passions of the fact-finders as to present

probative evidence, this court has not reversed the admission of such evidence when it

touches on an element of the offense and when the evidence was not particularly harmful

or unduly prejudicial. State v. Gaylor, 862 S.W.2d 546, 557 (Tenn. Cr. App. 1992)

(affirmed admission of physician describing the physiology of drowning where cause of

death not an issue).

In the case sub judice, the victim testified that the Appellant threw an accelerant

on him from the passenger side of a car. A pattern of burns on the front and the right

side of the victim’s body would tend to corroborate that description of the incident and

8
would tend to dispute the theory mentioned at trial that a spark or other source ignited

the paint thinner spontaneously. Therefore the burns were certainly relevant. As the

case turned in large part on the believability of the victim’s version of the incident, the

probative value of the evidence was very great relative to its prejudicial value. The fact

that other evidence was admitted on the degree and pattern of the burns makes the

prejudicial impact of the display less rather than greater. See Gaylor, 862 S.W.2d at 557;

State v. Jefferson, 938 S.W.2d 1 (Tenn. Cr. App. 1996).

In the case of State v. Hill, 885 S.W.2d 357 (Tenn. Cr. App. 1994), the defendant

was charged with aggravated assault for allegedly cutting a victim with a straight razor.

There was a stipulation between the State and the defendant that the victim had

sustained bodily injury. The trial judge allowed the victim to remove his shirt and display

his four large scars to the jury. The defendant argued that the prejudicial effect

overweighed the probative value of the evidence, particularly given the stipulation. This

court affirmed admission of the evidence on the grounds that “viewing the scars may

have been relevant to the jury in determining the truth of what occurred on the night in

question” and to determine whether the defendant’s version of the incident or the victim’s

version was accurate. Id. at 361. In the case sub judice, the value of viewing the burns

to determine what occurred on the night in question outweighed any prejudicial effect on

the jury.

The Appellant’s fourth issue is that he was subjected to double jeopardy by being

convicted of and receiving sentences for both attempted first-degree murder and

aggravated assault. This question is resolved by our holding on the first issue, the

dismissal of the attempt to commit murder count. The Appellant’s third issue is that the

evidence in the case does not support convictions for attempt to commit first-degree

murder and for aggravated assault. That issue of whether the evidence supports a

conviction for attempted murder is pretermitted by our ruling on the Appellant’s first

issue. The issue then becomes whether or not the evidence in the record supports a

conviction for aggravated assault.

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 The standard of review when the sufficiency of the evidence is questioned on

appeal 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, 99 S. Ct. 2781,

2789, 61 L.Ed. 2nd 560 (1979). In determining the sufficiency of the evidence, this court

does not reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Cr. App. 1990). This court must presume that the jury has resolved all conflicts

in the testimony and drawn all reasonable inferences from the evidence in favor of the

State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses, the

weight and value to be given to the evidence, and all factual issues raised by the

evidence are resolved by the trier of fact, not by the appellate court. Cabbage at 835.

“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. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Because a verdict of guilty removes the

presumption of innocence and replaces it with a presumption of guilt, the accused has

the burden to illustrate to the appellate court why the evidence is insufficient to support

the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

Tennessee Code Annotated § 39-13-102(a) defines aggravated assault in part as

follows:

Aggravated assault. -- (a) A person commits aggravated assault who:

(1) Commits an assault as defined in § 39-13-101, and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon. . .

Tennessee Code Annotated § 39-13-101 defines assault, as incorporated in the

definition of aggravated assault, as follows:

10
 Assault. -- (a) A person commits assault who:

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

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

The victim in this case testified that, in the midst of an argument over an alleged

theft by the victim, the Appellant intentionally threw combustible paint thinner on the

victim and intentionally set the victim on fire. This is the only direct evidence in the record

of events in the victim’s car. The severity of the resulting burns is confirmed by the

testimony of a nurse at the hospital, by the victim’s testimony, by the display to the jury

of the scars from the burns, and by the testimony of other eyewitnesses. It is undisputed

in the record that the victim’s car burned on that evening and that the car burned in the

vicinity of the Appellant’s residence. The testimony of the State’s arson investigator

supported the victim’s version of the facts.

The Appellant’s challenge to the proof in this case focused on alleged prior

descriptions of the incident by the victim which were allegedly inconsistent with his

testimony at trial, centered on the testimony of an aunt of the Appellant, and centered on

the testimony of the Appellant’s arson investigator. The victim’s prior statements about

the incident always named the Appellant as the assailant and always involved the use

of an accelerant to burn the victim intentionally. The prior statements simply varied in the

details of how the burning was accomplished by the Appellant. These earlier statements

were made very shortly after the incident, while the victim was still in shock and still in

the hospital and still suffering the immediate effects of the burns, and while the victim had

I.V.’s in both arms. A jury could very reasonably have believed that a man in the

condition of the victim would not articulate with complete clarity the details of the assault,

while able to recount the crime in general terms and with a clear and specific

identification of the Appellant as the assailant.

11
 The Appellant’s aunt testified that she saw the victim leave the Appellant’s

residence in his car alone, without the Appellant. The aunt also testified concerning

representations made to her by an officer which, under the other proof in the case, the

officer simply could not have made at the time the aunt said he made them. Given the

aunt’s relationship to the Appellant and her demonstrably false testimony on another

factual point, the jury could reasonably decline to believe the aunt on the issue of

whether the Appellant was in the victim’s car. See Tennessee Criminal Pattern Jury

Instruction no. 42.06. Finally, the Appellant’s arson expert did little to undermine the

State’s proof, and the jury would certainly have been entitled to give the State’s expert

more credibility than the Appellant’s expert. The record supports the conviction for

aggravated assault.

The Appellant’s fifth issue is the assertion that the trial court erred in failing to

require the State to produce during trial the handwritten notes of the State’s arson expert.

Prior to trial, the Appellant filed a discovery motion and a motion for the State agents to

retain their rough notes. In neither of these motions did the Appellant request to be

allowed to view or to receive a copy of these rough notes. The Appellant’s counsel first

asked to see the notes in question during the trial, during counsel’s cross-examination

of the expert, when it was determined that the notes were in Knoxville and not at trial.

The trial judge declined to order the notes to be produced, and the Appellant did not

move for a continuance in the trial. At the hearing on the Appellant’s Motion for a New

Trial, the notes were produced.

Had the Appellant moved in timely fashion to receive a copy of or to view the notes

he would have been entitled to do so under Rule 16(1)(C) and (D). However, the

Appellant did not seek to do so before trial. Arguably the Appellant could have sought

the notes during the trial under Rule 26.2 of the Rules of Criminal Procedure. The

Appellant did have before trial the typed report that the State’s expert had prepared after

examining the burned car and investigating the incident, which had incorporated

information in the handwritten notes. In this context, the trial judge was justified in not

12
interrupting the expert’s testimony to have him travel to another city to locate his notes.

The Appellant did not move for a continuance of the trial and therefore the trial judge

cannot be faulted for having failed to grant a continuance.

The Appellant received the handwritten notes after the trial and has been unable

to identify any contradiction between the notes and the typed report or between the

handwritten notes and the expert’s testimony at trial. The Appellant merely argues that

the handwritten notes were only one page long and the typed report eleven pages long,

and he argues that one page could never be expanded into eleven pages, suggesting

that the expert manufactured most of the information in the typed report to support the

State’s theory of the case. The expert testified, however, that he prepared the typed

report in longhand in a separate document, which document was typed verbatim. Even

if the judge’s refusal to order production of the handwritten notes after completion of the

expert’s testimony under Rule 26.2 was error, absent significant variance between the

contents of the handwritten notes and the contents of other evidence given by the expert,

and absent proof of any substantial use to which the Appellant could have put the

handwritten notes, it was harmless error.

The sixth and final error alleged by the Appellant is that the trial judge erred in

giving the Appellant the maximum sentences for both the attempt to commit first-degree

murder conviction and the aggravated assault conviction. As the attempted murder

conviction has been dismissed, the remaining issue is whether the sentence of fifteen

years, the maximum for aggravated assault for a Range III offender, was excessive. The

Appellant alleges specifically that the trial court erred in applying the enhancing factors

set out in Tennessee Code Annotated § 40-35-114(5), (6), and (10). The Appellant also

complains that the trial judge announced a sentence and only subsequently specified the

enhancing factors that he considered. Finally, the Appellant complains that the trial judge

based his sentence on a speculative parole date.

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 The standard of review of the denial of probation and of the length of the sentence

given in this case is set out in Tennessee Code Annotated § 40-35-401(d) as being a de

novo review on the record with a presumption that the determinations made by the court

from which the appeal was taken are correct. The requirement that the appellate court

presume the correctness of the determinations made by the trial court 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 burden is on the defendant to show that the sentence imposed

was improper. State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991) In

conducting this de novo review of a sentence, the appellate court must consider any

evidence received at the sentencing hearing, the presentence report, the principles of

sentencing, the arguments of counsel relative to sentencing alternatives, the nature and

characteristics of the offense, any mitigating and enhancing factors, any statements

made by the defendant in his own behalf, and the defendant’s potential or lack of

potential for rehabilitation or treatment, the factors set out in Tennessee Code Annotated

§ 40-35-210(b) for the trial judge to consider in setting the specific sentence and the

appropriate sentencing alternatives. Ashby; State v. Thomas, 755 S.W.2d 833 (Tenn.

Crim. App. 1988).

The trial judge applied a total of six enhancement factors found in Tennessee

Code Annotated § 40-35-114. It is undisputed that the following three factors were

present and were properly considered by the trial court: (1) an extensive prior criminal

history; (13)(B) the offense was committed while the Appellant was on parole from

another felony conviction; and (16) the crime was committed under circumstances under

which the potential for bodily injury to a victim was great. The Appellant contends that

the trial judge erred in applying these three factors: (5) the Appellant treated the victim

with exceptional cruelty during the commission of the offense; (6) the personal injuries

inflicted on the victim were particularly great, and (10) the defendant had no hesitation

about committing a crime when the risk to human life was high.

14
 Factors that are inherent in a particular offense, even if not designated as an

element, may not be applied to enhance the length of a defendant’s sentence. State v.

Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994) perm. app. denied, (Tenn.

1995). Our Supreme Court has held that factor (10), involving a high risk to human life,

is not inherent in the offense of aggravated assault and therefore can in an appropriate

case be used to enhance a sentence for aggravated assault. State v. Jones, 883

S.W.2d 597, 602 (Tenn. 1994). However, this court has held that a high risk to human

life is inherent in aggravated assault committed with a deadly weapon, as opposed

to aggravated assault resulting in serious bodily injury. State v. Hill, 885 S.W.2d 357, 363

(Tenn. Crim. App.) perm. app. denied (Tenn. 1994).

Our Supreme Court held in Jones that factor (6), involving particularly great

personal injuries, is inherent in the crime of aggravated assault and therefore generally

cannot be considered as an enhancing factor in such a case. Jones at 602. However,

this court has held that factor (6) can be used to enhance in an appropriate case where

the aggravated assault was based on the use of a deadly weapon, rather than based on

serious bodily injury. State v. Franklin, 1996 Tenn. Crim. App. LEXIS 701, No. 01C01-

9511-CR-0383 (Tenn. Crim. App. at Nashville, Nov. 8, 1996). However, in a case where

the aggravated assault conviction relies on use of a deadly weapon, enhancement factor

(10) cannot be used because it is inherent in the crime. Id. This court has also held that

in a case in which the victim of an aggravated assault also suffered “significant property

damage”, factor (6) can be used to enhance the punishment. State v. Turner, 1995

Tenn. Crim. App. LEXIS 906, No. 01C01-9402-CR-00068 (Tenn. Crim. App. at Nashville,

Nov. 15, 1995) This court has held that factor (5), exceptional cruelty to the victim, is

not necessarily an essential element of aggravated assault and can therefore be applied

to enhance a sentence in such a case. State v. Bennett, 1994 Tenn. Crim. App. LEXIS

798, No. 03C01-9403-CR-104 (Tenn. Crim. App. at Knoxville, Dec. 8, 1994); State v.

Chadwick, 1995 Tenn. Crim. App. LEXIS 816, No. 01C01-9501-CC-00414 (Tenn. Crim.

App. at Nashville, Oct. 4, 1995); State v. Caudill, 1997 Tenn. Crim. App. LEXIS 8, No.

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03C01-9510-CC-00338 (Tenn. Crim. App. at Knoxville, Jan. 9, 1997). In Bennett,

“exceptional cruelty” was defined as “cruelty above that needed to effectuate the crime.”

Bennett.

The indictment in the case sub judice alleged aggravated assault that resulted in

serious bodily injury. Therefore enhancement factors (10) and (5) can be applied in the

appropriate case. Throwing an accelerant on a large part of a victim’s body, while the

victim is seated in a car, and then setting the victim on fire is clearly both exceptionally

cruel and cruel beyond what was necessary to effectuate the crime. Appellant obviously

acted without hesitation when the risk to human life was extremely high. Factor (6)

arguably should not have been applied by the trial judge, although there was heavy

property damage to the victim’s automobile. Even without application of factor (6), the

application of the other five enhancement factors present in this case was certainly

sufficient to support the trial judge’s sentence of fifteen years for aggravated assault.

The trial judge announced his sentences before he discussed the enhancing

factors which he applied. It does not follow that the trial judge necessarily arrived at a

sentence on other criteria and then sought enhancing factors to justify his conclusions.

It appears from the record that the trial judge first applied the enhancing factors and

sentencing considerations, then announced his sentences, and then announced the

enhancing factors that he had previously applied in his mind to arrive at the sentence he

had previously announced. The procedure is not improper per se and was not improper

in this case. The trial judge did mention on the record that the Appellant would be

subject to parole at a date earlier than some would expect, the record does not support

the conclusion that the trial judge relied on that conclusion to determine the sentences

he gave.

The State in a footnote in its brief on appeal has pointed out that the trial judge did

not order that the sentences given in these cases be served consecutively to the

sentence for which the Appellant was on parole at the time that he committed these new

offenses. Rule 32(c)(3)(A) of the Tennessee Rules of Criminal Procedure requires that

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a new sentence for a felony be served consecutively to previously imposed felony

sentences which are not yet fully served and for which the defendant was on parole at

the time of the commission of the new felony. The new sentence is to be served

consecutively “whether the judgment explicity so orders or not.” Tenn. R. Crim. P.

32(c)(3). Therefore the State is correct in requesting that this court make clear in our

judgment rendered here that the new sentences are to be served consecutively to the

prior sentence for which the Appellant was on parole.

The conviction for attempt to commit first degree murder is dismissed. The

convictions for aggravated assault and resisting arrest are affirmed, and the sentences

for these two convictions are affirmed. The Appellant is sentenced to fifteen years as a

Range III offender for aggravated assault, to be served consecutively to the Appellant’s

prior sentence imposed following conviction for aggravated assault in Cocke County

Criminal Court case number 5003. The Appellant is sentenced to eleven months and

twenty-nine days for resisting arrest, which sentence will be served concurrently with the

Appellant’s new sentence for aggravated assault.

LEE RUSSELL, SPECIAL JUDGE

CONCUR:

____________________________
WILLIAM M. BARKER, JUDGE

____________________________
JOHN K. BYERS, SENIOR JUDGE

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