State v. Dion Andres Russell

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE
April 7, 1999
DECEMBER 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk

STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9803-CR-00092
)
vs. ) Sullivan County
)
DION ANDRES RUSSELL, ) Hon. R. Jerry Beck, Judge
)
Appellant. ) (Resisting Arrest, Evading Arrest,
) Inciting to Riot)

FOR THE APPELLANT: FOR THE APPELLEE:

BURKETT C. McINTURFF (at trial) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
132 Broad St.
Kingsport, TN TODD R. KELLEY
Assistant Attorney General
ROBERT C. EDWARDS (on appeal) 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
382 Emory Rd.
Blaine, TN 37709 H. GREELEY WELLS, JR.
District Attorney General

GREGORY NEWMAN
Asst. District Attorney General
P.O. Box 526
Blountville, TN 37617-0526

OPINION FILED:________________

CONVICTION AFFIRMED; SENTENCE MODIFIED

JAMES CURWOOD WITT, JR., JUDGE
 OPINION

The defendant, Dion Andres Russell, appeals from his convictions of

resisting arrest,1 evading arrest2 and inciting to riot.3 He received his convictions at

the conclusion of a jury trial in the Sullivan County Criminal Court. The trial court

imposed consecutive sentences of eleven months, 29 days confinement in the

county jail for inciting to riot, six months probation conditioned upon Community

Corrections supervision for resisting arrest, and eleven months, 29 days probation

conditioned upon Community Corrections supervision for evading arrest. In this

direct appeal, the defendant challenges the trial court's denial of his attorney's

motion to withdraw or for a continuance, the sufficiency of the convicting evidence,

and the sentences imposed. After a review of the record, the briefs and the oral

arguments of the parties, we affirm the judgment of the trial court, although we

modify the terms of the sentence for inciting to riot.

The defendant's convictions stem from a disturbance in the Riverview

housing project in Kingsport. At trial, the state's evidence showed that at 12:20 a.m.

on May 5, 1996, Officer James Clark of the Kingsport Police Department was sitting

in his patrol car when two women ran up and notified him of a fight at the Riverview

complex in which one of the participants was armed with a gun. When Officer Clark

arrived at the scene, he found two men shoving, cursing and yelling at each other.

He later discovered these individuals to be Courtney Webster and Jeffery Gaines.

Neither Webster nor Gaines had a firearm in plain view. A group of eight to twelve

people were gathered around Webster and Gaines.

1
Tenn. Code Ann. § 39-16-602 (1997).
2
Tenn. Code Ann. § 39-16-603 (1997).
3
Tenn. Code Ann. § 39-17-304 (1997).

2
 As Officer Clark approached the men, he saw the defendant, whom

he knew, approaching. The defendant placed himself between Officer Clark and

the men who were fighting. Officer Clark told the defendant to stay out of the way

and put his hands on the defendant to move him away. The defendant responded,

"Don't touch me, that's my brother." According to Officer Clark, the defendant did

not identify which of the two fighting men was his brother. Officer Clark told the

defendant to move three times and pushed him back, and each time the defendant

came forward again.

Gaines and Webster were still arguing, so Officer Clark attempted to

arrest the defendant so that he would be able to deal with the fight without

interference. As Officer Clark was about to handcuff the defendant, one of the

women who had approached the officer about the fight indicated that Gaines was

the man with the gun. Officer Clark let the defendant go and turned his attention to

subduing Gaines.

Officer Clark arrested Gaines and found a semi-automatic weapon

and lock-blade knife in his possession. By the time this arrest was completed, there

were as many as 75 people outside their homes. After Gaines was arrested,

Webster went inside a residence then came back outside. Webster began cursing

and lunging at Officer Clark even though Clark instructed him to go home. Assisted

by other officers, Officer Clark placed W ebster, who weighed 300 to 350 pounds,

under arrest for disorderly conduct. The arrest was preceded by a struggle during

which chemical spray was used to subdue Webster. While the officers were

struggling to control Webster, the defendant repeatedly implored the crowd, "Don't

let them take my brother," and "Kick the cops' a--." He insisted his brother had done

nothing to warrant his arrest. He shoved Officer Clark, who had to push him away.

Officer Burke Murray had to stand between the defendant and Officer Clark and

3
admonish the defendant to stay back. The defendant grabbed a member of the

crowd and tried to get him to come forward to help him. The crowd became

agitated and began lunging at the officers and yelling that the officers' actions were

motivated by racism and constituted police brutality.

Officer Clark told another officer to arrest the defendant for interfering

with his duties and agitating the crowd, and the defendant immediately ran away.

The defendant testified in his own defense and challenged the state's

version of events. He claimed that he had been roughly handled by Officer Clark,

that he did not incite the crowd as alleged by the state but was just trying to explain

the situation to Officer Clark, and that he and his brother complied with the officers'

directions but were nevertheless arrested. He denied that Officer Clark repeatedly

told him to back off and claimed that Officer Clark and another officer approached

his brother and him and harassed them after they had retreated to the porch of a

relative's home.

On this evidence, the jury found the defendant guilty of resisting

arrest, evading arrest and inciting to riot.

I

In his first issue, the defendant claims that the trial court erred in

denying his attorney's motion to withdraw, or in the alternative, motion for

continuance. Apparently, the defendant and trial counsel, who are well-known to

each other, had a disagreement culminating in the defendant firing counsel three

to four months prior to the day of trial. The defendant had not paid his attorney's

fee. Counsel wrote two letters to the defendant and mailed them to him at relatives'

homes advising that he did not represent the defendant and the defendant should

4
either rehire and pay counsel or make other arrangements. The defendant never

contacted counsel or retained other counsel, and counsel made no preparation for

trial. Counsel filed a motion to withdraw twelve days before trial, although no hearing

was held until the day of trial.

On the morning of trial, the defendant himself essentially made a

motion for continuance, representing that he could be ready to proceed pro se if he

could have two weeks to prepare for trial.

The trial court took a dim view of further delay in the case and noted

that the case had been reset numerous times since the defendant's appeal to

criminal court from the convictions received in general sessions court. The court

noted that counsel had done what he could to communicate with the defendant, and

counsel's unpreparedness for trial was of the defendant's own making in failing to

communicate with counsel.

Withdrawal of Counsel

The decision whether to allow counsel to withdraw in a pending

criminal matter is vested in the sound discretion of the trial court, and the decision

will not be reversed on appeal unless an abuse of discretion is shown. State v.

Branam, 855 S.W.2d 563, 566 (Tenn. 1993); State v. Melvin, 913 S.W.2d 195, 201

(Tenn. Crim. App. 1995); cf. Tenn. Code Ann. § 40-14-205 (1997) (court "may"

allow appointed counsel to withdraw upon showing of good cause).

The defendant has not demonstrated that the trial court abused its

discretion in denying counsel's motion to withdraw. Counsel had represented the

defendant in his trial in general sessions court, so he was familiar with the case and

witnesses despite his protestations that he was not ready to proceed. The matter

5
had been reset numerous times. Had the motion been allowed, further delay would

have been necessary in order for the defendant to prepare his case pro se or retain

other counsel. Well over a year had passed between the defendant's initial

conviction in general sessions court and the date of the trial in criminal court. Cf.

Jones v. State, 548 S.W.2d 329 (Tenn. Crim. App. 1976) (no abuse of discretion

shown in trial court's denial of motion for continuance for purpose of retaining other

counsel where defendant did not voice dissatisfaction with counsel until day of trial).

Further, the local rules of practice of the trial court provide that

motions "shall be filed within the time required by law or without unnecessary delay

after the cause or reason therefor arises so as not to cause continuance of any trial

date or hearing date." Local Rules of Practice, Criminal Court, Sullivan County, at

Blountville, Tennessee, § 10.01. In the present case, counsel's motion was filed

only twelve days before trial, although his services had been terminated by the

defendant three to four months earlier. On the day of trial, the defendant had not

retained other counsel and was not prepared to proceed pro se. Under the local

rules, the motion to withdraw should have been brought with "unnecessary delay."

Instead, it was filed so close to trial that a continuance would almost certainly be

necessary in order for new counsel to make adequate preparations for trial.

Further, the motion was not even heard until the day the trial was scheduled to

begin. The tardiness of the motion, coupled with the defendant's own inattention

to his case, further support the trial court's exercise of its discretion in not granting

the motion to withdraw.

Continuance

The decision whether to grant a motion for a continuance is a matter

of discretion for the trial court, the denial of which will not be overturned on appeal

absent a clear showing the trial court abused its discretion to the prejudice of the

6
defendant. State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State,

503 S.W.2d 226, 230 (Tenn. Crim. App. 1973). In order to establish an abuse of

discretion, the complaining party must make a clear showing of prejudice as a result

of the continuance being denied. State v. Teel, 793 S.W.2d 236, 245 (Tenn. 1990).

Applied to the facts of the case at bar, the defendant has made no

showing of prejudice. While he claims that Courtney Webster, a material witness,

was unavailable, the record does not reveal what Webster's testimony would have

been and how it would have helped the defendant. If the defendant wished to

demonstrate prejudice, he could have done so by submitting an affidavit of the

material witness in support of the motion for continuance or presenting the witness's

testimony at the hearing on the motion for new trial. See State v. Dykes, 803

S.W.2d 250, 256-57 (Tenn. 1990) (affidavit of unavailable witness in support of

motion for continuance); State v. Meeks, 876 S.W.2d 121, 130 (Tenn. Crim. App.

1993) (no prejudice from trial court's denial of motion to continue where defendant

failed to present proof at motion for new trial hearing). Neither an affidavit of the

unavailable witness nor the transcript of the hearing on the motion for new trial

appears in the record. Thus, the defendant has not demonstrated to this court that

he suffered prejudice because the trial court did not continue the case.

Again, the local rules of practice provide further support for the trial

court's ruling. In addition to the provision quoted above regarding timely filing of

motions, the local rules contemplate the grant of a continuance exclusively upon a

showing of "good cause . . . brought to the attention of the Court as soon as

practicable before the date of trial . . . ." Local Rules of Practice, Criminal Court,

Sullivan County, at Blountville, Tennessee, § 9.03. Here, the motion was not

promptly presented to the trial court. The defendant appeared for trial on the

appointed date without his material witness, who also happened to be his brother.

7
The defendant had already been tried in general sessions court on these charges;

therefore, he should have been aware whether his brother's presence as a witness

was necessary on the day of his criminal court trial. As noted above, the necessity

of his brother's testimony is not apparent on the record before us. The defendant

articulated no "good cause" for a continuance, and the trial court did not err in

denying his request.

II

The defendant next challenges the sufficiency of the convicting

evidence on each of his three convictions. When an accused challenges the

sufficiency of the evidence, an appellate court’s standard of review is whether, after

considering 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, 324, 99 S. Ct. 2781, 2791-92

(1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).

This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee the strongest legitimate

8
view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.

Resisting Arrest

The crime of "resisting stop, frisk, halt, arrest or search" occurs where

a person

intentionally prevent[s] or obstruct[s] anyone known to the person to
be a law enforcement officer, or anyone acting in a law enforcement
officer's presence and at such officer's direction, from effecting a stop,
frisk, halt, arrest or search of any person, including the defendant, by
using force against the law enforcement officer or another.

Tenn. Code Ann. § 39-16-602(a) (1997).

The defendant challenges his resisting arrest conviction in two

respects. First, he claims that the charging instrument, in this case an affidavit of

complaint, does not adequately describe the offense and results in a void

conviction. Second, he claims that there is no evidence that he used force during

the commission of the alleged offense.

Although it is not entirely clear from the defendant's brief, his

argument seems to include the theory that he did not use force to prevent or

obstruct his own arrest. However, the statutory definition of the crime is much

broader and includes a defendant's actions which prevent or obstruct an officer

from stopping, frisking, halting, arresting or searching any person.

Considering first the sufficiency of the charging instrument, it alleges

that during the process of Officer Clark's efforts to arrest Courtney Webster, the

defendant "became very angry and physically got between officer [sic] to prevent

from [sic] arresting Webster." The charging instrument further alleges that during

Officer Clark's efforts to arrest Webster, several officers attempted to push the

9
crowd back "from the Webster arrest," but the defendant "lunged toward arresting

officer of Webster and slapped him on the back." Clearly, the allegations of the

charging instrument assert that the defendant used force in interfering with Officer

Clark's arrest of Webster.

The evidence sufficiently supports the defendant's conviction. In the

light most favorable to the state, the defendant forcibly interfered with Officer Clark's

efforts to arrest Webster by pushing Clark on the back.

Evading Arrest

Evading arrest occurs where a person "intentionally flee[s] by any

means of locomotion from anyone the person knows to be a law enforcement officer

if the person . . . [k]nows the officer is attempting to arrest the person[.]" Tenn.

Code Ann. § 39-16-602(a)(1)(A) (1997).

The defendant claims there was "no testimony that [the defendant]

heard the officer express his interest [in arresting the defendant] or was in fact even

close enough to have heard the expression of interest." However, Officer Clark

testified that the defendant "was standing right in the middle" with the crowd and the

defendant and the rest of the crowd "were right up on top of us." Officer Clark told

another officer to arrest the defendant. The defendant immediately fled on foot.

In the light most favorable to the state, the defendant was close enough to have

heard Officer Clark's instruction, and furthermore, his immediate flight indicates that

he did hear it. The evidence sufficiently supports this conviction.

Inciting to Riot

Inciting to riot occurs where an individual "incites or urges three (3) or

more persons to create or engage in a riot." Tenn. Code Ann. § 39-17-304(a)

10
(1997). A riot is defined as "a disturbance in a public place involving an assemblage

of three (3) or more persons which, by tumultuous and violent conduct, creates

grave danger of substantial damage to property or serious bodily injury to persons

or substantially obstructs law enforcement or other governmental function[.]" Tenn.

Code Ann. § 39-17-301(3) (1997).

Counsel for the defendant conceded at oral argument that if the

defendant made the statements the state's witnesses claimed he made, the crime

was established. It is the defendant's contention, however, that he did not make

statements such as "Don't let them take my brother" and "Kick the cops' a--."

The jury heard both the state's and the defendant's versions of events.

It chose to accredit the state's evidence and discredit the defendant's evidence.

The law requires the appellate court to defer to the jury on all questions of credibility

of witnesses and weight and value of the evidence. The evidence in this case,

viewed most favorably to the state, establishes that the defendant committed the

crime of inciting to riot. Thus, we must uphold the jury's finding of guilt.

III

Finally, the defendant challenges the sentences imposed. First, he

alleges that the trial court engaged in judicial vindictiveness by sentencing him to

a harsher sentence in this de novo jury trial in criminal court than he had initially

received when convicted at a bench trial in general sessions court. Second, he

complains that the trial court inappropriately imposed consecutive sentencing and

failed to make specific findings of enhancement and mitigating factors on the

record.

11
 Judicial Vindictiveness

In support of this argument that the trial court vindictively sentenced

him based upon his exercise of his right to a trial de novo in criminal court following

his conviction in general sessions court, the defendant relies extensively on the

principles of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1972),

overruled in part by Alabama v. Smith, 490 U..S. 794, 109 S. Ct. 2201 (1989). 4 In

Pearce, the Supreme Court held that a presumption of judicial vindictiveness arises

from the imposition of a harsher sentence on retrial following a successful appeal,

absent an affirmative showing of the basis for the more severe sentence. Pearce,

395 U.S. at 722-26, 89 S. Ct. at 2079-81.

The situation in Pearce, however, is different from the case at bar

because the latter presents an exercise of a right to a trial de novo before a different

judge, while the former presents a new trial won on appeal due to error in the first

proceeding before the same court chargeable with the reversible error. In State v.

Curtis A. Hall, No. 678 (Tenn. Crim. App., Knoxville, Aug. 26, 1985), a defendant in

the same procedural posture made an identical argument as made in the case at

bar, and this court flatly rejected it. Speaking for the court, Judge Daughtrey wrote

[T]here is . . . no constitutional prohibition against imposing a greater
punishment upon conviction in a trial de novo. A trial de novo implies
that the case is to be treated as if it had never been heard before.
Thus the provisions of North Carolina v. Pearce, 395 U.S. 711 (1969),
have no applicability to a situation such as the one in this case. See
Colten v. Kentucky, 407 U.S. 104, 117-18 (1972).

Curtis A. Hall, slip op. Simply put, the holding of this court in Curtis A. Hall

precludes the result the defendant desires.

4
The state has wholly ignored this argument in its brief, despite the fact
that the defendant devoted 7 pages to it in his brief. The briefs of the parties
should be of great assistance to this court in determining the issues.
Unfortunately, the state has chosen to be of no assistance to the court on this
important issue of constitutional significance.

12
 Sentencing Determination

The defendant also claims that the trial court imposed a sentence that

is too lengthy.

In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). In conducting our de novo review, we must consider the evidence at

sentencing, the presentence report, the sentencing principles, the arguments of

counsel, the statements of the defendant, the nature and characteristics of the

offense, any mitigating and enhancement factors, and the defendant’s amenability

to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann.

§ 40-35-103(5) (1997); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). On

appeal, the appellant has the burden of showing that the sentence imposed is

improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments

(1997); Ashby, 823 S.W.2d at 169.

In felony sentencing, the trial court has an affirmative duty to state in

the record, either orally or in writing, which enhancement and mitigating factors it

found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code

Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn.

1998). In contrast, the misdemeanor sentencing statute only requires that the trial

court consider the enhancement and mitigating factors when calculating the

percentage of the sentence to be served "in actual confinement" prior to

"consideration for work release, furlough, trusty status and related rehabilitative

programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at

274.

13
 The defendant is correct that the trial court did not make explicit

findings of enhancement and mitigating factors; however, it was not required to do

so in this misdemeanor case. Troutman, 979 S.W.2d at 274. The lack of findings

is no basis for holding the trial court in error.

However, the record reflects the trial court made a different error with

respect to the percentage of service "in actual confinement" for the inciting to riot

sentence. See Tenn. Code Ann. § 40-35-302(d) (1997). According to the transcript

of the sentencing hearing, the trial court intended that the defendant serve the entire

100 percent of the inciting to riot sentence in the county facility, ordering that "he will

be required to serve that eleven months and twenty-nine days."5 Despite this

pronouncement on the record, the trial court did not specify any percentage of

service in its written judgment.

The misdemeanor sentencing statute provides that the percentage of

the sentence to be served in confinement before the defendant is eligible for

rehabilitative programs shall not exceed 75 percent. Tenn. Code Ann. § 40-35-

302(d) (1997). Further, the statute provides, "If no percentage is expressed in the

judgment, the percentage shall be considered zero percent (0%)." Tenn. Code Ann.

§ 40-35-302(d) (1997). When this court has been faced with a transcript of the

sentencing hearing clearly indicating the trial court's intention that the defendant's

percentage is not zero percent, however, we have deferred to the trial court's

express pronouncement as reflected in the transcript. See State v. Rickey Hailey,

No. 02C01-9705-CR-00198, slip op. at 6 (Tenn. Crim. App., Jackson, May 14,

1998); State v. Roscoe C. Smith, No. 01C01-9502-CR-00031, slip op. at 3 (Tenn.

Crim. App., Nashville, Oct. 12, 1995).

5
The court found the other two crimes properly punished under a highly
structured community corrections regime without actual confinement.

14
 In the present case, the trial court's clear intent as reflected in the

transcript of the sentencing hearing was that the defendant actually serve 100

percent of his sentence for inciting to riot, without any consideration for work

release, furlough, trusty status and related rehabilitative programs. However, under

the statue, 75 percent is the maximum percentage of service that may be required

before the defendant is eligible for rehabilitation programs. Thus, we modify the

percentage of service to 75 percent. In actuality, the modification has no effect

other than to serve as a clarification of the judgment because the record reflects

that the defendant received more pretrial jail credit than he would have been

required to serve under 100 percent service of the trial court's eleven month, 29 day

incarcerative sentence for inciting to riot.

Finally, the defendant alleges he should not have been subject to a

consecutive sentence. In general, consecutive sentencing may be imposed in the

discretion of the trial court upon a determination that one or more of the following

criteria exist:

(1) The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of
livelihood;

(2) The defendant is an offender whose record of criminal activity
is extensive;

(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the
defendant's criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless
indifference to consequences;

(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;

(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of

15
 defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on
probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (1990). In State v. Wilkerson, 905 S.W.2d 933,

937-38 (Tenn. 1995), the supreme court imposed two additional requirements for

consecutive sentencing -- the court must find consecutive sentences are reasonably

related to the severity of the offenses committed and are necessary to protect the

public from further criminal conduct. At this time, it is unsettled whether Wilkerson

applies to all seven of the statutory categories for consecutive sentencing or only

the "dangerous offender" category. See State v. David Keith Lane, No. 03C01-

9607-CC-00259, slip op. at 11 (Tenn. Crim. App., Knoxville, June 18, 1997), perm.

app. granted (Tenn. 1998).

In imposing consecutive sentencing, the trial court focused on the

defendant's extensive criminal record, which the court characterized as "terrible."

The court also commented on the dangerous situation the defendant created in

committing these offenses. The defendant's record is indeed terrible. It began with

shoplifting at age twelve and continued with six additional juvenile offenses. As a

26-year-old adult, he had obtained an additional twenty offenses prior to coming

before the trial court for sentencing in this case. It is particularly noteworthy that he

had two previous convictions for evading arrest, an assault conviction, an

aggravated assault conviction as an adult and another as a juvenile, and five drug-

related convictions. There can be no serious dispute that "[t]he defendant is an

offender whose record of criminal activity is extensive." Tenn. Code Ann. § 40-35-

115(b)(2) (1997). Moreover, as noted by the trial court, these offenses are

extremely serious. The defendant's actions hindered law enforcement officers who

16
were trying to diffuse an armed confrontation in a residential area. Furthermore, the

defendant attempted to incite the crowd to cause physical harm to law enforcement

officers who were doing their best to perform their duties. The defendant's adamant

insistence at trial that he did nothing wrong indicates his lack of repentance for

endangering the lives of law enforcement officers, the public, and even his own half

brother, which when coupled with the defendant's previous criminal history

illustrates the need to protect the public from further criminal conduct.

Thus, finding no error requiring reversal, we affirm the judgment of the

trial court as modified to reflect 75 percent service of the inciting to riot sentence.

________________________________
JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________
DAVID G. HAYES, JUDGE

_______________________________
JERRY L. SMITH, JUDGE

17