WPC,`NuH`$2Uaf a*ff WP_TV078053576SA)sports2tlerxsIWPTVWPC2 yS&AKAB4; $gp0f N f0`p`pL NuR{WP}10{WP}01Times8{WP}22PWP 6.0 captionM{WP}16 # >HP LaserJet 4SiHPPCL5MS,,,,,,0nLl\UNI(hH  Z 6Times New Roman Regular %X6 0(($HU:,6 AZ"Arial Regularb- -Nw@ .eDDUUDӀ"%"4Gn~<$[3|x%j5'  !"  XkCXXXD5XXkC   Ad FILEDXkCXD5   August21,1998  CecilCrowson,Jr. XXkCAppellateCourtClerk HU:,cAZ"Arial Regular_ AQ 4 !"#%C<< C Level 1Level 2Level 3Level 4Level 5R 0D K(3$ !  R 0D (3$ !  R 0D ($$   1  = D/ ''' dxd+ B F d+ B cP PdA D3 &&&&'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.0lb }Corel WordPerfectxHH(FG(HH(d'hVA^PSetBPJobNStylZwp60versWDatSTR PtPtVV: (,M ~j X $  _V |V Vը V .V  zV V Vd  V -V҄ GV V V< /V$! V" ]VH# V4% V(& JV,' yV( V V V&V@ XV(n{WP}10{WP}22WP 6.0 caption{WP}16{WP}01"Hl@'  '" yS{WP}10 <<KK ..,,..,, ySTimes۪HHl$HHHЫ  yS Helvetica(d(    ٬A 7VXXdXXd7A  yS  Times Э        yS phjB;'$' yS{WP}10 <<KK  ySTimes yS,M{WP}22 yS Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 21, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk     yS yS yS0 '  '01 ySIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE 'AT JACKSON'44AMAY SESSION, 1998ANN[[h  huܪЫSTATE OF TENNESSEE, $)C.C.A. NO. 02C019710CR00404$  u'  '$$$$$$$)0  '  '0$$Appellee,$$)0  '  '0 $$$$$)SHELBY COUNTY  V.$$$$$) $$$$$$)$'  '$$$$$$$)HON. CHRIS CRAFT, JUDGE 0'  '0ܪЫMARIO SCOTT, $$$) 0'  '0$$$$$$)0'  '0$$Appellant.$$)(THEFT; AGGRAVATED'  'ASSAULT )$'  '$0'  '0+FOR THE APPELLANT:$$$FOR THE APPELLEE:+8$8E'  '$A.C. WHARTON$$$$JOHN KNOX WALKUP 0EREE'  '0District Public Defender$$$Attorney General & Reporter0R_RR'  '0$_l'  '$TONY N. BRAYTON$$$PETER M. COUGHLAN 0lyll'  '0Assistant Public Defender"$$Assistant Attorney General0yyy'  '0Criminal Justice Center, Suite 201$2nd Floor, Cordell Hull Building201 Poplar Avenue"$$$425 Fifth Avenue North Memphis, TN 38103$$$Nashville, TN 37243 !$!"'  '$$$$$$$$JOHN W. PIEROTTI 0"#'  '0$$$$$$$District Attorney General 0#$'  '0$$%'  '$$$$$$$$DANIEL S. BYER0%&'  '0$$$$$$$Assistant District Attorney General&'$$$$$$$Criminal Justice Center, Suite 301'($$$$$$$201 Poplar Avenue ()$$$$$$$Memphis, TN 38103)*"*+"/J+,/< //,,< Jܿ-LYܿ-LY.YfOPINION FILED ________________________/fs0sAFFIRMED 12THOMAS T. WOODALL, JUDGEV3 N3 ''V ySͪЫ  yS yS ySOPINION 04'  '05$6' '$ ySͪ  Ы yS yS   yS$The Defendant, Mario Scott, appeals as of right his convictions of3' 'aggravated assault and theft of property over the value of one thousand dollarsnfollowing a jury trial in the Shelby County Criminal Court. The trial court sentenced;Defendant as a Range I Standard offender to four (4) years confinement on thetheft conviction and six (6) years confinement on each aggravated assault6conviction. The trial court ordered the two (2) aggravated assault convictions to beEserved concurrently, but consecutive to the theft conviction, for an effective sentenceof ten (10) years. Defendant presents the following two (2) issues on appeal:$>'  '$ ySͪ  Ы yS yS   yS$t1. Whether the evidence was sufficient to convict Defendant of aggravated'  '$assault; and@$A'  '$ ySͪ yS   ySͫ yS yS     yS$332. Whether the trial court properly ordered Defendants aggravated assault*'  '$convictions to be served consecutive to his theft conviction.$C' '$ ySͪ  Ы yS yS   yS0DD' '0We affirm the judgment of the trial court. E/$ F/I$UThe facts presented at trial reveal that on March 22, 1995, Marcus Wilsonwwwas driving a blue car when it was stopped by the police. The Defendant, MariomScott, was a passenger in the vehicle. Marcus Wilson testified at trial that he;believed that the car belonged to Defendant and that Defendant offered to sell thecar to him for $1700.00. J KI K J$L$33Officer Halfacre of the Memphis Police Department was previously given a[nphoto of Defendant and the blue vehicle from the sergeant in auto theft on the'bmorning of March 22, 1995. Halfacre was told that the vehicle Defendant wasdriving was stolen and that the vehicle identification number (VIN) had beenchanged. The vehicle was parked at the home of Defendants mother. OfficerNHalfacre was told to wait until Defendant got into the vehicle before attempting tomake a stop. S$T$About 2:20 that afternoon, Officer Halfacre was observing traffic in front ofNorthside High School when Defendant and Marcus Wilson passed by headingUwestbound in the stolen vehicle. Officer Halfacre then notified Officers Boyce andDDMurray that the stolen car had just passed her going west on Northside. The threeUofficers followed it to Breedlove and Vollintine where they attempted to pull thevehicle over. The driver, Marcus Wilson, pulled over to the curb and remained in thePcar. Officer Halfacre pulled crossways in front of the vehicle so that it could not pullaway. Officer Halfacre exited her car and Defendant got out of the stolen vehicleand pointed a nine millimeter automatic handgun at Officers Halfacre and Murray.  ]$Officer Boyce pulled in directly behind the stolen vehicle and was attemptingIto exit his police cruiser when his drivers side door was hit by Officer Murrays3cruiser, causing Officer Murrays passenger side window to shatter. Officer6 ` 6v'Boyces door bounced back and hit him in the chest, stunning him momentarily. Bythe time Officer Boyce recovered from the blow, Defendant had escaped on foot.bA$cA[$3Hearing the window of Officer Murrays car shatter, Officer Halfacre believedNthat a gunshot had been fired by Defendant at Officer Murray. Halfacre broadcastover the radio that her partner had been shot at by Defendant. Halfacre ran over33to Murrays cruiser to see if she had been shot. After discovering that a gunshot;was not the cause of the broken window and that Officer Murray was unharmed,Officer Halfacre realized that Defendant had taken off running. Officer Boycechased after Defendant on foot. Defendant escaped but was later captured.j[$k+$Officers Halfacre and Murray testified at trial that Defendant pointed a nine;millimeter automatic handgun at them over the roof of the stolen vehicle. Officer'bHalfacre testified that she really  believed she might be fired at by Mario Scott. Neither Marcus Wilson nor Officer Boyce were able to testify that they sawDefendant with a gun on March 22, 1995.p+ ySͪЫ yS yS ySq{I. SUFFICIENCY OF THE EVIDENCEr ySͪЫ yS yS yS$s$fDefendant argues that the evidence presented at trial was insufficient toffsupport his convictions of aggravated assault. When an accused challenges the6 u 6]sufficiency of the convicting evidence, the standard is whether, after reviewing theevidence in the light most favorable to the prosection, any rational trier of fact couldthave found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard is applicable tofindings of guilt predicated upon direct evidence, circumstantial evidence or acombination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d33776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitled to the strongestlegitimate view of the evidence and all inferences therefrom. State v. Cabbage,$571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes thepresumption of innocence and replaces it with a presumption of guilt, the accusedhas the burden in this court of illustrating why the evidence is insufficient to support""the verdict returned by the trier of fact. State v. Williams, 914 S.W.2d 940, 945(Tenn. Crim. App. 1995) (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982));State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).  $Questions concerning the credibility of the witnesses, the weight and value toIbe given the evidence, as well as all factual issues raised by the evidence, areresolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this courtreweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict6 - { 6approved by the trial judge accredits the States witnesses and resolves allconflicts in favor of the State. Grace, 493 S.W.2d at 476.  $FIn this case, the State must prove that Defendant intentionally or knowinglycommitted an assault as defined in Tennessee Code Annotated section 3913101,and used or displayed a deadly weapon. Tenn. Code Ann.  3913102(a)(1)(B).  $ $fOfficer Halfacre, a ten (10) year veteran of the police department,Funequivocally stated that when the stolen car was pulled over, Defendant stepped%out of the passenger side of the car and pointed an  automatic weapon over theDDroof of the car at the officers. Officer Halfacre was standing behind her vehicle with/an unobstructed view of Defendant, who was standing only fourteen (14) feetNaway. Officer Murray, an eight (8) year veteran of the police department, alsoItestified that Defendant had a gun and pointed it at the officers. Officer Murraybelieved that she had been shot at when her window shattered. She proceeded to lay down on the seat of her cruiser in order to avoid being shot by Defendant. UOfficer Halfacre also believed that Officer Murray had been shot at by Defendant. mOfficer Halfacre even went so far as to broadcast over her radio that her partnerbvhad been shot at by Defendant. Officer Boyce and Marcus Wilson testified thatthey never saw Defendant with a gun.  _$J _ y _ y J$When viewing the evidence in the light most favorable to the State, the juryjustifiably could have found beyond a reasonable doubt that Defendant committed@aggravated assault. The jury heard conflicting stories and chose to credit thetestimony of Officers Murray and Halfacre. The resolution of discrepancies intestimony, whether caused by an intentional attempt to mislead the jury, or byvariations in witness perception, is a matter for the jury to decide. State v. Sheffield,I%676 S.W.2d 542, 547 (Tenn. 1984). The jury had more than enough evidence toconvict Defendant of aggravated assault. This issue is without merit. Y ySͪЫ yS yS ySYsII. CONSECUTIVE SENTENCINGs ySͪЫ yS yS yS$$EDefendant does not contest the length of his sentences, but he doeschallenge the manner in which they are to be served. The trial court sentencedDefendant to four (4) years confinement on the theft conviction and six (6) yearsUUconfinement on each aggravated assault conviction. The trial court ordered the two(2) aggravated assault convictions to be served concurrently, but consecutive to;the theft conviction for an effective sentence of ten (10) years. Defendant arguesthat the trial court erred in ordering him to serve his convictions for aggravatedt]assault consecutive to his conviction for theft. Defendant contends that thesentences should have been ordered to run concurrently rather than consecutively.  $J  J$When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are correct. Tenn.t]Code Ann.  4035401(d). This presumption is  conditioned upon the affirmativeNshowing in the record that the trial court considered the sentencing principles and alljrelevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.'b1991). There are, however, exceptions to the presumption of correctness. First, the.record must demonstrate that the trial court considered the sentencing principles and$all relevant facts and circumstances. Id. Second, the presumption does not applyto the legal conclusions reached by the trial court in sentencing. Third, thepresumption does not apply when the determinations made by the trial court arejpredicated upon uncontroverted facts. State v. Smith, 898 S.W.2d 742, 745 (Tenn.Crim. App. 1994), perm. to appeal denied, id. (Tenn. 1995).    '$Our review requires an analysis of: (1) The evidence, if any, received at thetrial and sentencing hearing; (2) the presentence report; (3) the principles oft]sentencing and the arguments of counsel relative to sentencing alternatives; (4) the@nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)Nany statements made by the defendant in his own behalf; and (7) the defendantspotential for rehabilitation or treatment. Tenn. Code Ann.  4035102, 103, &  210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).J'   Jܿ$]If our review reflects that the trial court followed the statutory sentencing33procedure, imposed a lawful sentence after having given due consideration and$proper weight to the facts and principles set out under the sentencing law, and thatOthe trial courts findings of fact are adequately supported by the record, then wemay not modify the sentence even if we would have preferred a different result. IState v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review ofthe record, we find that the trial court followed proper statutory sentencing procedure,and therefore, review by this Court is de novo with a presumption of correctness.$8Consecutive sentences should be imposed only after the proof establishes(1) that the terms imposed are reasonably related to the severity of the offensescommitted; (2) the sentence is necessary to protect the public from further criminalacts by the offender; and (3) that the defendant meets at least one of the criteria asset forth in Tennessee Code Annotated section 4035115(b). State v. Wilkerson,905 S.W.2d 933 (Tenn. 1995).$qThe trial court recognized Defendants longterm pattern of criminal activity.33See Tenn. Code Ann.  4035115(b)(2). Defendants criminal record includesconvictions for assault, receiving stolen property, driving on a revoked license, andunlawful possession of a weapon. While on bond for the revoked license and6   6@weapons offenses, Defendant was convicted for driving on a revoked license andreckless driving. Defendant then received two (2) more convictions for driving on a@revoked license. Defendant also has three (3) convictions for selling cocaine orpossession of cocaine with intent to sell. Defendant was on parole for thoseFconvictions when he committed the present offenses. The trial court foundffDefendants repeated violations of the law to be a  steady stream of crimes . . .with apparently no control. We agree with the trial court and find that this proof ist]sufficient to support a finding that Defendants criminal activity has been extensive. See, e.g., State v. Chrisman, 885 S.W.2d 834,839 (Tenn. Crim. App. 1994).    #$. In ordering consecutive sentencing, the trial court explicitly stated,  Ive alsoUUconsidered whether or not thats a sentence disproportionate to the gravity of theseoffenses pursuant to case law. The trial court found the crimes in the instant caseI%to be severe. Police officers attempted to stop Defendant because he was in astolen car, and as a result, Defendant pulled a gun on the officers. The trial courtv'also found Defendant to have  a conscious disregard for the safety of citizens anda disregard for the courts and orders of the court. Certainly it can be reasoned fromtthe foregoing statements that the trial court found consecutive sentencing to bev'reasonably related to the severity of the crimes and also found it necessary to'bprotect the public from future crimes by this Defendant. See Wilkerson, 905 S.W.2d6   [ 6bvat 939. We agree with the trial courts finding that consecutive sentencing isappropriate in this case. This issue is without merit #k$k$Based on all the foregoing, the judgment of the trial court is affirmed.$'  '$ ySͪ  Ы yS yS yS       yS   yS0h'  '0      $$$$$____________________________________$$$$$THOMAS T. WOODALL, Judge          CONCUR:      ___________________________________ !JOHN H. PEAY, Judge!..;;H___________________________________HUPAUL G. SUMMERS, JudgeUbboo|