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State v. Wagner12/20/1999
.2d 529, 534 (Tenn. 1981). The Defendant's conduct in this case meets this standard. The Defendant has failed to persuade us that the trial judge erred or abused his discretion in denying probation or other alternative sentencing options. We find it appropriate that the sentences be served in confinement.
C. Consecutive Sentences
Finally, the Defendant contends that the trial court erred by imposing consecutive sentences. Although both the Defendant and the State allude to the trial judge's finding that the Defendant was a dangerous offender, we are unable to discover any record of such a finding. "The record of the sentencing hearing . . . shall include specific findings of fact upon which application of the sentencing principles was based." Tenn. Code Ann. § 40-35-209. The trial judge in this case failed to make the factual findings required for imposition of consecutive sentences. See Tenn. Code Ann. § 40-35-115(b). Although the trial judge may have believed the Defendant to be a dangerous offender, no such factual finding was made on the record.
Our supreme court stated in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),
Proof that an offender's behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high, is proof that the offender is a dangerous offender, but it may not be sufficient to sustain consecutive sentences. Every offender convicted of two or more dangerous crimes is not a dangerous offender subject to consecutive sentences; consequently, the provisions of Section 40-35-115 cannot be read in isolation from the other provisions of the Act. The proof must also establish that the terms imposed are reasonably related to the severity of the offenses committed and are necessary in order to protect the public from further criminal acts by the offender. In addition, the Sentencing Reform Act requires the application of the sentencing principles set forth in the Act applicable in all cases. The Act requires a principled justification for every sentence, including, of course, consecutive sentences.
Id. at 938.
We therefore affirm the length of the sentences imposed but we must remand this case to the trial court for further proceedings concerning whether consecutive sentences are warranted. See Tenn. Code Ann. § 40- 35-209(c), § 40-35-115(d), State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
IV. INDICTMENTS
Fourth, the Defendant challenges the indictments charging him with the offense of aggravated assault. Each indictment for aggravated assault reads as follows: The Defendant "on or about November 18, 1995, in Madison County, Tennessee . . . did unlawfully, by use of a deadly weapon, to-wit: a large wrecker pulling a truck tractor, intentionally and/or knowingly cause [the victim] to suffer and/or fear bodily injury, in violation of T.C.A. §39-13-102 . . . ." The Defendant argues that because the indictments are phrased in the disjunctive, they fail to give him adequate notice of the offense with which he was charged and ultimately convicted.
Under Tennessee law, " hen the offense [charged in the indictment] may be committed by different forms, by different means or with different intents, such forms, means or intents may be alleged in the same count in the alternative." Tenn. Code Ann. § 40-13-206(a). In this case only one offense is charged. The language with which the Defendant takes issue refers only to the means by which the crime could be committed and the intents alleged. It is permissible under our law to charge different means by which to commit a single crime within one count of an indictment.
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