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State v. York10/17/2001
. Charles Justin Osborne, No. 01C01-9806-CC- 00246, Perry County (Tenn. Crim. App. May 12, 1999) (relying on Bingham to limit application of factor (16)). We note that this issue is presently before our supreme court in Imfeld.
We do not believe, though, that we need to resolve the split in interpretation of factor (16) in this case. First, we do not believe that sufficient evidence exists in the record to support factors (10) and (16) relative to persons other than the defendant's father, the victim of the assault. The record reflects that the prosecutor did not assert the application of these two factors and that the trial court applied them without providing any explanation of the facts found by it to justify their application. On appeal, the state relies upon testimony by the defendant's mother regarding his three children, who were seven, four and three years of age, being in the same room with the defendant and the victim when the altercation began. She also testified that the children were "running around, crying screaming."
With the defendant and the victim fighting with each other, we do not believe that the children's presence in the room when the fighting started and running around crying warrant determinations that the defendant had no hesitation about committing a crime when the risk to his children's lives was high and that there was great potential for bodily injury to them. The record does not indicate any risk of bodily harm to the children and we will not assume it from their mere presence and upset condition.
Second, we believe that the defendant's criminal history justifies his maximum sentence for a Range I, standard offender when viewed in the context of the circumstances surrounding the aggravated assault. The record reflects that the defendant has a history of violence or threatening violence based upon his lack of anger management. The fact that several incidents occurred after the defendant was on bail for the present offense reflects the defendant's inability to refrain from such conduct. In this respect, this pattern of conduct similar to the present offense weighs heavily in considering appropriate punishment. We believe it supports the defendant's six-year sentence.
In consideration of the foregoing and the record as a whole, we affirm the judgment of conviction.
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