State of Tennessee v. Gary v. Bullard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 11, 2009

STATE OF TENNESSEE v. GARY V. BULLARD

Appeal from the Circuit Court for Rutherford County

No. F-58722 James K. Clayton, Jr., Judge

No. M2008-01148-CCA-R3-CD - Filed June 25, 2009

The Defendant, Gary V. Bullard, was charged with one count of aggravated assault and one count

of attempted aggravated rape. Following a jury trial, he was found guilty of both counts. In this

direct appeal, he argues that (1) the State presented evidence sufficient to convict him of simple

assault, but not aggravated assault; and (2) the State presented evidence insufficient to convict him

of attempted aggravated rape. After our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.

WOODALL, JJ., joined.

Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, Gary V. Bullard.

Robert E. Cooper, Jr., Attorney General; Elizabeth B. Marney, Assistant Attorney General; William

Whitesell, District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the

appellee, State of Tennessee.

OPINION

Factual Background

The victim, Teresa Yearick, moved to La Vergne early in 2006 after experiencing marital

problems that resulted in separation from her husband. She testified that she began working at a

local Wal-Mart and that in February 2006 she moved in with a roommate at 215 Barnett Street.

Shortly thereafter, in March, and without the victim’s consent, the Defendant moved into that

residence and began a romantic relationship with the victim’s roommate. The Defendant is the

victim’s brother.

The victim had experienced problems with the Defendant before, and upon his arrival she

immediately felt that he “was trying to control [her] like he owned [her].” He helped her buy a cell

phone and a car to replace those that she had lost in her separation. At some times, however, he

insisted on buying her things without her consent. At one time she expressed to the Defendant her

desire to purchase, using her Wal-Mart employee discount, a $100 television. She planned to pay

for it in installments and take possession of it at a later time. The Defendant insisted that she use his

credit card to immediately purchase the television. The victim declined. The Defendant bought the

television on his own and brought it back to their residence.

On April 24, 2006, the Defendant was using the victim’s car while the victim was at work.

As they had planned, the Defendant picked the victim up from work at 10:00 p.m. On the ride back

to their residence, the Defendant informed the victim that their roommate had attempted suicide by

ingesting a large amount of Tylenol and other medication. The victim asked whether the Defendant

had called 911. He replied that he had not. The victim called 911 immediately after reaching their

residence. Their roommate was taken to the hospital and treated.

The victim stayed at the hospital with her roommate overnight. On the morning of April 25,

2006, she returned home to get some rest. As she lay on the floor watching television, she noticed

the Defendant pacing in and out of the house while talking to his on-and-off girlfriend of about

twenty years. The victim could tell he was angry about something and tried to stay out of his way.

After ending his telephone conversation, the Defendant asked the victim when she was going

to pay him for the television he had bought. The victim replied that she did not have the money to

pay him and had wanted to buy the television on an installment plan for that reason. He asked again.

The victim again replied that she did not have the money. The Defendant said, “all right. Watch

this.” He went to the victim’s bedroom, picked up the television, walked out the front door, and

threw the television onto the porch.

The victim threatened to call the police. The Defendant then picked up a hammer, which the

victim feared he would use to attack her. Instead, the Defendant walked outside and began hitting

the victim’s car with the hammer, damaging the windshield. He then walked back into the house

and grabbed the victim’s hair with one hand. He punched her face with his other hand and slammed

her face into the wall. He then forced her to the ground and choked her so severely that she bled

from her eyes.

The victim was able to crawl toward the bathroom. After she had pulled herself about

halfway in, the Defendant grabbed her head again and beat it on the bathroom’s linoleum floor. The

victim then moved to sit on the edge of the bathtub, intending to wash her face with water. At trial,

the victim described the subsequent events:

[The Victim]: And I’m sitting there and [the Defendant] reaches up on the

counter, and he pulls over a five gallon bucket of Arm & Hammer liquid detergent,

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and he just starts pouring it over my head, pouring it in my eyes, trying to make me

drink it. Then he says watch this, and he urinates on me from behind.

And at this point half my hair is already, you know, pulled out, torn. My head

is hurting. And then the next thing I know he’s naked, and he’s in the shower, and

he’s demanding that I take my clothes off. Scared to death as I was, I mean, I was

fighting for my life, so I took my clothes off, humiliated, disgusted. Your own

brother? So I got all my clothes off, and I had my bra on, and I had liquid detergent

all over me, and he yelled at me to shut the bathroom door.

And when he was yelling at me to get into the shower, I just heard this voice

just saying, this is, you know, your time for safety. This is when you’re going to go.

I was afraid to turn the door because I didn’t know if it was locked, and I didn’t know

if the front door was locked. So I was scared if I went to run and I couldn’t get out

the door, then I really wouldn’t make it out of there alive, but I did.

The victim ran from the house and took refuge across the street at 222 Barnett Street. Two

residents of that house, Mary Ellen Greer and Sophia Greer, also testified. On April 25, 2006, they

were both sitting on their porch watching Sophia’s two small children play in the front yard. At

some point they saw a tall, white, heavy-set man with short hair come out of 215 Barnett Street and

throw a television onto the ground. A “couple of minutes” later, he came back outside and used a

hammer to damage the windows and doors of a car parked in front of the residence. Neither witness

got a close look at the man’s face.

About five minutes later, a woman ran out of 215 Barnett Street yelling for help. She wore

only a bra and, according to Mary Ellen, had what appeared to be “laundry detergent dripping from

her all over her body.” She looked as though she had been beaten, and one side of her face was

swollen. The two women let the victim into their house. Mary Ellen gave the victim a towel and

went back outside to watch the children and ensure no one tried to enter the house. Sophia called

911 and stayed with the victim. The police arrived about ten minutes later. During that time, Mary

Ellen did not see anyone enter or exit the victim’s residence.

Bob Hayes, a Patrol Officer with the La Vergne Police Department, responded to the 911 call.

When he and a partner arrived at 215 Barnett Street, they noticed the front door was open. They also

noticed a television lying on the porch and a car with a damaged windshield. Officer Hayes called

into the house. The Defendant came to the door wearing an unbuttoned shirt and a pair of

underwear. His entire body was wet as though he had been sweating profusely or had failed to dry

himself after a shower.

Officer Hayes asked the Defendant to exit the residence. He then handcuffed the Defendant

for the officer’s safety. Officer Hayes entered the residence and took photographs while his partner

stood watch outside. He introduced into evidence photographs of a living room in total disarray, a

cell phone in the bathroom toilet, and the bathroom floor, on which he found clumps of hair and

some pools of blue liquid. He also found an empty container of Arm & Hammer laundry detergent.

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Officer Hayes transported the Defendant to the Rutherford County Jail after the completion of

evidence collection and witness interviews.

The victim was transported to Stonecrest Hospital and treated for her injuries. She was

released that evening and found her cell phone in the toilet when she returned home. The victim

introduced into evidence police photographs of her injuries. Some were taken at the hospital and

others were taken one or two days later. They show substantial bruising to her face as well as

abrasions and lacerations to her body. The victim testified that her injuries included two swollen and

black eyes, a broken nose, and arms so bruised she could not touch them without feeling pain. One

bruise on her arm remained until November of 2006. She also experienced apparently permanent

damage to her eyes in the form of “brown splotches” in her field of vision. The State did not

introduce a medical report. The victim was able to take one week off work but had to return

thereafter in order to keep her job. She noted that her injuries were severe enough that, upon her

return, some of her coworkers had to avert their eyes from her face.

The Defendant elected not to testify. He presented no evidence in his defense. He was

convicted of one count of aggravated assault and one count of attempted aggravated rape. He now

appeals.

Analysis

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant

who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption

of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the

sufficiency of the evidence if, after considering the evidence in a light most favorable to the

prosecution, we determine that any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at

558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s

witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State

v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of 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, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d

at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from

circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;

Carruthers, 35 S.W.3d at 557.

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I. Sufficiency of the Evidence of Aggravated Assault

The Defendant first contends that the evidence was insufficient to convict him of aggravated

assault. Tennessee Code Annotated section 39-13-101(a)(1) provides that a person commits assault

who “[i]ntentionally, knowingly or recklessly causes bodily injury to another.” A person commits

aggravated assault who “intentionally or knowingly 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.” Tenn.

Code Ann. § 39-13-102(a)(1).

The Defendant concedes that he committed assault but contends that he did not commit

aggravated assault because he did not use or display a deadly weapon and did not cause serious

bodily injury to the victim. We agree that he did not use or display a deadly weapon in assaulting

the victim; although he did display a hammer in the victim’s presence, she did not testify that he

demonstrated an intent to use it against her.

In our view, however, the proof did show that the Defendant caused serious bodily injury.

Tennessee Code Annotated section 39-11-106(2) provides that “‘bodily injury’ includes a cut,

abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the

function of a bodily member, organ, or mental faculty.” “‘Serious bodily injury’ means bodily injury

which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme

physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial

impairment of a function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-

106(34).

The Defendant relies on State v. Barnes, 954 S.W.2d 760 (Tenn. Crim. App. 1997), for his

contention that the victim in this case did not suffer serious bodily injury. In Barnes, this Court

concluded that a victim who suffered a bite wound to his arm had not suffered protracted or obvious

disfigurement, the only potentially applicable definition of “serious bodily injury.” Id. at 766. The

Defendant’s reliance on this case is misplaced; the injuries the Defendant inflicted upon the victim

are substantially different in kind and severity from those in Barnes.

Taken in the light most favorable to the State, the evidence in this case established that the

victim suffered protracted loss or substantial impairment of a bodily organ. See Tenn. Code Ann.

§ 39-11-106(34)(E). Despite the absence of a medical report, the jury was entitled to credit the

victim’s testimony that her vision was and remains impaired as a result of the Defendant’s attack.

We also conclude that the reaction of the victim’s coworkers upon her return to work evidences that

she suffered protracted or obvious disfigurement. See Tenn. Code Ann. § 39-11-106(34)(D). This

issue is without merit.

II. Sufficiency of the Evidence of Attempted Aggravated Rape

The Defendant next contends that the evidence was insufficient to convict him of attempted

aggravated rape. The applicable portion of Tennessee Code Annotated section 39-13-502 provides

that “(a) Aggravated rape is unlawful sexual penetration of a victim by the defendant or the

defendant by a victim accompanied by any of the following circumstances: . . . (2) The defendant

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causes bodily injury to the victim.” “‘Sexual penetration’ means sexual intercourse, cunnilingus,

fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of

any object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s

body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-501.

The Tennessee Code Annotated also provides that:

(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 conduct as the person

believes them to be, and the conduct constitutes a substantial step toward the

commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s

entire course of action is corroborative of the intent to commit the offense.

Tenn. Code Ann. § 39-12-101. The Defendant argues, and we agree, that only subdivision (a)(3)

potentially applies to his conduct: there is no evidence that he either mistakenly believed himself to

have committed aggravated rape under the circumstances or that he believed his conduct, without

more, would result in the commission of aggravated rape. See Tenn. Code Ann. §§ 39-12-101(a)(1),

(a)(2). The State was therefore required to prove that the Defendant’s conduct constituted a

substantial step toward the commission of aggravated rape and that he acted intending to commit

aggravated rape.

A. Substantial Step

In State v. Reeves, 916 S.W.2d 909 (Tenn. 1996), our supreme court interpreted the recently

amended Tennessee Code Annotated 39-12-101. The court concluded that the statute’s requirement

of a “substantial step” had abandoned Tennessee’s previous criminal attempt law, which held that

“mere preparation” to commit an act was insufficient to support a conviction for attempt to commit

that act and that “the act itself” had to have begun. Id. at 913. The court thus held that a jury is

entitled to find a “substantial step” toward the commission of an act even if the act itself had not

begun. Id. at 914. The supreme court applied this rule in State v. Fowler, 3 S.W.3d 910 (Tenn.

1999), in which it held that a defendant had taken a “substantial step” toward committing statutory

rape, and in combination with his culpable mental state had completed an attempted statutory rape,

when he offered to pay an undercover police officer to deliver a young male for sex, regardless of

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the fact that the defendant never actually took delivery of a young male in order to begin a sexual

act. Id. at 912.

In this case, the Defendant had already weakened the victim by inflicting bodily injury upon

her, and continued to do so contemporaneous with his removal of his own clothes and his demand

that she remove hers. He then ordered her to join him in the shower. Applying the test described

in Reeves and Fowler, we conclude that the Defendant took a “substantial step” toward the

commission of aggravated rape.

B. Intent to Commit Aggravated Rape

As noted, in order to have committed attempted aggravated rape the Defendant must have

had a “specific intent” to commit aggravated rape in addition to taking a substantial step toward its

commission. State v. Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996). Our supreme court has

interpreted this requirement to mean that he must have had the unlawful penetration of the victim

as his “conscious object or desire.” State v. Mateyko, 53 S.W.3d 666, 669 (Tenn. 2001). We

conclude that the evidence at trial, when taken in the light most favorable to the State, was such that

any rational juror could have found that the Defendant harbored this intention.

In reaching this conclusion, we first note that the evidence supporting the Defendant’s intent

to rape the victim is entirely circumstantial; he did not announce or otherwise make explicit a desire

to rape her. A defendant may be convicted using entirely circumstantial evidence, however. Duchac

v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “When a case is made by circumstantial evidence alone

. . . the facts and circumstances must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford,

470 S.W.2d 610, 612 (Tenn. 1971).

In arguing for his guilt, the State contends that the Defendant’s act of urinating on the victim

was “an initial degrading and sexually provocative act.” While we agree that the Defendant intended

to degrade and humiliate the victim in concert with his other conduct, we cannot conclude that

urinating on the victim was by its nature a sexual act evidencing the Defendant’s specific intent to

unlawfully penetrate her thereafter.

The Defendant, for his part, unconvincingly argues that he merely extended an “invitation”

for the victim to “join him” in the shower after a “lull in the proceedings” during which the victim

formed a desire to wash herself off. We find no evidence of such a “lull,” especially because the

Defendant suggests it occurred before he poured laundry detergent onto the victim. The Defendant

also claims that the victim was “free to leave” after he stepped into the shower. We must conclude

that the Defendant’s demands that the victim disrobe, close the bathroom door, and join him in the

shower are facts that discredit his argument.

The evidence therefore establishes that the Defendant, after beating and humiliating the

victim, removed all of his clothes and stood in the bathtub. He then ordered that she remove her

clothes, conceal the two of them inside the bathroom by closing the door, and join him in the shower.

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Although there is no evidence that the Defendant was in a state of arousal or “semi-arousal,” see

State v. Thomas Coburn, No. E2005-02730-CCA-R3-CD, 2007 WL 2284814, at *12 (Tenn. Crim.

App., Knoxville, Oct. 6, 2008), the Defendant’s own nakedness strongly discounts the possibility

that he simply intended to further assault or sexually batter the victim. Although the evidence of the

Defendant’s specific intent is not overwhelming, we conclude under these circumstances that any

rational jury could have excluded “any other reasonable hypothesis” and found beyond a reasonable

doubt that the Defendant intended to rape the victim. See Crawford, 470 S.W.2d at 612.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the Defendant’s convictions.

______________________________

DAVID H. WELLES, JUDGE

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