State of Tennessee v. Willie Nolan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 2, 2015 Session

STATE OF TENNESSEE v. WILLIE NOLAN

Appeal from the Criminal Court for Shelby County

No. 12-03247 John W. Campbell, Judge

No. W2014-00990-CCA-R3-CD - Filed October 7, 2015

The Defendant, Willie Nolan, was convicted by a Shelby County jury of attempted

reckless endangerment, aggravated assault, reckless aggravated assault, felony reckless

endangerment, and vandalism. See Tenn. Code Ann. §§ 39-12-101, -13-102, -14-408.

After merging the attempted reckless endangerment conviction into the aggravated

assault conviction, the trial court imposed a total effective sentence of twenty-seven

years. In this appeal as of right, the Defendant contends that (1) the trial court erred by

allowing the prosecution to enter as substantive evidence the unsigned statement of a

witness in violation of Tennessee Rule of Evidence 803(26); and (2) there was

insufficient evidence to support the convictions for aggravated assault, reckless

aggravated assault, and felony reckless endangerment.1 After careful review of the

record and applicable law, we affirm the judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

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The Defendant does not challenge the sufficiency of the evidence with respect to his convictions for

attempted reckless endangerment and vandalism. We note that, at the motion for new trial, the Defendant

argued that attempted reckless endangerment was not a crime. The trial court responded that it had

remedied the problem by merging that conviction into the aggravated assault conviction. Our supreme

court has previously stated that ―[i]t is impossible to conceive of an attempt where a crime by definition

may be committed recklessly . . . .‖ State v. Kimbrough, 924 S.W.2d 888, 891 (Tenn. 1996) (determining

that attempted felony murder is not an offense in Tennessee and noting that ―one cannot intend to

accomplish the unintended‖). Based on this reasoning, we have serious concerns about the legitimacy of

a conviction for attempted reckless endangerment, and the conviction for that offense survives despite the

fact that it was merged into the aggravated assault conviction. See State v. Justin Brian Conrad, No.

M2008-01342-CCA-R3-CD, 2009 WL 3103776, at *9 (Tenn. Crim. App. Sept. 29, 2009). Nevertheless,

the Defendant does not challenge that conviction on appeal, and we will therefore not address it further in

this opinion.

James E. Thomas, Memphis, Tennessee, for the appellant, Willie Nolan.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Melanie Headley,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On June 26, 2012, the Defendant was indicted on charges arising from an August

28, 2011 altercation with Shiquanna Whitfield, Lasondra Scott, and Sean Deadmon. In

particular, the Defendant was indicted in Count 1 for the attempted second degree murder

of Ms. Scott, in Counts 2 and 3 for alternative theories of the aggravated assault of Ms.

Scott, in Counts 4 and 5 for alternate theories of the aggravated assault of Mr. Deadmon,

in Count 6 for the aggravated assault of Ms. Whitfield, and in Count 7 for vandalism of

more than $500 but less than $1,000 for damage done to Ms. Whitfield‘s car.

At trial, Ms. Scott testified that on August 28, 2011, Ms. Whitfield came to pick

her up between 9 p.m. and 10 p.m. from Ms. Scott‘s mother‘s house. Ms. Whitfield

asked Ms. Scott to ride with her as she drove the Defendant and his girlfriend Cindy,

whom were already in the car, to the Tulane Apartments. The group then proceeded to

Tulane Apartments, where the Defendant and Cindy exited the car.

Before Ms. Whitfield drove away, the Defendant came back to the car and asked

to be dropped off at his mother‘s house. When he returned to the car, the Defendant was

angry. According to Ms. Scott, ―he was in the backseat just whooping and hollering and

beating on the ceiling of the car talking about what he was going to do to me and [Ms.

Whitfield].‖ Ms. Scott testified that the Defendant threatened her and Ms. Whitfield and

that she felt scared. After about five minutes, Ms. Scott asked Ms. Whitfield to pull over

and let the Defendant out of the car.

After letting the Defendant out of the car, Ms. Whitfield and Ms. Scott drove to

Mr. Deadmon‘s house. According to Ms. Scott and Ms. Whitfield, they stood on the

porch outside Mr. Deadmon‘s house, along with Mr. Deadmon, talking for approximately

seven to ten minutes when the trio witnessed the Defendant‘s mother‘s car drive by. Ms.

Whitfield opined that the Defendant‘s mother, who lived near Mr. Deadmon‘s house, was

returning from picking up the Defendant. Ms. Whitfield testified that she picked up a

stick from the yard when she saw the Defendant go by because the Defendant had called

and threatened them. After another seven to ten minutes had passed, the Defendant came

around the side of Mr. Deadmon‘s house carrying an approximately one-foot long, solid

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pipe. According to Ms. Whitfield, as the Defendant approached, he said, ―I‘m fixin‘ to

kill you b---h – I told you b---hes I was gonna get y‘all . . . .‖

As the Defendant ran toward Ms. Scott while swinging the pipe, Ms. Scott first

swung a bat at the Defendant but missed. Ms. Scott testified that she had armed herself

with the bat because of the Defendant‘s repeated threats. The Defendant proceeded to hit

Ms. Scott numerous times on her shoulder and arms. During this ordeal, Ms. Scott

attempted to escape but slipped and fell. The Defendant jumped on top of Ms. Scott and

began attempting to strike her head with the pipe, but she was able to protect her head

with her arms, which resulted in further injuries to both her right and left arms. Ms. Scott

testified that the Defendant was wearing a black glove over the hand holding the pipe,

which was apparently hot as it caused burns to Ms. Scott‘s arms where she was struck

with it. Ms. Scott testified that during this time, she feared for her life.

While the Defendant was attacking Ms. Scott, Ms. Whitfield and Mr. Deadmon

were attempting to break up the altercation. Ms. Whitfield was still armed with a stick,

although she testified that the Defendant was mainly focused on Ms. Scott. During her

attempt to stop the attack, Ms. Whitfield was hit on the arm with the pipe. Mr. Deadmon

was struck multiple times by the Defendant while trying to prevent the Defendant from

attacking Ms. Scott.

After Ms. Scott finally escaped from the Defendant, she ran inside Mr. Deadmon‘s

house where Mr. Deadmon‘s mother, sister, and Ms. Whitfield were hiding. Once she

was inside Mr. Deadmon‘s house, the Defendant picked up the bat that Ms. Scott

previously held and began smashing the windows and tail lights of Ms. Whitfield‘s car.

According to Ms. Whitfield, the Defendant said, ―B---h, since I can‘t get you, I‘ll get

your car.‖ Ms. Whitfield testified that the attack lasted approximately ten to fifteen

minutes.

As a result of this altercation, Ms. Scott‘s left arm was fractured and burned; her

right forearm was broken in two places and burned; her left elbow was dislocated; and

she sustained various bruises and cuts on her arms, right shoulder, and head. Ms.

Whitfield was struck on the arm during the attack but did not sustain any significant

injuries. Mr. Deadmon had several jammed fingers and one broken finger.

On August 30, 2011, Mr. Deadmon gave a statement to police and identified the

Defendant as the attacker. Mr. Deadmon testified that he was unable to sign the

document reflecting his identification of the Defendant as his attacker or his witness

statement because both of his hands were bandaged. He testified that someone else had

signed for him, at his direction. Sergeant Frank Hannah, the investigator responsible for

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the case, testified that a secretary at the police station signed for Mr. Deadmon at Mr.

Deadmon‘s request because he could not sign for himself.

During his trial testimony, Mr. Deadmon claimed not to remember many of the

events detailed in his statement. The prosecution entered Mr. Deadmon‘s statement to

police as substantive evidence pursuant to Tennessee Rule of Evidence 803(26), and

defense counsel objected on the ground that Mr. Deadmon did not sign the statement

himself. The trial court found that, because the statement was signed at Mr. Deadmon‘s

direction, he had adopted the signature as his own, thus complying with the signature

requirement of Rule 803(26)(b).

Both Ms. Scott and Ms. Whitfield also gave statements to the police recounting

the Defendant‘s assault, and both identified the Defendant as their attacker from a

photographic array.

Following the close of proof, the trial court granted the Defendant‘s motion for

judgments of acquittal pursuant to Tennessee Rule of Criminal Procedure 29 in Counts 2

and 4 after finding that the State had failed to prove the element of serious bodily injury

relative to the assaults of Ms. Scott and Mr. Deadmon. A jury convicted the Defendant in

Counts 1 and 3 of the attempted misdemeanor reckless endangerment and aggravated

assault of Ms. Scott, respectively. In Count 5, the Defendant was convicted of the

reckless aggravated assault of Mr. Deadmon. The Defendant was convicted in Count 6 of

felony reckless endangerment of Ms. Whitfield. Finally, in Count 7, the Defendant was

convicted of vandalism of $500 or less. Following a sentencing hearing, the trial court

merged the attempted reckless endangerment conviction into the aggravated assault

conviction of Ms. Scott. The trial court imposed a total effective sentence of twenty-

seven years. The Defendant filed a timely motion for new trial, which was denied. He

then filed a timely notice of appeal.

ANALYSIS

On appeal, the Defendant asserts that the trial court erred by admitting Mr.

Deadmon‘s statement as substantive evidence for two reasons: (1) the statement was not

―signed by the witness‖ within the meaning of Tennessee Rule of Evidence 803(26)(b);

and (2) the trial court did not hold a hearing outside the presence of the jury prior to

admitting the statement as required by Tennessee Rule of Evidence 803(26)(c).

Essentially, the Defendant argues that Mr. Deadmon‘s statement was hearsay and did not

meet the requirements for admissibility specified in Rule 803(26). The Defendant further

contends that the evidence produced at trial is insufficient to sustain his convictions for

aggravated assault, reckless aggravated assault, and felony reckless endangerment. We

consider each issue in turn.

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I. Error in Admitting the Statement of Mr. Deadmon

Our supreme court has recently explained an appellate court‘s standard of review

regarding questions of the admissibility of hearsay evidence as follows:

When the trial court makes factual findings and credibility determinations

in the course of ruling on an evidentiary motion, these factual and

credibility findings are binding on a reviewing court unless the evidence in

the record preponderates against them. State v. Gilley, 297 S.W.3d [739,]

759–61 [(Tenn. 2008)]. Once the trial court has made its factual findings,

the next questions—whether the facts prove that the statement (1) was

hearsay and (2) fits under one of the exceptions to the hearsay rule—are

questions of law subject to de novo review.

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (citing State v. Schiefelbein, 230

S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721

(Tenn. Ct. App. 2005)).

―‗Hearsay‘ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.‖ Tenn.

R. Evid. 801(c). ―Hearsay is not admissible except as provided by these rules or

otherwise by law.‖ Tenn. R. Evid. 802. Tennessee Rules of Evidence 803 and 804

provide exceptions to the general rule that hearsay is inadmissible. As is pertinent to this

appeal, Rule 803(26) provides a hearsay exception for a testifying witness‘s prior

inconsistent statement. The statement is admissible as substantive evidence if the

following conditions are satisfied: (1) the statement must be admissible under Tennessee

Rule of Evidence 613(b);2 (2) the declarant must testify at the trial or hearing and be

subject to cross-examination about the statement; (3) the statement must be audio or

video recorded, written and signed by the witness, or given under oath; and (4) the trial

court must conduct a jury-out hearing to determine by a preponderance of the evidence

that the prior statement was made under circumstances indicating trustworthiness. Tenn.

R. Evid. 803(26). In the interest of justice, ―[Rule 803(26)] incorporates several

safeguards to assure that the prior inconsistent statements are both reliable and

authentic.‖ Tenn. R. Evid. 803(26) Advisory Comm‘n Cmts. Therefore, the Rule‘s

requirements should be construed in a manner that insures reliability and authenticity.

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Tennessee Rule of Evidence 613(b) provides that ―[e]xtrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny

the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the

interests of justice otherwise require.‖

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A. Signed by the Witness

The Defendant first contends that the trial court erred by allowing the prosecution

to enter as substantive evidence Mr. Deadmon‘s statement to police, in violation of

Tennessee Rule of Evidence 803(26). Specifically, the Defendant argues that Mr.

Deadmon did not sign the statement as required by Rule 803(26)(b). The State responds

that because Mr. Deadmon was unable to sign himself and the signature was at Mr.

Deadmon‘s direction, Mr. Deadmon adopted the signature as his own, meeting the

―signed by the witness‖ requirement found in Rule 803(26)(b).

The law recognizes that legitimate reasons may exist that make it impossible for a

person to sign his or her name. Accordingly, ―[i]n the absence of a statute the general

rule is that a signature may be made for a person by the hand of another who acts in the

presence of such person at his direction, request, or with his acquiesce.‖ Stoots v. State,

325 S.W.2d 532, 538 (Tenn. 1959) (citing 80 C.J.S. Signatures § 6, p. 1291). As an

example, our law allows a last will and testament to be signed by another at the direction

of the testator. See Tenn. Code Ann. § 32-1-104(1)(C). While Rule 803(26)(b) requires

the statement to be signed by the witness, the circumstances of this case support the trial

court‘s determination that the signing of the witness‘s name by a third party at the

witness‘s direction satisfies the requirements of Rule 803(36)(b).

In this case, both Sergeant Hannah and Mr. Deadmon testified that Mr.

Deadmon‘s hands were injured, and a secretary at the police station therefore signed Mr.

Deadmon‘s statement at Mr. Deadmon‘s direction. At trial, Mr. Deadmon testified

multiple times that the signature on the statement was his, albeit written by another at his

request. Further, Mr. Deadmon did not say that the words in the statement were not his

or were false. On the contrary, he said that ―it could have happened,‖ but he simply

could not remember at the time of trial.

Mindful of the overriding considerations of authenticity and reliability, we note

that the same procedure was followed regarding the photographic display presented to

Mr. Deadmon. The same secretary who signed the statement at Mr. Deadmon‘s direction

marked the photo selected by Mr. Deadmon and signed Mr. Deadmon‘s name to the

document. Mr. Deadmon testified that he in fact had selected the photo that had been

marked. Therefore, we conclude that the trial court did not err in finding that the

witness‘s written statement was ―signed by the witness‖ as required by Rule 803(26)(b).

B. Jury-Out Hearing

The Defendant next argues that the record is clear that the prosecution did not

request a hearing out of the presence of the jury for the judge to determine by a

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preponderance of the evidence that the prior statement was made under circumstances

indicating trustworthiness, as required by Tennessee Rule of Evidence 803(26)(c). Based

on these alleged errors, the Defendant requests that this court grant him a new trial. The

State responds by conceding that the State never requested such a hearing pursuant to

Rule 803(26)(c) and that such a hearing was never held. However, the State argues that

any error regarding the admission of Mr. Deadmon‘s statement was harmless because it

did not affirmatively appear to have affected the outcome of the trial.

The advisory comments to Tennessee Rule of Evidence 803(26) state, ―The rule

requires that the party seeking to have the statement treated as substantive evidence

request a hearing out of the presence of the jury to satisfy the judge ‗by a preponderance

of the evidence that the prior statement was made under circumstances indicating

trustworthiness.‘‖ Tenn. R. Evid. 803(26) & Advisory Comm‘n Cmts. The record is

clear that a hearing was never requested by the prosecution and never held. Therefore,

the trial court erred in admitting Mr. Deadmon‘s statement as substantive evidence

without first holding a hearing outside the presence of the jury.

We must next determine the gravity of the trial court‘s error. The Defendant

argues that the trial court‘s failure to hold a hearing prior to admitting Mr. Deadmon‘s

statement constitutes reversible error. The State responds that any error in admitting Mr.

Deadmon‘s statement was harmless because it did not affirmatively appear to have

affected the outcome of the trial.

Tennessee recognizes three categories of error:

1) [S]tructural constitutional errors, which compromise the integrity of the

judicial process and require automatic reversal; 2) nonstructural

constitutional errors, which require reversal unless the State proves beyond

a reasonable doubt that the error is harmless; and 3) non-constitutional

errors, which do not require reversal absent proof by the defendant that the

error more probably than not affected the judgment or would result in

prejudice to the judicial process.

State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010) (citing State v. Rodriguez, 254

S.W.3d 361, 371-72 (Tenn. 2008)). The current case falls under the third category.

―A violation of an evidentiary rule may not mandate reversal if the error ‗was

more probably than not harmless.‘‖ State v. Martin, 964 S.W.2d 564, 568 (Tenn. 1998)

(citing United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir. 1983)). Under

Tennessee Rule of Criminal Procedure 52(a), ―[n]o judgment of conviction shall be

reversed on appeal except for errors which affirmatively appear to have affected the

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result of the trial on its merits.‖ Furthermore, ―[t]he greater the amount of evidence of

guilt, the heavier the burden on the defendant to demonstrate that a non-constitutional

error involving a substantial right more probably than not affected the outcome of the

trial.‖ State v. Rodriguez, 254 S.W.3d at 372. Also, ―[t]he improper admission of

evidence that is merely cumulative on matters shown by other admissible evidence may

be harmless error.‖ Newcomb v. Kohler Co., 222 S.W.3d 368, 388 (Tenn. Ct. App.

2006) (citing McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 402 (5th Cir.1985)).

In his statement to police, Mr. Deadmon said,

I was sitting there on the porch with my neighbor and my mom when [Ms.

Scott], . . . came running up yelling at me to please help her. She [was]

chased by [the Defendant], he had a pipe in his hand. I asked her what was

going on and she told me that he was trying to hurt her and he tried to

swing on her. [The Defendant] told her ―I‘m fixing to kill you b---h‖ and

he swung at her on her arm real hard. She threw her hands up and tried to

protect herself and she got behind me. I told [the Defendant] to stop and

stepped between both of them. Once I did that he kept swinging and that‘s

when he hit me. [The Defendant] ran around me and chased [Ms. Scott]

around the yard and she fell and [the Defendant] started hitting her again on

the head, face and her stomach. I tried to lean across her to stop some of

the blows, that‘s when I got hit. My neighbor, [Ms. Whitfield] drove up

into the yard and [the Defendant] hit her one good whap on the arm with

that pipe. My Momma told her to get into the house, that‘s when [the

Defendant] started hitting her car and broke out all the windows and stuff.

[The Defendant] ran off and me and [Ms. Scott] were laying [sic] on the

ground until the ambulance arrived and took us to Methodist South

Hospital.

The inconsistency between Mr. Deadmon‘s statement to police and Mr.

Deadmon‘s trial testimony arose when Mr. Deadmon testified that he did not remember

the sequence of events he gave in his earlier statement to police and that he presently did

not recall many of the details of the incident. Mr. Deadmon said, ―[I] remember [the

Defendant] . . . I remember him and the young lady out in the yard tangling at each other.

Okay. And he may have got the best of her; but a lot of stuff that‘s detailed on here, I do

not remember.‖

The evidence against the Defendant at trial was strong. Three separate witnesses

testified to substantially similar versions of the events of August 28, 2011. Ms. Scott and

Ms. Whitfield in their trial testimony, and Mr. Deadmon in his previous statement, each

testified that the Defendant was in Mr. Deadmon‘s yard, swinging a pipe, and that the

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Defendant hit Ms. Scott with the pipe. Furthermore, included in both Mr. Deadmon‘s

statement and Ms. Whitfield‘s trial testimony was the detail that they too were hit during

the incident, while attempting to help Ms. Scott. Hospital records detailed the injuries

sustained by Ms. Scott and Mr. Deadmon resulting from the incident. All three witnesses

identified the Defendant to police by photographic array.

The information contained in Mr. Deadmon‘s statement was almost identical to

the properly admitted testimony of Ms. Scott and Ms. Whitfield. The statement did not

add any new or vital element to the prosecution‘s case but rather served to confirm what

had already been presented in testimony. We conclude that the erroneous admission of

Mr. Deadmon‘s statement to police was harmless because the error does not appear to

have affirmatively affected the outcome of the trial and because the evidence contained in

the statement was cumulative in nature.

II. Sufficiency of Evidence

The Defendant next contends that the evidence produced at trial was insufficient to

support his convictions for aggravated assault upon Ms. Scott, reckless aggravated assault

upon Mr. Deadmon, and felony reckless endangerment of Ms. Whitfield. We disagree.

An appellate court‘s standard of review when a defendant questions the

sufficiency of the evidence on appeal is ―whether, after viewing 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,

319 (1979). This court does not reweigh evidence; rather, it presumes that the jury has

resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding

witness credibility, conflicts in testimony, and the weight and value to be given to

evidence are resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997).

A guilty verdict ―removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury‘s verdict.‖ Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). ―This [standard] applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of [both] direct and circumstantial

evidence.‖ State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The

standard of proof is the same, whether the evidence is direct or circumstantial. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence ―is the same whether the conviction is based upon direct or

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circumstantial evidence.‖ Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)) (internal quotation marks omitted). The duty of this court ―on appeal of a

conviction is not to contemplate all plausible inferences in the [d]efendant‘s favor, but to

draw all reasonable inferences from the evidence in favor of the State.‖ State v. Sisk, 343

S.W.3d 60, 67 (Tenn. 2011).

A. Aggravated Assault of Ms. Scott

The Defendant first contends that the evidence was insufficient to support his

conviction for the aggravated assault of Ms. Scott because she was the initial aggressor,

and, therefore, he was acting in self-defense. The State responds that the evidence was

sufficient to support the Defendant‘s conviction for aggravated assault.

Tennessee Code Annotated section 39-13-101 provides that a person commits

assault when he or she ―[i]ntentionally, knowingly or recklessly causes bodily injury to

another.‖ Tenn. Code Ann. § 39-13-101(a)(1). ―[B]odily injury‖ includes ―abrasions and

cuts, physical pain, illness or impairment.‖ Tenn. Code Ann. § 39-11-106(a)(2). As

relevant to this case, aggravated assault is committed when a person ―[i]ntentionally or

knowingly commits an assault as defined in § 39-13-101 and . . . uses or displays a

deadly weapon.‖ Tenn. Code Ann. § 39-13-102(a)(1)(A). A ―deadly weapon‖ is defined

as ―[a]nything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.‖ Tenn. Code Ann. § 39-11-106(a)(5)(B).

In this case, evidence in the light most favorable to the State showed that the

Defendant arrived at Mr. Deadmon‘s house, ran after Ms. Scott screaming that he was

going to ―get her,‖ and then proceeded to beat her with a hot pipe. Evidence showed that

Ms. Scott sustained several bodily injuries, including broken bones and burns, from

which she still had scars. Additionally, there was sufficient evidence that the pipe was

used in a manner capable of causing serious bodily injury or death, making it a ―deadly

weapon‖ within the meaning of section 39-11-106(a)(5)(B).

As for the Defendant‘s self-defense argument, Ms. Scott testified that she armed

herself with a bat and swung at the Defendant because he was threatening her and

―running up on‖ her. Furthermore, Ms. Scott attempted to escape from the Defendant,

but he pursued her and beat her with the pipe as she lay defenseless on the ground. The

jury was instructed on self-defense and chose not to credit the Defendant with that

defense. We conclude that the evidence presented was sufficient for a reasonable jury to

convict the Defendant of the aggravated assault of Ms. Scott.

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B. Reckless Aggravated Assault of Mr. Deadmon

The Defendant was also convicted of the reckless aggravated assault of Mr.

Deadmon. On appeal, the Defendant argues that Mr. Deadmon ―testified that no one

assaulted him.‖ The State responds that the evidence supported a finding that the

Defendant knew his wielding the pipe could result in injury and, therefore, supports the

Defendant‘s conviction of reckless aggravated assault of Mr. Deadmon.

Again, a person commits assault when he or she ―[i]ntentionally, knowingly or

recklessly causes bodily injury to another,‖ and ―bodily injury‖ includes ―abrasions and

cuts, physical pain, illness or impairment.‖ Tenn. Code Ann. § 39-13-101(a)(1).

Additionally, aggravated assault is committed when a person ―[r]ecklessly commits an

assault as defined in [section] 39-13-101(a)(1) and . . . uses or displays a deadly weapon.‖

Tenn. Code Ann. § 39-13-102(a)(1)(B). A ―deadly weapon‖ is defined as ―[a]nything

that in the manner of its use or intended use is capable of causing death or serious bodily

injury.‖ Tenn. Code Ann. § 39-11-106(a)(5)(B). Tennessee Code Annotated section 39-

11-106(31) provides:

―Reckless‖ means that a person acts recklessly with respect to . . . the result

of the conduct when the person is aware of, but consciously disregards a

substantial and unjustifiable risk that . . . the result will occur. The risk

must be of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise

under all the circumstances as viewed from the accused person‘s

standpoint.

Viewed in the light most favorable to the State, the evidence showed that the

Defendant was swinging a hot, metal pipe at Ms. Scott, and Mr. Deadmon was hit while

attempting to break up the altercation. There was ample evidence that the Defendant

knew that swinging the pipe could hurt anyone who was hit by the pipe, and the

Defendant still chose to engage in that conduct. Therefore, a reasonable jury could infer

that the Defendant was acting recklessly. The evidence also showed that because of the

Defendant‘s actions, Mr. Deadmon suffered several injuries, including jammed and

broken fingers. As previously discussed, the evidence supports a finding that the pipe

used was a ―deadly weapon.‖ See Tenn. Code Ann. § 39-11-106(a)(5)(B). It is irrelevant

that Mr. Deadmon testified that he was not assaulted. The Defendant was not required to

have intended to assault Mr. Deadmon or Mr. Deadmon believe that he was being

assaulted. All that was required was that the Defendant was acting recklessly with

respect to the consequences of him swinging a hot, metal pipe; that Mr. Deadmon

suffered bodily injury; and that the pipe was a deadly weapon. Therefore, we conclude

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that the evidence was sufficient to support the Defendant‘s conviction for the reckless

aggravated assault of Mr. Deadmon.

C. Felony Reckless Endangerment of Ms. Whitfield

Finally, the Defendant contends that the evidence is insufficient to support his

conviction for the reckless endangerment of Ms. Whitfield because she testified that she

armed herself with a stick prior to the Defendant‘s arrival at Mr. Deadmon‘s house. The

State responds that the evidence is sufficient.

Reckless endangerment is committed when a person ―recklessly engages in

conduct which places or may place another person in imminent danger of death or serious

bodily injury.‖ Tenn. Code Ann. § 39-13-103(a). Reckless endangerment is a Class E

felony when committed with a deadly weapon. Tenn. Code Ann. § 39-13-103(b). ―[F]or

the threat of death or serious bodily injury to be ‗imminent,‘ the person must be placed in

a reasonable probability of danger as opposed to a mere possibility of danger.‖ State v.

Payne, 7 S.W.3d 25, 28 (Tenn. 1999). ―Additionally, in order to convict an accused of

reckless endangerment, ‗the State must show that a person or class of persons were in an

area in which a reasonable probability of danger existed.‘‖ State v. Goodwin, 143

S.W.3d 771, 778 (Tenn. 2004) (citing Payne, 7 S.W.3d at 28).

Viewed in the light most favorable to the State, the evidence presented was that

the Defendant was violently swinging a pipe in an attempt to hit Ms. Scott, and Ms.

Whitfield was struck while trying to break up the altercation. As discussed above, the

pipe, as utilized by the Defendant, was a deadly weapon, and the Defendant knew that

swinging a pipe could hurt anyone who was hit by the pipe. Therefore, a reasonable jury

could infer that the Defendant‘s conduct was reckless. Evidence showed that Ms.

Whitfield was in fact struck by the Defendant, thus, she was necessarily in an area in

which there was a reasonable probability of danger. Ms. Whitfield testified that she

picked up a stick because the Defendant had repeatedly threatened her and Ms. Scott.

And, again, upon consideration of all the proof, the jury concluded that the Defendant

was not acting in self-defense. Accordingly, we conclude that there was sufficient

evidence to support the Defendant‘s conviction for the reckless endangerment of Ms.

Whitfield, and the Defendant‘s issue is without merit.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred in admitting Mr.

Deadmon‘s statement as substantive evidence without first conducting a jury-out hearing

as required by Tennessee Rule of Evidence 803(26). However, we conclude that this

error was harmless as it did not affirmatively affect the outcome of the trial.

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Furthermore, we conclude that the evidence presented at trial was sufficient to support

the Defendant‘s convictions for the aggravated assault, reckless aggravated assault, and

felony reckless endangerment. The judgments of the trial court are therefore affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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