### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 6, 2001 Sessi

on
STATE OF TENNESSEE v. MARCU S DUVALLE HURSTON
Appeal as of Right from the Circuit Court for Madison County

No. 99-682 Roy B. Morgan, Jr., Judge

No. W2000-01721-CCA-R3-CD - Filed August 13, 2001

The appellant, Marcus Duvalle Hurston, was co n victed by a jury in t he Madison County Cir

cuit Courtof one count of aggravated assault. Th e trial court sentenced the appellant as a Range II multiple offender to eight years incarceration in the Tennessee De partment o f Correction. On appeal, the appellant raises the following issue for our review: whether the

evidence was sufficient to sustain his conviction of aggravated assault. Upon review of the record and th

e parties’ brief

s, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
J. Colin Morris, Jackson, Tennessee, for the appellant, Marcus Duvalle Hurston.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney Gen eral; James C. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Factual Backgroun

d On May 24, 1999, the appellant, Marcus Duvalle Hurston, went to the residence of James Holmes,

the current boyfriend of the appellant’s ex-girlfriend, Tywone Mann. Holmes and Mann were sitting outside the house on the porch smoking marijuana. The appellant explained that he wanted to ask Mann to return his leather jacket that she had gotten from him while they were dating. Heated w ords were excha nged by the partie

s, and Holmes ente

red the house to a

sk his1 The various p arties are refer red to in the fol lowing ways in the record: Marcus Ducalle Hurston, Jack Holmes, Mark H olmes, Tai wanMann , Tywau n Man n, Sha un C her ry, and Shu an C her

ry. We have used the s

pellings contained in the ind ictments.
-2- brother, William S. Cherry, to come outside. Holmes did so beca usehe was afraid that the situation would escalate in

to a fight. 1

While Holmes was inside the house, an altercation between the appellant and Mann ensued. The appellant struck Mann in the head. When Holmes came out of the house, he observed Mann holding her head

and crying. In retaliation, Holmes picked up a large brick and threw it at the windshield of the a

ppellant’s maroo

n Chevrolet Blaze

r. At trial, Mann te

stified that [At that point,] I seen [the appellant] trying to leave. . . .When I looked up, Mr. Holmes was hitting [the appellant] with the door or throwing him into the truck or something.

. . . . [Holmes] was a

t the truck grabbing [the appellant,] throwing him o n the truck. . . . James was throwing him on the truck like-

- with the door. Moreover, Holmes testified that, “[The appellant] was going back to the truck. . . . He was getting in the truck. He was getting out, but I ran up there and started closing the door on him. . . . That’s when we started fighting.”

Cherry soon joined in the fray. The fight ended when thetrio noticed that Holmes
was bleeding from several stab wounds. Neither Holmes nor Cherry actually saw the appellan

t with
a knife. However, both men denied possessing a weapon during the fight. Mann testified that she “believed” she saw the butt of a knife on the appellant but did not describe the exact location of the knife. The appellant also received some stab wounds on his hand and lip.

A jury in the Madison County Circuit Court convicted the appellant of one count of aggravated

assault, a class C felony. The trial court sentenced the appellant asa Range II multiple offe nder to eight years incarceration in the Tennessee Department of Correction. On a ppeal, th e appellant contests the sufficiency of the evidence supporting his conviction.
II. Analysis In det ermining whethe

r a conviction re

sts upon sufficien

t evidence, this c

ourt w il l grant the State the strongest legitimate view of the evidence add uced at tr ial and all reaso

nable inferences which may be drawn from that evidence. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). In other word

s, the trier of fa

ct, not t his court, must resolv

e questions conce

rning witness credibility

and the weight a

nd value to

be given the evidence and must also resolve all factual issues raised by the evidence. State v. Pruett ,788 S.W.2d 559, 561 (Tenn. 1990).

Add iti ona lly, because the app ellant’s convicti

on removes the pre

sumption of his innocence and replaces it, on appeal, with a presumption o f his guilt, the ap

pellant, therefore, bears-3-

the burden of

demonstrating to

this court why the evidence will not support the jury’s f indings. State
v. Tuggle , 639 S.W.2d 913, 914 (T enn. 1982). To this e

nd, the appellant m

ust esta blis h that no reasonable

trier of fact could have found the essential elemen

ts of the offense

beyond a re

asonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). Moreover, this court may not overturn a jury conviction unless the evidence preponderates

against the appellant’s guilt and

in favor of his innocence. Jones v. State , 553 S.W.2d 920, 921-922 (Tenn. Crim. App. 1977).

In order to sustain the appellant’s conviction of aggravated assault, the Sta te was required to prove

at trial that the a

ppellant [i ] ntentionally

or knowingly commit[

ted] an assault a

s defined in [Tenn. Code Ann.] § 39-13-101 and: (A) Cause[d] serious bodily injury to another; or (B) Use[d] or display[ed] a deadly weapon. Tenn. Code A nn. § 39-13-102(a)(1) (1997). A person commits assault when that person int entio nally, knowingly, or rec klessly causes bod

ily injury to anothe

r, or causes ano

ther to reasonably

fear imminent

bod ily injury, or caus

es physical conta

ct with another an

d a reasonable person would regard the contact as extremely offensive or provocative. Tenn. CodeAnn. § 39-13- 101(a) (1997). Specifically, the indictment charging the appellant with theinstant offense stated that the appellant “di

d intentionally and/o

r knowingly cause

bodily injury to

JAMES HOLMES by the use of a deadly weapon, to wit: a knife, a more particular description of which to the Grand Jurors aforesaid is unknown.”

The proof adduced

by the State at trial demonstrates that the appellant, Holmes, and Cherry engaged in a figh

t. Neither Holmes nor

Cherry was arme

d with a weapon; sp

ecifically, both Holme s and Cherry testified that they did not possess a knife during the fight. Moreover, M an n testified that she believed that she had seen the butt of a knife on the person of the appellant prior to the fight. During the fray, in which only the appellant, H olmes, and Cherry participated, the victim, Holmes, was stabbe d six times. Holmes was hospitalized for treatment of his injuries, and he testified t hat he still bear s visible scars as a result of the stabbing. From this evidence, a jury could have reasonably found that the appellant committed an aggravated assault upon Holmes. See Statev. James Wagner , No. 03C01-9304-CR-00111, 1994 WL 137909, at *2 (Tenn. Crim. App. at Knoxville, April 20, 1994).

However, the appellant

contends that the jury erred in not finding that he stabbed Holmes in self-defense. Self-defense is essentially

a fac t qu est ion for the jur y. State v. Clifton , 880 S.W.2d 7 37, 743 (Tenn. Crim . App. 1994); State v. Ivy , 868 S.W.2d 724, 727 (Tenn. Crim. App

. 199 3). As s uch, “in the context of judicial review of the jury verdict, in order to prevail, the [appellant] must show that the ev idence relative

to justification, su

ch as self-defe

nse , raises, a s a matter of law, a reason

able doubt as to his c

onduct being criminal.” Clifton , 880 S.W.2d at 743. In determining whether an appellant acted in s elf-defense, a jury must determine “whether the [appellant’s] belief in imminent danger was reasonable, whether the force used

was reasonable, and-4-

whether the [appellant] was without fault.” Statev. Thomas Eugene Lester , No. 03C01-9702-CR

00069, 1998 WL 334394, at *2 (Tenn. Crim. App. at Knoxville, June 25, 1998).

Tenn. Code Ann. § 39

-11-611(a) (19

97) provides: A person is justified

in threat ening or using force against another person whe n an d to the degr ee t he p ers on r easo nab ly beli eves the force is immediate

ly nec essary to protect against the other’s use or attempted use of

unlawful force. The per

son must have a rea

sonable belief that there is an imm

inent danger of

death or serious b

odily inj ury. The danger creating the belief of imminent death or serious bodily injury must be real, or honestly believed to be re al at the time, and must be founded upon reasonable grounds. See also Stat e v. Fre d Edmond Dean , No. 03C01-9508-CC-00251, 1997 WL 7550, at *6 (Tenn. Crim. App. at Knoxville, January 10, 1997). Furthermore, “once evidence is admitted supporting the defense, thestate must pro ve beyond a reasonable doub

t that the defenda

nt did not act in self defense.” Sta te v . Am y Boyd , No. E1999 -02218-CC

A-R3-CD,

2000 WL

1376674, at *2 (Tenn. Crim. App. at Knoxville, September 26, 2000), perm. to appeal denied , (Tenn. 2001).

In the instant case,

if the appellant w

as the “initial agg

ress or” because o f his ill treatment of

Mann, then “self[-]defense was not justified unless he ‘abandon[ed] the encounter or clearly communi cate[d] to the other the inte nt to do so.’ Whether

the appellant re

treated so as to justify a self-defense

claim is a factual determination for the jury.” State v. Michael Ralph Alford , No. 02C01-9509-CC-00281, 1996 WL 551787, at *3 (Tenn. Crim. App. at Jackson, September 30, 1996), vacated in part on other grounds by State v. Alford , 970 S.W.2d 944 (Tenn. 1998) (alteration in original) (citations omitted).

The jury was instructe

d as to the elements of aggravated assault and as to the justification of self defense. Obviously, in convicting the appellant of aggravated assault, the jury discounted the appellant ’s claim o f self-defense. See State v. Fugate , 776 S.W.2d 541, 545-46 (Tenn. Crim. App. 1988). This finding is entirely within the purview of the jury. State v. Robe r t Gillespie , No. 03C01-9710-CC-0 0455, 1999 WL 74252, at *3 (Tenn. Crim. App. at Knoxville, February 17, 1999). I n dis counting the appellant’s claim of self-defense, the jury may have concluded that the appellant was not justified in using a knife in self-defense. See State v. James Frederick Helton , No. 03C01-9406-CR-00220, 19 95 W L 689733, at *5 (Tenn. Crim. App. at Knoxville, November 22, 1995). Additionally, the jury may have concluded that the number of

stab wounds indicates that the appellant was not acting in self-defense. State v. Jeffery Bradford, No. 02C01-9309-CC-00226, 1994 WL 369560, at *2 (Tenn. Crim. App. a t Jac kson, July 13, 1994). Accordingly, the re is suffi cient evidence in the record to refute the appellant’s contention that he acted in self-defense. We will not now reweigh the e

vidence and subst

ituteour judgment for that of the jury. Therefore, we conclude that “ the evidence was suf ficient for any

rational trier of

fact to have found beyond a reasonable doubt that the defendant did not act in self- defense.” Id.

III. Conclusion-5- Based upon the for

egoing, we affir

m the judgment of the

trial court.

___________________________________ NORMA McGEE OGLE, JUDGE