# FILED February 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CR-00037 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) HON . THO MAS H . SHR IVER , ) JUDGE CHRISTOPHER L . PARK ER, ) ) Appe llant. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT : FOR THE APPELLEE : F. MICHIE GIBSON, JR . JOHN KNOX WALKUP 1416 Parkway Towers Attorney General& Reporter 404 James Robertson Parkway Nashvill e, TN 37219 DARYL J.BRAND Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III District Attorn ey Ge neral PAMELA

ANDERS ON Assistant Distri ct Attorney General 200 Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Chri stopher L. Parker, appeals as of ri ght his conv iction followi ng a jury t rial i n the Davidson Count y Crim inal Court. Defendant was convictedof aggravated assault by r eckless conduct, a Class D felo ny. In t he indictme nt, Defendant was charged with aggravated ass ault by intent ional or knowing cond uct, a C lass C felo ny. Following the p roof at trial, the trial court instructed the jury

on the lesser

gr ade offen se of aggravated assault by r eckless condu ct, and the ju ry convi cted Defendant of the Class D fel ony. On appeal, the Defendant(1) challenges the sufficiency of t he evidence to sustain the co nvicti on and (2) argues t hat aggravated assault by reckless conduct was not a c rime at the ti me the offense was committed, therefore the trial court erred by charging the jury on the les ser grad e offense . We affirm the ju dgme nt of the trial co urt.

When an accused chall enges the suff iciency of the convic ting evi dence, the standard is whether, after reviewing the evi dence in the li ght most favor able to th e prosecution , any rational trier of fact could h ave found the essent ial el ements ofthe cri me beyon d a rea sona ble doubt. Jack son v. V irginia , 443 U.S. 30 7, 319 (1979 ). On appeal, t he State is enti tled to the strongest legiti mate view of t he evidence and all inference s therefro m. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdictof guil t removes the pr esumption of i nnocence and replaces it with
a presumption of guil t, the acc used has the burden in thi s court of illustrati ng why the evidence is insuf

ficien t to support

the verdi ct returned by the trier of f ac t. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 198 2); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).-3- Questions concerning the credib ilit y of the witnesses, t he weight and value to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by the t rier of fact, no t this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to app eal denied , id . (Tenn. 198 7). Nor ma y this court reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t approved by the trial j udge accredits the State’ s witnesses andresolve s all conflicts in favor of the State. Grace , 493 S.W.2d at 476.

The Defe ndan t argue s that th e injurie s susta ined b y the vict im in th is case do not constit ute “seri ous bodily inj ury” an d, therefo re, the verd ict canno t suppo rt a findingof reckless aggr avated assaul t. Under TennesseeCode Annotated secti on 39-13-102 (a)(2), a pers on wh o “reck lessly c omm its an a ssau lt as defined in § 39-13- 101(a)(1), and causes serious b odily i njury to another” commits the offens e of aggravated assau lt. An assault i s defined as “inte ntiona lly, know ingly or r eckle ssly caus[ing] bod ily injury to another.” Tenn . Code An n. § 39-13-10 1(a)(1).

The Defen dant co nte sts the suffic iency of the evidence onl y as to the pr oof regarding the exte nt of the victim’s bodily i njuries.As less than t he full record was suffic ientto convey a fair, accurate and complete account of those issues that are the bases of thi s appeal, t he record for this cour

t is condensed f rom the actual t rial proceedings. Tenn . R. App . P. 24(a). T he proo f showe d that th e D efendant and others assau lted the victim , Ch arles Willi ams, on the night of October 30, 1993 at the Family In n mote l in Nash ville. During th e assa ult, Williams was hit with either
a fist or a bottle a cross the bridge of th e nose . As a resu lt o f the attack , Williams desc ribed h is injuries as a br oken nose , shatte red an d disp laced , a big cut on the bridge of hi s nose and a missing fr ont tooth. He described hi s injuri es from-4-

the assault as “v ery painf ul,” and stated t hat the pain continued for ten (10) days. He was transported by ambulance to t he S umm it M edical Center in Donelson. Williams described t hat twice a day for several months followi ng the assault , he had to stand in front o f the m irror an d pus h his n ose b ack a nd forth to try to line up his
n ose so that i t would heal c orrect ly. The swellin g did n ot com pletely s ubsid e until
one (1) year afte r the assa ult. Inc lud inga ro ot canal , Wil li ams had several s urgeries performed to treat these i njuries, includi ng plasti c surgery on hi s nose. Willia ms s till has a sc ar on his n ose.

Dr. Debra H o lt is

an emergency medicine phy sician at

Summit Medical Center. She treated t he victi m on October 30, 1993. I nitial ly, Holt noticed t hat Williams had a swolle n nos e, swe lling an d bruis in g ar ound the lef t eye and cheek area, and someble edi ng f rom the nos e. The victi m suffered fr om a periorbit

al contus ion, which is bruising a round th e eye with swelling. There was a cut across the nose, almost an i nch long. The bl eeding from that cut had been significan t. E ven bef ore performing x-rays,it was obvi ous that t he victi m’s nose was broken. The nose w as deviated t o the right

side of hi s face, swol len and fl attened. The victim was missing hi s left frontcentral inc isor tooth, w hich had been b roken o ff totally to thegum . Holt described t his inj ury as a “t rue emergency” as cer tain seri ous complicati ons can result fro m that inj ur y very quick ly if the victim do es not visit a dentist. The tooth coul d die from loss of blood supply or from an abscess.

Dr. Holt spec ifically d escribed t he tooth i njury as “ very painful for hi m that night.” When Holt described the victim’ s severe nasalfracture with much d eformity, she stated th at it was brok en into sever

al pieces. Holt descri bed this par ticula r type of broken no se as “severe ” and a “very painfu l type fracture.”-5- The Defe ndan t conte nds th at the m edica l proof a t trial did n ot support the findings of the necessar

y elements of aggravated assault as accordi ng to th e statute. He argues that the broke n nose and lost tooth do not rise to the levelof serious bodily injury . In support of his arg ume nt, the D efend ant cite s a rec ent ca se in which this court h eld tha t the evid ence was in sufficie nt to find seriou s bod ily inj ury necessa ry for an esp ecially agg ravated ro bbery co nviction. See State v . Si ms , 909 S.W .2d 46 (Ten n. Crim. App . 1995).

Serious bodily i njury i s defined i n Tennessee Code Annotated section 39-11-106 as a bodily inj ury invo lving substantialrisk of death, prot racted
u ncons ciousness, extreme ph ysical pain, protracted or obviousdisfi gurement or protracted or substant ial i mpai rment o f a functi on of a bodily member, organ or mental faculty . (Emphasis added).In Sims , the court he ld that t he l oss of the victim’s teeth could cons titute pro tracted disfigu reme nt, so lo ng as the los s is proven to have be en cau sed by th e crimina l incident be yond a re asona ble dou bt. Id . at 49. The evidence cl early suppor ts that the loss of t he victi m’s tooth was cause d by the incident, and the Defendant does not dispute that poi nt. A recent case ofthis court has uphe ld a con viction re quiring proof o f seriou s bod ily injury based upon Simsand the victi m’s loss of t

wo teeth as c onstituting protracte d or obvio us disfigu remen t. See S tate v. John Wayne Blue , No. 02C01- 9604- CC-001 24, Madiso n Count y (Te nn . Crim. App ., at Jackson, Ma y 30, 1997) (N o Rule 11 a pplication filed).

In additio n to the l oss of the v ictim’ s tooth and t he obvious di sfigurement,the victim sustained various sever e cuts and brui ses to his f ace. For the lacerati on, the victim requiredstitc hes and eventually needs plast ic surgery to correct

the distortion to his f ace. His no se wa s brok en into severa l piece s. The nose was a ctually-6-

deviated to the ri ght side of t he victi m’s face, requirin g plas tic surg ery to co rrect this obviousdisfi gurement and the damage to hi s nasal cavi ties. Th e victim is still unab le to brea th norm ally thro ugh h is nost rils and willneed further surgery. In Sims , neither stitches for the victi m’s lacerations nor plast ic surgery for her broken nose
was ne cessar y for treatm ent of her injuries. Sims , 909 S.W.2d at 49.

In the li ght most favor

able to th e State, we f ind that a rationa l trier of fac t could have found the essent ial el ements of aggravated a ssa ult beyond a r easonable doubt based upon the los s of the victim’s too th, the scar on his face, and the pr otracted disfigurem ent of his n ose. See State v. Sisk , No. 03C01-9410-CR-00367, slip op. at 9, Cock e Cou nty (Ten n. Crim. A pp., at Kn oxville, Jan. 1 7, 1997 ), perm . to appeal denied , (Tenn . 1997). T his issue has no merit.

The Defendant also ar gues thatthe trial court erred by instructing the jury on the lesser gra de offen se of reck less agg ravated a ssault. Defendantalleges t hat the statute forthat offense was not in ef fect at the tim e the c rime w as co mm itted. W hile the Defen dant failed to include t he charge to t he jury i n the record, it is clear that the Defendantwas convicted pursuant to Tennes s ee Code Annotated secti on 39-13- 102(a)(2 ).

D efendantargues that the statute came into effect on Novembe r 1, 1996
. Public Act 199 3, C hapter N o. 306 a mend ed the o ffense of a ggravate d assa ult to includethe co mm ission of ass ault with a reckless i ntent, and this Act t ook effecton May 12, 1993. As Defendant committed the of

fense on October 30, 1993, thi s issue has no merit.-7- We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ DAVID H. WELLES , Judge