### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs O ct obe r 7, 200 8

STA TE OF TEN NES SEE v. Z AN DY OR LAN DO NEL SON

a/k /a VA ND Y A . N ELSON

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2006-A- 709 Mark J. F ishb urn, Jud ge

No. M2007- 02645-CCA -R3-C D - F iled March 19, 2009

The de fenda

nt, Zandy Orlando N elson a/k/a Va ndy A. Nelson, a

ppeals a s of rig ht his Davidson County Criminal Court conviction of ag g ravated assault for which he rece ived a sentenc e of e leven
y ear s as a pe rsistent offe nder, c onsecuti v e to a pre viously imposed sentence . He a rg ues that the evidenc e is insuff

icient to support his conviction and that the trial cour t erre d in denying a

motion fo r continu anc e wh e n th e State fi le d a no tic e to s e e k e nh anc e d p un ish me nt o n th e da y of tr ia l. F oll ow ingour r e vie w, we a ff ir m th e jud g me nt o f t

he tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

D. K EL L Y T HOMAS , J R ., J
., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R ., and C AM I L L E R. M C M UL L EN , J J ., joined.

Charles E. Walker (at trial) and J. Chase Gober ( at Motion for Ne w Trial a nd Appea l), Nashville, Tenne ssee, attorney s for a ppellant, Z andy

Orlando N elson a/k/a Va ndy A. Nelson.

Robert E. Cooper, Jr., Attorney Gene ral a nd Reporter ; Matthew B ry ant Haske ll, Assist ant Attorney Gene ral; Victor S. Johnson, I I I , District Attorney Ge nera l; and Sarah D avis, Assistant District Attorney Gene ral, attorney s for a

ppellee, State of

Tenne ssee.

OP IN ION

The de fenda

nt’s conviction of a g g ravated assault a ri s es fr o m an attac k on his former
g irlfriend, Tif

fany J ohnson-J ordan, w ho was five months pre g nant with his child at the time of the assault. A t t

h e d e f e n d an t’ s b e n c h tr ia l, M s

. Jo h n s o n

- Jo r d ante s ti f ie d th a t s h e an d

th e d e f e ndant beg an datingin May

2005, had an “ on ag ain/off a g ain” r elationship, b u t we re se parated on November

23, 2005. On that day she was visiti ng her best friend, Shante Mc Murra y , when they

saw the def endant while out at the store. L ater that evening
, the def

endant tele phoned Ms. McMurr ay ’s home t o speak with the vi ctim. Wit hin minutes of the phone call, Ms. McMurr ay answe red a

knock-2-

on her d o or, and the defe ndant walke d past her to the kitche n wher e the victim was making K ool-Aid.

The victim testified that her back was to the defe ndant as he ente red the kitchen. She re called that he aske d her “ what the ‘ f’ wa s Idoing ove r there ” and that, befor e she c ould say any thing, the defe ndant struck he r with his closed fist on the left side of her fac e. As he hit her, the preg nant vic timfe ll t o th e fl oo r, and he kic ke d he r on he r ri b c a g e

. Th e vic tim te sti fi e d that sh e imm e diate ly fe lt a g us h o f f lui d a nd fe are d f or the sa fe ty

of he r b a by so sh e did

no t g e t up fr om t

he fl oo r d e sp ite the def endant’ s demands that she le ave w ith him. As she sat on the floor, the def endant g rabbe d a kitchen knife from the c ounter a nd threa t en ed to kill her if she did not g et up from the f loor. The victim stated that she was f ear ful throug hout the attack b u t es pecia lly afr aid for the safe ty

of her unborn baby . At one point during the attac k, the def endant g rabbe d the victim by her le ft leg and tried to dragher f

rom the re s i d en ce

. E v en tually , the victim was able to go upsta irs under the
pr e te ns e of

g e tti ngdr

y c lot he s w hil e Ms. Mc Murr ay te le ph on e d th e po lic e . T he vic timbe c a me

nauseated and be g an vomiting in the upstairs bathroom while the def end ant waited outside the bathroom door. The police ar rived to f ind the victim sti ll in the bathroom and the de fenda nt waiting for he r.

The victim was tra nsported to Vande rbilt Hospital and treated for her injuries. The baby was born a f ew months late r without c omplications. On cross-e x amination, the victim a dmitted that she ha d w r itte n to th e d e f

e n d an t w h il e h e w a s in p r is o n b u t d e n ie d e v e r v is it in g th e defe ndant. She

e xpla ined that

sh e tho ug ht a

bo ut s tay ingwi th t

he de fe nd ant f

or a wh ile be c a

us e the y ha d a c hil d toge ther. She re iterate d that even statements in her letters did not minimi ze or di ffe r from her re port

and te sti mony a

bo ut the a ssa

ult

. Th e vic tim state d tha t she fe lt sa fe a s longa s th e de fe nd ant w a s in prison.

Ms. McMurra

y testified consistently

with the victim’s testimony reg ardingthe assault. She
state d th a t he r s ist e r, Re nit a , w a s u psta ir s whe n th e de fe nd ant a rr ive d a nd that Re nit a

c a me downstairs to te ll him to put the knife down. The defe ndant threwa cha ir at Renita so she r an bac k upstairs. Ms. McMurra

y testified t hat t he victim told her not to leave her be cause she wa s afr aid the defe ndant would kill her. She also re called the defe ndant telling the victim, “ Bitch, I will kill y ou in here .”

Metropolitan Nashville Police Of fice r Scott M. Hende rson testified that he r esponded to the

c a ll a t M s

. M c M u r

r ay ’ s r e s id e n c e to f

in d th e v ic ti m u

p s e t an d c r

y in g

. H e te s ti f

ie d th a t th e re w as redne s s an d swelling around he r nose a nd fac e and that she was c omplaining of abdominal pain. Whil e takingthe re port, Off icer Hende rson saw the kitchen knife ; w hen aske d about the knife , the victim reported t hat the def endant ha d held it to her nec k during the assault. Of fice r He nderson testified that there wer e no sig ns of druguse at the r esidenc e.

The de fenda

nt te stified that he and the victim were living tog ether in November

2005. He stated that the victim ca lled his residenc e, and when he returne d the call, he re alized the victim was at Ms. McMurra

y ’s home. The victim told hi m that she would be home soon. When she did not

re tur n to his re sid e nc e , h e “ too k it up on [him ]se lf to g o ov e r the re and se e wh y – w hy sh e wa s st ill-3-

over the re . . . be cause Ms. McMurr ay lives [i n] a high c rime ar ea – dr ug s and all of that.” The defe ndant claimed that he ar rived t o fi n d t wo m en at the r esidenc e with Ms. McMurra y and the victim. He t o l d t h e v i ct i m she could have her friends. A t some point during the a rg ument, the victim spil led the conta iner of K ool-Aid in the kitchen. As the de fenda nt attemp t ed t o l ea v e, the victim gr abbed his swe ater and he “ snat ch ed aw ay ” fr om her. He turned to see her sitting on the floor.

The de fenda

nt claimed that he was g oing to take the vic tim to t he hospital and wa s helping h er get cl ea n edu

p i nt h e b at h ro o m wh en t h e p o l i ce arri v ed

. T h e d ef en d an td en i edan y

kn o wl ed ge of a knife. He stated that he sm elled marijuana when he arrived at Ms. McMurra y ’s hom e and kne w they wer e doing drug s. The def endant de nied dra g g ing the victim from the kitchen but stated that he did pick her

up to take her

to the hospital. He claimed the re dness on the victim’s fa ce c ame f rom wi p i n g h er

fa ce wi t h a t o we l af

t er v o m i t i n g.
Metropolitan Nashville Police Of fice r B y ron Carte r testified that he arr ived at the scene and that Ms. McMurra

y told him t hat her friend had been beate n up by her boy friend. H e stated that the victim init ially

did not tell him about a knife but that, after the defendant was taken into custody and the victim calmed down, she told the othe r office r about the knife while g iving him the report. He

s t at edt h at t h e v i ct i m w a s m o re co n ce rn edab o u tt h e p o s s i b i l i t y t h at s h e w as h av i n g a m i s ca rr i age when he first arr ived at the scene

. Offic er Carter stated that there wer e no males at the sc ene e x cept for the defe ndant. He also stated that the defe ndant never told him t hat the victim g rabbe d him but only stated that he ha d not touched her

.

The State re called the victim who testified that if she had not told the first off icer about the knife it was be cause she was still g etting clea ned up and calming down when he arr ived at the sc ene. She stated that she just “g ave him the ba sics” about the inc ident.

A N A LY S IS

Sufficiency of the E

videnc e

The de fenda

nt contends that the e vidence is insufficient to support his conviction for
ag g ravated assault with a de adly wea pon. Essentially , he cla ims that there is no evidenc e that the defe ndant threatened the vic tim with a knife. He c ontends that authorities did not confiscat e the

a lle g e d w e a

po n b e c a us e it w a s n ot r e po rt e d to the m a t th e sce ne of the a ssa ult . H e fu

rt he r a sse rt s that the defe ndant was initially char g ed with domestic assault as fur ther proof that a knife was not inv olv e d in the of

fe ns e

. Th e state c on te nd s that the te sti mony of bo th t he vic timand

an e y e wi tne ss

was more than sufficie nt to establish the offe nse of ag g ravated assault with a dea d l y wea pon. Following our re view, we ag ree with the State.

An appe llate cour

t’s standard of

revie w when the defe ndant questions the suffic iency of the evidenc e o n a

p p e a l is “ w h e th e r , a f

te r v ie w in g th e e v id e n c e in th e li g h t mo s t f a v o r a b le to the
prosec ution, any

rational trier

of fa ct could have found the e ssential elements of the cr ime bey ond-4-

a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a

, 44 3 U. S. 30 7, 31 9, 99 S. Ct. 27 81
, 27 89 (1 97 9) (e mph a sis in orig inal). The appellate court does not r ewe igh the evidenc e; rathe r, it presumes that the jury has resolved a ll conflicts in the testimony and dra wn all re asonable infere nces f rom the evide nce in f

avor of the state. See State v. Sheff ield, 676 S.W .2d 5 42, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978)

. Questions reg arding witness cre dibilit y , conflicts in t estimony , and
t h e w e i g h tan d v a l u e t o b e g i v e nt o e v i d e n c e w e r e r e s o l v e d b y t h e j ur y. State v. Bla

nd, 958 S.W .2d 651, 659 (Tenn. 1997) . Simi larly , in a bench trial, the trial judg e, as the trier of fac t, must resolve all questions conce rning the cr edibility of witnesses and the we ight a nd value to be g iven the evidenc e, as w ell as all fa ctual issues ra ised by the evidence. S t at e v. B all, 973 S.W .2d 288, 292 (T e nn . Cr im. Ap p. 19 98 ). Th e tr ia l ju dg e ’s ve rd ic t c arr ie s th e same we ig ht a s a jur y ve rd ic t. S ta te v. Hatche tt, 560 S

. W .2d 627, 630 (Tenn. 1978) . A g uilty verdic t removes the pr esumption of innocenc e and repla ces it with a presumption of guilt, and on a ppeal the de fenda

nt has the burde n of illustrating w hy

the evidenc e is insufficient to support the jury ’s ver dict. I d.; State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982). This standard applies to finding s of guilt based upon dire ct evidenc e, cir cu m s t anti al evidenc e, or a combination of both direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

Th e of fe ns e of a g g ra vate d a ssa ult , a s indi c te d in this ca se , re qu ir e s p ro of be y on d a re a so na ble doubt that the defe ndant intentionally or knowing ly

cause d the vi ctim to rea sonably fea r imminent bodily injury throug h the use or display of a deadly wea pon. Tenn. Code Ann. § 39-13- 102(a) (1)( A). The pre g nant victim testified that the def endant struc k her in the fac e with his closed fist and kicke d her on he r side as she fell t o the floor. He then g rabbe d a kitchen knif e and br andished it toward he r wh ile thr e a te nin g to kil l he r. He a lso a tte mpt e d to dr a g the vic tim fr om the re sid e nc e

. Th e vic tim
t e s t i f i e d t h a t s h e f

e ar e d t h a t t h e d e f e n d an tw o u l d

k i l l h e r

. T h e w i t n e s s , S h an t e M c M u r r a y,

corr oborate d these e vents throug h her te stimony . Ba sed upon this e vidence , we c onclude that the

e vid e nc e is s uf

fi c ie nt t o s up po rt

the de fe nd ant’ s c on vic tio n f or a g g ra vate d a ssa

ult

.

Failure to Grant a Conti nuance

The de fenda

nt also argues that the trial court should have c ontinued the benc h trial when the State filed its notice to seek e nhance d punishment on the day of trial. The State ar gu es on appeal that the def

endant has waived this issue for failing to reque st a continuanc e or a lleg e this issue in the motion for new tria l. Following our re view, we deny the def endant r elief a s to this i ssue.
Rule 12.3(a) of the Tenne ssee Rules of Criminal Procedure provides that whe n “the district attorney g ener al intends to seek a

n enhanc ed punishment a s a multiple, persistent, or ca ree r off ender
, the district attorney g ener al shall file notice of this int ention not less than ten (10) da y s befor e trial.” W h en t h e n o t i ce t o s ee k

i n cr ea s eds en t en ce i s fi l ed u n t i m el y , t h e ru l e p ro v i d es t h at “t h e t ri al j u d ge shall g rant the defe ndant, on motion, a rea sonable continuance of the trial.” I d. Our revie w of the

re co rdre v ea l s t h at t h e d ef en d an tfa i l ed t o m o v e f

o r a co n t i n u an ce , ei t h er

o ra l l y o r i nwr i t i n g. F u rt h e r m o r e , t h e d e f

e n d an tf a i l e d t o r a i s e t h i s a l l e g a t i o ni nh i s m o t i o n f o r n e w t r i a l

. A c c o r d i n g l y,

we c on c lud e tha

t th is i ssu e is w a ive d b y the de fe nd ant’s fa ilure to r e qu e st a c on tin ua nc e or to-5-

prese rve it for

appellate revie w by raising it in his motion for new t rial. Tenn. R. App. P. 3(e), 36(a ). The de fenda

nt is not entit led to relief

reg ardingthis iss ue.

CO NC LU SION

Upon full conside ra t i o n o f t he re cord a nd arguments of counse l, the judgme nt of the trial court is af firmed.

___________________________________ D. KEL L Y THOMAS, JR ., J UDGE