IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 7, 2008

STATE OF TENNESSEE v. ZANDY ORLANDO NELSON

a/k/a VANDY A. NELSON

 Appeal from the Criminal Court for Davidson County

No. 2006-A-709 Mark J. Fishburn, Judge

No. M2007-02645-CCA-R3-CD - Filed March 19, 2009

The defendant, Zandy Orlando Nelson a/k/a Vandy A. Nelson, appeals as of right his Davidson

County Criminal Court conviction of aggravated assault for which he received a sentence of eleven

years as a persistent offender, consecutive to a previously imposed sentence. He argues that the

evidence is insufficient to support his conviction and that the trial court erred in denying a motion

for continuance when the State filed a notice to seek enhanced punishment on the day of trial.

Following our review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS,JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,

and CAMILLE R. MCMULLEN, JJ., joined.

Charles E. Walker (at trial) and J. Chase Gober (at Motion for New Trial and Appeal), Nashville,

Tennessee, attorneys for appellant, Zandy Orlando Nelson a/k/a Vandy A. Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Sarah Davis, Assistant District

Attorney General, attorneys for appellee, State of Tennessee.

OPINION

The defendant’s conviction of aggravated assault arises from an attack on his former

girlfriend, Tiffany Johnson-Jordan, who was five months pregnant with his child at the time of the

assault. At the defendant’s bench trial, Ms. Johnson-Jordan testified that she and the defendant

began dating in May 2005, had an “on again/off again” relationship, but were separated on

November 23, 2005. On that day she was visiting her best friend, Shante McMurray, when they saw

the defendant while out at the store. Later that evening, the defendant telephoned Ms. McMurray’s

home to speak with the victim. Within minutes of the phone call, Ms. McMurray answered a knock
-2-

on her door, and the defendant walked past her to the kitchen where the victim was making Kool-Aid.

The victim testified that her back was to the defendant as he entered the kitchen. She recalled

that he asked her “what the ‘f’ was I doing over there” and that, before she could say anything, the

defendant struck her with his closed fist on the left side of her face. As he hit her, the pregnant

victim fell to the floor, and he kicked her on her rib cage. The victim testified that she immediately

felt a gush of fluid and feared for the safety of her baby so she did not get up from the floor despite

the defendant’s demands that she leave with him. As she sat on the floor, the defendant grabbed a

kitchen knife from the counter and threatened to kill her if she did not get up from the floor. The

victim stated that she was fearful throughout the attack but especially afraid for the safety of her

unborn baby. At one point during the attack, the defendant grabbed the victim by her left leg and

tried to drag her from the residence. Eventually, the victim was able to go upstairs under the

pretense of getting dry clothes while Ms. McMurray telephoned the police. The victim became

nauseated and began vomiting in the upstairs bathroom while the defendant waited outside the

bathroom door. The police arrived to find the victim still in the bathroom and the defendant waiting

for her.

The victim was transported to Vanderbilt Hospital and treated for her injuries. The baby was

born a few months later without complications. On cross-examination, the victim admitted that she

had written to the defendant while he was in prison but denied ever visiting the defendant. She

explained that she thought about staying with the defendant for a while because they had a child

together. She reiterated that even statements in her letters did not minimize or differ from her report

and testimony about the assault. The victim stated that she felt safe as long as the defendant was in

prison. 

Ms. McMurray testified consistently with the victim’s testimony regarding the assault. She

stated that her sister, Renita, was upstairs when the defendant arrived and that Renita came

downstairs to tell him to put the knife down. The defendant threw a chair at Renita so she ran back

upstairs. Ms. McMurray testified that the victim told her not to leave her because she was afraid the

defendant would kill her. She also recalled the defendant telling the victim, “Bitch, I will kill you

in here.”

Metropolitan Nashville Police Officer Scott M. Henderson testified that he responded to the

call at Ms. McMurray’s residence to find the victim upset and crying. He testified that there was

redness and swelling around her nose and face and that she was complaining of abdominal pain.

While taking the report, Officer Henderson saw the kitchen knife; when asked about the knife, the

victim reported that the defendant had held it to her neck during the assault. Officer Henderson

testified that there were no signs of drug use at the residence.

The defendant testified that he and the victim were living together in November 2005. He

stated that the victim called his residence, and when he returned the call, he realized the victim was

at Ms. McMurray’s home. The victim told him that she would be home soon. When she did not

return to his residence, he “took it upon [him]self to go over there and see why – why she was still
-3-

over there . . . because Ms. McMurray lives [in] a high crime area – drugs and all of that.” The

defendant claimed that he arrived to find two men at the residence with Ms. McMurray and the

victim. He told the victim she could have her friends. At some point during the argument, the

victim spilled the container of Kool-Aid in the kitchen. As the defendant attempted to leave, the

victim grabbed his sweater and he “snatched away” from her. He turned to see her sitting on the

floor.

The defendant claimed that he was going to take the victim to the hospital and was helping

her get cleaned up in the bathroom when the police arrived. The defendant denied any knowledge

of a knife. He stated that he smelled marijuana when he arrived at Ms. McMurray’s home and knew

they were doing drugs. The defendant denied dragging the victim from the kitchen but stated that

he did pick her up to take her to the hospital. He claimed the redness on the victim’s face came from

wiping her face with a towel after vomiting.

Metropolitan Nashville Police Officer Byron Carter testified that he arrived at the scene and

that Ms. McMurray told him that her friend had been beaten up by her boyfriend. He stated that the

victim initially did not tell him about a knife but that, after the defendant was taken into custody and

the victim calmed down, she told the other officer about the knife while giving him the report. He

stated that the victim was more concerned about the possibility that she was having a miscarriage

when he first arrived at the scene. Officer Carterstated that there were no males at the scene except

for the defendant. He also stated that the defendant never told him that the victim grabbed him but

only stated that he had not touched her. 

The State recalled the victim who testified that if she had not told the first officer about the

knife it was because she was still getting cleaned up and calming down when he arrived at the scene.

She stated that she just “gave him the basics” about the incident. 

ANALYSIS

Sufficiency of the Evidence

The defendant contends that the evidence is insufficient to support his conviction for

aggravated assault with a deadly weapon. Essentially, he claims that there is no evidence that the

defendant threatened the victim with a knife. He contends that authorities did not confiscate the

alleged weapon because it was not reported to them at the scene of the assault. He further asserts

that the defendant was initially charged with domestic assault as further proof that a knife was not

involved in the offense. The state contends that the testimony of both the victim and an eyewitness

was more than sufficient to establish the offense of aggravated assault with a deadly weapon.

Following our review, we agree with the State.

An appellate court’s standard of review when the 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
-4-

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (emphasis

in original). The appellate court does not reweigh the 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 were resolved by the jury. State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997). Similarly, in a bench trial, the trial judge, as the trier of fact, must resolve

all questions concerning the credibility of witnesses and the weight and value to be given the

evidence, as well as all factual issues raised by the evidence. State v. Ball, 973 S.W.2d 288, 292

(Tenn. Crim. App. 1998). The trial judge’s verdict carries the same weight as a jury verdict. State

v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). 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 offense of aggravated assault, as indicted in this case, requires proof beyond a reasonable

doubt that the defendant intentionally or knowingly caused the victim to reasonably fear imminent

bodily injury through the use or display of a deadlyweapon. Tenn. Code Ann. § 39-13-102(a)(1)(A).

The pregnant victim testified that the defendant struck her in the face with his closed fist and kicked

her on her side as she fell to the floor. He then grabbed a kitchen knife and brandished it toward her

while threatening to kill her. He also attempted to drag the victim from the residence. The victim

testified that she feared that the defendant would kill her. The witness, Shante McMurray,

corroborated these events through her testimony. Based upon this evidence, we conclude that the

evidence is sufficient to support the defendant’s conviction for aggravated assault.

Failure to Grant a Continuance

The defendant also argues that the trial court should have continued the bench trial when the

State filed its notice to seek enhanced punishment on the day of trial. The State argues on appeal

that the defendant has waived this issue for failing to request a continuance or allege this issue in the

motion for new trial. Following our review, we deny the defendant relief as to this issue.

Rule 12.3(a) of the Tennessee Rules of Criminal Procedure provides that when “the district

attorney general intends to seek an enhanced punishment as a multiple, persistent, or career offender,

the district attorney general shall file notice of this intention not less than ten (10) days before trial.”

When the notice to seek increased sentence is filed untimely, the rule provides that “the trial judge

shall grant the defendant, on motion, a reasonable continuance of the trial.” Id. Our review of the

record reveals that the defendant failed to move for a continuance, either orally or in writing.

Furthermore, the defendant failed to raise this allegation in his motion for new trial. Accordingly,

we conclude that this issue is waived by the defendant’s failure to request a continuance or to
-5-

preserve it for appellate review by raising it in his motion for new trial. Tenn. R. App. P. 3(e), 36(a).

The defendant is not entitled to relief regarding this issue. 

CONCLUSION

Upon full consideration of the record and arguments of counsel, the judgment of the trial

court is affirmed. 

___________________________________ 

D. KELLY THOMAS, JR., JUDGE