### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 2, 2001
STATE O F TENN ESSEE v. JESSIE JA MES AU STIN
Appeal from the Circuit Court for Weakley County No. CR25-2000 William B. Acree, Jr., Judge

No. W2001-00120-CCA-R3-CD - January 25, 2002

The defenda

nt, Jessie James Aus tin, appe als as of right his convictions by a Wea kley Count

y Circuit Courtjury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as
a Range III, persistent offender to twelv e yearsin the Dep artment o f Correction for e ach count to be served concurrently. The defenda nt contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instru cted the ju ry on the lesser included offense of reckless aggrava ted assault. We affirm the trial court’s judgments of conviction.

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

J OSEPH M. T IPT ON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); Harold Gunn, Humboldt, Tennessee; Joseph P. Atnip, District Public Defender; and Kevin McAlpin, Assistant Public Defe nder, fo r the app ellant, Jessie James Austin.

Paul G. Summers, Attorney General and Reporter; Laura McMullen F o rd, Assistant Attorney Genera l; Thomas A. Thomas, District Attorney General; and Allen Strawbridge, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The defendant’s convictions arise from an incident in which he pointed a gun at two young brother s. Sherry Hugheley, the victims’ mother, testified thatin January 2000, she lived in a doublewide trailer with her two sons Paul and Zachary, who were eleven a nd seven years ol d respectively at the time of

trial. She

said that she and Zachary had Stickler Syndrome, a genetic disorder, a nd that, as a result, she had difficulty moving around and doing things for herself. She said that shehad known the defendant for one and one-ha l f years. She stated that at first, he worked for he r doing yardwork, cooking, cleaning, and taking her and Zachary to doctor’s appointments. She said that
a governme

nt agenc y provide d her the money to pa

y the def endant a nd that she

paid him monthly.-2-

She said that it took three weeks from the time that she submitted his hours t

o the agency for he

r to receive a check, which was made out to her. She said that eventually, she began dating the defendant and that he lived with her while continuing to work for her . She said t hat during this time, they pooled their mone

y for liv i ng expenses. She said that in mid-December 1999, the defenda nt accompanied her and Zachar y on a week-long trip to Maryland to attend a study conducted by the National Institute of Health. She said that upon their return on December 13, the defenda nt moved out afte r an argument.

Ms. Hugheley testified that between 2:30 and 3:00 a.m. on January 21, 2000, the def endant
came to her home wanting money. She said that at that time, she was waiting for a check from the agency and that the defendant had not worked for her since the Maryland trip. She said that she and the boys were asleep on the couch when the de fendant knocked on the door. She said that she openedthe door, that the defendant came inside, and that she told him that the check ha d notcome yet. She said that

the boys awoke while she and the defendant ar gued about her not

wanting to give him fifteen dollars. She stated that the defendant entered the bedr oom and tha

t she coul d hear him struggling with the guns, which were in a dresser drawe r. She said that she went outside to ask the
man who had brought the defendant to ge t him out of h er house. She said that she heard Paul screaming at the defendant but that she never heard the defendant threaten her children. She stated that while she was outside on the wheelchair ramp, the defe ndant came to the doorway and fired a gun straight ahead into a

field. She said that the noise scared her because she did not realize that the defendant was behind her. She said that she was outside for only a short time.

Ms. Hugheley testified that the defendant took one of the two guns and fifteen dollars from her close t, wh ich contained around four hundred dollars. She admitted that the defe ndant did not have a car, that

he always had someone drive him to her house, and that he had asked for gas money to give the driver on other occasions. She acknowledged

that at the time of the offenses, she owed the defendant $240 for working for her. She said that the defendant did not yell at her, threaten her withthe gun, or point it at her. She said th at Paul’s father had told Paul that he was the man of the house and that he was to take care of everything. She said that after the children awoke, Paul tried “to stand up to [the defendant] like a man instead of a little boy, because this is wha

t his daddy

told him” to do. She said that the main reason that she separated from the defendant was that she needed some time

to deal with Paul. She said that her children were taken from he r and were living with their fa ther at th e time of t

rial bec ause she

was see ing the defendant

. Ms. Hugheley was recalled by the defenda nt and testified that the defendant had come to her house around 2:30 a.m. on other occasions before the day of the offenses. She said that at the time of the offenses, the defenda

nt was still

accompanying her and Zachary to the doctor’s office and that she would have needed him to go with her to the doctor’s office sometime af ter January 21.

Paul Hugheley testified that at the time of trial, he was eleven y ears old and lived with his father. He stated that in January of that year, he had been living with his mother and his seven-yearold brother, Zachary. He said that the defendant worked for his mother and lived with them from time to time. He

said that in the ear

ly morning of January 21, 2000, he was asleep with his mother and bro ther on the l iving room couch when he was awakened by his mother a nd the defendant-3-

yelling at each

other. H e said tha

t the def endant w as deman ding money and that h

is mother d

id not have it. He said that the defendant went into his mother’s room and returned with two guns and the bag in which the

money wa s kept. He

said that his mother went outside and told the man who had brought the de fendant to get the defendant out of the house and that if anyone wa s hurt, the man would be charged too. He said that the defendant wa s standing two yards from the back door and that the defendant’s back was toward him when he heard the defendant fire the gun. He said that

he picked up the phone to call 9-1-1. He said that he had pushed the nine whe n the defendant, who was standing about two feet away from him, pointed the gun at him and told him to put the phone down. He said that he believed that the defendant pointed the gun at his face. He said that the defendant said, “If I can drop one, I can dr op three.” Heagreed

that he f eared f or his safety when the defendant pointed the gun at him and made this comment. He said that Zachary, who was on the couch beside him, told the defendant to leave them alone. He said that the defendant pointed the gun at Zachary and said, “Shut up.” He testified that the defendant pointed the gun at him before firing the shot out the back door, then Zachary told the defenda nt to leave them alone, and the defendant said, “Shut up.”

On cross-e

xaminatio n, Paul tes tified tha t he was in

fifth grade when the offenses occurred. He said that

the weeken d followin g the inci dent, he t old his fa ther wha t had happ ened an d that his father called the police and his lawyer. He said that he did not remember his father telling him that
no black man could spank him. He said that his father told hi m to testify tru thfully. Paul was questioned about his prel iminary he aring testimony in which he said that the defendant made the comment “If I can drop one, I can dr op three” to his mothe

r while he and his brother were pretending to be asleep on the couch. Paul stated that the defendant made the comment to all thr ee of them

. He admitted that the defendant never discharge d the gun in his direction.

The thirty-six-year-old defendant testified that he had known the Hughe leys for about eighteen months. He

said that a

t first, he worked f or Ms. Hugheley but

that afte r four or five month s, they began dating and he began staying at her house. He

stated tha

t at this poi nt, they po oled thei r money. He said that with his paychecks, he would first pay child support for his two children and then he would g ive the r

est of th e money to M s. Hughel ey to mana ge. He sa id that he freque ntly accompanied

the Hughe

leys on tr ips out of to wn for me dical tre atment. He said that he did not get paid for a lot of these trips and that he made them because he loved Ms. Hugheley. He said that once they began dating, he took over the yard work in order tha t Ms. Hugheley could save money.

The defendant testified that he got along well with Ms. Hugheley’s sons. He said that he had
never threate ned them a

nd that the

y had written him

letters saying that they loved him. He said that although he had punished the boys before, he would always tell Ms. Hugheley first. He stated that
once he told

Ms. Hugheley that Paul was riding his bicycle in the road and that Ms. Hugheley punished Paul for a week. He said that Paul got ma

d and told h

is father about the incident . He said that Paul told hi m, “My daddy said if that old n***er will whoop me, he’s gonna have him locked up.” The defendant stated that once the fac tthat he and Ms. Hugheley were dating became known, people began calling Ms. Hughe ley’s hou se and thr

eatenin g to kill him a

nd Ms. Hughele

y. He sai d Ms. Hughe

ley had he

r teleph one tapped in order to learn who was ma

king the c alls.-4-

The defendant testified that on the day of the of fenses h e came t o Ms. Hughe

ley’s hou se at 2: 30 a.m. He said that Ms. Hugheley was probably going to the doctor’s office and that he was supposed to have be

en at her house earlier. Hesaid that h

e did not r ealize what time

it was bec ause he had been asleep and that he asked Mr. Jamie Pan key, a ha ndicapped man who w ent to his church, to take him to

Ms. Hughe

ley’s hou se. He sa

id that he had gone to Ms. Hugheley’s hou se in the e arly morning before due to his transportation situation and that Ms. Hugheley had paid Mr. Pankey twenty dollars f or bringi ng the def

endant to her house

before. He said that when Ms. Hugheley let him inside on the morning of

the offenses, he told her that he needed fifteen dollars to pay the man who had driven him there. He said th at Ms. Hugheley re plied tha t they nee ded that m

oney to pay their bills that month.

The defenda

nt testified that w h en they had cleaned out the trailer in which Ms. Hugheley lived, they had found anold .22 caliber pistol, which belonged to the trailer’s owner, who had left town. The defendant testified that he got this gun, showed it t o Mr. Pank

ey, and a sked if he

would hold it until the next morning. He said that he tried to take the bullet out of the gun but could not and that he f

ired it into a field to unload it. He said that Mr. Pankey replied that he did not have enough gasoline to get home. He said that he told Ms. Hugheley t hat he had to gi ve Mr. Pankey
some money for gasol ine. He said that h e and the Hughele ys had re cently r

eturned from a tr ip to Marylandwhere he had be en paid th irty or fo rty dollars per day for seven or eight days. He said that this money wa s for his living e xpenses while in Maryland but that they had brought their own groceries in order to save the expense money for Christmas. He said that he ha d about $300 cash at Ms. Hugheley’s house not counting the $240 that Ms. Hugheley owed him. He said that he went inside, got fifte en dollar s, and pa id Mr. Pank

ey. He sa id that because the children were awake and because he and

Ms. Hugheley had a

misunder standing, Ms. Hughe ley said that it would be best

if he left. He said that although he had inten d ed to stay for a few days, he decided not to spend the night because he and Ms. Hugheley had argued.

The defendant

testified that Paul’s testimony thathe had pointed a gun at Paul and told Paul notto use the

phone wa s not true . He said that he ne ver told Pa

ul not to call9-1-1 or he would “drop him.” He said that it would have been impossible

for Paul t o see him w ith the gun from the couch because a five-foot-tall room divider would have blocked Paul’s view. He said that he did not steal anything from Ms. Hugheley. He said that he considered part of the money

at Ms. Hugheley’s house to be his and that when he took fifteen dollars, more money remained. He said that he left the gun.
I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to convict him of either count of aggravated

assault. He argues that no evidence shows that he intentionally caused Paul or Zachary Hughele y to fear imminent bo dily injury . The stat e contends that the

evidenc e is suffi cient.

Our standar d of revi ew when

the suff icie ncy of the e v idence i s questioned on app eal 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 bey ond a reasonable doubt.” Jackson
v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the-5-

eviden ce bu t presume

that the ju

ry has reso lved all c onflicts i n the testimony and drawn all
reasona ble inferences from the evidence i n favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 ( Tenn. 198 4); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

As char ged in the i ndictment, one commits Class C aggravated assault by intentionally or knowingly

causing another reasonably to fear imminent bodily injury while using or displaying a deadly weapon. Tenn. Code Ann. § 39-13-101(a)(2), - 102(a)(1)(B). A firearm is a dea dly weapon. Tenn. Code Ann. § 39-11-106(a)(5)(A).

W ith re gard to the aggravated assault of Paul Hugheley, the def endant argues that the evidence shows that he and Paul had a good relationship but that Paul was infected by his father’s racial animosity. He maintains that although Paul testified that the defenda nt pointed a gun at him, Paul could not remember the particular part of his body at which the gunwas pointed. He also notes that Ms. Hugheley testified that she heard Paul yelling at the defendant but

that she did not hear the defendant say anything. He argues that these inconsistencie s create reasonable doubt. Viewing the evide

nce in the light most

favorable to the state, Paul testified that the defendant pointed a gun at him when he attempted to call 9-1-1. He said that the defenda nt threatened him by saying “If I can drop one, I can drop three” and that this comment caused him to fea r for his safety. This evidence is sufficient to sustain a conviction for aggravate d assault. The credibility and weight to be given to a witness's testimony are issues to be resolved by the trier of fac t. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). The jury heard the inconsistencies and racial unde rtones raised by the defendant and decided to ac credit Paul’s account of the incident.

The defendant contends that the only evidence regarding the aggravated assault of Zachary Hugheley came from Paul’s testimony. He argues that because Za chary did not testify, nothing shows that Zachary fe ared immi nent bodil y harm or that he was even aware that a gun w as pointed at him. Thus, he a

rgues tha t any find ing that Za

chary w as in

fear is m erely sp eculativ e. The sta te responds that Paul’s testimony provided circumstantial evidence that Zachary saw the gun and was in fear. I t points to Pa

ul’s testi m ony th at Zachary, who was on the couch next to Paul, told the defendant to leave them alon e and tha

t the def endant po inte d the gun a t Z achary and told hi m to “Shutup.” It argue s that this testimony reveals circumstantially Zachary’s awar eness of the gun and fear.

A victim’s fear of imminent bodily injury may be proven with circumstantialevidence. See Stinson v. State , 181 Tenn. 172, 178, 180 S.W.2d 883, 885 (1944) (noting the general rule that either party may prove any material fact by di rect or circu mstantial evidenc e); see also State v. James Albert Adams , No. M1998-00468-CCA-R3-CD, Davidson County (Tenn. Cri m. App. Dec. 15, 1999), app. denied

(Tenn. Se

pt. 25, 2000) (inferring the victim’s fear from the circ umstances of the offense even though she did not testify that she w as afra id); State v. G

regory W hitfield , No. 02C01- 9706-CR-00226, Shelby County (Tenn. Crim. App. May 8, 1998), app. denied (Tenn. Dec. 7, 1998) (inferring fear from the victim’s conduct following the assa ult); Statev. Tommy Arwood, Jr. , No. 01C01-9505-CC-00159, BedfordCounty (Tenn. Crim. App. May 24, 1996) (inferring the victim’s fear as the re sult

of the defendant’s conduct). “The element of ‘fear ’ is satisfied if the circumstances1 W ith rega rd to th is assertio n, w e no te that at th e close of the state’s p roo f, the tr ial court grant ed the defendant’s motion f

or a j udgment of acqui tt al f or the aggravat

ed ass ault

of Ms. Hughele y. I t al so gra nted t he motion with regar d to t

he aggrava ted r obbery count but determined that

it would char ge the les ser incl uded offe nse of thef t for that count. Itdenie d the moti on as t o the t wo counts of

aggravat

ed ass ault

rel ati ng to Paul

and Zachar y Hugheley. The jury acqu itted the defe nda nt of th eft.
-6- of the incid ent, withi n reason

and commo n experi ence, a re of suc h a natur e as to ca use a per son to reasonably fear imminent bodily injury.” Gregor y Whitfie ld , slip op. at 4 (citation omitted). According to Paul’s te stimony in th e prese nt case, Zachar

y was with

him on the couch when the defendant, who was two feet away, pointed the gun a t Paul. The defendant told Paul to put down the telephone and threatened the boys by saying “If I can drop one, Ican drop three.” Paul testified that after this, Zachary told the defendant to leave them alone and that the defendant pointed the gun at Zachary and

told him to “Shut up.” From the testimony about Zachary’s close proximity to Paul and the defe

ndant, the jury coul d have reasonably inferred that Zac hary also heard the defendant’s threat, which was directed to all three Hugh eley s. Zacha ry respo nded by a sking the d efenda nt to leave them alone, which reveals that he was awar e of the defendant’s actions and also suggests that he was in fear. Finally, the jury coul d have inf erred t hat Zach ary rea sonably

feare d imminent b odily injury whe

n the def endant tu rned the gun on Zac

hary af ter thre atening t

hat he co uld easily “drop” the three Hugheleys. We hold that the evidence is suffic ient to show that the defendant’s actions caused Zachary reasonably to fe ar imminent bodily injury. Finally, the defe

ndant summ arily co ntends tha t the evid ence did not show that he intentiona

lly or knowingly assaulted either victim. Without further explanation, he states that the trial court’s grant of his motion for a judgment of acquittal for the aggrav a ted assa ult of Ms. Hugheley and the jury’s acquittal on the theft charge provide additional evidence of the lack of an intentional or knowin g mental st ate

. 1 One “acts intentionally with respect to the natu re of the conduct or to a result of the conduct when it is the person’s conscious objective or de sire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11- 302(a). One “acts kno wingly with respect to a result of the person’s conduct when the person is aware that

the condu ct is rea sonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). In State v. Wilson , 924 S.W.2d 648, 651 (Tenn. 1 996), our

supreme court discussed the sufficiency of the proof of the mens rea element with regard to aggravated assault convictions stemming from a drive-by shooting:

The aggravated assault statute under which the state seeks conviction of defendant requires that the state prove either that defendant shot into the [victims’] home (a) for the purpose of causing the victims to fear imminent bodily injury (intentionally) or that the defendant was (b) awar e that the shooting would cause the victims to fear imminent bodily injury (knowingly).

The court affirmed the reversal of the con victions because the record contained no proof that the defendant knew that anyone was in the house at the time of the shooting. Id.-7-

In the present case, we beli eve that the jury reasonably concluded that the def endant intentiona

lly or knowingly

displayed his gun in order to place Paul and Zachary Hughele y in fear of imminent bodily injury. The defenda nt acted intentiona

lly if he po inted the

gun at the

victims for the purpose of causing them to fear imminent bodily injury. He acte d knowingl y if he was aware that his pointing the gun at the victims would cause such a fear. In the light most favorable to the state, the evidence reveals that defenda nt threatened the young brothers by saying “If I can drop one, I can drop three.” This threat revea ls that the defendant intended to cause the v ictims to fear imminent bo dily injury . The pro of alsoreveals that Paul picked up the telep hone in an

attempt to
summon help and that Za chary asked the defendant to leave them alone. The evidenc e that the defendant subseque ntly pointed his gun at the victims and told them to put down the telephone and to “Shutup” respectively reveals that his conscious objective or desire was to cause the victims fear in order that the y would

comply with his orders. Thus, the defendant acted intentionally. The evidenc e is suffi cient to c onvict the defenda nt of the a

ggravat ed assault of both victims.
II. LESSER INC LUDED OFFE NSE

As an afte

rthought t o his suff iciency argumen t, the def endant c ontends th at the t rial court should have instructed the jury on the lesser included offense of reckless aggravated assault, a Class D felony. The state

contendsthat the d

efenda nt failed to raise t his issue in

his motion for a new trial and that it doe s not const

ituteplain error. It argues that reckless aggravated a ssault is not a lesser included of

fense of intentiona

l or knowing aggrav ated ass ault by me ans of dis playing a deadly weapon because the former contains an additional element – that of physical injury – aside from the differing mental state. It also contends that the record would not have supported

an instruction on reckless aggravated assault beca use no evidence of physical injury existed.

We begin by n oting that a defenda nt seekin g to challenge the jury instructions given at trial must raise the issue in his motion fo r new trial or it will be waived. T.R.A.P. 3(e). On the other hand, the defendant’s right to a trial by jury under article I, se ction 6 of the Tennessee Constitution “is violated when the jury is not permitted to consider all offenses supported by the evidence.” State
v. Ely , 48 S.W.3d 710, 727 (Tenn. 2001). The trial court has a duty to instruct the jury on all lesser included offense s if suffi cient evidence e xists to support a conviction for the lesser offense even if the defenda

nt fails to request the instruction. Id. at 718; State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999)

. When the failure to instruct the jury on an appropriate lesse r included offense a

ffects t h e substantial rights of the defendant, wemay reverse the conviction on the basis of plain error. See Tenn. R. Crim. P. 52(b). In this respe ct, five factor s determine whether an iss ue meritsplain error status:
1. The re cord must clearly establish what hap pened in t he trial c ourt; 2. a clear and unequivocal rule of law must have been breached; 3. a substantial right of the accused must have been adver sely affected; 4. the accused did not waive the issue for tactical re asons; and 5. consideration of the error is necessary to do substantial justice.

State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994).-8-

The problem for

the defendant in the present case, though, is that the rec ord lacks sufficient evidence to justify an instruction on reckless aggravated assault. Such a n assault is defined as reckle ssly assaulting another by intentionally, knowingly, or recklessly causing bodily injury that is either se

rious bodi ly injury o

r committe d while

the defendant used or displayed a deadly wea pon. Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(2) (A)-(B). Bodily injury is defi ned as “a cut, abrasion, bruise, burn or di sfigure

ment; phys ical pain

or tempor

ary illne ss or

impairment of the function of
a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-1 1-106(2) . Vie wing the evidence in the light most favorable to the existence of reckle ss aggra vated as sault, the

record is devoid of any evidence of bodily injury to either Paul or Zach ary Hugh eley. Th us, much le ss plain error, the trial court did no t commit an y error by not instr

ucting the

jury reg arding r

eckless aggravated assault.

Based upon the foregoing and the record as a whole, w e affirm the judgments of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE