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

Briefs J une 3, 2003

STATE OF TENN ESSEE v. DOUGLAS LEE OVERALL

Appeal from the Circuit Court for Tipton County No. 4138 Joseph H. Walker, Judge

No. W2002-01954-CCA-R3-CD - Filed Septem ber 23, 2003

T he de fe nd an t, Do ug la s Le e O ve ra ll , w as co nv ic te d b y a T ip to n C ou nt y Ci rc ui t C ou rt ju ry o f aggravat ed kidnappi ng, a Class B felony ; aggravated assault, a Class C fe lony; and possession of drug paraphe

rnalia, a Class A

misdemeanor. The trial court sentenced him to concurre ntsentences of twelve y ears f or the aggr

avated k idnapping convicti on, twelv e y ears fo r the ag grava

ted assa ult conviction, and eleven months, twenty-nine da ys for the poss ession of drug paraphernalia c onviction. The defendant appeals, claiming that the evidenc e is insuff icien t to su

ppor t his c onvic tions . We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON , J., delivered the opinion of the cou rt, in which D AVID G. H AYES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Clifford K. McGow n, Jr., Wave rly , Tennes see (on a

ppeal), and Gar

y F . Antrica

n, Dis trict Publ ic Defender and David S. Stockton, AssistantPublic Defender (at trial), for the appellant, Douglas L ee Overall

.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Elizabeth

T. Rice, D istrict At

torney Genera l; and Colin A. Campell, Assistant District Attorney Gene

ral, for the appellant, State of Tennessee.

OPINION

This case relates to the defendant’s conduct toward George Harper on January 29, 2001. At
tr ial, Officer Larry

Ham testified he was on patrol for the Covington Police Depar tment and was attempting to serve an arrest warrant on an individual bel ieved to be at Mr. Harper’s residence

. Officer Ham stated he had been to Mr. Harper’ s residence the previous night and saw that Mr. Harper looked normal. On the afternoon of January 29, 2001, Offic er Ham arrived at Mr. Harper’s residence, and Mr. Harper opened the door. Officer Ham said Mr. Harper’ s appearance “was ver y bl oo dy, as if

he had been beaten.” He said he a sked Mr. Harper what happened and w hy he had not-2-

calledthe polic e. He sa

id Mr. Har

per res ponded th at he wa s not able to call the police. Officer Ham said he then asked if the individual who had ha rmed Mr. Harper

was still a

t the resi dence. He said Mr. Harper

nodded a

ffirmat ively . He state d that upon entering the residence, he sa w blood, a hammer, knives, and severed electrical cords sc attered throughout the house. He said he found the defendant in the back room and

that the defendant appeared normal, having no visible injuries. He said that when

he sear ched the defenda nt, he found two crack pipes in the defendant’s front rig ht pocket. He said he arre sted the d efenda nt and le ft the res idence i n the same condition

until Investigator

Allen Wilson arrived. On cross-examina t ion, Officer Ham said the defendant neve r talked to him. He stated that no crack cocaine wa s found at the residence.

Investigator

Allen Wilson of the Covington Police Department testified that he arrived at Mr. Harper’s residence at approximately 4:40 p.m. on January

29, 2001. H e said the

residence was in disarray and blood was on the doorway . He said he found a hammer in the livingroom. He said he found two cord s, one fr

om a fan a nd the othe

r from a l amp at the residence. He said he found a knife withduct tape around the handle. He said he also foun d a belt in

the living

room. He

said he took pictures of Mr. Harper’s bloody sock, bruised knee, hands, and neck, which appeared to have rope burns around them. He stated he also took pictures of Mr. Harper’s head, which had a gash and a dent. On cross-examination, he acknowledged not chec king for fingerprints on the hammer, the knife, or the crack pipes fou nd on the d

efenda nt becau se the defendant

and Mr. H arper w ere the

only two persons found in the house.

Mr. Harper testified that

on the evening of

January 28, 2001, t

he defe ndant str uck him wit

h

a hammer as Mr. Harper was leaving the bathroom. He said that there was no pr ovocation and that he did not know

why the defe ndant str uck him. H e said he

then lost consciousness. He stated that when he regained consciousness, he wa s immobilized with his arms and legs tied together behind his back and h ad duct tape acros s his mouth. He said the defendant beat him with a lamp and a hammer while he was unable to move. H e said th e defen dant also urinate d on him sev eral time s. He said that the following afternoon, he heard the police arrive after

an alarm had sounded in the neighborhood. He said the defendant then removed the binding and duct tape and told him that he would kill everyone if he

told the police anything . On cross-examination, Mr. Harper said he and the defendant had smoked crack and mar ijuana the night before the incident took place.

The defendant testified

that he and Mr. Harper had been smoking c rack cocaine from January 25, 2001, through January 28, 2001. He said that they beg an arguing over a stolen tra ctor and that Mr. Harper picked up the hammer. The def endant sa id he then hit Mr. Harper with a statue that was on a couch to prevent

Mr. Harp er from h

itting him with the ha

mmer. He

said he hit Mr. Harper a second time with a second statue to keep Mr. Harper from ge tting off the floor. He said he was afraid Mr. Harp er would

overpow er him if h

e allowe d him

t o get up. He said he then tied up Mr. Harper because he did not want to go to jail. He said that while Mr. Harper was rest rained, he hit him once in the leg with the hammer because he knew he would go to jail for this incident and that made him angry

.-3-

On cross-examination, he said he did not think h e had the energy to leave the house after hitting Mr. Harper with the first statue. He stated he believe d that Mr. Harper would ca tch him if he did not tie up Mr. Harper. He stated he did not leave afte r tying up Mr. H arper

because he knew he would go to jail when Mr. Harper called the police. He also stated that he owned one of the two crack pipes and Mr. Harper owned the other. He said he had both pipes whe n the police arri ved because he was trying

to smoke the residue while he had Mr. Harper restrained. He said he released Mr. Harper

two hours before the police arrived. The jury found the defendant guilty of aggravated kidnapping, aggrava

ted assault, and possession of drug parapherna lia.

The defendant contends that the evidence is insufficient to support his aggravated kidnapping conviction. Specifically, he a rgues the state failed to prove the elements of

aggravated kidnapping because there is no testimony that the hammer w as used during thekidn appin g. Furthermore, the defendant claims the j ury should have accredited his testimony regarding self-de

fense because he demonstratedthrough

his statem

ents that M

r. Harp er was th

e agg resso r. T he state claims the evidence is sufficient. We agree with the state.

Our sta ndard of review when the defenda nt questions the sufficiency of the evidence on appeal is “wheth

er, aft er viewing the e

vidence in the lig ht most f avorable to t he prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt.” Jackson v. Virg inia , 443 U.S. 307, 3 19, 99 S. Ct . 2781 , 2789 (1979 ). We d o not reweigh the evidenc e but pre sume that t he jury has reso lved all c onflicts i n the testimony and drawn all

reasona ble inferences from the evidence in fa vor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978 ). Questions about witness credibility were

resolved by the

jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

One commits aggravated kidnapping by falsely

imprisoning another while the defenda nt is in possession of a deadly w eapon or threatens the use of a deadly we apon. Tenn. Code Ann. § 39- 13-304(a)(5). False imprisonment is the unlawful and knowing removal or confinement of another “so as to interfere substantially with the other’s liberty.”Tenn. Code Ann. § 39-13-302.

We belie ve tha t the e viden ce is s uffic ient t o supp ort a co nvict ion fo r aggrava ted ki dnapp ing. The evidence shows that

the defendant used a hammer to incapacitate Mr. Harper which enabled the defendant to ti e Mr. H arper’ s arms and le gs toge ther wi th electrical cords. Furthermore, the defendant admits to striking Mr. Harper with the hammer while Mr. Harpe r’ s arms an d legs were tied together. Thus, the

evidenc e shows th at the defendant falsely imprisone d the vict

im while in possession of a dea

dly weapon. We recog

nize that th

e defendant’s tes timony conflicts with Mr. Harper’s statements. The jury, howe ver, chose to believe the victim’s testimony

. Therefore, viewed in the light most favorable to the state, theevidence is sufficient. As to the defendant’s claim that the jury failed to cr

edit his claim of self-defense, the jury also chose to ac credit the state’s theory of the aggravated a ssault offense as is its prerogative.-4-

Based upon the foregoing and the re cord as a whole, we affirm the judg ments of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE