IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 4, 2016

STATE OF TENNESSEE v. HAROLD ALLEN VAUGHN

Appeal from the Circuit Court for Madison County

No. 15-231 Donald H. Allen, Judge

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No. W2016-00131-CCA-R3-CD – Filed December 6, 2016

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The Defendant, Harold Allen Vaughn, and his co-defendants, were indicted by a Madison 

County Grand Jury for attempted first degree murder, aggravated assault, especially 

aggravated kidnapping, and especially aggravated robbery. Following a jury trial, the 

Defendant was convicted of attempted first degree murder resulting in serious bodily 

injury, aggravated assault, and especially aggravated robbery. The trial court merged the 

aggravated assault conviction into the attempted first degree murder conviction and 

sentenced the Defendant to an effective sentence of twenty-five years to be served in the 

Tennessee Department of Correction. On appeal, he argues that the evidence is 

insufficient to sustain his convictions and that the trial court erred in failing to instruct the 

jury that his co-defendant was an accomplice as a matter of law. Upon review, we affirm 

the judgment of the trial court but remand for entry of a judgment form as to count two 

reflecting that the Defendant‟s aggravated assault conviction was merged with count one. 

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

Remanded for Entry of Corrected Judgments

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN 

and TIMOTHY L. EASTER, JJ., joined.

Gregory D. Gookin, Assistant District Public Defender, Jackson, Tennessee, for the 

Defendant-Appellant, Harold Allen Vaughn.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; James G. Woodall, District Attorney General; and Brian M. Gilliam, 

Assistant District Attorney General, for the Appellee, State of Tennessee.
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OPINION

This case concerns the robbery and shooting of the victim, Christopher Tompkins. 

The Defendant, and his co-defendants, James N. Martin and Bethany Lashun Long, were 

subsequently arrested and charged with attempted first degree murder, aggravated assault, 

especially aggravated kidnapping and especially aggravated robbery. The Defendant 

filed a motion to sever his case from his co-defendants‟ cases, and the trial court granted 

the motion.1 Following a trial, the court dismissed the kidnapping charge, and the 

Defendant was otherwise convicted as charged.

Christopher Tompkins testified that, on November 24, 2014, he traveled by bus to 

Jackson, Tennessee from Memphis, Tennessee to pick up a vehicle for his employer. 

After learning that the vehicle was disabled, Tompkins walked to a nearby Love‟s Truck 

Stop to call his friend for a ride back to Memphis. While waiting on his ride, he met 

Bethany Long, an employee at the Hardee‟s restaurant at the Love‟s Truck Stop. He also 

met Long‟s boyfriend, the Defendant, and the Defendant‟s friend, James Martin. As 

Tompkins was leaving the truck stop, the Defendant offered to give him a ride if his 

friend did not show up, and they exchanged phone numbers. Shortly after the Defendant 

left, Tompkins called him and offered to pay $100 if the Defendant would drive him to 

Memphis, and the Defendant agreed. The Defendant then returned to the gas station, 

along with Martin, to pick up Tompkins. Tompkins testified that the Defendant and 

Martin arrived in a silver car with an unknown female driver. Shortly after leaving the 

gas station, the female driver said she had a family emergency, and she drove Tompkins, 

the Defendant, and Martin to the Defendant‟s car at the Lincoln Courts apartment 

complex. After getting in the Defendant‟s car, Tompkins, the Defendant, and Martin 

drove to another gas station where Tompkins purchased gas for the car and two beers. 

The Defendant then drove to pick up his girlfriend, Long, so she could drive the 

Defendant‟s car to Memphis. 

Tompkins testified that shortly after Long began driving to Memphis she pulled 

off the interstate because she was sick. The Defendant then got in the driver‟s seat and 

began driving away from the interstate and into a rural area. Tompkins tracked their 

route by GPS on his phone and told the Defendant he was going the wrong way, which 

the Defendant denied. 

After driving further away from the interstate, the Defendant suddenly stopped the 

vehicle on an unlit road and asked Tompkins to help him with his headlights, which he 

 

1 The record provided on appeal does not include the trial court‟s order granting the motion to 

sever, nevertheless, we assume based on subsequent orders and proceedings in the record that the 

Defendant‟s case was severed from his co-defendants‟ cases.
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claimed were not working correctly. Tompkins declined and instead suggested that 

Martin help the Defendant with his headlights. Martin exited the car to assist the 

Defendant with his headlights. Tompkins remained in the car and texted his friend the 

name of the road he was on and told her to call the police because “something is up with 

this guy.” The Defendant then appeared at the passenger side of the car and pointed a 

gun in Tompkins‟s face. 

The Defendant held Tompkins at gunpoint and directed Martin to search him. The 

Defendant and Martin searched Tompkins while he was still seated in the car and then 

pulled him out of the car and continued to search him, taking Tompkins‟s wallet, phone, 

tablet, and two bags of personal belongings and clothes, which were in the back seat of 

the car. Tompkins testified that the Defendant then pushed the gun to his temple and told 

him to get on the ground. As Tompkins began to comply, he testified that he “looked up 

to the right where the gun [was], and as [he] did that, [the Defendant] pulled the trigger.” 

The first bullet went through Tompkins‟s jaw, ricocheted off his back tooth, and came to 

rest in his mouth. After the first shot, Tompkins began running and was subsequently 

shot four more times. The second shot grazed his neck, the third and fourth shots landed 

in his upper right arm, and the fifth shot hit him in the back. Tompkins continued to run 

while being shot and eventually ran into the nearby woods to hide. Tompkins testified 

that the pain “was probably the worst I‟ve felt in my life” and that he was in shock and 

bleeding but able to walk. After waiting for the group to drive away, Tompkins walked 

to a nearby house where the resident called 911.

Regarding his injuries, Tompkins testified that he was required to wear a brace on 

his right arm for seven months and confirmed that he no longer had full use of his right 

arm. Tompkins was in the hospital for about two days, required physical therapy for his 

arm, and saw a specialist for the bullet wound to his jaw. Tompkins also testified that he 

was still in pain at trial and that he had permanent scarring on his face from the bullet 

wound. Tompkins explained that the experience was “continuous” to him and that he 

thought it probably occurred in a total “25, 30 seconds.” Tompkins confirmed that he 

had “[n]o question whatsoever” that the Defendant was the one who shot him and 

identified the Defendant multiple times at trial. Tompkins also identified the Defendant, 

Martin, and Long from a photograph taken from Hardee‟s surveillance footage and 

verified a photograph of the Defendant‟s black TransAm that the group was riding in that 

night. 

On cross-examination, Tompkins admitted that they were smoking marijuana in 

the silver car that first picked him up at Love‟s Truck Stop and that he had consumed 

about five ounces of the beer he had purchased. Tompkins testified that, although it was 

dark outside at the time of the shooting, the dome light in the car was on and he could 

clearly identify the Defendant. 
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Bethany Long testified that, on November 24, 2014, she was working at the 

Hardee‟s restaurant at Love‟s Truck Stop in Jackson, Tennessee. Long confirmed that 

Tompkins approached her while she was working and offered her $100 to drive him to 

Memphis. Long testified that she told Tompkins she did not have a car and that her 

boyfriend was picking her up after work. Long identified the Defendant at trial and 

confirmed that they had been dating for approximately five months at the time of the 

incident. The Defendant and Martin came to the Hardee‟s restaurant to visit Long while 

she was working, and then the Defendant returned later to take her home from work. 

Long testified that, later that night, the Defendant picked her up at her 

grandmother‟s house with Tompkins and Martin in the car. Long testified that she drove 

the Defendant‟s car because she had a driver‟s license and the Defendant did not. After 

she began driving on the interstate towards Memphis, Long testified that the Defendant 

told her to drive to his mother‟s house instead. Long said that she refused and told the 

Defendant that he would have to drive, so she pulled over and they switched seats. Long 

also testified that she was feeling sick at the time and was pregnant. When the Defendant 

got to his mother‟s house, he kept driving and told Long that they were going to “take the 

back roads to Memphis.” 

Long testified that when the Defendant pulled over to check his headlight, it was 

not unusual, because the headlights on his car often stopped working. While the 

Defendant and Martin were at the front of the car, Long testified that she assisted by

turning the lights on and off when suddenly “somebody told us to get out [of] the car.” 

Long testified that she got out of the car and “the next thing I heard was, [g]et on the 

ground, and . . . the next thing I know, I heard a gunshot.” After the shooting, Long got 

back in the car, “panicked” and “drove off” with the Defendant and Martin in the car. As 

they were driving away, Tompkins‟s phone began ringing, and Long said that Martin 

made her stop the car to get out and break the phone. Long testified that she began 

driving back to Jackson and that, after a while, Martin “started freaking out” and 

demanded to be let out of the car. As Martin exited the vehicle, Long said “it sounded 

like something hit the ground” and that she “assum[ed] it could possibly be the gun.” 

Long stated that, after the shooting, the Defendant never appeared upset or said anything 

about what happened. On cross-examination, Long confirmed that Tompkins, the 

Defendant, and Martin all smoked marijuana in the car and that Tompkins was also 

drinking a beer. 

James Martin testified that, on November 24, 2014, he was visiting his mother in 

Jackson while on Thanksgiving break from Virginia. Martin testified that he had known 

the Defendant for “about a year or two.” He recalled that, on the night of the incident, 

the Defendant picked him up to hang out and ride around. Martin admitted that he was 
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smoking marijuana that night but testified that the Defendant did not smoke. Martin 

testified that, while he and the Defendant were eating at Hardee‟s waiting on the 

Defendant‟s girlfriend to get off work, Tompkins approached them and asked for a ride to 

Memphis. Martin confirmed that he, the Defendant, and a female friend of the 

Defendant‟s later picked up Tompkins at the Love‟s Truck Stop. He testified that they

next went to the Defendant‟s car and picked up Long so she could drive to Memphis 

because the Defendant‟s license was suspended. Martin testified that after Long began 

driving on the interstate, she said she felt sick and pulled over so the Defendant could 

drive. 

Martin recalled that the Defendant began driving into a rural area and then pulled 

over to check his headlights and told Martin to help him. Martin testified that when he 

and the Defendant were standing outside checking the headlights, the Defendant told him 

to “[g]o over there and get [Tompkins] out of the car” and he tried to hand Martin a gun. 

Martin testified that, when he refused to take the gun, the Defendant got angry and

walked over to Tompkins, put the gun in his face, and told him, “[D]on‟t move or I‟ll 

shoot you.” Martin testified that the Defendant then made him check Tompkins‟s 

pockets and that he took Tompkins‟s wallet and cell phone and put it in the back seat of 

the car. Martin testified that he did not want to search Tompkins but that “[the 

Defendant] had a gun. I didn‟t think I had a choice.” Martin testified that he told the 

Defendant that Tompkins did not have anything else and to “let him go,” but that the 

Defendant still forced Tompkins out of the car and onto the ground.

After he heard the gunshots, Martin testified that he ran away from the Defendant

to the other side of the car because he was scared. The Defendant got back in the car, 

told Martin to get inside, and Long drove them away. Martin testified that, as they were 

driving away, the Defendant made Long turn the car around so he could “see if 

[Tompkins] was still out there,” and that, after stopping to look for him, they drove away 

again. When Tompkins‟s phone began ringing, Martin testified that the Defendant made 

him take the phone, break it, and leave it on the side of the road. Martin testified that the 

Defendant had the gun in his lap while they were in the car after the shooting and that he 

later gave Martin the gun and told him, “[D]on‟t get caught with it.” Martin said that he 

took the gun because “[he] felt like [he] had to” and he was “listen[ing] to everything [the 

Defendant] said.” When he got out of the car, Martin put the gun “under a shed” nearby 

and then called his friend to pick him up. He recalled that Tompkins‟s wallet, tablet, and 

bag were left in the backseat of the Defendant‟s car. 

On cross-examination, Martin admitted that he had smoked “probably, like, six, 

seven blunts” and that Tompkins had smoked “about three or four [blunts]” and was 

drinking a beer. Martin also acknowledged that he had never told officers where he hid 

the gun until his testimony at trial, that he attempted to flee when officers tried to arrest 
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him, and that he initially lied to officers about his involvement in the crimes. On redirect, Martin clarified that, although he had smoked marijuana that night, he was not 

confused about who shot the gun and that the marijuana did not affect his memory in any 

way. 

Sergeant Tom Knolton, an investigator with the Madison County Sheriff‟s 

Department Violent Crimes Unit and the lead investigator on the Defendant‟s case, 

testified that he first responded to the hospital to obtain a statement from Tompkins. 

Afterwards, Sergeant Knolton did a walkthrough of the crime scene and interviewed 

Long, who told the officers that Tompkins‟s phone had been thrown out on Betty Manley 

Road. Sergeant Knolton confirmed that officers had looked for the gun by tracing the 

route Long allegedly drove but that they had not located it. Sergeant Knolton testified 

that he obtained a search warrant for the Defendant‟s car and found a receipt dated 

November 24, 2014, for $20 of gas and two beers. After searching the car, the Defendant 

and his co-defendants were charged and arrested. 

On cross-examination, Sergeant Knolton confirmed that Martin had never revealed 

the location of the gun until his testimony at trial. Sergeant Knolton also acknowledged 

that when officers first met Tompkins at the hospital in Jackson they were unable to 

obtain a written statement due to his injuries and that Tompkins‟s formal statement was 

taken later at a Memphis hospital with the assistance of officers from the Tennessee 

Bureau of Investigation. 

At the conclusion of the above testimony, the State rested its case-in-chief and the 

Defendant moved for judgment of acquittal as to all counts. The trial court granted the 

Defendant‟s motion for judgment of acquittal as to the especially aggravated kidnapping 

charge, finding that there was insufficient evidence to allow the charge to go to the jury,

but denied the motion as to all other counts. State v. White, 362 S.W.3d 559, 562 (Tenn. 

2012) (requiring trial courts to determine whether a kidnapping charge is incidental to an 

accompanying felony or is significant enough, standing alone, to support a conviction).

The Defendant presented no proof and proceeded to argue in support of his pretrial motion for an accomplice jury instruction. Defense counsel asked the trial court to 

give the instruction with regard to Martin, but not Long, and argued that Martin was an 

accomplice as a matter of law. The trial court agreed to give the accomplice instruction 

with respect to Martin, however, the trial court noted that “it will be a jury factual 

determination whether he was or was not an accomplice” because there was a factual 

dispute as to whether Martin voluntarily participated in the crimes. After deliberation, 

the jury returned a verdict of guilty as to all three remaining counts. 
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At the November 23, 2015 sentencing hearing, the trial court merged the 

aggravated assault conviction into the attempted first degree murder conviction and 

sentenced the Defendant to twenty-five years in the Tennessee Department of Correction

to be served at 85 percent. The trial court also sentenced the Defendant to twenty-five 

years for the especially aggravated robbery conviction to be served at 100 percent and 

ordered both sentences to be served concurrently. 

The Defendant filed a motion for new trial on December 8, 2015, and a hearing

was held on January 4, 2016, at which the trial court denied relief. This timely appeal 

follows.

ANALYSIS

On appeal, the Defendant argues that the evidence is insufficient to support his 

convictions for attempted first degree murder, aggravated assault, and especially 

aggravated robbery. He claims that the State failed to adequately prove his identity as to 

all three offenses, that the State failed to prove that Tompkins suffered serious bodily 

injury to support the attempted first degree murder conviction, and that the State failed to 

prove that Tompkins had a reasonable fear of imminent bodily harm to support the 

aggravated assault conviction. The Defendant also argues that his especially aggravated 

robbery conviction should be modified to an aggravated robbery conviction because any 

serious bodily injury Tompkins suffered occurred after the robbery was already 

completed. Finally, the Defendant argues that the trial court erred in submitting Martin‟s 

accomplice status as a factual determination to the jury, rather than declaring him an 

accomplice as a matter of law.

After carefully considering the evidence presented at trial, we agree with the State 

that the evidence was sufficient to sustain all three of the Defendant‟s convictions and 

that the trial court did not err in declining to instruct the jury that his co-defendant was an 

accomplice as a matter of law. However, we remand to the trial court for entry of a 

judgment form as to count two, as explained below.

I. Sufficiency of the Evidence. “Because a verdict of guilt removes the 

presumption of innocence and raises a presumption of guilt, the criminal defendant bears 

the burden on appeal of showing that the evidence was legally insufficient to sustain a 

guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. 

Evans, 838 S.W.2d 185, 191 (Tenn. 1992)). When this court evaluates the sufficiency of 

the evidence on appeal, the State is entitled to the strongest legitimate view of the 

evidence and all reasonable inferences that may be drawn from that evidence. State v. 

Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)). When a defendant challenges the sufficiency of the evidence, the standard 
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of review applied by this court is “whether „any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 

883, 903 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of 

guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence 

is insufficient to support the finding by the trier of fact of guilt beyond a reasonable 

doubt.”

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of 

review for sufficiency of the evidence “„is the same whether the conviction is based upon 

direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) 

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of 

fact must evaluate the credibility of the witnesses, determine the weight given to 

witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 

S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. 

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial 

evidence and the inferences to be drawn from this evidence, and the extent to which the 

circumstances are consistent with guilt and inconsistent with innocence are questions 

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 

646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court 

shall not substitute its inferences for those drawn by the trier of fact. Id.

A. Identity. We begin our sufficiency of the evidence analysis by addressing the 

Defendant‟s argument that the State failed to prove his identity as the perpetrator as to all 

three of his convictions. In support of his argument, the Defendant appears to imply that 

Martin, not the Defendant, actually shot the victim, in part because Martin disposed of 

the gun and was “freaking out” in the car after the shooting. The Defendant points out 

that Martin did not report the incident to police, that he attempted to flee when officers 

arrived to arrest him, and that he initially denied any involvement in the crimes. The 

Defendant also argues that Martin and Tompkins are not reliable witnesses because of 

their admitted marijuana and alcohol use. The State responds that the evidence at trial 

established that the Defendant was the perpetrator and that the jury resolved any 

credibility issues with their verdict.

“The identity of the perpetrator is an essential element of any crime.” Rice, 184 

S.W.3d at 662 (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). The State 

has the burden of proving the identity of the defendant as the perpetrator beyond a 

reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn. 1998). The identity of 

the defendant as the perpetrator may be established by direct evidence, circumstantial 
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evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. “The credible 

testimony of one identification witness is sufficient to support a conviction if the witness 

viewed the accused under such circumstances as would permit a positive identification to 

be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999) (citing State v. 

Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The identification of the 

defendant as the perpetrator is a question of fact for the jury after considering all the 

relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing Strickland, 

885 S.W.2d at 87). In addition, as relevant here, this Court has held that “the testimony 

of a victim, by itself, is sufficient to support a conviction.” Strickland, 885 S.W.2d at 87 

(citing State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)). 

Here, Tompkins positively identified the Defendant at trial as the individual who 

robbed and shot him. He testified that when the Defendant held the gun to his head, the 

Defendant was “to the right-hand side of [him]” so that he could view him clearly. 

Additionally, Tompkins testified that he was looking at the Defendant when he fired the 

first shot and made direct eye contact with the Defendant again as he shot him the second 

time. Tompkins also testified that, although it was dark outside at the time of the 

incident, the dome light in the car was on, allowing him to clearly see the Defendant. 

This testimony, alone, is sufficient to sustain the Defendant‟s conviction. See Strickland, 

885 S.W.2d at 87. Although Tompkins admitted to smoking marijuana in the car before 

the shooting and initially lying to police, these facts do not undermine the jury‟s verdict,

as the Defendant contends. The jury resolved any inconsistencies or credibility issues 

with their verdict, and we will not re-weigh or re-evaluate the evidence on appeal. 

Accordingly, we find that the evidence is sufficient to establish the Defendant‟s identity 

as to all three of his convictions in this case. 

B. Attempted First Degree Murder. The Defendant next challenges his 

conviction for attempted first degree murder resulting in serious bodily injury. 

Specifically, the Defendant claims that the State has failed to prove that Tompkins 

suffered serious bodily injury. 

As relevant here, a person commits criminal attempt who, acting with the kind of 

culpability otherwise required for the offense, “[a]cts with intent to cause a result that is 

an element of the offense, and believes the conduct will cause the result without further 

conduct on the person‟s part[.]” T.C.A. § 39-12-101(a)(2). First degree murder is the 

premeditated and intentional killing of another person. Id. § 39-13-202(a)(1). 

Premeditation is defined as “an act done after the exercise of reflection and judgment.”

Id. § 39-13-202(d). This section further defines premeditation:

“Premeditation” means that the intent to kill must have been formed prior 

to the act itself. It is not necessary that the purpose to kill pre-exist in the 
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mind of the accused for any definite period of time. The mental state of the 

accused at the time the accused allegedly decided to kill must be carefully 

considered in order to determine whether the accused was sufficiently free 

from excitement and passion as to be capable of premeditation.

Id.

The existence of premeditation is a question of fact for the jury to determine and 

may be inferred from the circumstances surrounding the offense. State v. Young, 196 

S.W.3d 85, 108 (Tenn. 2006) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)); 

State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Factors that may support the 

existence of premeditation include, but are not limited to: the use of a deadly weapon 

upon an unarmed victim, the particular cruelty of the killing, the infliction of multiple 

wounds, declarations by the defendant of an intent to kill, lack of provocation by the 

victim, failure to aid or assist the victim, evidence of procurement of a weapon, 

preparations before the killing for concealment of the crime, calmness immediately after 

the killing, and destruction and secretion of evidence of the killing. State v. Kiser, 284 

S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State 

v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003); Bland, 958 S.W.2d at 660. In addition, 

a jury may infer premeditation from any planning activity by the defendant before the 

killing, from evidence concerning the defendant‟s motive, and from proof regarding the 

nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995).

First, we note that serious bodily injury is not an element of attempted first degree 

murder. However, if a defendant is found guilty of attempted first degree murder “where 

the victim suffers serious bodily injury as defined in § 39-11-106,” the defendant is not 

eligible for release until he serves 85 percent of his sentence. T.C.A. § 40-35-501(k)(5). 

Serious bodily injury is defined as bodily injury that involves (A) a substantial risk 

of death; (B) protracted unconsciousness; (C) extreme physical pain; (D) protracted or 

obvious disfigurement; (E) protracted loss or substantial impairment of a function of a 

bodily member, organ or mental faculty; or (F) a broken bone of a child who is twelve 

years of age or less. T.C.A. §§ 39-11-106(a)(34)(A)-(F). This Court has held that the 

subjective nature of pain is a fact to be determined by the trier of fact. State v. Eric A. 

Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App. 

Feb. 23, 2006), no perm. app. filed. Furthermore, this Court has specifically held that a 

scar satisfies the requirement for “protracted or obvious disfigurement.” State v. Deonte 

Matthews, No. M2010-00647-CCA-R3-CD, 2012 WL 5378046, at *4 (Tenn. Crim. App. 

Oct. 31, 2012), no perm. app. filed (citing cases in which a scar was held to be a 

sufficient basis for finding serious bodily injury).
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The State contends that Tompkins‟s serious bodily injury is supported by factors

(C) that the victim suffered extreme physical pain, (D) that the victim has a protracted or 

obvious disfigurement, and (E) that the victim suffered substantial impairment of a 

function of a bodily member. T.C.A. §§ 39-11-106(a)(34)(C)-(E). The Defendant argues 

that the State failed to prove serious bodily injury because the State introduced no 

medical proof to corroborate Tompkins‟s claims, because Tompkins‟s hospital stay did 

not exceed two days, and because Tompkins did not require surgery for his injuries. The 

Defendant also argues that, although Tompkins was shot in the face, because “his brain or 

eye or any other vital organs” were not damaged, there was no “substantial risk of death, 

as required by statute.” 

As an initial matter, the Defendant cites no legal authority or citations to the 

record in support of these assertions. Nevertheless, although his brief is woefully 

inadequate, we have thoroughly reviewed the record and will address the merits of the 

claim. First, a substantial risk of death is not required to establish serious bodily injury 

pursuant to Tennessee Code Annotated section 39-11-106(a)(34), as the Defendant 

contends. Rather, it is one of many factors that can, standing alone, constitute serious 

bodily injury. See T.C.A. §§ 39-11-106(a)(34)(A). 

Tompkins testified that he suffered five gunshot wounds and classified his pain as 

the worst he had felt in his life. Tompkins also testified that he was still in pain a year 

later, had permanent scarring from the gunshot wounds, and lost complete function of his

right arm, despite physical therapy and treatment. Tompkins‟s credibility and the 

subjective nature of his pain were factual determinations for the jury, and we will not reevaluate them on appeal. Taken in the light most favorable to the State, the evidence is 

sufficient for a rational juror to conclude that Tompkins suffered serious bodily injury. 

The Defendant is not entitled to relief.

C. Aggravated Assault. The Defendant next argues that the evidence is 

insufficient to support his conviction of aggravated assault because the State failed “to 

prove that any criminal conduct by [the Defendant] caused [Tompkins] to reasonably fear 

imminent bodily harm.” 

In order to sustain the Defendant‟s conviction for aggravated assault, the State was 

required to prove beyond a reasonable doubt that the Defendant intentionally or 

knowingly caused Tompkins to reasonably fear imminent bodily injury by the use or 

display of a deadly weapon. See T.C.A. §§ 39-13-101(a)(2), Id. 39-13-102(a)(1)(A)(iii). 

A person acts intentionally “when it is the person‟s conscious objective or desire to 

engage in the conduct or cause the result.” Id. § 39-11-302(a). Regarding the definition 

of the term “knowingly,” this Court has concluded that the offense of aggravated assault 
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contains both “nature of conduct” and “result of conduct” elements. See State v. 

Szumanski Stroud, No. W2006-01945-CCA-R3-CD, 2007 WL 3171158, at *5 (Tenn. 

Crim. App. Oct. 29, 2007), (stating that the victim‟s being placed in fear of imminent 

bodily injury is a “result of conduct” element while the defendant‟s using or displaying a 

deadly weapon is a “nature of conduct” element.), perm. app. denied (Tenn. May 5, 

2008). A person acts “knowingly with respect to the conduct or to circumstances 

surrounding the conduct when the person is aware of the nature of the conduct or that the 

circumstances exist.” T.C.A. § 39-11-302(b). However, “[a] person acts knowingly with 

respect to a result of the person‟s conduct when the person is aware that the conduct is 

reasonably certain to cause the result.” Id. “Aggravated assault based on fear requires 

the victim to have a „well-grounded apprehension of personal injury or violence.‟” State 

v. Lonta Montrell Burress, Jr., No. E2013-01697-CCA-R3-CD, 2014 WL 6855226, at *8 

(Tenn. Crim. App. Dec. 4, 2014), (quoting State v. Jones, 789 S.W.2d 545, 550-51 (Tenn. 

1990)), no perm. app. filed.

Tompkins testified that he believed the Defendant was trying to kill him after he

had already been robbed and the Defendant forced him at gunpoint to lie on the ground. 

After being shot point blank in the face, Tompkins began running, in fear for his life,

while the Defendant continued to shoot at him. Viewed in the light most favorable to the 

State, the evidence is more than sufficient for a rational trier of fact to find beyond a 

reasonable doubt that the Defendant intentionally or knowingly caused Tompkins to 

reasonably fear imminent bodily injury by the display of a deadly weapon. 

The Defendant also appears to argue that his aggravated assault conviction should 

be reversed because the facts constituting the assault overlap with the facts constituting 

his attempted first degree murder conviction. However, this also appears to be precisely 

why the trial court merged the two convictions. The trial court stated that “[a]lthough the 

jury found him guilty on aggravated assault, it‟s really part of the same offense of 

attempted first degree murder. That will merge in to [c]ount [one].” As this Court has 

held, when the jury convicts a defendant of more than one alternative count of the 

charged offense, the trial court should merge the guilty verdicts into a single conviction. 

See Cribbs, 967 S.W.2d at 788 (Tenn. 1998) (recognizing that “when only one person has 

been murdered, a jury verdict of guilty on more than one count of an indictment charging 

different means of committing first degree murder will support only one judgment of 

conviction for first degree murder”); see also State v. Cooper, 336 S.W.3d 522, 523-34 

(Tenn. 2011) (affirming that, while a jury can return verdicts of guilty for two alternative 

counts without the requirement of election, the trial courts should merge the convictions 

into one judgment of conviction).

Nevertheless, while the Defendant‟s convictions for aggravated assault and 

attempted first degree murder were properly merged, we detect some errors in the entry 
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of the judgment forms in this case. The trial court noted in the special conditions box on 

the attempted first degree murder judgment form that the Defendant‟s aggravated assault 

conviction was merging with the attempted first degree murder conviction; however, the 

trial court did not enter a separate judgment form for the aggravated assault conviction, as 

required by the Tennessee Supreme Court. See State v. Marquize Berry, No. W2014-

00785-SC-R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order summarily granting the 

application of the defendant under Rule 11 of the Tennessee Rules of Appellate 

Procedure and reversing a portion of the judgment of the Tennessee Court of Criminal 

Appeals) (“[W]hen two jury verdicts are merged into a single conviction, the trial court 

should complete a uniform judgment document for each count.”). Therefore, we must 

remand the case to the trial court for entry of a separate judgment form showing the entry 

of merger as to the specified count. 

C. Especially Aggravated Robbery. The Defendant next contends that his 

conviction for especially aggravated robbery should be modified to aggravated robbery

because the robbery was completed before any serious bodily injury occurred.

Robbery is the intentional or knowing theft of property from the person of another 

by violence or fear. T.C.A. § 39-13-401(a). Especially aggravated robbery is robbery, as 

defined in Tennessee Code Annotated section 39-13-401, which is accomplished with a 

deadly weapon and where the victim suffers serious bodily injury. See T.C.A. § 39-13-

403. This Court has held that the serious bodily injury suffered by the victim “can 

precede, be contemporaneous with, or occur subsequent to but in connection with the 

taking of property of another.” State v. Antonio Henderson and Marvin Dickerson, No. 

W2015-00151-CCA-R3-CD, 2016 WL 3390627, at *7 (Tenn. Crim. App. June 10, 2016), 

(citing State v. Antonio Jamarc Warfield, No. M2011-01235-CCA-R3-CD, 2012 WL 

4841546, at *12 (Tenn. Crim. App. Oct. 5, 2012), no perm. app. filed), perm. app. 

granted (Tenn. Oct. 24, 2016). 

The Defendant‟s entire argument in support of this issue states that “[t]he 

[a]ggravated [r]obbery offense was completed when property was removed from Mr. 

Tompkins‟s[ ] pockets. The [a]ttempted [f]irst [d]egree [m]urder was initiated when [the 

Defendant] allegedly told Mr. Tompkins to lie on the ground before shooting him in the 

fac[e].” We interpret the Defendant‟s argument to mean that his conviction must be 

modified because the robbery was completed before any serious bodily injury occurred. 

However, the Defendant again cites no legal authority in support of this proposition and 

his argument is directly contrary to this Court‟s holding, as stated above, that serious

bodily injury can occur subsequent to but in connection with a robbery. We have already

established that Tompkins suffered serious bodily injury, and Tompkins testified that the 

shooting began “25 or 30 seconds” after he was robbed and told to lie on the ground. 

Therefore, based on the evidence presented, a reasonable juror could conclude that
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Tompkins‟s serious bodily injury occurred directly subsequent to, if not

contemporaneous with, the robbery. The Defendant‟s argument must fail. 

II. Accomplice Instruction. Finally, the Defendant argues that the trial court 

erred by failing to rule that his co-defendant, James Martin, was an accomplice as a 

matter of law. The State responds that the trial court correctly determined that Martin‟s 

accomplice status was a factual determination for the jury. 

In Tennessee, it is well established that a conviction may not be based solely upon 

the uncorroborated testimony of an accomplice. State v. Shaw, 37 S.W.3d 900, 903 

(Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 

379 S.W.2d 34, 43 (Tenn. 1964)). An accomplice is a person who “knowingly, 

voluntarily, and with common intent participates with the principal offender in the 

commission of the crime alleged in the charging instrument.” State v. Griffis, 964 

S.W.2d 577, 588 (Tenn. Crim. App. 1997) (footnote omitted). To qualify as an 

accomplice, it is not enough that the witness possess guilty knowledge, be morally 

delinquent, or even have participated in a separate but related offense. See State v. 

Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). The test is whether the alleged 

accomplice could be indicted for the same offense with which the defendant is charged. 

State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995); Pennington v. State, 478 

S.W.2d 892, 897-98 (Tenn. Crim. App. 1971). This Court has previously considered the 

issue of whether the court or the jury determines a witness‟s status as an accomplice:

The question of who determines whether a witness is an accomplice 

depends upon the evidence introduced during the course of a trial. When 

the undisputed evidence clearly establishes the witness is an accomplice as 

a matter of law, the trial court, not the jury, must decide the issue. On the 

other hand, if the evidence adduced at trial is unclear, conflicts, or is subject 

to different inferences, the jury, as the trier of fact, is to decide if the 

witness was an accomplice. If the jury finds the witness was an 

accomplice, the jury must decide whether the evidence adduced was 

sufficient to corroborate the witness‟s testimony.

Griffis, 964 S.W.2d at 588 (footnotes omitted). In other words, if the evidence is clear 

and undisputed that a witness participated in the crime, then the trial court must declare 

the witness to be an accomplice as a matter of law and must instruct the jury that this 

witness‟s testimony must be corroborated; however, if the evidence is unclear, then the 

issue of whether a witness is an accomplice is a question of fact for the jury to decide, 

and if the jury decides that the witness is an accomplice, then it must determine whether 

there is sufficient evidence corroborating the witness‟s testimony. Id.; see Lawson, 794 

S.W.2d at 369; see also Bethany v. State, 565 S.W.2d 900, 903 (Tenn. Crim. App. 1978). 
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“Where the facts as to complicity of the witness are disputed and susceptible to different 

inferences the issue is one of fact for the jury.” See Green, 915 S.W.2d at 832 (citing 

Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975)). 

As an initial matter, we note that the jury instructions are not provided in the 

record on appeal. Likewise, the trial transcript provided on appeal omits the trial court‟s 

instructions to the jury. The record does reflect, however, that the Defendant made a 

written motion requesting a jury instruction on accomplice as a matter of law, which the 

court orally denied at trial. The trial court reasoned that there was a factual dispute as to 

Martin‟s accomplice status because Martin testified that he was not a voluntary or willing 

participant in the crime and was instead ordered to participate by the Defendant. 

Martin was named as a co-defendant in the same indictment as the Defendant and 

was charged, like the Defendant, with attempted first degree murder, aggravated assault, 

especially aggravated kidnapping, and especially aggravated robbery. However, the 

record is clear that Martin disputed his status as the Defendant‟s willing accomplice. 

Martin and Tompkins testified that the Defendant ordered Martin to search Tompkins and 

Martin testified that, when the Defendant tried to hand him a gun, he refused. Martin 

further testified that he “didn‟t think [he] had a choice” in helping the Defendant rob 

Tompkins because “[the Defendant] had a gun” and that he told the Defendant to “let 

[Tompkins] go.” Martin stated that he was “nervous” and “scared” and that he was 

following the Defendant‟s instructions because he “felt like [he] had to.” Martin also 

testified that he did not realize the Defendant‟s criminal intentions until he tried to hand 

him the gun and that they had not discussed any criminal plan beforehand.

The Defendant argues that, although Martin claimed he only participated in the 

crimes due to fear and at the Defendant‟s directions, “this claim is belied by Mr. 

Tompkins‟s testimony, which reflects a lack of hesitation on Mr. Martin‟s part.” The 

Defendant again provides no citations to the record in support of this assertion, and we 

likewise fail to understand how a “lack of hesitation” to comply with the Defendant‟s 

commands somehow proves Martin was an accomplice as a matter of law. Regardless, 

the Defendant is effectively asking this Court to again discredit the jury‟s determination 

of credibility as to the witnesses at trial and, as stated previously, we will not re-analyze 

the jury‟s credibility decisions on appeal. Upon a thorough review of the record, we 

conclude that the trial court properly submitted Martin‟s disputed accomplice status as a 

factual question to be determined by the jury. The Defendant is not entitled to relief.

CONCLUSION

We affirm the judgment of the trial court but remand the case for entry of a 

corrected judgment as specified in this opinion.
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____________________________________

CAMILLE R. McMULLEN, JUDGE