IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 29, 2012

STATE OF TENNESSEE v. JONATHAN CURTIS AUSTIN

Direct Appeal from the Criminal Court for Greene County

No. 11CR063 John F. Dugger, Jr., Judge

No. E2011-01389-CCA-R3-CD - Filed August 30, 2012

Defendant, Jonathan Austin, was indicted by the Greene County Grand Jury for one count

of aggravated assault, a Class C felony. Following a jury trial, Defendant was convicted as

charged. On appeal, Defendant argues that the evidence at trial was insufficient to support

his conviction. After a careful review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JERRY L. SMITH and

ROGER A. PAGE, JJ., joined.

Paul Whetstone, Morristown, Tennessee, for appellant, Jonathan Curtis Austin.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Greg W. Eichelman, District Attorney General; Ritchie Collins, Assistant District

Attorney General; and Cecil Mills, Assistant District Attorney General, for the appellee, the

State of Tennessee.

OPINION

Facts

On August 25, 2010, Adam Arrington, with the Third Judicial Drug Task Force, was

conducting a controlled purchase of “pills” with confidential informant Kara Short. Agent

Arrington searched Ms. Short, gave her money for the purchase, and “wired” her with two

audio recorders. Ms. Short then called Katie Griffin and arranged to meet her in the parking

lot of a store to buy the pills. Ms. Griffin “was going to be a middle man.” Agent Arrington

watched Ms. Short get into a vehicle with Ms. Griffin, and Ms. Griffin drove to a driveway
approximately 20 feet from the intersection of Old Knoxville Highway and Ely Road. As

they drove away, Agent Arrington “lost communication with the informant” and could no

longer hear the audio. He testified that he was not concerned because “[he] could call them

on the telephone if [he] needed to talk to her or she thought something was wrong she could

have called [him].” Agent Arrington followed them and parked on Ely Road to “monitor the

situation.” As he drove past, he saw Defendant standing beside Ms. Griffin near the driver’s

side of Ms. Griffin’s vehicle. He testified that Defendant’s back was to him, and as he drove

by, he got “a real quick look.” Agent Arrington testified that “it looked like a drug deal,” and

he continued driving to the next road on the right, where he parked and waited a “few

moments” before he drove back toward the intersection. He saw Ms. Griffin’s vehicle

driving toward the store where Ms. Griffin had picked up Ms. Short, and he drove back to

the meeting place to wait for Ms. Short.

When Ms. Short arrived, she was crying and distraught and “physically shaken.”

Agent Arrington had to light Ms. Short’s cigarette because she was shaking so badly. He

reassured her that she was safe, and after approximately 25 minutes and “three or four

cigarettes later,” Ms. Short gave a statement to Agent Arrington. In her statement, Ms. Short

wrote:

[Katie Griffin] called [Defendant] and he couldn’t get a ride so we went to

his house[.] Katie got out of the car [and] handed him the money.

[Defendant] pulled out a gun[,] pointed it at Katie[,] and told us to get out

of there. I saw the gun so we left. It was a black revolver. She took me

back to my truck at the store and I met back with [Drug Task Force Agents].

In another statement, Ms. Short wrote, “I was afraid for my life when I was with Katie

[Griffin] and [Defendant] pulled a revolver on Katie and pointed it at me.” Agent Arrington

did not see Defendant holding a gun. Agent Arrington testified, “When I was coming around

the curve on the old Knoxville Highway and seen [sic] them standing over there, it appeared

to me nothing more than they’re buying pills. The same way it’s looked every other time.”

Bobby Daniel Ely testified that he was a dairy farmer in Mosheim, and Defendant

worked for him. Mr. Ely testified that he carried a gun, a .38 revolver, with him to the milk

barn for protection. He kept the gun in a “gun bag” on the table, and he “just carried it out

as [he went] and lay it in the truck, and when back in the house [he] laid it back on the table.”

On August 25, 2010, while he and Defendant were working on the property, Ms.

Griffin text messaged Mr. Ely and asked him to participate in “[a] fake robbery.” She asked

him to “pull a gun on somebody and take money from them.” Mr. Ely refused and “went on

working and didn’t thin[k] anymore of it.” Defendant was with Mr. Ely when he received

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the call. Defendant asked Mr. Ely if he was going to do it, and Mr. Ely said, “no.”

Defendant said, “I will if you don’t want to.” Mr. Ely continued working, and Defendant

worked with him. Then, Defendant “disappeared for about fifteen, twenty minutes there,

once.” When Defendant returned, Mr. Ely asked where he had been and Defendant told him

that “he went and helped with the fake robbery and [Defendant] said, ‘I put your gun back

in the truck.’” Mr. Ely did not see what happened. They continued working until “milking

time,” when Mr. Ely drove Defendant to the feed store to meet “Katie and Tony.” Mr. Ely

did not hear their conversation. Later that evening, Defendant gave Mr. Ely one hundred

dollars. Mr. Ely testified that Defendant “owed [him] money on a car [he] had loaned him.”

At approximately 1:30 a.m., Mr. Ely spoke to Agent Arrington, who wrote a statement

for Mr. Ely and read it to him because Mr. Ely does not read very well. Mr. Ely testified that

Agent Arrington had written that Mr. Ely gave a gun to Defendant; however, Mr. Ely asked

Agent Arrington to correct the statement because he did not give Defendant a gun.

Kara Short testified that she was working as a confidential informant for the Drug

Task Force on August 25, 2010. Her code name as a confidential informant was Romeo Cox.

She met with Agent Arrington and Kim Davis, and she was wired with an audio recorder and

given one hundred dollars to purchase drugs. She then drove to meet Katie Griffin. Ms.

Short got into Ms. Griffin’s vehicle, and they drove to a location where Ms. Short believed

they were going to buy drugs.

Ms. Short testified that when they drove to meet Defendant, Defendant was standing

beside the road. Ms. Short gave Ms. Griffin the money, and Ms. Griffin got out of the

vehicle. Ms. Short testified, “[Defendant] started to get loud, and when I looked out the

window he had a gun in his hand.” Defendant pointed the gun at them and shouted at them

to “get out of here.” Ms. Griffin got into the vehicle, and they drove away.

The following was recorded:

Defendant: What the f[ ]. Get the f[ ] out of here. Who the f[ ] you got

up here? I’ll f[ ]ing blow your goddamn brains out. You

don’t bring mother f[ ]ers up here like that. What the f[ ]?

Ms. Griffin: Dude, Jonathan, what the f[ ] is that?

Defendant: Go back home.

Ms. Short: What the hell?

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Ms. Griffin: [ ]damn.

Ms. Short: What the f[ ] is his problem?

Ms. Griffin: They . . . oh.

Ms. Short: I thought you said it was okay.

Ms. Griffin: He told me it was. Holy f[ ]. I’m going to have a f[ ]ing

heart attack. I have never had a f[ ]ing gun pulled on me

Kara.

Ms. Short: Does he have my money?

Ms. Griffin: Yeah.

Ms. Short: He’s got my money.

Ms. Griffin: Yeah.

Ms. Short: And he pulled a f[ ]ing gun on you.

Ms. Griffin: Yeah. Oh my god.

Ms. Short: That’s f[ ]ed up. Now I am going to have to pay this dude

back.

Ms. Griffin: No, you’re not. I will.

Ms. Short: [ ]damn it, dude.

Ms. Griffin: Dude, he cocked that mother f[ ]er and everything. He was

serious, wasn’t he?

Ms. Short: Yeah, and he sure did have a f[ ]ing gun, dude.

Ms. Griffin: Oh my.

Ms. Short: This is twice in a row. This is bull[ ]. I’m gonna go to the [

]damn house. I am not going to f[ ]ing move.

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Ms. Griffin: I’ve got the money back at the house to pay you back, Kara.

F[ ] I’d rather pay somebody back than get my [ ]damn brains

blowed out.

Ms. Short: I see you on that one.

Ms. Griffin: You know that black truck right there has been following us.

It went the other way. They was at the store. Wonder what

the hell is up with that?

Ms. Short: Your guess is as good as mine.

Ms. Griffin: Huh?

Ms. Short: I said your guess is as good as mine. I have to f[ ]ing text

him and tell him I lost his [ ]damn money.

Now I ain’t never gonna get my car out of impound.

[Phone ringing]

Hello? Yeah, I’m coming home, but guess what? Dude

pulled a gun on us. No, I’m not kidding. He had a f[ ]ing

gun in his hand and cocked it and all.

Ms. Griffin: Stuck it right in my face.

Ms. Short: Stuck it right in Katie’s face. Yeah, we’re okay. Okay.

Alright. Bye.

They returned to the store where Ms. Short left her truck. After Ms. Short walked

away from Ms. Griffin, Ms. Short got back inside her vehicle and said, “Great. I can’t

believe that mother f[ ]er pulled a f[ ]ing gun. A f[ ]ing gun. A big black gun. And I’ll show

you where that mother f[ ]er lives. That is some crazy bullsh[ ].” Ms. Short believed she

“was getting robbed.” She thought that Agent Arrington could hear the exchange and

expected him to help her. When Ms. Short returned to the meeting place where the agents

were, she was shaking. She told the agents that Defendant pointed the gun in her “general

direction.” Ms. Short has not acted as a confidential informant since the incident. She

testified, “That was it for me . . . I’m not doing that. I’m not putting my life in danger like

that.” Ms. Short did not know that Ms. Griffin was involved in planning the incident. She

testified that she asked Ms. Griffin if Defendant had pulled a gun on her because she thought

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that the Drug Task Force agents were listening to her. She wanted the agents to hear her say

that there was a gun.

Katie Griffin testified that on August 25, 2010, Ms. Short called her, “asking to

purchase some Roxycodones.” Ms. Griffin “made a couple of phone calls” and met up with

Ms. Short. They drove to a gas station, but “no one showed up.” She called Mr. Ely and

asked if he had any pills, and he said yes. As she drove to Mr. Ely’s property, she noticed

a truck that looked “suspicious,” and she “got scared.” She “sent a text message to them

telling them that [she] was worried about the deal and when [she] got there to act like they

were robbing [her].” When they arrived, Ms. Griffin stepped out of her car and handed

Defendant a one hundred dollar bill. Defendant “pulled the gun out of his waist and pointed

it at me and started screaming and going on.” She testified that she got back into her car, and

Ms. Short asked, “What the f[ ] is going on? Did he just pull a gun on you?” Ms. Griffin

testified that she set up the fake robbery “to just get the money where [she] was strung out

on drugs.” She testified that she “got scared and didn’t want to do it but [she] went and done

it anyway.”

Ms. Griffin acknowledged that she did not know whether Ms. Short had seen the gun;

she testified, however, “I don’t think the girl is going to lie about seeing the gun, though.”

She testified that when she got back inside her car, Defendant “still had the gun out. There

is a very good possibility that she did see that gun.”

Defendant testified that he was 29 years old and had completed tenth grade. He

testified that he “worked [his] entire life.” He began working at age nine cleaning up at

roofing jobs with his father, and he had worked various jobs since then. Defendant denied

ever having sold drugs. Defendant began working at Mr. Ely’s dairy farm two or three

months before this incident. Defendant testified that he had met Ms. Griffin one time prior

to this incident. He went to her apartment with Mr. Ely, and Ms. Griffin “was doing him

favors for the pills.”

On August 25, 2010, Defendant was working for Mr. Ely. Mr. Ely told Defendant

that Ms. Griffin had called him and told him that she wanted “to make it look like he robbed

her,” and Mr. Ely asked Defendant if he would do it for him. Defendant testified, “Foolishly,

I said yes.” Defendant testified that Mr. Ely gave him the pistol out of his truck. Defendant

and Mr. Ely stood beside Mr. Ely’s truck and waited for Ms. Griffin to arrive. When they

saw her, Mr. Ely told Defendant to meet her at the end of the driveway. Defendant admitted

that it was his voice on the audio recording. Defendant testified that the gun was in his

waistband and that his shirt was covering it. Ms. Griffin got out of her car and handed

Defendant the money. Defendant testified that Ms. Griffin “wanted [him] to tell her to get

out of [there] because of the woman in the car.” Defendant testified that he pulled his shirt

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up to reveal the gun, but he “never pulled the gun out of [his] waist, never.” Defendant

testified that he could not see Ms. Short, and he was “trying to stay out of sight of

everybody.” Defendant gave Mr. Ely the one hundred dollar bill that Ms. Griffin gave him.

He testified that he participated in the fake robbery because Mr. Ely asked him to do it.

Officer Kenny Carter testified that he had sworn out a warrant against Ms. Griffin.

In his affidavit, Officer Carter stated that on March 20, 2011, Ms. Griffin called the police

and reported thatsomeone was breaking into her apartment, butshe was not at her apartment.

An investigation revealed that Ms. Griffin had been in the apartment, and she reported a

burglary “due to [a] dispute over clothing involving Christie Phipps.” The affidavit also

stated that Ms. Griffin had “further misled police stating that Stacey Shelton was not inside

the apartment. Shelton was found hiding in a closet due to an outstanding violation of

probation.” Ms. Griffin was charged with a felony and later pled guilty to disorderly

conduct, a misdemeanor.

Joann Bowman testified that Defendant’s sister was married to her son, and she had

known Defendant for 16 years. She testified that she believed Defendant was an honest

person.

Analysis

On appeal, Defendant asserts that the evidence at trial was insufficient to support his

conviction for aggravated assault. Specifically, Defendant argues that “the only reasonable

conclusion” based on the evidence is that Ms. Short did not see a gun, and consequently, she

could not have been in fear. Therefore, Defendant contends, the State failed to prove an

element of the offense.

Our standard of review regarding sufficiency of the evidence 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 a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds

a defendant guilty, the presumption of innocence isremoved and replaced with a presumption

of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant

has the burden on appeal of demonstrating why the evidence was insufficient to support the

jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does

not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits

the testimony of the witnesses for the State and resolves all conflicts” in the testimony and

all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence and

all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation

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omitted). This standard of review applies to guilty verdicts based upon direct or

circumstantial evidence. State v. Dorantes, 331 S .W.3d 370, 379 (Tenn. 2011) (citing State

v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted

the United States Supreme Court standard that “direct and circumstantial evidence should be

treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,

the evidence need not exclude every other reasonable hypothesis except that of the

defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.

Id.

A person commits aggravated assault when he or she knowingly commits an assault

and uses or displays a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(A)(ii). A person

commits assault when he or she knowingly causes another to reasonably fear imminent

bodily injury. Tenn. Code Ann. § 39-13-101(a)(2).

In a light most favorable to the State, the evidence at trial established that Ms. Short,

acting as a confidential informant, and Ms. Griffin met Defendant to purchase drugs. When

they arrived, Ms. Griffin stepped out of her vehicle, and Defendant began yelling at her.

Defendant pulled out a gun and pointed at Ms. Griffin. Ms. Short, who remained inside the

vehicle, saw the gun in Defendant’s hand. She testified that she saw the barrel and “the

revolver part.” She testified that Defendant pointed the gun in her “general direction . . .

enough for [her] to know what the gun looked like and see the tip of the barrel, like [her]

eyes were looking into it.” After the incident, Ms. Short was visibly shaken and upset.

Defendant asserts that Ms. Short’s testimony at trial that she saw the gun should not

be believed because it “emanated from the vocal apparatus of one who made a living by

assuming a false identity under false pretenses, [and] is beset with an abundance of counterveiling proof.” Defendant attempts to discredit Ms. Short based on the audio recording, in

which she stated, “And he pulled a f[ ]ing fun on you?” Defendant contends that the audio

recording makes it obvious that Ms. Short did not see a gun and was not in fear. Ms. Short

testified at trial, however, that she believed the Drug Task Force agents could still hear her,

and she wanted them to hear her say that there was a gun. Ms. Short is also heard saying,

“Yeah, and he sure did have a f[ ]ing gun, dude.” Then, she described the gun as a “big black

gun” although Ms. Griffin had not mentioned the color or type of gun.

In his argument, Defendant relies upon facts which were placed before the jury. His

argument is essentially nothing more than a challenge to the weight and credibility of the

evidence admitted. All of this evidence was put before the jury at trial through the

presentation of witnesses, exhibits, and cross-examination by the defense. It is the jury’s

responsibility to determine the credibility of the witnesses and the weight to be given their

testimony. This Court will not reweigh the evidence or substitute its inferences for those of

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the trier of fact. The jury in this case heard the testimony of all witnesses and viewed and/or

listened to the exhibits. Based on the jury’s verdict, the jury accredited the testimony of the

State’s witnesses and rejected the defendant’s claim. Defendant is not entitled to relief.

CONCLUSION

The judgment of the trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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