IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 19, 2023 at Knoxville

STATE OF TENNESSEE v. PERCY D. THOMPSON

Appeal from the Criminal Court for Davidson County

No. 2020-B-1005 Mark J. Fishburn, Judge

___________________________________

No. M2023-00051-CCA-R3-CD

___________________________________

Defendant, Percy D. Thompson, was indicted by a Davidson County Grand Jury for the 

attempted first degree murder (count one) and aggravated assault (count two) of his wife. 

Following a bench trial, Defendant was convicted of the lesser included offense of 

attempted second degree murder in count one, and aggravated assault as charged in count 

two. The trial court sentenced Defendant to twelve years for count one and ten years for

count two and merged the aggravated assault conviction into the attempted second degree 

murder conviction. Defendant appeals his convictions arguing the trial court failed to find 

him guilty of aggravated assault at the conclusion of the proof and therefore erred in 

sentencing him for count two and that the evidence was insufficient to support either of his 

convictions. Following our review of the record, including the briefs of the parties and the 

applicable law, we affirm the judgments of the trial court. 

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which TIMOTHY L. EASTER

and TOM GREENHOLTZ, JJ., joined.

Daniel J. Murphy, Lewisburg, Tennessee (on appeal), and Erin D. Coleman, Nashville, 

Tennessee (at trial), for the appellant, Percy D. Thompson.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Lody R. Powers, 

Assistant District Attorney General, for the appellee, State of Tennessee.

01/04/2024
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OPINION

Factual and Procedural Background

On February 16, 2020, the victim visited her mother, Ms. Thereasa Howse, after 

church. Ms. Howse had kept the children of the victim and Defendant for the weekend. 

Ms. Howse initially recalled the victim visiting her around 11:00 a.m., but later

acknowledged her “timing was off” when she remembered that the victim’s “church lets 

out around 1:00 [p.m].” Ms. Howse stated that the victim “didn’t appear to be happy at 

all” during the visit. Later that day after the victim had returned home, she called Ms. 

Howse and asked her to come over because she and Defendant were not “getting along” 

and their children were home. When she arrived, the victim and the children were in the 

victim’s vehicle parked in the driveway. Defendant was also in the driveway getting in his 

car, and he and the victim “had some words.” Ms. Howse told Defendant and the victim 

to “stop in front of the kids and for him to go on and cool off.” Defendant left at that point. 

When Defendant returned thirty to forty minutes later, the victim tried to keep him 

out of the house by re-locking the door each time he turned his key. When Defendant 

finally unlocked the door, he went upstairs and took off his shoes, jacket, and a gold 

necklace that he was wearing. He came back downstairs and began “rambling” and 

“pushed” the victim’s head with his finger, which started an argument between Defendant 

and Ms. Howse. They were “going back and forth,” and Ms. Howse left to go get her 

weapon from her vehicle because she was “afraid for [Defendant], and myself and [the 

victim] because he looked very upset. He looked very angry, and I was not going to let 

him hit her or me.” She also retrieved a can of wasp spray which she kept for self-defense. 

When she returned to the home, Defendant and the victim were “going back and forth” and 

the children were crying. Ms. Howse told the oldest child to take the two younger children 

upstairs and not to come back down. The victim took off running, Defendant ran after the 

victim, and Ms. Howse ran after him, but could not keep up. Defendant caught up to the 

victim, pulled her to the ground, and punched her in the face. Ms. Howse was “about two 

houses” away and when she finally caught up to them, the victim was unconscious on the 

ground, and Defendant was continuing to hit her and “blood and stuff was just coming out 

everywhere.” Ms. Howse sprayed Defendant in the face with the wasp spray. Then, she 

pulled out her gun, but could not get it to operate. She could not remember if that was 

before or after Defendant started running. 

Ms. Howse could not get her daughter up off the ground and realized she did not 

have her cell phone with her to call 911, so she went back to her car in the driveway to get 

her cell phone and called 911. The 911 call was played for the trial court. Ms. Howse told 

the operator that Defendant “chased my child, she was running, and he knocked her down 

on the ground, and he beat her, and now he’s down there holding her, and I can’t get this 
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safety off this gun.” She then saw Defendant pick up the victim and walk up the street with 

her in his arms. Defendant placed the victim on the ground leaning against Ms. Howse’s 

vehicle. Defendant went inside the house, came back with some clothes which he put in 

his car and drove off. After Defendant left, Ms. Howse helped the victim into the backseat 

of her car, where she remained until first responders arrived.

Ms. Howse also testified that her grandson had called her to the victim’s home in 

December 2019 when the victim and Defendant had an altercation. Her grandson had also 

called the police. Following that incident, the victim and one of the other children were 

transported to the hospital by ambulance and Defendant was arrested. 

On cross-examination, Ms. Howse admitted that at the preliminary hearing in this 

case, she testified that the children were in the car and not upstairs when the victim ran 

down the street with Defendant following her. She also testified at the preliminary hearing 

that she sprayed Defendant with pepper spray and held the gun to his face at some point. 

On February 16, 2020, Stephanie Miller, a neighbor of the victim and Defendant, 

heard screaming outside. When she looked out of her window, she saw the victim, who 

appeared to be unresponsive, on the ground, so she called 911. The 911 call was played 

for the trial court. Ms. Miller saw Defendant walk away from the victim, but then he came 

back and began dragging the victim before picking her up to carry her back toward the

house “on the corner[,]” which was the victim’s home. The victim was eventually able to 

slowly walk, but Ms. Miller did not see how the victim got to the ground. She admitted 

she did not see anyone other than the victim and Defendant. Ms. Miller saw Defendant get

into a black Nissan Versa and leave the scene with no lights on. 

Metropolitan Nashville Police Department (“MNPD”) Detective Melissa Flores 

responded to the 911 call and “tr[ied] to communicate [with the victim] to like keep her up, 

to wake her up, but there was nothing.” Detective Flores took several photos of the scene 

which showed blood on Ms. Howse’s car and on the sidewalk. Detective Flores did not 

recall if a can of wasp spray was recovered or if any weapons were confiscated because 

she “went straight to the car” and then traveled to the hospital with the victim. 

When Taylor Roper, a paramedic with Nashville Fire Department, arrived at the 

scene, the victim was “semi-responsive[;]” however “[t]hroughout the transport, her mental 

state decompensated to the point where she was not responding much to us at all.” The 

victim’s pre-hospital report, prepared by Ms. Roper and entered into evidence, noted that 

the victim’s Glasgow Coma Scale (GCS) declined during transport. Ms. Roper explained 

that the GCS is “a quantitative measure of how we document our findings of a patient’s 

mental state.” Ms. Roper assumed that the victim’s GCS declined “because of trauma, 

whether it be blood loss or neurological injury.”
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MNPD Officer Gabriel Centeno responded to the scene with Detective Flores. 

Officer Centeno testified that he was “made aware that [Defendant] was driving a vehicle. 

We obtained the vehicle tag. The tag came back to an address in Madison[, Tennessee].” 

Officer Centeno called Madison Police Department (“MPD”) officers and determined that

Ms. Peggy Thompson, Defendant’s mother, lived at the address. MPD officers detained 

Defendant and transported him to a meeting point Officer Centeno had arranged. Officer 

Centeno took photographs of Defendant which showed an injury to Defendant’s right hand 

and blood on his shirt. The photographs were admitted into evidence. Officer Centeno 

described Defendant as “not crying. Not upset. Just hostile.” Officer Centeno also recalled 

Defendant’s asking about the victim’s condition, but felt it was not from a “place of 

concern. More of information.” The officers debated removing Defendant’s handcuffs to 

photograph his hands, but because Defendant kept trying to pull away and resisting, they

decided to keep Defendant handcuffed. 

Ms. Thompson1recalled Defendant arriving at her house unannounced and visibly 

upset. Defendant did not immediately tell her what happened, but eventually told her Ms. 

Howse had pulled a firearm and “what happened . . . when he caught up with [the victim]. 

And then he realized what he was doing, and he stopped and . . . lifted her up and brought 

her back to the house.” Ms. Thompson said that Defendant went with the officers 

peacefully and did not resist arrest.

MNPD Detective Nathaniel Ellsworth responded to the hospital. He was in the 

victim’s room speaking with his sergeant and Detective Flores when they were asked to 

leave because “something happened medically[.]” Prior to being asked to leave, Detective 

Flores had taken photographs of the victim in the hospital. Those photographs were entered 

into evidence and showed extensive swelling across the victim’s entire face, especially her 

left eye. The victim had blood covering her face and she was intubated. 

Detective Ellsworth described Ms. Howse as “highly upset” when he interviewed 

her in the family waiting area at the hospital. After speaking with Ms. Howse, Detective 

Ellsworth made the decision to charge Defendant with attempted first degree murder and 

aggravated assault, and he wrote the warrants for Defendant’s arrest. Detective Ellsworth 

admitted that it was not normal protocol to move forward with charges without speaking 

to the victim first, but “[a]fter looking at [the victim’s] injuries, and . . . speakin[ing] with 

the doctor, it was the decision by me and my sergeant to go ahead and put the charges on 

him at that level.” Before leaving the hospital, Detective Ellsworth took photographs of 

Ms. Howse’s car showing blood smeared along the outside of the vehicle.

 

1

 Ms. Thompson testified by telephone without objection. 
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At trial, the victim testified that she had “no memory of what happened between me 

and [Defendant]. I just know I remember being in the back of the truck and waking up in 

the hospital [the next day].” When she woke up in the hospital, she was unable to speak 

because she was “kind of chained to the bed, and there was a thing in my throat.” She was 

in the hospital from Sunday, the day of the offense, through the following Saturday. The 

victim’s medical records showed that the doctor recorded her pain score three days after 

the offense as an eight out of ten; however, she had “no memory of pain.” The victim 

agreed that her medical records contained an accurate list of her injuries: “orbital floor 

(blow-out) close fracture[,]” “lamina papyracea fracture[,]” “nasal bone fracture[,]” “facial 

laceration[,]” “traumatic mudriasis[,]” “corneal abrasion[,]” “acute traumatic pain[,]” 

“inadequate oral intake[,]” “open fracture of left orbital floor[,]” and an “orbital floor 

deformity due to trauma, left[.]” The victim returned to the hospital twelve days after the 

offense for surgical repair of her left eye socket which required a titanium plate. On that 

date, her “[l]eft pupil remain[ed] fixed and dilated around 6 mm and [was] not reactive to 

light. Extraocular movements [were] very limited on the left[.]” In addition to the eye 

surgery, the victim had significant scarring which was treated with steroid shots. The 

steroid shots caused her face to “encave because of the steroid. And so[,] I had to go see a 

plastic surgeon[.]” She also had to get two back injections. The victim acknowledged that 

in December 2019, police were called to her house in response to a domestic incident; she 

and her middle child were transported to the hospital, and Defendant was arrested. 

Mr. Terry Faimon, the director of communication research court liaison for the 

District Attorney’s office, identified three recorded jail calls made between February 17, 

2020, and March 10, 2020, as being associated with Defendant’s PIN number. The calls 

were played for the trial court. In these calls, Defendant spoke primarily with his mother, 

and occasionally with his father. In the first call, Defendant asked Ms. Thompson to pick 

up his clothing before it was ruined and also asked what the news had said about the 

incident. Ms. Thompson told him that the victim remained unconscious in the hospital. In 

the second call, Defendant said that he “almost got away clean.” In the third call, Ms. 

Thompson told Defendant the victim had a broken eye socket and that “one eye is out.” 

Defendant told Ms. Thompson that Ms. Howse had been in court and she is “nothing but a 

liar.” Defendant said what he did to the victim was “unexplainable,” and he “broke down 

crying” when he saw the pictures of the victim. Defendant wanted to contact the victim,

but said that he would wait about a month so the victim could “calm down.” He asked Ms. 

Thompson to “three-way” the victim the next time he called her, but Ms. Thompson 

refused. Defendant said that the victim needed to understand that Ms. Howse “always 

[being] in our business is causing most of our problems.” 
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After a Momon2colloquy, Defendant chose not to testify. Ms. Thompson testified 

regarding what occurred at her house on the night of the offense. After the conclusion of 

all evidence, the trial court found Defendant guilty of aggravated assault as charged in 

count two:

Let’s get rid of the obvious that was proven without any question beyond a 

reasonable doubt, and that’s the serious bodily injury and the fact that it was 

inflicted upon [the victim] by [Defendant]. As you yourself can see, he’s 

guilty of the aggravated assault by serious bodily injury. And the court 

makes that finding and finds him guilty of that.

Regarding count one, attempted first degree murder, the trial court found that the 

State failed to establish premeditation and intent. The court noted that Defendant was 

unarmed, there was no evidence of animosity in the days preceding the incident, no 

preparation for the attack, Defendant carried the victim to where Ms. Howse could care for 

her, and he immediately asked about the victim’s condition when the police arrived. 

Ultimately, the trial court found Defendant guilty of the lesser included offense of 

attempted second degree murder stating, “So while I do not find that there’s premeditation, 

I do find that his acts were intentional and that he knew the consequences of his acts could 

be that she would die as a result of it.” 

At Defendant’s sentencing hearing on July 20, 2022, Defendant testified along with 

his pastors, his father, and the victim. All of the witnesses testified that Defendant would 

not benefit from incarceration because he had made significant strides in rehabilitating 

himself since the offense. Defendant asked the court to “find it in his heart to spare my life 

so that I can continue to help others” and said that it was “[d]rastically an understatement” 

to say he was sorry for what happened. Defendant spoke about the support that he had in 

his community through his church, and the relationships he had with the victim, his 

children, and his father. 

The State introduced Defendant’s presentence report (PSR) which included certified 

convictions for vehicular homicide by intoxication, vehicular assault, reckless aggravated 

assault, reckless endangerment with a deadly weapon, and leaving the scene of an accident 

involving death. The PSR also included a victim impact statement in which the victim 

stated that she did “not favor imprisonment due to the fact I will not receive . . . financial 

contributions with my children and [Defendant] needs mental help and addiction help.” 

 

2 Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (establishing the standard of knowledge a defendant 

must demonstrate to waive their constitutional right to testify). 
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MNPD Detective Abigail Malone also testified at the sentencing hearing and 

recalled responding to the victim’s house at least twice before this offense, including in 

December 2019 for a domestic disturbance. The victim did not ask for an order of 

protection on that date. Detective Ellsworth testified at the sentencing hearing that he has 

worked many domestic violence cases and was not surprised by the victim’s refusal to 

participate in the investigation because “[i]t’s a pattern of behavior that victims of domestic 

violence exhibit[.]” 

After hearing all testimony and arguments from the State and Defendant, the trial 

court indicated that it did not believe Defendant was eligible for an alternative sentence but 

gave the parties “a week or two to try and come up with some legal authority because I 

don’t think he can. If you can come up with it, I will consider it.” On August 24, 2022,3

the trial court entered judgments sentencing Defendant to twelve years for attempted 

second degree murder and ten years for aggravated assault, and merged the aggravated 

assault into the attempted second degree murder conviction.

 

Defendant filed a motion for new trial on September 21, 2022, and an amended 

motion for new trial on November 15, 2022, arguing in part that the trial court erred when 

it sentenced Defendant for aggravated assault because it did not find Defendant guilty of 

the offense. In its response, the trial court stated that “[a]lthough the court regrettably 

overlooked ruling on count [two],” it maintained jurisdiction over the case and found “its 

oversight to be more akin to taking a matter under advisement than a verdict of not guilty.”

The trial court denied Defendant’s motion.

Defendant filed a timely appeal, now properly before this court. 

Analysis 

Defendant argues that the trial court erred when it sentenced him for count two 

because it failed to find him guilty of aggravated assault. The State contends that the trial 

court properly sentenced Defendant for count two because the transcript and the court 

minutes reflect entry of a guilty verdict. We agree with the State. 

Defendant concedes that both the trial transcript and the court minutes clearly reflect 

that the trial court found Defendant guilty of aggravated assault. However, he asserts that

the trial court’s order denying his motion for new trial “openly acknowledges the opposite” 

and that the trial court’s silence on count two functioned as an acquittal. This argument is 

 

3

It appears, based on the date of the judgments and the briefs of the parties, that the trial court held 

another sentencing hearing on this date. However, the record does not contain a transcript from this hearing, 

nor is there an order reflecting the trial court’s reasoning for the sentences. This missing transcript does 

not affect our analysis because Defendant does not appeal the length or manner of his sentence. 
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without merit. First, despite what the trial court said in ruling on the motion for new trial, 

the transcript clearly reflects that the court found Defendant guilty of aggravated assault as 

charged in count two. Further, as stated by our supreme court, “the court minutes are the 

highest evidence of what is done in the court, . . . and are conclusive unless attacked for 

fraud.” State v. Byington, 284 S.W.3d 220, 225-226 (Tenn. 2009) (quoting Dyer v. State, 

79 Tenn. 509, 514 (Tenn. 1883)). The court minutes in this case clearly reflect that the 

trial court found Defendant guilty of aggravated assault as charged, and Defendant does 

not argue that the court minutes are fraudulent. Defendant is not entitled to relief on this 

issue. 

Defendant next argues that the evidence is insufficient to support either of his 

convictions. Defendant contends that the State did not introduce sufficient proof to 

establish that he acted with “the intent to knowingly kill the victim[,]” or that the victim 

was “ever on the verge of dying or on life support.” Defendant further contends that Ms. 

Howse’s testimony at trial was inconsistent with her preliminary hearing testimony and 

statements to 911 such that it was “so improbable or unsatisfactory as to create a reasonable 

doubt” of Defendant’s guilt. The State asserts that Defendant has waived this argument 

because he failed to adequately cite to the record in the argument section of his brief. 

Alternatively, the State argues that the evidence is sufficient to sustain Defendant’s 

convictions. We agree that the evidence is sufficient to sustain Defendant’s convictions. 

Pursuant to Tennessee Rule of Appellate Procedure 27(a)(7), a defendant appealing 

a conviction must set forth an argument for each issue which includes “the reasons why 

the contentions require appellate relief, with citations to the authorities and appropriate 

references to the record[.]” Tenn. R. App. P. 27(a)(7). Further, any “[i]ssues which are 

not supported by argument, citation to authorities, or appropriate references to the record 

will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). As the State points 

out, Defendant does not cite to the record in the argument section of his brief. However, 

Defendant does cite to the record in his statement of facts and makes “appropriate 

references to the record” throughout his argument section to support his contentions. See 

State v. Toles, No. W2018-01175-CCA-R3-CD, 2019 WL 2167835, *10 (Tenn. Crim. 

App. May 17, 2019) (finding the defendant’s arguments not waived because the statement 

of facts properly cited to the record in support of his arguments even though the argument 

section did not contain citations). Accordingly, Defendant’s sufficiency argument is not 

waived, and we will address its merits. 

When evaluating the sufficiency of the evidence on appeal, the relevant question 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.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson 

v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). The standard of review 
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is the same whether a conviction is based on 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)). A “criminal defendant bears the burden on appeal of showing that the 

evidence was legally insufficient to sustain a guilty verdict” because “a verdict of guilt 

removes the presumption of innocence and raises a presumption of guilt[.]” State v. 

Shackleford, 673 S.W.3d 243, 250 (Tenn. 2023) (citing Hanson, 279 S.W.3d at 275). 

Further, the State is afforded “the strongest legitimate view of the evidence as well as all 

reasonable and legitimate inferences which may be drawn therefrom.” State v. Davis, 354 

S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). 

“In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal 

as a jury verdict.” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (citing 

State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978)). The judge evaluates the credibility 

of the witnesses, determines the weight to be given to witnesses’ testimony, and reconciles

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 judge

determines the weight to be given to circumstantial evidence, the inferences to be drawn 

from this evidence, and the extent to which the circumstances are consistent with guilt and 

inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 

S.W.3d 646, 662 (Tenn. 2006)). A guilty verdict “accredits the testimony of the witnesses 

for the State and resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 

958 S.W.2d 651, 659 (Tenn. 1997). This court “neither re-weighs the evidence nor 

substitutes its inferences for those drawn by the [judge].” Wagner, 382 S.W.3d at 297 

(citing Bland, 958 S.W.2d at 659). 

First, Defendant contends that the State relied on the “blatantly perjured” testimony 

of Ms. Howse to obtain both of his convictions. He argues that the inconsistencies between 

Ms. Howse’s testimony at the bench trial, her preliminary hearing testimony,4and her 

statements to the 911 operator create reasonable doubt of his guilt. He further asserts that 

without her testimony, there is no other evidence that he was the person who inflicted the 

victim’s injuries. Ordinarily, inconsistencies in witness testimony do not disturb a guilty 

verdict unless they are “so improbable or unsatisfactory as to create a reasonable doubt” of 

guilt. Busby v. State, No. M2012-00709-CCA-R3-PC, 2013 WL 5873276, *16 (Tenn. 

Crim. App. Oct. 30, 2013) (quoting State v. Radley, 29 SW.3d 532, 537 (Tenn. Crim. App. 

July 15, 1999)). Defendant correctly points out that the trial court recognized various 

inconsistencies in Ms. Howse’s testimony regarding the location of the children during the 

 

4 We note that the trial transcript states that “a portion of the [preliminary hearing] recording was 

played” during the trial, but the record does not include the audio recording or a transcript of the portion 

played at trial. In his brief, Defendant indicates his intention to “amend” the appellate record to include 

this recording. However, no motion to supplement the record was filed. Thus, we will rely on the questions 

and answers that appear in the transcript of the bench trial. 
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altercation and whether she aimed her firearm at Defendant. However, after 

acknowledging these inconsistencies, the trial court found Defendant guilty, thus crediting 

Ms. Howse’s testimony. See Bland, 958 S.W.2d at 659. The inconsistencies are not so 

improbable or unsatisfactory as to create reasonable doubt, and this court will not second 

guess the trial court’s credibility determinations. See Wagner, 382 S.W.3d at 297. 

Defendant is not entitled to relief under this theory. 

Second degree murder is a “knowing killing of another.” T.C.A. § 39-13-210(a)(1). 

A person acts “knowingly” when he is “aware that the conduct is reasonably certain to 

cause the result[,]” even if the result is not his desire. T.C.A. § 39-11-302(b); State v. Kelly, 

34 S.W.3d 471, 478 (Tenn. Crim. App. 2000). The trier of fact must determine whether a 

defendant acted “knowingly.” State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010). Further, 

intent “may be deduced or inferred by the trier of fact from the character of the assault, the 

nature of the act and from all the circumstances of the case in evidence.” State v. Inlow, 

52 S.W.3d 101, 105 (Tenn. Crim. App. 2000) (citing State v. Holland, 860 S.W.2d 53, 59 

(Tenn. Crim. App. Dec 30, 2013)).

A person commits criminal attempt who, acting with the kind of culpability 

otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an 

offense, if the circumstances surrounding the conduct were as the person 

believes them to be;

(2) Acts 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; or

(3) Acts with intent to complete a course of action or cause a result that would 

constitute the offense, under the circumstances surrounding the conduct 

as the person believes them to be, and the conduct constitutes a substantial 

step toward the commission of the offense. 

T.C.A. § 39-12-101.

As relevant to this case, an assault is committed when a person knowingly “causes 

bodily injury to another.” Id. § 39-13-101(a)(1). Aggravated assault is the assault of 

another which results in serious bodily injury. Id. § 39-13-102(a)(1)(A)(i). Serious bodily 

injury includes “[p]rotacted unconsciousness,” “extreme physical pain,” and “protracted or 

obvious disfigurement.” Id. § 39-11-106(a)(37). Further, “the distinction between ‘bodily 

injury’ and ‘serious bodily injury’ is generally a question of fact for the jury and not one 
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of law.” State v. Love, No. E2011-00518-CCA-R3-CD, 2011 WL 6916457, *4 (Tenn. 

Crim. App. Dec. 28, 2021) (quoting State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. 

App. Feb. 28, 1997)).

Relative to both convictions, Defendant contends that there is no evidence, other 

than Ms. Howse’s inconsistent testimony, that he was the one who caused the victim’s 

injuries or “whether she sustained her injuries while face vaulting face forward to hard 

pavement.” As stated above, this court will not second guess the trial court’s finding that

Ms. Howse’s testimony was credible. Regardless, in addition to Ms. Howse’s testimony, 

there is sufficient evidence to support a reasonable finding that Defendant caused the 

victim’s injuries. Ms. Miller reported to the 911 operator that she saw a man with the 

victim get into a black Nissan Versa to drive away from the scene. That vehicle was 

registered to Ms. Thompson’s house where Defendant was located. Ms. Thompson 

testified that Defendant was upset when he arrived at her house and he later informed her 

that he had attacked the victim until “he realized what he was doing, and he stopped[.]” 

When police arrested Defendant at Ms. Thompson’s house, he still had blood on his shirt

and had an injured hand. Further, Defendant admitted multiple times in the recorded jail 

calls that he was responsible for the victim’s injuries. The evidence was sufficient to prove 

that Defendant caused the victim’s injuries. 

Defendant further asserts that the State failed to introduce evidence that the victim 

“was ever on the verge of dying or on life support” to support his conviction for aggravated 

assault. Defendant concedes in his brief that “it is true that the victim was unconscious as 

a result of her injuries.” The evidence confirms that the victim suffered extensive injuries 

which required a six-day hospitalization and multiple surgical procedures. Detective 

Flores testified that the victim was unconscious when first responders arrived on scene, 

and Ms. Roper testified that the victim again became unresponsive during transport. The 

victim had no memory of the attack; she remembered “being in the back of the truck and 

waking up in the hospital.” The victim remained unconscious and was intubated for several 

days. She had multiple facial fractures, extensive facial swelling, and soft tissue contusions 

and lacerations. While the victim did not recall her pain, the medical records indicate that 

several days after the attack, she had a pain score of eight out of ten. 

Further, the victim’s left pupil remained “fixed and dilated” for twelve days after 

the offense. See State v. Stanton, No. M2003-03049-CCA-R3-CD, 2005 WL 639139, *7 

(Tenn. Crim. App. Mar. 17, 2005) (finding serious bodily injury when the victim suffered 

from loss of vision in one eye for over a week); State v. Howard, No. W2014-02488-CCAR3-CD, 2016 WL 3131515, *7 (Tenn. Crim. App. May 26, 2016) (finding serious bodily 

injury when victim suffered a “fracture between her eye socket and her brain[,]” her eye 

was bruised and swollen shut, and she had loss of vision); State v. Mosley, No. M2022-

00441-CCA-R3-CD, 2023 WL 2662352, *4 (Tenn. Crim. App. Mar. 28, 2023) (finding 
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serious bodily injury when the victim temporarily lost vision in her left eye, could not open 

her eye for multiple days, and experienced blurry vision when she could open her eye), 

perm. app. denied (Tenn. June 28, 2023); State v. Baker, No. M2018-02221-CCA-R3-CD, 

2019 WL 4899761, *4 (Tenn. Crim. App. Oct. 4, 2019) (finding serious bodily injury when 

“the victim suffered a broken nose and a fractured orbital bone”). The extensiveness of the 

victim’s injuries, including her prolonged unconsciousness, and multiple fractures and 

surgeries, was sufficient evidence to support a finding that the victim suffered serious 

bodily injury. 

Finally, regarding his conviction for attempted second degree murder, Defendant 

contends that the State failed to prove that he acted with the intent to knowingly kill the 

victim. While the trial court did not specify which section of criminal attempt it applied in 

its analysis, the evidence supports the trial court’s finding beyond a reasonable doubt that 

Defendant had the intent to commit a knowing killing and took a substantial step toward 

that goal. See T.C.A. § 39-12-101(a)(3); State v. Miller, 638 S.W.3d 136, 160 (Tenn. 2021) 

(“To prove attempted second-degree murder, the State was required to prove that the 

defendant took a substantial step toward committing a knowing killing of Mr. Austin. . . . 

Thus, as for the defendant's intent, the State was only required to prove that the defendant 

knew his actions were reasonably certain to cause Mr. Austin's death.” (emphasis in 

original)). The evidence showed a history of domestic violence between the victim and 

Defendant. Defendant argues that he was provoked, but there is no proof of provocation 

by the victim; the only proof of provocation was by Ms. Howse who sprayed Defendant 

with wasp spray and retrieved her firearm. Defendant ran after the victim and after catching 

her, “slung” her to the ground and repeatedly struck her, causing the serious injuries 

discussed above. Defendant claims that he attempted to save the victim by carrying her 

back to the house; however, his argument ignores the fact that he caused the victim’s 

injuries and he was seen dragging the victim up the street. 

The evidence was sufficient to support Defendant’s convictions for attempted 

second degree murder and aggravated assault. Defendant is not entitled to relief. 

Conclusion 

For the foregoing reasons, we affirm the judgments of the trial court. 

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JILL BARTEE AYERS, JUDGE