IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 14, 2010

STATE OF TENNESSEE v. TONY STEWART

Appeal from the Circuit Court for Madison County

No. 08-709 Roy B. Morgan, Jr., Judge

No. W2010-00133-CCA-R3-CD - Filed March 7, 2011

The Defendant, Tony Stewart, was indicted for attempted first degree murder, aggravated

assault, coercion of a witness, and misdemeanor evading arrest. After a jury trial, the

Defendant was convicted of attempted second degree murder, aggravated assault, coercion

of a witness, and misdemeanor evading arrest. In this appeal as of right, the Defendant

contends that the evidence was insufficient to sustain his convictions. Following our review,

we affirm the judgments of the trial court.

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

Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ALAN E. GLENN and

J.C. MCLIN, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District

Public Defender; and Susan D. Korsnes, Assistant Public Defender (at trial), attorneys for

the appellant, Tony Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens,

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

OPINION

At trial, the State presented proof that on September 1, 2008, the Defendant beat and

stabbed the victim, Virginia Greer, outside the Regional Inter-Faith Association (RIFA)soup

kitchen in Jackson, Tennessee. The victim testified that a few weeks prior to the attack, the

Defendant approached her on the street, pointed his finger at her, and spoke to her “with an
attitude,” so she stabbed him with a pair of scissors she kept in her purse. After she stabbed

him, the Defendant chased her with a two-by-four until she was able to lock herself in a car.

The victim never reported this prior incident to the police. The victim testified that on

September 1, 2008, she was eating at the RIFA soup kitchen when the Defendant sat down

at a table in front of her and said, “I’m going to get you.” The victim immediately got up and

went outside to call the police from a pay phone. However, the pay phone she was going to

use had been removed. The victim was walking towards another pay phone location when

she came across an acquaintance, Charles Merriwether. The victim asked Mr. Merriwether

if she could use his cell phone, and he agreed.

The victim testified that she had just pressed the number nine when the Defendant

came around the corner with a knife and said, “Oh, you want to cut somebody.” The

Defendant then stabbed her in the abdomen. The victim raised her arms to protect herself,

and the Defendant cut the victim on her arm before she fell to the ground. As the victim

attempted to get back up, the Defendant stabbed her in the back, kicked her, and beat her.

The Defendant then ran from the scene, and the victim got up and chased after the Defendant,

telling Mr. Merriwether to call the police. As the victim ran down the street, she approached

F. D. Freeman and told him that the Defendant had stabbed her and that she could hardly

breath. Mr. Freeman testified that he saw the Defendant carrying a metal object and that the

Defendant told him “If you think you want to do something, you’ll get the same thing.” The

victim then collapsed on the street, and Mr. Freeman stayed with her until the police arrived.

At trial, the victim, Mr. Merriwether, and Mr. Freeman identified the Defendant as the

attacker.

Officer Rochelle Staten of the Jackson Police Department was the first police officer

to respond to the scene. Officer Staten testified that when she arrived on the scene, the

victim was bleeding profusely and was having trouble breathing. Officer Staten radioed that

the victim needed medical treatment. The victim was able to give Officer Staten a

description of the Defendant, and Officer Staten went to search for the Defendant while

another officer stayed with the victim. A few minutes later, Officer Staten was in her patrol

car when she spotted the Defendant walking down the street. Officer Staten pulled over and

got out of the car to stop the Defendant, when he “took off running.” Officer Staten and

several other officers gave chase and the Defendant was apprehended approximately a mile

from where Officer Staten had left the victim. Officer Staten testified that when the

Defendant was finally caught, he resisted arrest. Madison County Sheriff’s Deputy Jason

Maness testified that the Defendant stated repeatedly, “I wished I had killed the bitch” as he

was being processed at the Madison County Jail.

The victim was taken to Jackson-Madison General Hospital where she was treated for

a collapsed lung and multiple stab wounds. The victim’s treating physician, Dr. Leslie

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Stewart, testified that when the Defendant stabbed the victim in the abdomen, the blade

punctured her right lung, causing the lung to collapse. Dr. Stewart testified that a collapsed

lung is a life-threatening injury and “uniformly fatal unless treated.” Dr. Stewart further

testified that a wound to the abdomen, like the one suffered by the victim, is a lifethreatening injury and is commonly referred to as an “assassin’s wound” because of all the

major organs, arteries, and blood vessels in that area of the body. In addition to treating the

victim’s collapsed lung and abdominal stab wound, Dr. Stewart also treated the victim for

a stab wound on her back and “defensive wounds” on her arm. The victim spent three days

in the hospital being treated for her injuries.

The victim, in addition to admitting that she had stabbed the Defendant a few weeks

before the attack, also admitted at trial that she was incarcerated for violating her probation

for convictions of simple drug possession and possession of drug paraphernalia. The victim

admitted that at the time of the attack, she was a frequent drug user and that her only source

of income was prostitution and hustling. The victim further admitted that the day before the

attack she had smoked crack cocaine. However, the victim denied that her drug use the prior

day had any impact on her the day of the attack. The victim also denied that she and the

Defendant had been asked to leave the RIFA soup kitchen for causing “a ruckus.” The

victim further testified that she did not have any weapons with her that day and that she did

not threaten the Defendant prior to his attack on her on September 1, 2008.

The trial court provided a jury charge on self-defense as requested by defense counsel

and over the State’s objection. The trial court found that the issue of whether the Defendant

acted in self-defense was “a jury question.” The jury convicted the Defendant of attempted

second degree murder, aggravated assault, coercion of a witness, and misdemeanor evading

arrest. The trial court merged the convictions for attempted second degree murder and

aggravated assault. The trial court classified the Defendant as a career offender and

sentenced him to 30 years for the attempted second degree murder conviction and a

consecutive 12 years for the coercion of a witness conviction. The Defendant received a

concurrent sentence of and 11 months and 29 days for the misdemeanor evading arrest

conviction, for an effective 42-year sentence.

ANALYSIS

The Defendant contends that the evidence was insufficient to support his convictions.

The Defendant argues that he was acting in self-defense because of an incident between

himself and the victim several weeks before and that “he had no choice but to retaliate

against [the victim] that day.” The Defendant fails to address how the evidence was

insufficient to support his convictions for coercion of a witness and misdemeanor evading

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arrest. The State responds that the evidence was legally sufficient to support the Defendant’s

convictions.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal 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). The court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the state.

See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and

the weight and value to be given to evidence were resolved by the jury. See State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the presumption of innocence

and replaces it with a presumption of guilt, and [on appeal] the defendant has the burden of

illustrating why the evidence is insufficient to support the jury’s verdict.” Id.; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of [both] direct and

circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999).

1. Attempted Second Degree Murder

Second degree murder is statutorily defined as the “knowing killing of another.”

Tenn. Code Ann. § 39-13-210(a)(1). A person acts knowingly “when the person is aware

that [their] conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-

302(b). A person attempts to commit second degree murder when he or she acts with the

intent to knowingly kill the victim and his or her conduct constitutes a substantialstep toward

the victim’s death. Tenn. Code Ann. § 39-12-101(a)(3). The proof at trial established that

the Defendant stabbed the victim with a knife multiple times, causing her lung to collapse,

and kicked and beat her. The abdominal wound caused by the Defendant is commonly

referred to as an “assassin’s wound” because of its high probability of causing death. By

stabbing the victim multiple times, the Defendant took a substantial step in a course of action

that was reasonably certain to cause the victim's death.

Tennessee law provides that a person may use deadly force in self-defense when that

person has a reasonable belief, based upon reasonable grounds, that there is an imminent, real

danger of death or serious bodily injury. Tenn. Code Ann. § 39-11-611(b)(2). It is well

established, under Tennessee law, “that whether an individual acted in self-defense is a

factual determination to be made by the jury as the sole trier of fact.” State v. Goode, 956

S.W.2d 521, 527 (Tenn. Crim. App. 1997) (citing State v. Ivy, 868 S.W.2d 724, 727 (Tenn.

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Crim. App. 1993)). There was no proof at trial that the victim threatened or provoked the

Defendant prior to this attack other than the stabbing episode weeks before the date of this

attack. Out of an abundance of caution the trial court instructed the jury on self-defense. It

was well within the jury’s province to reject the Defendant’s theory of self-defense. The

proof at trial supports the jury's rejection of the Defendant's self-defense theory and shows,

as discussed above, that the Defendant attempted to commit second degree murder.

Accordingly, we conclude that the evidence was sufficient to support the Defendant’s

conviction for attempted second degree murder.

2. Aggravated Assault

Aggravated assault is statutorily defined as an intentional or knowing assault during

which a deadly weapon is used or displayed. Tenn. Code Ann. § 39-13-102(a)(1)(B). An

assault is defined as “intentionally, knowingly, or recklessly caus[ing] bodily injury to

another . . . .” Tenn. Code Ann. § 39-13-101(a)(1). A bodily injury "includes a cut, abrasion,

bruise, burn or disfigurement, and physical pain . . . or impairment of the function of a bodily

member, organ, or mental faculty." Tenn. Code Ann. § 39-11-106(a)(2). A deadly weapon

is “anything manifestly designed, made or adapted for the purpose of inflicting death or

serious bodily injury.” Tenn. Code Ann. § 39-11-106(a)(5)(A). The proof at trial established

that the Defendant intentionally or knowingly caused a bodily injury to the victim with a

deadly weapon. On the day of the attack, the Defendant told the victim he was "going to get"

her and then followed her out of the RIFA soup kitchen where he then attacked her with a

deadly weapon, a knife. The Defendant stabbed the victim in the abdomen, cut her arms,

stabbed her in the back, and kicked and beat her causing not merely bodily injury to the

victim but life-threatening injuries. As stated above, it was the jury’s prerogative to reject

the Defendant’s claim of self-defense. Accordingly, we conclude that the evidence was

sufficient to support the Defendant’s conviction for aggravated assault.

3. Coercion of a Witness

In order to sustain a conviction for coercion of a witness, the State must prove that the

Defendant “by means of coercion, influence[d] or attempt[ed] to influence a witness or

prospective witnessin an official proceeding” to testify falsely or withhold truthful testimony

or information. Tenn. Code Ann. § 39-16-507(a). Coercion includes a threat to “[c]ommit

any offense.” Tenn. Code. Ann. § 39-11-106(a)(3)(A). The purpose of Tennessee Code

Annotated section 39-16-507 is to punish those “who, through coercion, impair the integrity

or availability of witnesses who may be called to offer evidence at official proceedings.”

Sentencing Comm’n Cmts. This court has previously held that the statute applies to coercion

of a prospective witness before an official proceeding has commenced. State v. Myra S.

Bikrev, No. M2001-02513-CCA-R3-CD, 2003 WL 1733580, at * 6 (Tenn. Crim. App. April

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2, 2003). The statute’s requirement of a “prospective witness in an official proceeding”

refers to “an individual who, at some point after being threatened, might be a witness in an

official proceeding concerning the relevant subject matter of the threat, whether or not the

proceeding has actually been initiated at the time of the threat.” Id. Additionally, the fact

that this statute is listed in part 5 of chapter 16, title 39 dealing with “Interference with

Government Operations” and not part 6 dealing with “Obstruction of Justice” illustrates the

legislature’s intent that coercion of a witness “embraces corrupt activity that may occur

before [an] official proceeding commences.” Id. (emphasis in original).

F. D. Freeman testified that the victim approached him bloodied and stating that the

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Defendant had stabbed her. Mr. Freeman then saw the Defendant approaching with a metal

object in his hand, and the Defendant told him, “If you think you want to do something,

you’ll get the same thing.” The Defendant threatened to stab Mr. Freeman, a potential

witness, if he attempted to do anything to assist or protect the victim. It is clear that the

threat was intended to assist the Defendant in his flight from the scene. The Defendant’s

open-ended threat can be viewed as warning Mr. Freeman against taking any number of

actions, from attempting to detain the Defendant until the police arrived to simply assisting

the police by providing information about the Defendant. It can be readily inferred from the

Defendant’s threat that he “intended to influence [Mr. Freeman] against giving evidence or

otherwise withholding truthful information” about the Defendant’s attack on the victim.

Bikrev, 2003 WL 1733580 at *6. The Defendant “was obviously attempting to frustrate

police pursuit of [himself] as a suspect.” Id. While this set of facts is not the typical factual

background for a coercion of a witness conviction, the Defendant's actions, especially given

the fact that they occurred at the scene of the crime, still meet the requirements of the statute.

Accordingly, we conclude that the evidence was sufficient to support the Defendant’s

conviction for coercion of a witness.

4. Evading Arrest

To sustain a conviction for misdemeanor evading arrest, the State must prove that the

Defendant intentionally fled “by any means of locomotion from anyone the [Defendant

knew] to be a law enforcement officer if the [Defendant knew] the officer [was] attempting

to arrest [him] or [he was] arrested [at the time of flight].” Tenn. Code Ann. § 39-16-

603(a)(1). Officer Staten testified that she was in full uniform and in her patrol car when she

spotted the Defendant. As Officer Staten exited her patrol car to approach the Defendant,

he “took off running.” Several officers chased the Defendant until he was eventually

captured. Officer Staten testified that even after the Defendant had been caught he continued

The indictment originally listed Virginia Greer as the witness threatened by the Defendant, however, prior 1

to trial the indictment was amended to reflect that Mr. Freeman was the witness threatened by the Defendant.

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to resist arrest. Accordingly, we conclude that the evidence was sufficient to support the

Defendant’s conviction for misdemeanor evading arrest.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

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D. KELLY THOMAS, JR., JUDGE

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