# FILED

June 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, ) No. 03C01-9702-CR-00069 ) Appellee ) ) HAMILTON CO UNTY V. ) ) HON. DOUGLAS A. MEYER, THOMAS EUGENE LESTER, ) JUDGE ) Appellant. ) (Aggravated Assault) ) ) For the Appellant: For the Appellee: Ardena J. Garth John Knox Walkup District Public Defender Attorney General and Repor ter Rich A. Heinsman, Jr. Clinton J. Morgan Assistant Public Defender Assistant Attorney Gener al (At trial) 425 Fifth Avenue North Nashville, TN 37243-0493 Donna R. Miller Assistant Public Defender 701 Cherry Street, Suit e 301 William H. Cox, III Chattanooga, TN 37402 District Attorney General (On appeal) C. Leland Davis Assistant District A

ttorney 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 The w itnesses for the Sta te testified tha t appellant s tabbed the victim with a scre wdriver. However, appellant testi fied that he hit t he victi m with a piece of aluminum.

2 OPINION The appellant, Thomas Eugene Lester, appe als as of right his conv

iction in the Hamilton County Criminal Court of aggravated assault. He received a sentence of six years to be served on intensive probation as a Range I offender. On appeal, he challenges only the sufficiency of the evidence. We affirm appellant’s c onviction. Appellant was indicted for the aggravated assault of Stanley Holland as a result of an altercat ion that occurre d on July 18, 1995 in Hamilton Coun ty. On that evening, the victim came to appellant ’s home on Citico Avenue i n Chattanooga. Appellant met the victim outside on the por ch. Apparently, the v

ictim wanted to discuss the appellant’s alleged assaul t on the victim’s sis

ter earlier that eveni ng. Appellant and the victim, who w

as accompanied by severa l other people, began talki ng and an argument ensued. The argument esc alated and appellant and the vi ctim began fighting. There was c

onflicting testimony about who threw the first pu nch. As the altercation progr essed, the victim was

prevailing over

appellant. The victim picked up the appel lant and was about to throw him to the ground when appellant stabbed the victi m in the eye. 1 The victim stated that he w as enraged when he felt his eye “pop” and he as ked his wife for his gun.The victim’s wife r etrieved a gun from their vehicle parked nearby. As she was handing the weapon to the victim, it discharged and the bullet s truck the victim in the groin area. Appellant e xtricated himself from the victim and ran a way as several more shots were fired. As a result of the eye injur y, the victim permanentl y lost vision in

his right eye. While there initially was s ome question as to whether appellant shot the victi m, the State stipulated at trial that the victim’s wi fe accidentally fired the shot

. Appellant’s theory at tr ial was that he acted in self-defense. He testified that the victim came to his door and asked him to come outside and ta lk. The victim2 Appellant explained that he had been i nstall ing a window ai r conditioner in hi s bedroom that day and there were sev

eral l ong pieces of al uminum on the ground that h e had cut away f rom the window frame. 3 promise d there wou ld be no tr ouble. W hen he wen t outside , appella nt state d that fi ve other pe ople were wit h the victi m. The vic tim’s sist er shoute d, “Kick hi s ass, Sta nley” and the victim threw the first punch. They began fig hting and the victim thr ew appellant to the ground. According to appellant, the victim “got in some good licks.” Appellant stated that he picked u p a piece of aluminum from the ground and s tarted hitting the victim w

ith it. 2 Appellant then stated that he hear d the victim tell his

wife to shoot appellant. Appellant hear d the shot, which struck the victim, and was able to run away. Appellant t

estified that someone was shooti ng at him as he ran. On cross-examination, appellant denied arming himself with a screwdriv er before he went outside to talk to the victim. While admitting that h e probably caused the injury to the vi ctim’s eye, appellant deni ed stabbing the victim directly in the ey e. Appellant’s brother, Anthony Lester, who was pr

esent when the altercation occurred, testified and corroborated appellant’s version of the events. Appellant’s girlfriend also confirmed that appellant went out side to speak to the victim at his request. After th e fight began, she testified that she called 911. She stated that s he did not witness the altercation, but did hear se veral gunshots fired. At the conclusion of the proof in thi s bench trial, the trial court found the appellant guilty of aggravated assault. The trial court specifically noted that it considered self-defense, but found that appel lant used excessive force. Appellant was later sentenced to si x years intensiv

e probation for the offense. In challenging the sufficien cy of the evidence, appell ant alleges that the trial court failed to properly weigh the proof supporting his theory of self-defense. Specifically, he argue

s that the trial court er

red in finding that appellant used excessive force. Appel lant’s issue is wi thout merit.4 Whe n an accu sed chall enges the suffici ency of th e convicti ng evidenc e, we must review the ev

idence in the light most fav orable to the prosecution in determining whether “ any

rational tr

ier of fact cou ld have found the essenti al elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). W e do not reweigh or re-evaluate the evidence and are required to afford the State the st rongest legitimate v iew of the proof contained in the record, a s well as all r easonab le and leg itimate inferen ces which m ay be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1 979). Th e findin gs of a trial judge in a bench tr ial carry the same w

eight as a jury v

erdict. State v. Hatchett , 560 S.W.2d 627, 63 0 (Tenn. 1978). With regard to self-defense, Tennessee Code Annotated s ection 39-11-611(a) provides as follows: A person is justified in thr eatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other ’s use or attempted use of unlawful force. The person must have a reasonable belief that there is an imminent danger of death or serious bodily i njury. The danger creating the belief of imminent death or serious bo dily injury must be real, or honestly bel ieved to be real at the ti me, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force. Consistent with common law, the statute only permits a person to use the force reasonably necessary

to protect himself/herself. See Tenn. Code Ann. §39-11-611 Sentencing Commission Comments; Long v. State , 443 S.W.2d 476, 479 (Tenn. 1969). As a result, the defense i s not available if the defendant use s excessive force. Id. Whether or not a defendant acted in self-defense is a que stion for the trier of fact to determine. See Arterburn v. State , 391 S.W.2d 648, 653 (Tenn. 1965); State v. Fugate , 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988). Encompass ed within that determination is whether the defendant's belief in imminent danger was reasonable, whether the force used was reasonable, and whether the defendant was without fault. State v. Renner , 912 S.W.2d 701, 704 (Tenn. 1995).5 When it rendered the verdict in appellan t’s case, the trial court specifically stated that it accredited the testimony of the State’s witnesses. The trial court did not find appellant to be a credible witness, stating that it did not believe appellant’s testimony that he was i n danger of death or serious bodi ly injury. The is sue of excessive f orce which the appe llant con tests was a determin ation with in the excl usive purview of the trier

of fact. As an appellate court, w e will not disturb s uch a finding on appeal. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1979). We hold that appellant’s conviction w as supported by the evi dence presented at trial. Therefore, we affirm the judgment of the trial court.

_______________________________ William M. Barker, Judge

CONCUR:

____________________________ Joseph M. Tipto n, Judge

____________________________ Curwood Wi tt, Judge