                                                                                        10/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 19, 2018

                 STATE OF TENNESSEE v. H.C. BROWN, JR.

                Appeal from the Criminal Court for Davidson County
                    No. 2015-D-2869 Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2017-02155-CCA-R3-CD
                       ___________________________________


A Davidson County grand jury indicted the defendant, H.C. Brown, Jr., with attempted
first degree murder, aggravated assault by strangulation, false imprisonment, and
violation of an order of protection. Following trial, a jury found the defendant guilty of
aggravated assault by strangulation and violation of an order of protection, and the trial
court imposed an effective sentence of fifteen years, eleven months, and twenty-nine
days. On appeal, the defendant challenges the sufficiency of the evidence to support his
aggravated assault conviction. After reviewing the record and considering 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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and TIMOTHY L. EASTER, J., joined.

Mark Kovach, Nashville, Tennessee, for the appellant, H.C. Brown, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Sarah K. Campbell, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Lody Limbird,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       On the evening of October 6, 2015, Cynthia Jones (“the victim”) prepared dinner
for the defendant, her boyfriend of two years. At approximately 2:00 a.m. the next
morning, the defendant awoke complaining of stomach pains. The victim took him to the
emergency room, where the defendant was diagnosed with a virus and discharged.
However, the defendant was convinced the hospital did not perform the correct tests.

       After returning to the extended stay hotel where they resided, the defendant
wanted to have sexual intercourse. Although the victim was tired, she agreed because she
“didn’t want to fight him.” The defendant, however, was not able to perform sexually,
blaming his inability on the victim’s cheating, which the victim denied. The defendant
had accused the victim of cheating at least twice before, each time ending in a violent
attack on the victim. Following an attack in January 2015, the victim filed an order of
protection against the defendant.

       The defendant then began accusing the victim of poisoning him, which she also
denied. Unable to sleep, the victim went to the bathroom to wash her face. When she
returned, the defendant “slammed the lights off” and punched the victim on the right side
of her face. The victim fell to the floor and realized “he’s gonna beat me again.” The
defendant got on top of the victim and began choking her by applying pressure on her
throat with his thumbs, leaving the victim unable to breathe. The victim tried to pull the
defendant’s hands off of her throat. However, the defendant would not let go saying, “I
know you cheating, b****. I know you’re cheating. You think you’re gonna do me that
way? I’m gonna kill you.” The victim was able to turn onto her stomach, but the
defendant grabbed her in a headlock. Her body began to shake, and she thought she was
going to die. The victim passed out at some point during the assault. When she awoke,
her eyes “flew open,” and she tried to roll onto her back. The defendant still had her in a
headlock, but he was no longer squeezing. However, when the victim began to turn over,
the defendant started to choke her again by pushing on her neck with his thumbs.

       Eventually, the victim was able to get her foot loose and kick the defendant in the
ribs. As she sat up, her back tooth fell out of her bloodied mouth. Although the victim
knew she needed to escape, she could not reach for her phone because the defendant
would break it if she attempted to call for help. She told the defendant her head hurt
“really, really bad.” He asked if she wanted to go to the hospital, but the victim knew
this was a test to see if she would turn him in and said no. The defendant then told her
“the plan was to kill [her].” When the victim said she needed to go to work, the
defendant grabbed her pants and said she “wasn’t going to go nowhere.” Knowing that
she would need to calm the defendant down before he would let her leave, the victim
smoked marijuana with him to help him relax. At some point after the assault, the
housekeeper came in the room to change the sheets and towels. The victim did not
scream or ask for help, however, because the defendant would have “snapped [her] neck
before anybody got in that room.” Finally, the defendant said the victim could go to
work if she drove him to get cigarettes. She dropped the defendant off at a convenience

                                           -2-
store and drove straight to work because she “knew [she] would be safe” there and “could
get the help [she] needed.”

        After seeing her injuries, the victim’s HR representative advised her to seek
medical attention. The victim was examined in the emergency room at Southern Hills
Hospital and discharged later that day, diagnosed with anterior abrasions, bruising to the
throat, a facial contusion, and subconjunctival hemorrhage to both eyes.

       Officer Stanley Collins of the Metro Nashville Police Department visited the
victim in the emergency room. He described the victim’s demeanor as “fearful” and
noticed injuries on her neck and shoulder. The victim told Officer Collins that her
boyfriend accused her of cheating on him, “strangled [her] to unconsciousness” twice,
and said he wanted to kill her. Officer Collins took photographs of the victim’s injuries
and notified a detective with the domestic violence division of the incident.

       Detective Sharraff Mallery of the Metro Nashville Police Department’s domestic
violence division also responded to Southern Hills Hospital to speak with the victim.
Detective Mallery described the victim’s appearance as “scared, just almost like as if she
was in shock.” He photographed the victim’s injuries, including redness around the
victim’s right eye and abrasions, bruising, and redness around her neck. The victim told
Detective Mallery that her boyfriend believed she was cheating on him and began to
strangle her. She stated the defendant would not let her leave at first, but finally allowed
her to go to work. Detective Mallery also contacted Dallas County, Texas and verified
the order of protection that was in place against the defendant.

       Although the victim was discharged from the emergency room that day without
being admitted, she returned to the hospital the following day because her “head felt like
it was going to explode and [her] eyes were red.” In addition, on October 9, 2015, she
went to the domestic violence division of the Metro Nashville Police Department and met
with Detective Amanda Martin. The victim’s injuries were more visible at this time, and
Detective Martin took additional pictures of the victim’s face, neck, and shoulders. The
pictures of the victim’s face showed the severe petechia in her eyes, which Detective
Martin stated was a typical injury of strangulation.

        Officer Thomas Barnes of the Metro Nashville Police Department responded to a
call from the victim asking for assistance in retrieving her belongings from her apartment.
At the apartment, Officer Barnes encountered the defendant and advised him that he had
an outstanding arrest warrant stemming from his assault of the victim. Because the
defendant was complaining of pain in his side, Officer Barnes took him to General
Hospital to get medically cleared before booking.

                                           -3-
         While in jail, the defendant sent a letter to his ex-sister-in-law, Jennie Kay. In the
letter, the defendant thanked Ms. Kay for her help and apologized for placing her in this
situation. The letter stated that the defendant didn’t mean to hurt the victim and still
loved her. However, the defendant wrote he sometimes gets so mad he cannot control
himself. He said he had seen a doctor and had anxiety attacks and bipolar disorder.

        The State called the victim, Officer Collins, Detective Mallery, Detective Martin,
Officer Barnes, and Ms. Kay as witnesses at trial, and all rendered testimony consistent
with the foregoing. On cross-examination, the victim admitted there were discrepancies
between her testimony at trial and at the preliminary hearing. The preliminary hearing
occurred just seven days after the attack and she was “traumatized” and “still in shock.”
However, the victim stated she was now “clear-minded” and could remember the events
better than when they first occurred.

       The defendant testified on his own behalf, admitting he called the victim a
“b****” and accused her of cheating on him. According to the defendant, this caused the
victim to kick him as he lay on the bed. To protect himself, the defendant placed the
victim in a “full-Nelson hold.” The defendant described this hold as “go[ing] up under
her arms, under her shoulder and you hold on the neck and you lock in.” The move did
not require the defendant to place his hands on the front of the victim’s throat. He also
maintained that any abrasions on the victim were from the long sleeved t-shirt he was
wearing at the time. While performing the hold, the defendant and the victim fell to the
floor on the side of the bed, and the defendant testified he let the victim go after she
complained he was hurting her. After the altercation, they sat on the bed and discussed
the future of their relationship. According to the defendant, the victim wanted to stay
together, but he told her “it’s time to let go.” The defendant also admitted he was aware
of the order of protection that prohibited contact between himself and the victim.

        After hearing closing arguments, being charged, and deliberating, the jury found
the defendant not guilty of attempted first degree murder and false imprisonment and
guilty of aggravated assault by strangulation and violation of an order of protection. The
trial court subsequently sentenced the defendant to fifteen years for aggravated assault by
strangulation and to eleven months and twenty-nine days for violation of an order of
protection, to run consecutively. The defendant filed a motion for a new trial in which he
argued the evidence was insufficient to support his aggravated assault conviction. The
trial court denied the motion, and this timely appeal followed.

                                          Analysis

      The defendant’s sole issue on appeal is the sufficiency of the evidence to support
his aggravated assault by strangulation conviction. He argues the photographs of the
                                             -4-
victim and her actions after the assault are insufficient to support the defendant’s
conviction. The State contends the evidence is sufficient. We agree.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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) (“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 findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the following rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus, the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere, and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The jury convicted the defendant of aggravated assault by strangulation, a Class C
felony. As charged in this case, aggravated assault occurs when a person intentionally or
knowingly commits an assault, and the assault involved strangulation or attempted
strangulation. Tenn. Code Ann. § 39-13-102(a)(1)(A)(iv). Assault occurs when a person
“[i]ntentionally, knowingly, or recklessly causes bodily injury to another.” Tenn. Code
Ann. § 39-13-101(a)(1). Strangulation occurs by “intentionally or knowingly impeding
normal breathing or circulation of the blood by applying pressure to the throat or neck or
by blocking the nose and mouth of another person.” Tenn. Code Ann. § 39-13-102(a)(2).

                                             -5-
       The defendant argues the victim’s testimony at trial and the photographs of the
victim’s injuries do not establish that strangulation occurred. Viewed in the light most
favorable to the State, the victim testified the defendant choked her by placing his thumbs
on the front of her throat. He applied pressure, and the victim was not able to breathe.
When the victim was finally able to turn over, the defendant grabbed her in a headlock,
causing her to lose consciousness. After she regained consciousness, the defendant
continued to choke the victim by pushing on her neck until she was able to kick him in
the ribs. Photographic evidence showed redness in the victim’s eyes and redness,
bruising, and abrasions on her neck and shoulders. Officer Collins, Detective Mallery,
and Detective Martin observed injuries on the victim’s neck and shoulders consistent
with her account of being strangled. Detective Martin observed severe petechia in the
victim’s eyes, a typical injury of strangulation. Regarding the defendant’s claim that the
victim’s actions after the assault are not sufficient to support his conviction, the victim
provided reasonable explanations for her actions. She did not call for help on her phone
or ask the housekeeper for assistance because she knew the defendant “would have
snapped [her] neck before anybody got in that room.” She drove to work instead of the
hospital or police station because she “knew [she] would be safe” there. Based on the
evidence, a rational jury could find aggravated assault by strangulation beyond a
reasonable doubt. The defendant is not entitled to relief.

                                       Conclusion

      Based on the foregoing, we affirm the judgment of the trial court.




                                             ____________________________________
                                             J. ROSS DYER, JUDGE




                                           -6-
