       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs August 9, 2016

         STATE OF TENNESSEE v. JOHNNY MALCOLM VINSON

               Appeal from the Criminal Court for Davidson County
                   No. 2014-B-1570 Mark J. Fishburn, Judge
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             No. M2016-00068-CCA-R3-CD – Filed September 27, 2016
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The defendant, Johnny Malcolm Vinson, was convicted of aggravated assault in violation
of an active order of protection pursuant to Tenn. Code Ann. § 39-13-102(c). On appeal,
the defendant challenges the sufficiency of the evidence supporting his conviction
arguing that conflicting testimony exists regarding his use of a deadly weapon and that
the State failed to prove he acted with intent. After our review, we conclude that the
defendant’s arguments are without merit. Accordingly, we affirm the judgment of the
trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and ROBERT H. MONTGOMERY, Jr., J., joined.

Nick McGregor, Nashville, Tennessee (at trial and on appeal), for the appellant, Johnny
Malcolm Vinson.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Glenn Funk, District Attorney General; and Jan Norman and Tali Rosenblum,
Assistant District Attorney Generals, for the appellee, State of Tennessee.


                                      OPINION

                                       FACTS

       This case stems from the defendant’s violation of an order of protection entered
against him by his estranged wife, Angel Pack. On November 27, 2013, Ms. Pack
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obtained an order of protection against the defendant. The order prohibited the defendant
from contacting, abusing, or threatening Ms. Pack. At the time the order was obtained,
Ms. Pack ran a concession stand at Gibbs Auction House in Nashville, Tennessee. While
the order permitted the defendant to go to the auction house, it prohibited him from
approaching the concession stand.

       The evidence produced at trial revealed that on December 14, 2013, Ms. Pack was
working behind the concession stand when the defendant entered the auction house.
Upon entry, the defendant looked directly at her and pulled a taser out of his pocket. Ms.
Pack described the defendant’s look as blank and scary. She recognized the taser as one
the defendant purchased during their marriage in order to “control” her.1 Ms. Pack
believed the defendant was going to shoot her with the taser. As a result, she felt
uncomfortable, scared, and intimidated. She immediately called the police, and the
defendant fled the scene.

       Terry Matthews testified that he was standing in front of the concession stand
facing Ms. Pack when the defendant entered the auction house behind him. He saw Ms.
Pack’s eyes widen. However, when Mr. Matthews turned towards the defendant, he did
not see a taser.

       Officers Paul Goebel and James Tucker responded to Ms. Pack’s call within
minutes. Officer Tucker interviewed Ms. Pack at the scene, while Officer Goebel pursued
the defendant by car. Ms. Pack told Officer Tucker that the defendant had a taser with
him and that she had an active order of protection against him. Officer Tucker verified
the order of protection with the Sheriff’s Department. He then relayed the information
about the taser and the order to Officer Goebel.

        Officer Goebel stopped the defendant shortly after he fled the scene. He found a
taser in the center console of the defendant’s car, and he questioned the defendant about
the order of protection. The defendant stated he was allowed to be at Gibbs Auction
House under the order. However, based upon his actions at the auction house, Officer
Goebel arrested the defendant for the aggravated assault of Ms. Pack.

       Nathaniel Ellsworth, a domestic violence detective, took photographs of the
auction house and concession stand. The photographs showed that Ms. Pack would not
have been able to leave the concession stand or the auction house without passing by the
defendant at the time of the assault.

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         After Ms. Pack testified, the trial court instructed the jury to only consider the testimony
regarding the taser in establishing whether or not it provided circumstantial evidence of the defendant’s
mental state at the time he entered the auction house on December 14, 2013.
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        The parties stipulated at trial that the order of protection was in effect on
December 14, 2013. According to the appellate record, the defense did not put on any
proof. On April 6, 2015, the jury convicted the defendant of the aggravated assault of Ms.
Pack under Tenn. Code Ann. § 39-13-102 (c). A sentencing hearing was held on October
7, 2015.2 The trial court sentenced the defendant to ten years for aggravated assault as a
Range III, persistent offender, to be served at forty-five percent. On December 9, 2015,
the trial court denied the defendant’s motion for a new trial. This appeal followed.

       On appeal, the defendant challenges the sufficiency of the evidence to support his
conviction for the aggravated assault of Ms. Pack. The defendant argues the State failed
to prove he had threatened her with a taser or that he intended to cause the victim to
reasonably fear imminent bodily injury. He also argues the conviction “is based on
prejudicial testimony that conflicts with the [S]tate’s only eyewitness.” The State
contends sufficient evidence exists to support the defendant’s aggravated assault
conviction and that any conflicts in testimony were resolved by the jury’s verdict. After
our review, we agree with the State.

                                           ANALYSIS


        The defendant argues that the evidence produced at trial is insufficient to support
his aggravated assault conviction. When the sufficiency of the evidence is challenged,
appellate courts must determine “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). Appellate courts “do not reweigh the evidence but presume that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state.” State v. Adams, 45 S.W.3d 46, 55 (Tenn. Crim.
App. 2000) (citing State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). As a result, “a jury verdict, approved by
the trial judge, accredits the testimony of the witnesses for the State.” State v. Thorpe,



       2
         At the time of the April 6, 2015 conviction, the defendant had another trial pending. The
defendant requested a merged sentencing hearing after the completion of both trials. As a result, his
sentencing hearing for the present conviction was delayed until October.
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463 S.W.3d 851, 864 (Tenn. 2015) (quoting State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992)).

       Further, “[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 Tennessee Supreme Court
explained as follows:
              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 (1963)). On appeal, “conflicts in the testimony are resolved in favor of the verdict of
the jury and the judgment of the trial court, and the state is entitled to the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences that
may be drawn therefrom.” Tuggle, 639 S.W.2d at 914 (citing Cabbage, 571 S.W.2d 832).

       As charged in count two of the indictment, aggravated assault is committed when
the defendant commits an assault in violation of a court order that prohibits him from
causing, or attempting to cause, bodily injury to the assault victim. Tenn. Code Ann. §
39-13-102 (c). The defendant has committed an assault when he “[i]ntentionally or
knowingly causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. §
39-13-101 (a)(2).

        Initially, the defendant argues conflicting testimony exists as to whether he used a
taser to threaten the victim. Mr. Matthews testified he did not see the defendant with a
taser at the auction house. However, the victim testified that she not only saw the
defendant pull a taser out of his pocket, but she also recognized the taser as one the
defendant purchased while they were married in order to “control her.” The police later
found a taser in the defendant’s car. This Court presumes that any conflicts in Mr.
Matthews and the victim’s testimony were resolved by the jury in reaching their verdict.
See Campbell, 245 S.W.3d at 335; Adams, 45 S.W.3d at 55.

       The defendant also contends the State failed to prove the elements of aggravated
assault beyond a reasonable doubt. More specifically, the defendant argues that the State
failed to prove that the victim reasonably feared imminent bodily injury. However, the
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evidence produced at trial showed that on December 14, 2013, the defendant came to the
auction house, stopped in front of the concession stand where the victim was working,
made eye contact with her, and pulled a taser out of his pocket. The victim feared the
taser because the defendant purchased it “to control her.” She testified that she was
uncomfortable and frightened. The victim immediately called the police and the
defendant fled the scene. An officer found a taser in the defendant’s car shortly after the
incident. The parties stipulated that an order of protection was in effect prohibiting the
defendant from approaching the concession stand or threatening the victim. Based upon
the evidence outlined above, the State proved the essential elements of aggravated assault
as charged in the indictment by showing that the defendant violated an active order of
protection when he threatened the victim at the auction house on December 14, 2013.
Accordingly, the defendant’s arguments regarding conflicting testimony as to whether a
taser was involved in the incident are without merit. The evidence is sufficient to support
the defendant’s conviction.

       Finally, the defendant complains that the trial court erroneously allowed the victim
to explain why she was frightened by the taser. The defendant argues he was prejudiced
by the victim’s testimony that she feared the taser because the defendant purchased it
during their marriage “to control her.” We disagree. The trial court properly determined
that the victim’s testimony about her familiarity with the taser was relevant to
establishing the defendant’s mens rea at the time of the assault. Tenn. R. Evid. 403. The
court stated the defendant’s action in purchasing the taser was “indicative of what his
intent was on that day and that [was] to control her, which would be an obvious violation
of the order of protection.” The trial court further reasoned that the defendant would not
be prejudiced by the victim’s testimony as the parties stipulated, and the jury knew, that
an order of protection was in place at the time of the assault. Further, the trial court
instructed the jury that it was only to consider the victim’s taser testimony in establishing
the defendant’s mental state at the time of the assault. This Court presumes the jury
followed the trial court’s instructions. State v. Joshua R. Starner, No. M2014-01690-
CCA-R3-CD, 2016 WL 1620778, at *21 (Tenn. Crim. App. Apr. 20, 2016) (citing State
v. Young, 196 S.W.3d 85, 111 (Tenn. 2006); State v. Shaw, 37 S.W.3d 900, 904 (Tenn.
2001)). We find the defendant’s prejudice argument is without merit.

       After reviewing the evidence in the light most favorable to the prosecution, we
hold that the proof presented at trial was sufficient for a rational trier of fact to find the
defendant committed the aggravated assault of Ms. Pack beyond a reasonable doubt.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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 ____________________________________
 J. ROSS DYER, JUDGE




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