           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                               Assigned on Briefs August 30, 2011

                     STATE OF TENNESSEE v. WILLIE McLEOD

                Direct Appeal from the Criminal Court for Hamilton County
                         No. 271794     Barry A. Steelman, Judge


                   No. E2010-02347-CCA-R3-CD - Filed September 6, 2011


The defendant, Willie McLeod, was convicted by a Hamilton County Criminal Court jury
of attempted aggravated assault, a Class D felony; disorderly conduct, a Class C
misdemeanor; and resisting arrest, a Class B misdemeanor. He was sentenced to an effective
term of twelve years in the Department of Correction as a career offender. On appeal, the
defendant challenges the sufficiency of the convicting evidence. After review, we affirm
the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

John G. McDougal, Chattanooga, Tennessee, for the appellant, Willie McLeod.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, District Attorney General; and Boyd M. Patterson, Jr. and
Steven E. Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                OPINION

                                                 FACTS

       The defendant was indicted on two counts of aggravated assault with a deadly
weapon against Anthony Simmons and his wife, Jamie Simmons, one count of disorderly
conduct, one count of resisting arrest, and one count of retaliation for past action,1 arising
out of his encounter with the Simmonses outside a restaurant while apparently trying to

       1
           The charge of retaliation for past action was handled separately from the other charges.
panhandle from them.

                                      State’s Proof

       At trial, Anthony Simmons testified that on February 6, 2009, he and his wife had
dinner at a restaurant in downtown Chattanooga around 7:30 p.m. After finishing dinner,
they exited and walked down the stairs outside the restaurant. At the bottom of the stairs,
they were approached by the defendant, who said, “‘Let me get 35 cents.’” The defendant’s
tone of voice alarmed Mr. Simmons because “[h]e didn’t seem like he was asking. It was
more of a demand.” When Mr. Simmons refused, the defendant “got . . . a really hateful,
disgruntled look on his face[.]” The defendant was standing approximately two or three feet
away from Mr. Simmons at the time. Mr. Simmons told the defendant, “‘Move out of our
way,’” because the defendant was blocking their path, and the defendant “got extremely
upset.”

       Mr. Simmons testified that the defendant took off one of the two jackets he was
wearing and began “waving his fists around. He had backed up . . . a little bit but he was
just jumping back and forth, waving his fists around.” The defendant also began threatening
Mr. Simmons, saying “he was going to kick [Mr. Simmons’] ass.” Mr. Simmons noticed
that the defendant had something in his hand that “looked like a box cutter blade.” Mr.
Simmons recalled that the defendant “start[ed] saying he’s going to kill us because I killed
his ancestors[.]” The defendant also claimed to have a gun and threatened to shoot Mr.
Simmons and his wife. According to Mr. Simmons, the defendant “said he was going to kill
me, several times, and . . . he included my wife I know at least once.”

       Mr. Simmons testified that they found an opportunity to get around the defendant and
began walking up Second Street away from him as Mrs. Simmons called 911. When the
Simmonses were about thirty yards away from the defendant, the defendant started following
them up the sidewalk. Concerned because the area where they had parked was particularly
dark, Mr. Simmons pulled out his pocketknife and yelled to the defendant that they were not
going any further and that the defendant needed to leave them alone. Mr. Simmons took the
phone from his wife and began relaying their location to the authorities. At that point, the
defendant turned around and headed away from them. Mr. Simmons followed the defendant
from a distance to relay his location to the police. The police apprehended the defendant,
and the Simmonses identified him. Mr. Simmons denied calling the defendant a racially
derogatory name.

       On cross-examination, Mr. Simmons denied having any alcoholic beverages that
evening. He clarified that the defendant was six to eight feet from them when the defendant
got upset and he saw the blade in the defendant’s hand. Mr. Simmons acknowledged that

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the defendant never lunged at them with the blade, although he did wave the blade around
while threatening them. On redirect examination, Mr. Simmons stated that the defendant
appeared to have the present ability to attack them with whatever kind of blade he had.

         Jamie Simmons testified she and her husband went down the stairs from the
restaurant “and all of a sudden the defendant appeared . . . in the corner.” The defendant
said to them, “‘Let me get 35 cents.’” The defendant had a jacket and a white garbage bag
in his hand. She recalled that Mr. Simmons told the defendant, “[N]o,” and the defendant
“got a very irritated, angry look on his face . . . and started kind of jumping side to side, and
. . . at some point while he was moving around, he produced a blade[.]” The defendant
threatened to kill them and accused them of “kill[ing] his ancestors.” She said that the
defendant was “[f]ar too close for comfort” and was “[d]efinitely [in her] personal space.”
He was close enough that he could have cut them with the blade “[i]f he had wanted to.”
The defendant also claimed to have a gun, although Mrs. Simmons never saw one. Mrs.
Simmons said she “was very scared.”

        Mrs. Simmons testified that the defendant “backed off a little bit,” so they were able
to get around him and “started going up the hill[.]” The defendant started to follow them up
the hill. Mrs. Simmons recalled that, at that point, Mr. Simmons stopped and told the
defendant that “[they] weren’t going any farther” because he did not want to continue into
the secluded area ahead. Meanwhile, Mrs. Simmons called 911 and tried to relay their
location to the authorities. The defendant turned around and started going the other way
upon hearing that the police were coming, but the Simmonses kept him in their sight until
the police arrived and arrested him. On cross-examination, Mrs. Simmons said that Mr.
Simmons never used a racial epithet toward the defendant.

       Officer Robert Simmons2 of the Chattanooga Police Department testified that at
approximately 8:44 p.m. on February 6, 2009, he “was called to an assault or a robbery in
progress at the 200 block of Market Street.” He was advised that the suspect was armed
with a blade. Upon locating someone matching the defendant’s description, Officer
Simmons approached and ordered that he put his hands on the patrol car. Officer Simmons
patted the defendant down and detained him for the victims to make an identification. The
victims “immediately identified the defendant as the person who had assaulted them.”

       Officer Simmons learned that a small razor was involved in the offense, so he
searched the defendant again. As he reached into the defendant’s front left pants pocket, he
felt what appeared to be a razor blade and the defendant “pulled away . . . while [the
officer’s] hand was halfway in there.” Officer Simmons and another officer on the scene

       2
           Officer Simmons is of no relation to Mr. and Mrs. Simmons.

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“held [the defendant] against the car and secured him while he was pulling and yelling and
screaming at [them] until [they] got the razor out.” At that point, Officer Simmons
handcuffed the defendant and informed him that he was under arrest. The defendant
continued making a commotion and resisted getting into the patrol car until the officers were
finally successful in securing him. Officer Simmons stated that in addition to the razor
blade, a crack pipe was recovered on the defendant.

                                    Defendant’s Proof

        The defendant testified that he was fifty years old and from Dothan, Alabama. At the
time of the offense, he had been living in Chattanooga for approximately three or four weeks
and was homeless and unemployed. He did “a little day labor” and panhandled to get
money. The defendant stated that on the night in question, he approached the Simmonses
and said, “‘Brother, do you got 35 cent[s] you can spare me?’” He denied asking for money
in the tone alleged by the Simmonses. The defendant recalled that Mr. Simmons responded,
“‘[G]et your ass on down that . . . street[,]’” and “call[ed] [him] the N word[.]” The
defendant admitted that, after Mr. Simmons’ racial epithet, “[they] went to battling with
words.” However, the defendant denied ever approaching within three or six feet of the
Simmonses or approaching in “a violent way.”

         The defendant said that he saw that Mr. Simmons had a knife and then Mrs. Simmons
got between him and Mr. Simmons to stop Mr. Simmons from coming toward the defendant.
The defendant denied ever pulling out a razor blade, claiming that he had forgotten he had
it in his pocket after he “had been smoking crack all that day.” The defendant admitted that
he argued with Mr. Simmons. He claimed that after the confrontation, he “calmly walked
on down the streets[.]” The defendant denied threatening to kill the officer who arrested
him or that officer’s family.

                                      Rebuttal Proof

        Officer Simmons testified that en route to the jail, the defendant began threatening
the officer and his family, stating that he knew where they lived and was going to kill them.
The defendant continued the threats at the jail during the booking process. The defendant
made the threats approximately three or four times in all.

        Gene Coppinger testified that he worked as a security supervisor for the Hamilton
County Sheriff’s Department. Coppinger said that the cameras in the booking area of the
jail had no audio recording capability.



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       David Denny, an assistant district attorney assigned to the Hamilton County General
Sessions Court, testified that the general sessions court had recently experienced some
technical difficulties in recording and preserving preliminary hearing testimony.

        After the conclusion of the proof, the jury found the defendant guilty of the lesser-
included offense of the attempted aggravated assault of Anthony Simmons, not guilty of
aggravated assault against Jamie Simmons, and guilty of disorderly conduct and resisting
arrest.

                                          ANALYSIS

       The defendant challenges his conviction for the attempted aggravated assault of Mr.
Simmons, arguing that he did not draw the razor blade until the Simmonses were thirty to
forty yards away – a distance from which he could not have reasonably assaulted Mr.
Simmons.

        When the sufficiency of the convicting 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. See 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 stated the 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.



                                               -5-
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (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).

       For the purposes of this case, an aggravated assault is committed when a person
intentionally or knowingly commits an assault as defined in section 39-13-101 and uses or
displays a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B). A person commits an
assault who intentionally or knowingly causes another to reasonably fear imminent bodily
injury. Id. § 39-13-101(a)(2). A person commits criminal attempt when “acting with the
kind of culpability otherwise required for the offense[,] [he or she] [a]cts 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[.]” Id. § 39-12-101(a)(2).

        Mr. Simmons testified that the defendant was two or three feet away when he initially
approached them and six to eight feet away when he got upset and Mr. Simmons saw the
blade in the defendant’s hand. Mr. Simmons also testified that the defendant threatened to
kill him several times. He observed that the defendant had the present ability to attack them
with whatever kind of blade he had. Mrs. Simmons testified that the defendant “produced
a blade” and threatened to kill them. Although she could not determine how close the
defendant was to them during the encounter, Mrs. Simmons recalled that he was “[f]ar too
close for comfort” and was “[d]efinitely [in her] personal space.” She elaborated that the
defendant was close enough that he could have cut them with the blade “[i]f he had wanted
to.” Officer Simmons testified that he recovered a razor blade from the defendant’s front
pants pocket. Although the defendant denied pulling a blade on the Simmonses and
threatening to kill them, the jury accredited the Simmonses’ testimony over that of the
defendant, as was its province. In the light most favorable to the State, we conclude that
there was sufficient evidence for a rational trier of fact to convict the defendant of attempted
aggravated assault. The defendant’s contention (and reliance on) that he did not draw his
razor blade until he was thirty to forty yards away from the Simmonses is a misstatement of
the record as the record reflects that the “thirty to forty yards” was from Mr. Simmons’
testimony about his distance from the defendant when he withdrew his personal pocketknife.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the


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trial court.


                     _________________________________
                     ALAN E. GLENN, JUDGE




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