        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. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, 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 life-
threatening 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 substantial step 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 witness in 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

                                              -5-
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. Freeman1 testified that the victim approached him bloodied and stating that the
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


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




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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