        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2016

               STATE OF TENNESSEE v. DOYAN ANDERSON

                 Appeal from the Criminal Court for Shelby County
                      No. 15-03854   W. Mark Ward, Judge


             No. W2015-02405-CCA-R3-CD - Filed February 17, 2017


The Defendant, Doyan Anderson, was indicted for aggravated assault involving the use
or display of a deadly weapon, a Class C felony; aggravated assault based on violation of
a court order, a Class C felony; domestic assault, a Class A misdemeanor; and unlawful
possession of a firearm after having been convicted of a felony involving the use or
attempted use of violence, a Class C felony. See Tenn. Code Ann. §§ 39-13-
102(a)(1)(A)(iii), -13-102(c), -13-111, -17-1307. Following a jury trial, the Defendant
was convicted of domestic assault and both counts of aggravated assault. The jury
acquitted the Defendant of the unlawful possession of a firearm charge. The trial court
merged the domestic assault conviction into the aggravated assault conviction based on
violation of a court order. The trial court sentenced the Defendant as a career offender
and imposed a total effective sentence of thirty years‟ incarceration. In this appeal as of
right, the Defendant contends (1) that the evidence was insufficient to sustain his
conviction for aggravated assault involving the use or display of a deadly weapon and (2)
that the trial court committed plain error by failing to require the State to make an
election of the distinct conduct it was relying upon regarding the charge of aggravated
assault based on violation of a court order. Following our review, we affirm the
Defendant‟s convictions. However, we merge the Defendant‟s two convictions for
aggravated assault and remand the case to the trial court for entry of corrected judgment
forms reflecting said merger and the resulting sentence of fifteen years‟ incarceration.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
            Part; Case Remanded for Entry of Corrected Judgments

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal) and Robert C.
Felkner (at trial), Assistant District Public Defenders, for the appellant, Doyan Anderson.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Jamie Bowers Kidd and
Danielle Marie McCollum, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                                  OPINION

                                      FACTUAL BACKGROUND

        The victim, Melanie Tenort, testified that she had been in a relationship with the
Defendant for “five and a half years on and off” and that he was the father of her
youngest son.1 To give context to her relationship with the Defendant, Ms. Tenort
testified about an event that occurred around Thanksgiving 2013. Ms. Tenort testified
that she was staying at a hotel with the Defendant and their son, who was two years old at
the time. Ms. Tenort recalled that she and the Defendant were “talking about . . . getting
back together” because the Defendant had “just [come] back” to Memphis. Eventually,
the father of her oldest son dropped him off at the hotel.

       Ms. Tenort testified that she was “sitting there watching movies” with the
Defendant and her children when the Defendant received a phone call from his father.
After fifteen or twenty minutes, the Defendant hung up the phone and was noticeably
angry. The Defendant turned off the lights and the television and said that he was “trying
to go to [f--king] sleep.” Ms. Tenort thought that the Defendant‟s voice “sound[ed] like
[he was] fixing to get hostile” and “start something.” Ms. Tenort began to gather her
things so she and the children could leave the hotel room.

       Ms. Tenort asked her oldest son to turn the lights back on so she could see to pack.
As she was packing, the Defendant approached her and said, “[Y]ou not fixing to go
nowhere [sic].” Ms. Tenort implored the Defendant not to “put [his] hands on [her] in
front of the kids.” The Defendant responded by punching her in the face “three or four
times.” The Defendant then pushed her to the ground and began choking her “[r]eal
hard” to the point that she could not breathe. Ms. Tenort tried to kick the Defendant off
of her and told the Defendant that the children were watching him.

       At that point, both of the children tried to stop the Defendant by “hitting him on
his back.” The Defendant struck both of the children, knocking the youngest one down.
When he did this, the Defendant “kind of eased up off of” Ms. Tenort, and she was able
to kick him off of her. Ms. Tenort took the children and left the room. Ms. Tenort called
the police from a nearby gas station. The Defendant was arrested a short time later at the
hotel room.

1
    The Defendant and Ms. Tenort‟s son died prior to the trial in this matter.
                                                       -2-
       Ms. Tenort opined that the Defendant did not leave the hotel room because he did
not think that she would call the police. Ms. Tenort explained that she had “never called
the police on him before” because she was scared of “what [the Defendant] could do to
[her] after the fact.” Ms. Tenort continued, testifying that she decided to call the police
because the Defendant “kept doing it” and “it [had] gotten even worse and in front of
[her] kids.” Ms. Tenort was especially troubled by the fact that the Defendant had hit her
children during the attack.

       Officer Farrell Brassell of the Memphis Police Department (MPD) testified that on
December 2, 2013, he responded to a call from Ms. Tenort. Officer Brassell recalled that
Ms. Tenort was “hysterical” and “kind of emotional” when he spoke to her. Officer
Brassell observed that Ms. Tenort had red marks on her neck, a “busted” lip, and knots on
her forehead. In contrast, the Defendant was calm and had no injuries when Officer
Brassell arrested him.

       Ms. Tenort testified that she did not return to the hotel room and that the next day
she filed for an order of protection against the Defendant. The order was entered on
December 19, 2013, and Ms. Tenort testified that she watched the Defendant sign the
order. The order enjoined the Defendant from abusing Ms. Tenort or her children and
ordered that the Defendant “stay away from [her] and . . . the children.” However, in late
December 2013 and early January 2014, the Defendant began to contact Ms. Tenort
saying that “he was sorry” and that “he wanted . . . to get back together.”

        The Defendant told Ms. Tenort that “he loved [her] and that he [would] never hit
[her] again . . . [and that] he wanted to marry [her].” Ms. Tenort testified that she “felt
like [the Defendant] really meant it” and that she believed him. Ms. Tenort began
“telling everybody [that they were] engaged.” Ms. Tenort explained that she loved the
Defendant and that she “was excited” about marrying him because she “thought that he
was going to change.” To that end, the Defendant moved in with Ms. Tenort in February
2014. Ms. Tenort further explained that she was not working at that time and needed the
Defendant to help financially with the children.

        Ms. Tenort testified that she thought her relationship with the Defendant was
“[g]reat” until March 21, 2014. After she woke up that morning, the Defendant
approached Ms. Tenort, “not in a hostile way,” in the dining room wanting to talk about a
verbal argument they had the night before. The Defendant stated that Ms. Tenort had
“cursed [him] out” the night before and that Ms. Tenort‟s oldest son, who was nine years
old at the time, agreed with the Defendant. Ms. Tenort testified that she was about to
apologize to the Defendant when he “started punching [her] in [her] face and in [her] lips
and in [her] eyes all at once.” Ms. Tenort estimated that the Defendant punched her “five
or six times.”

                                            -3-
       Ms. Tenort tried to push the Defendant away, but she could not. The Defendant
then “start[ed] grabbing [her] by [her] neck” and choking her. The Defendant tried to
push Ms. Tenort “down to the ground.” At that point, Ms. Tenort‟s oldest son attempted
to defend her by hitting the Defendant, but the Defendant “[s]wung back” at the boy.
While the Defendant was striking the boy, Ms. Tenort was able to get up, and she
demanded that the Defendant “look at what [he had done] to [her] face.” The Defendant
started to turn away, and Ms. Tenort “swung back real hard and . . . hit him in his eye and
he buckled to the ground” grabbing his face.

       The Defendant got up and said, “[B]---h, if I can‟t find my weed, I‟m going to kill
you.” The Defendant started towards the bedroom, and Ms. Tenort told him that she
thought the marijuana was in the nightstand. At this point, Ms. Tenort noticed her
youngest son in the kitchen opening the refrigerator. Ms. Tenort helped the child “get a
juice” and closed the refrigerator. Ms. Tenort then saw the Defendant coming out of the
bedroom. Ms. Tenort made her way back to the dining room and told the Defendant that
she had “told [him] [he] was going to find [his] weed.”

        The Defendant grabbed Ms. Tenort and pulled out a revolver from “[u]p under his
shirt in his pants.” Ms. Tenort thought the Defendant was going to shoot and kill her.
Instead, the Defendant hit her with the gun on the left side of her head. Ms. Tenort
testified that the Defendant then ran away, taking the gun with him, and that she chased
after him yelling for “somebody [to] kill him for [her].” Ms. Tenort further testified that
she knew the gun belonged to the Defendant, that he had it “for some months,” and that
he usually kept it on her “entertainment set.”

       After the Defendant ran away, Ms. Tenort got in the shower and put a towel
around her head to stop the bleeding. Ms. Tenort testified that her head felt “like a
bowling ball” and that she was worried that she was going to have a seizure. Ms. Tenort
further testified that the pain in her face and head continued after she had been treated at
the hospital and that she now gets headaches.

       On cross-examination, Ms. Tenort admitted that she had a prior conviction for
forgery. Ms. Tenort also admitted that the Defendant saw her and the children in
violation of the order of protection. Ms. Tenort claimed that she only tolerated this to
allow the Defendant to see his son. Ms. Tenort denied being afraid of the Defendant.
Ms. Tenort also denied using marijuana the morning of the March 2014 attack. Ms.
Tenort also denied telling hospital staff that she was upset with herself for trying to get
back together with the Defendant.

      Ms. Tenort denied that she and the Defendant were in a relationship on March 21,
2014. Ms. Tenort explained that while she had proposed to the Defendant at the end of
February 2014, she and the Defendant had “got to arguing a couple days before” the
                                            -4-
attack and the Defendant “left.” Ms. Tenort admitted that the Defendant had lived in her
apartment from the time that they got engaged until “a couple days before” the attack.

       MPD Officers John Cantor and Shondra Wicks responded to Ms. Tenort‟s
apartment on March 21, 2014. The officers found the walkway leading to Ms. Tenort‟s
apartment “covered with blood.” There was also “[a] lot of blood . . . inside the
apartment building,” on the apartment door, and on the floor inside the apartment. Ms.
Tenort was “bleeding from the head” and had a rag over her head “trying to apply
pressure.” Officer Wicks noticed “a whole bunch of blood” coming from Ms. Tenort‟s
wound. Officer Cantor described Ms. Tenort as being “[h]ysterical,” and Officer Wicks
described her as “a little deranged, excited.” The Defendant was not at the apartment,
and the officers did not see any weapons in the apartment. An ambulance was called to
take Ms. Tenort to the hospital.

       Ms. Tenort was treated at the emergency room of Methodist South Hospital. Ms.
Tenort had “a laceration to the scalp on the left side [of her head that was] about four
centimeters long.” There was swelling around the area of the laceration. Ms. Tenort also
had “swelling on the left jaw” along with “swelling and bruising of her nose.” A
computerized tomography scan revealed that Ms. Tenort “had a fracture of the nasal
bridge.” Ten staples were used to close the laceration on Ms. Tenort‟s head. Ms. Tenort
stated that she was “dazed,” but she did not lose consciousness while she was being
treated. Ms. Tenort was given prescriptions for pain killers and antibiotics when she was
discharged from the emergency room.

       The nurse who cared for Ms. Tenort, Deborah Williams, testified that Ms. Tenort
was “upset, worried about her children[,]” and afraid to return to her apartment. None of
the medical personnel who treated Ms. Tenort thought she seemed intoxicated while she
was at the emergency room. Lashawn Lewis, a “medical social worker” at Methodist
South Hospital, recalled that Ms. Tenort was “very distraught and upset” when they
spoke and that Ms. Tenort was worried about going back to her apartment. Ms. Lewis
also testified that Ms. Tenort was “very remorseful . . . and upset with herself” for getting
back together with the Defendant. Ms. Lewis recalled that Ms. Tenort told her that she
shared an apartment with the Defendant and that the fight began with an argument over
alcohol and marijuana.

       Based upon the foregoing, the jury convicted the Defendant of aggravated assault
involving the use or display of a deadly weapon, aggravated assault based on violation of
a court order, and domestic assault. The jury acquitted the Defendant of the unlawful
possession of a firearm charge. The trial court merged the domestic assault conviction
into the aggravated assault based on a violation of a court order conviction. The
Defendant was sentenced as a career offender. The trial court imposed sentences of
fifteen years for each aggravated assault conviction and ordered the sentences to be
                                             -5-
served consecutively, for a total effective sentence of thirty years. The Defendant now
appeals to this court.

                                       ANALYSIS

                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
conviction for aggravated assault involving the use or display of a deadly weapon. The
Defendant argues that the State failed to present “proof that [he] possessed or used a
deadly weapon.” To support this argument, the Defendant asserts that the jury
discredited Ms. Tenort‟s testimony about the revolver by acquitting him of the unlawful
possession of a firearm charge. The State responds that the evidence was sufficient to
sustain his conviction.

       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). This 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.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing 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). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
                                            -6-
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant‟s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       Here, the Defendant only challenges the proof regarding his use or display of a
deadly weapon during the aggravated assault, noting that the jury acquitted him of the
unlawful possession of a firearm charge. However, “an inconsistency in multiple count
verdicts in a criminal prosecution is [generally] not a basis for relief.” State v.
Thompson, 285 S.W.3d 840, 849 (Tenn. 2009). To that end, this court “will not upset a
seemingly inconsistent verdict by speculating as to the jury‟s reasoning if we are satisfied
that the evidence establishes guilt of the offense upon which the conviction was
returned.” State v. Davis, 466 S.W.3d 49, 76 (Tenn. 2015) (quoting Wiggins v. State,
498 S.W.2d 92, 94 (Tenn. 1973)).

        Ms. Tenort‟s testimony alone was sufficient to establish that the Defendant hit her
in the head with a revolver. See State v. Tamaine Works, No. W2005-01048-CCA-R3-
CD, 2006 WL 1491636, at *12 (Tenn. Crim. App. May 26, 2006) (noting that this court
“has previously held that convictions based upon witness testimony alone are sufficient”)
(citing State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)). Accordingly,
we conclude that the evidence was sufficient to sustain the Defendant‟s conviction for
aggravated assault involving the use or display of a deadly weapon.

                                   II. Election of Offenses

       The Defendant contends that the trial court‟s failure to require the State to make an
election of the distinct conduct it was relying upon regarding the charge of aggravated
assault based on violation of a court order was plain error. The Defendant argues that
there were “at least four separate and distinct acts . . . that could form the basis for [this]
conviction.” Specifically, the Defendant notes that he approached Ms. Tenort in a
“hostile way,” he repeatedly punched Ms. Tenort‟s face, he threatened to kill her if he
could not find his marijuana, and he struck her in the head with a handgun. The
Defendant argues that this error denied “his constitutional right to a unanimous verdict.”
The State responds that the prosecutor‟s “closing argument rendered any failure to elect
offenses harmless beyond a reasonable doubt.”

        The Defendant failed to raise this issue at trial or in his motion for new trial;
therefore, we examine the issue solely under plain error review. State v. Smith, 492
S.W.3d 224, 232 (Tenn. 2016) (stating that failure to raise an election of offenses issue in
the trial court waives direct appellate review but does not preclude plain error review).
The doctrine of plain error applies when all five of the following factors have been
established:
        (a) the record must clearly establish what occurred in the trial court;
                                              -7-
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused must not have waived the issue for tactical reasons; and
       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

       Our supreme court recently held in a case involving a conviction for aggravated
assault based on violation of a court order that the State had “adduced proof of more than
one incident that each matched the allegations of the charging instrument,” thus
implicating “the election of offenses doctrine,” and that the State‟s failure “to elect the
specific instance for which it wanted the jury to consider for the aggravated assault
charge” was plain error. Smith, 492 S.W.3d at 236, 239. However, the two incidents at
issue in Smith occurred at two separate residences and after a period of time had elapsed
between the first and the second incident. Id. at 228.

       In contrast, the events at issue here all occurred within a matter of minutes and all
within the same room of Ms. Tenort‟s apartment. “[T]he gravamen of the aggravated
assault statute is injury, fear, or physical contact,” and there is “nothing in the statute to
indicate that the legislature intended for defendants to be punished separately for each
blow or injury.” State v. Pelayo, 881 S.W.2d 7, 11, 13 (Tenn. Crim. App. 1994).
Therefore, separate acts which are minimally “separated by time and place” can
“coalesce[] into an „unmistakable single act‟” that constitutes one aggravated assault. Id.
at 13. Therefore, in determining whether separate acts provide sufficient grounds for
multiple aggravated assault convictions we perform “a conscientious consideration of the
temporal and geographic proximity of the separate acts.” Id.

       The Defendant repeatedly punched and choked Ms. Tenort until she punched him
in the face. The Defendant then threatened to kill Ms. Tenort if he could not find his
marijuana and exited the room. The Defendant returned moments later and struck Ms.
Tenort on the head with a revolver. We conclude that the Defendant‟s actions occurred
in such close temporal and geographic proximity that they constitute one act of
aggravated assault. See Pelayo, 881 S.W.2d at 12-13 (finding one aggravated assault
where the defendant cut the victim with a knife inside her apartment, chased her outside
as she attempted to flee, and cut her a second time outside the apartment); cf. State v.
Glenn Lydell McCray, No. M2011-02411-CCA-R3-CD, 2013 WL 1870872, at *14
(Tenn. Crim. App. May 2, 2013) (finding two separate aggravated assaults had occurred
where the defendant had first assaulted the victim with the butt of a rifle and a metal bat,
then went to a different room and “began to doze” before cutting the victim‟s throat when
                                             -8-
she later attempted to leave the apartment). As there was only one aggravated assault, the
State was not required to make an election of offenses. Accordingly, we conclude that
there was no plain error because there was no breach of a clear and unequivocal rule of
law.

                                     III. Merger of Convictions

        While not raised by either of the parties, we note that the trial court erred by
failing to merge the Defendant‟s aggravated assault convictions.2 While “the elements of
the two types of aggravated assault are distinct, there [was] still only one assault and one
victim.” State v. Dannaer Beard, No. W2013-00502-CCA-MR3-CD, 2014 WL 5465860,
at *5 (Tenn. Crim. App. Oct. 28, 2014). Put another way, aggravated assault involving
the use or display of a deadly weapon and aggravated assault based on violation of a
court order “are two ways to commit the same offense of aggravated assault.” Id. Failure
to merge the aggravated assault convictions constituted plain error. State v. Paul Brent
Baxter, No. M2016-00049-CCA-R3-CD, 2016 WL 5831616, at *3 (Tenn. Crim. App.
Sept. 30, 2016). Accordingly, we merge the Defendant‟s conviction for aggravated
assault based on violation of a court order into his conviction for aggravated assault
involving the use or display of a deadly weapon. We remand the case to the trial court
for entry of corrected judgment forms reflecting this merger and the resulting sentence of
fifteen years‟ incarceration.

                                           CONCLUSION

       Upon consideration of the foregoing and the record as a whole, we affirm the trial
court‟s judgments as to the Defendant‟s convictions. However, the trial court‟s failure to
merge the aggravated assault convictions constituted plain error. The case is remanded to
the trial court for entry of corrected judgment forms reflecting the merger of the
convictions and resulting sentence of fifteen years‟ incarceration.



                                                         _________________________________
                                                         D. KELLY THOMAS, JR., JUDGE



2
  In declining to merge the aggravated assault convictions, the trial court cited to State v. Smith, 436
S.W.3d 751, 766-68 (Tenn. 2014), which applied the “same elements test” from Blockburger v. United
States, 264 U.S. 299 (1932), in addressing multiple subsections of the false reporting statute. However, in
an attempt “[t]o be precise and foster clarity in Tennessee law” our supreme court in State v. Watkins,
362 S.W.3d 530, 545 n.26 (Tenn. 2012), stated that the “same elements test” was “of no value” when
addressing “claims that involve multiple convictions under the same statute.”
                                                   -9-
