                                                                                            05/31/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs January 18, 2017 at Knoxville

             STATE OF TENNESSEE v. JOHN ALFRED WATERS

                Appeal from the Criminal Court for Davidson County
                No. 2014-D-2991         J. Randall Wyatt, Jr., Judge


                             No. M2016-00522-CCA-R3-CD


The Defendant, John Alfred Waters, appeals as of right from his convictions for
aggravated assault, violation of an order of protection, and attempted aggravated
burglary. The Defendant contends (1) that there was insufficient evidence to support his
convictions for aggravated assault as charged in counts 6, 7, and 8; (2) that the trial court
erred when it admitted evidence of the Defendant’s previous conviction for violating an
order of protection; and (3) that the trial court erred in allowing a police officer to testify
that one of the victims was the “most terrified” victim he had ever seen because such
evidence was irrelevant and unduly prejudicial. Following our review, we affirm the



                                                                              -
judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Emma Rae Tennent (on appeal); and Emily Herbert and Ellen Forrester (at trial),
Nashville, Tennessee for the Defendant, John Alfred Waters.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; Amy Hunter and Jeffrey Jackson
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                         OPINION

                               FACTUAL BACKGROUND
       This case arose after the Defendant twice entered an apartment complex on Rosa
L. Parks Boulevard in Nashville, Tennessee, where his ex-girlfriend lived. The Davidson
County Grand Jury charged the Defendant with eight counts of aggravated assault; two
counts of violating an order of protection; one count of attempted burglary; and one count
of aggravated stalking. Specifically, the Defendant was accused of the following crimes:

      Count 1: Aggravated Assault against Annette Hill on June 23, 2014, by
      violating an order of protection.

      Court 2: Violation of an Order of Protection by having contact with
      Annette Hill on June 23, 2014.

      Court 3: Aggravated Assault against Kimberly Simpson on June 23, 2014,
      by use or display of a deadly weapon.

      Count 4: Aggravated Assault against Annette Hill on June 23, 2014, by use
      or display of a deadly weapon.

      Count 5: Attempted Aggravated Burglary of Annette Hill’s home on June
      23, 2014.

      Count 6: Aggravated Assault against Annette Hill on June 24, 2014, by use
      or display of a deadly weapon.

      Count 7: Aggravated Assault against Kimberly Simpson on June 24, 2014,
      by use or display of a deadly weapon.

      Count 8: Aggravated Assault against Ronda Armstrong on June 24, 2014,
      by use or display of a deadly weapon.

      Count 9: Aggravated Assault against Officer Troy Loewen on June 24,
      2014, by use or display of a deadly weapon.

      Count 10: Aggravated Assault against Sergeant Terrance Demarest on
      June 24, 2014, by use or display of a deadly weapon.

      Count 11: Violation of an Order of Protection by having contact with
      Annette Hill on June 24, 2014.

      Count 12: Aggravated Stalking of Annette Hill on June 23 and 24, 2014.

See Tenn. Code Ann. §§ 39-12-101; -13-102, -13-113,-13-402; -14-403; -17-315. Prior
to trial, the Defendant pled guilty to Count 11 for violating an order of protection and
                                           -2-
Count 12 for aggravated stalking. The case proceeded to a jury trial on September 8,
2015, on the remaining ten counts.

                                     I. Incident One

       Kimberly Simpson testified that on June 23, 2014, she was involved in an incident
at an apartment complex on Rosa L. Parks Boulevard. She explained that she called the
police because she was “assaulted running in [her] building.” Ms. Simpson identified the
Defendant as the man who attacked her that day at the apartment complex.

        She stated that she had been at a baseball game, and a friend had driven her home.
Ms. Simpson testified that she “always [ran] into her building . . . [b]ecause she lived[ed]
all the way at the top, so [she ran] all the way up the stairs.” She stated that as she was
running to her building, she noticed “[a] guy walking down the sidewalk with a long
silver thing and that was out of the ordinary in [her] building[.]” When she ran back to
see what was going on, she saw “a guy with a white t-shirt on[,]” who “was coming down
the sidewalk[.]” According to Ms. Simpson, the man “was already behind” her, and she
“could hear his shoes and [his] laughing and saying, . . . ‘Ah, ha, I got you now b---h.”
Ms. Simpson also testified that the man said, “I’m fixin’ to kill you[r] a-s.” She
explained that when she “turned around[,]” she “had her hand up because . . . he was
swinging [the thing in his hand] and [she] put [her] arm up . . . and started screaming.”
She stated that she believed that this man was “trying to kill” her and that she “had to hit
him. [She] hit him two, two or three times and knocked him over.” She claimed that she
blocked the swing from the man, and that defending herself “was how she got [the] scar
on her arm[.]” She further explained that when she

       blocked the swing [she] put [her] arm up . . . because he was swinging too
       fast and [she] put [her] arm up . . . and he looked at [her] and [she] just
       punched him. [She] just punched him and knocked him over . . . the rail –
       so [she] could get to the step, [she] knocked him over the rail and then
       [they] . . . had eye-to-eye contact and when he looked at [her], he looked [as
       if he] got the wrong person and then he continued to go on.

       She testified that at that point, she recognized the man as the Defendant because
she had previously “seen him in the building.” She stated that once they made eye
contact, the Defendant continued up the stairs to the second level of the apartment
complex where Ms. Annette Hill lived. Ms. Simpson claimed that she observed the
Defendant approach Ms. Hill’s door, and using “the thing that he attacked [Ms. Simpson]
with[,]” he tried “to get into [Ms. Hill’s] apartment.” She explained that the “thing” was
“a long thing with a hook on it and it had like a hammer at the end, like a little size of a
hammer at the end of it.” She said that it was made of “steel” or “metal[.]” She testified

                                            -3-
that after observing him run to Ms. Hill’s apartment door, the Defendant took “the hook
and he was just prying and he was trying to get in [Ms. Hill’s apartment], but he couldn’t
get it, so he was still trying, he was kicking it and everything. He couldn’t get in.” Ms.
Simpson testified that she called the police and

       when [the Defendant] heard [her] talking to the police he stopped working
       on [Ms. Hill’s] door and then he started taking his clothes off and [Ms.
       Simpson told] the police that he [was] taking off his clothes. [The
       Defendant was] getting naked and then . . . he went down the steps . . . he
       went to the left and came back and he didn’t have nothing on and then he
       went to the right and [Ms. Simpson] didn’t see him anymore.

When asked how she felt during this time, Ms. Simpson testified that she “feared where
[she] lived” and that she “feared for [her] life.” She further testified that she “couldn’t
sleep. [She] couldn’t eat, nothing, and [she had] never feared anything in her life[.]” She
stated that the police officers “showed up . . . three or four minutes later” and that she
informed the officers “which way [the Defendant] went.”

        Ms. Simpson was shown a photograph of the apartment complex on Rosa L. Parks
Boulevard. She identified the stairwell where her altercation with the Defendant
occurred and “the rail where [she] knocked him over[.]” She confirmed that there were
lights at the apartment complex, explaining that the lights “come on at eight o’clock[,]”
that the lights were on during the incident with the Defendant, and that she had no
problem seeing and identifying the Defendant as he was attacking her. Ms. Simpson
averred that she did not “take a warrant out on” the Defendant because she “was angry
and knew that they would let him out, so – if they gave him something, they wasn’t going
to catch him.”

        On cross-examination, Ms. Simpson asserted that when she arrived at her
apartment on the evening of June 23, 2014, she was with one of her friends, Jermaine
Chamberlain. She agreed that Mr. Chamberlain remained in his car so that he could
make sure she entered her apartment safely. Ms. Simpson testified that she had run to the
stairs before she walked back to the sidewalk to see “what [was] going on[,]” indicating
that it was abnormal “for somebody to be walking around with a stick in [the] apartment
complex.” She agreed it was at this point that the Defendant “came running at” her, that
he was carrying a “long thing with a hook like it [had] a hammer on the end of it[,]”that
she put her hand up to deflect the Defendant’s attempt to strike her with the object, and
that she punched him and flipped him over the railing. Ms. Simpson viewed a previously
identified photograph of the apartment complex stairwell and indicated where she was
standing and where the Defendant was standing when she flipped him over the rail. After


                                            -4-
the Defendant continued to run up the stairwell, Ms. Simpson called 911 from Mr.
Chamberlain’s car.

       Also, on cross-examination, Ms. Simpson was questioned about the content of her
911 call. When asked if she recalled telling the 911 operator that the Defendant “dropped
the object that he had in his hand in the breezeway[,]” she responded, “No.” Counsel for
the defense then read the following portion of the 911 transcript, which appeared to
contradict Ms. Simpson’s assertion:

                They are gray blue jeans and he got a hammer, I don’t know what
       that is laying in our breezeway, but whatever it, whatever he had in his
       hand, he, you know, when he was trying to attack me it fell down, so it is
       still laying right there. I don’t know what that is laying there though.

        Ms. Simpson agreed that Ms. Hill never came outside her apartment during this
first incident with the Defendant and that Ms. Hill did not leave her apartment until the
police arrived at the apartment complex. She agreed that the police officers took Ms. Hill
to the police station and that Ms. Simpson left the complex with her daughter. Ms.
Simpson averred that before leaving the complex, she stood outside talking with other
apartment residents about what had occurred. Ms. Simpson affirmed that she left the
apartment complex with the intention of “taking out a warrant” on the Defendant, but she
decided not to do so.

        Ms. Annette Hill testified that on June 23, 2014, she was living at an apartment
complex on Rosa L. Parks Boulevard. She asserted that she knew the Defendant and that
she had dated him previously for approximately three years, but she had ended her
relationship with him. Ms. Hill testified that on the morning of June 23, 2014, she was in
court all day because the Defendant had violated an order of protection that she had
against him. Ms. Hill stated that the Defendant pled guilty to violating the order of
protection and that his sentence did not involve jail time. She explained that she was
upset about his sentence and stated that she “cried.” She said that she was worried
“because each time [the Defendant] got out[,] he always [came].” Ms. Hill testified that
following the day in court, she was exhausted and went to bed at 8:00 p.m. that night.
She stated that her bedroom was located at the back of her apartment and that it was
difficult for her to hear people knocking on her door. At some point that evening, she
received a phone call from a neighbor, Debra Holt. In response to this phone call, Ms.
Hill testified that she “got up, went to the door[,] and [she] couldn’t get out.” She said
that “the police had to let [her] out” of her apartment. She stated that after she got out of
her apartment, Officer Troy Loewen, with the Metro Nashville Police Department, took
her downtown to assist the officers in taking out a warrant for the Defendant.


                                            -5-
        Ms. Hill also testified that she was grateful to Ms. Simpson. She was afraid that
the Defendant would have gotten into her apartment and that “he probably would have
killed [her]” had Ms. Simpson not called the police. Ms. Hill identified a document as
the order of protection that she had against the Defendant. She agreed that she got the
order of protection on June 4, 2014, and asserted that both her signature and the
Defendant’s signature were on the document. The order of protection was entered into
evidence.

       Ms. Debra Holt testified that she had resided at an apartment complex on Rosa L.
Park Boulevard and that she recalled incidents that occurred on June 23, 2014, and one in
the early morning of June 24, 2014. Regarding the incident on June 23, 2014, Ms. Holt
said the following:

              I was in my apartment and I heard a lot of noise and something hit
       against the wall, so I came out to see what was going on and as I, there was
       two apartments, mine and the other one, and then we go through a little
       breezeway out onto the landing outside, when I stepped out I heard the
       noise and turned around and looked up and that is when I saw [the
       Defendant] trying to get into [Ms. Hill’s] apartment.

       Ms. Holt explained that the Defendant was “banging on the handle” of Ms. Hill’s
apartment door and that he was trying “to pop the door open.” She stated that once she
saw the Defendant attempting to break into Ms. Hill’s apartment she “ran back in [her]
apartment and dialed 911.” She said that while she was outside, she saw Ms. Simpson,
who “was the one that was pointing up telling me to look up.” She said that she saw the
Defendant holding “some kind of tool” that was “maybe a foot, a foot and a half long,
one end had a hammer” and “the other side looked like a crowbar.” Ms. Holt testified
that police officers arrived at the apartment complex and that Ms. Hill left with the
officers. Ms. Holt said that she observed Ms. Hill’s apartment door after the first
incident. According to Ms. Holt, the door was damaged and “it had a lot of dents and
you could see where parts of the metal [were] . . . misshaped.”

       Officer William Holls, “a FLEX officer with the North precinct[,]” testified that he
was a patrol officer in Nashville on June 23 and 24, 2014. He explained that he
responded to a domestic disturbance call at an apartment complex on Rosa L. Parks
Boulevard. He explained that when he arrived on the scene, Ms. Simpson was “very
distraught” and was “saying he is back here, he is back here[.]” He explained that he and
other police officers searched the area for the Defendant, but they were unable to find
him. He stated that he went to Ms. Hill’s apartment, inspected her door, and saw that
“there was damage to the door.” He spoke to Ms. Hill through the door and asked her to
let him in; however, she had “difficulty getting the door open due to the damage to the

                                            -6-
door.” He explained that he had to “push at the door to get it open” and that he had to
“use[] a great deal of force” to do this. Officer Holls said that when he got inside and
spoke to Ms. Hill, “[s]he was frightened, concerned, nervous and very fearful.”

       Officer Loewen testified that he responded to two incidents at an apartment
complex on Rosa L. Parks Boulevard on June 23 and 24, 2014. Regarding the first
incident, he said that he arrived at the complex around 11:00 p.m. He explained that he
“went to that location to relieve an officer that was working second shift” and that he
“took over the rest of the incident from there.” Officer Loewen explained that he spoke
with the officer he was relieving to “get an overview of what had happened[,]” and then
he “spoke with Ms. Hill and got a general idea of what had happened.” Officer Loewen
stated that he took Ms. Hill to the “Criminal Justice Center” so that she could either
“obtain[] a warrant or an order of protection[.]” He did not recall which action Ms. Hill
took “because it had been a while.”

        He said that he escorted Ms. Hill back to the apartment complex and “asked her if
she needed any more help.” He said that she asked him to “stick around because she was,
at this point she was clearly, she was terrified. In my experience I have never seen
anybody this . . .” After this comment, counsel for the Defendant objected to “the
relevance of what [Officer Loewen’s] experience [was] about” because it was “not
necessary.” The trial court overruled the objection and stated that Officer Loewen could
testify about “how she appeared” and her “demeanor.” Officer Loewen continued, “[Ms.
Hill] was terrified. I have been to a lot of domestics and sad situations, but I have never
seen a victim as terrified as she was. She asked repeatedly that I stick around and stay
with her just in case anything happened.” He explained that he stayed with her until “she
could have a family member come stay with her.” Moreover, when asked if he had seen
Ms. Hill’s front door, Officer Loewen responded that he “noticed there were several
dents and marks on the side of her door, near the door handle.”

                                      II. Incident Two

       Ms. Simpson also testified about a second incident that occurred “in the early
morning hours of June 24, 2014.” She testified that she was sitting outside with Ms. Holt
and Ms. Ronda Armstrong. She stated that she was sitting outside because she “was
scared to go in” her apartment, so the women “stood outside with [her] and [they were]
there talking about” the first incident. She stated that while they were sitting in a
breezeway in front of the apartment complex, she “heard something dragging. [The
Defendant] had something else in his hand that was very long, it was longer than what he
first had.” When asked what it sounded like, she replied, “Just steel, just dragging
against something, he was talking about I’m fixin’ to come and kill y’all, you know, and
then that is when he raised his hands up and we all just ran, ran right to the . . . two police

                                             -7-
officers there.” She described the object in his hand as longer than the object from the
previous incident and said that it “had two hooks” on it.

       Ms. Simpson stated that after the women ran to the police officers, the Defendant
continued to approach the officers and women. She explained that the officers instructed
the Defendant to “get down[,]” but that the Defendant “wouldn’t get down[,]” and that he
“raised the bar at the police.” She testified that after the Defendant ignored the police,
raised his weapon, and continued to advance on the officers and the women, one of the
police officers “tased” the Defendant. When asked how close the Defendant was to the
officers when he was tased, she stated that he “was right in front of them[.]”

        Ms. Hill stated that Officer Loewen took her back to her apartment complex, after
going to the police station. She agreed that she did not feel comfortable being at her
apartment alone. She testified that she “asked Officer Loewen to stay” because the
officers “didn’t catch” the Defendant and she believed that he would “be back.” Ms. Hill
testified that Officer Loewen and another officer were in the parking lot of her apartment
complex “doing paperwork[,]” while she was “hanging out” with Ms. Simpson, Ms.
Holt, and Ms. Armstrong. She explained that they were “sitting on the porch on the steps
at the front of the apartment.” She confirmed that they were in the breezeway on the first
level of the complex. Ms. Hill testified that after she had been sitting on the stairs talking
with the women for a while, she heard a noise “[l]ike something was dragging.” She
elaborated that the sound “was like metal[.]” She said that about the time she heard this
noise, Ms. Simpson yelled, “[I]t is him.” Ms. Hill testified that she turned around and
saw the Defendant “with a crowbar in his hand.” She said that he “raised [the crowbar]
and he kept coming towards us. We ran to the police.” Ms. Hill also testified that the
Defendant raised the crowbar over his head “like in a baseball position.” She further
explained that she “got up and ran” and agreed that she “ran out of [her] shoes when she
saw [the Defendant].” Ms. Hill then identified a photograph of a pair of shoes on a
sidewalk as the shoes that she was wearing that night. She said that she “was scared”
when the Defendant walked toward her with the crowbar.

        Ms. Hill testified that after she and the three other women ran to the police
officers, they were “[p]robably a couple of feet away” from the two officers. Ms. Hill
explained that as the Defendant continued advancing toward them, the officers instructed
the Defendant to stop. However, the Defendant did not stop advancing, and he was still
carrying the crowbar. She confirmed that he “didn’t act like he was going to stop.” She
stated that the Defendant “was pretty close” when the officers “tased him three times.”
She agreed that the Defendant “[w]as within a few feet” of the officers when they tased
him. When asked if she heard the Defendant say anything from the time he approached
her in the breezeway until the time he was tased, she replied, “I know I heard him just
say, ‘If I die you die.’”
                                             -8-
        Ms. Holt testified that when Ms. Hill returned to the apartment complex with the
officer, Ms. Hill “was afraid.” Ms. Holt stated that after Ms. Hill returned, “no one
wanted to go to their apartment.” She also stated that she was with Ms. Hill, Ms.
Armstrong, and Ms. Simpson sitting “out on the stoop” outside of the breezeway. She
explained that they were “discussing what had happened that day” and that they “felt
secure” because two police officers were sitting in their cars in the parking lot. Ms. Holt
testified that while the women were sitting on the steps talking, she heard “a clink[,]”
“[l]ike metal hitting metal.” She stated that she “[she] turned around and Ms. Simpson
sa[id], ‘who is this clinking this time of night[?]’” Ms. Holt testified that she realized it
was the Defendant and said, “It’s him.” She said that upon realizing the Defendant was
moving toward them with “a weapon” they ran down the sidewalk, “[s]traight to the
police officers.” She explained that they “flew past [the officers] and went behind the
cars” and that they were “screaming and hollering.” Ms. Holt also stated that “[w]hen
[she] first saw [the Defendant] he had passed the metal stairway” and he “was almost to
the middle of the breezeway.” She stated that at that point, she saw that he had an object
in his hand and that he had it “raise[d] in the air[.]” She said that after the women ran to
the officers, that the officers got out of their cars and asked, “Who is coming?[,]” and the
women indicated that it was the Defendant. When asked how she felt at that point, Ms.
Holt replied, “We were scared. . . . I was petrified[.]” She said that as the Defendant
continued to approach the women and the police officers that he still had the object “in
his hands” and that she was afraid of that object. Ms. Holt testified that at the time she
was not sure what the object was, but she believed that it “was some kind of metal
something.” When asked to explain that happened after the Defendant continued to
advance on the group, she said

       We ran around and one of the officers asked [the Defendant] to stop and put
       down the weapon and [the Defendant] kept walking and [the police officer]
       asked him again to stop and put down [his] weapon and when [the
       Defendant] took another step and a half or two then he was tased.

       Ms. Holt also testified that she heard the Defendant say, “If he died she was going
to die. We were going to die.” She said that the Defendant “was talking to [Ms. Hill].
He was looking at her.” Ms. Holt said that she “was afraid that in [the Defendant’s]
pursuit of trying to get [Ms. Hill] that [she, herself] could be hurt in the process, because
[Ms. Hill] was sitting right next to [her] in the middle, [their] shoulders were touching.”
She stated that she believed the Defendant was primarily looking at Ms. Hill but that she
was afraid because she “didn’t know what was going to happen. [She] didn’t know if
[the Defendant] was just aiming for her or if he was going to swing[.]”

      On cross-examination, Ms. Holt further described the second incident involving
the Defendant and said that was he was tased twice. She stated that the officers asked
                                            -9-
him to stop moving and put down his weapon but that he kept moving forward. She said
that was when he was first tased, and the “second time [she] didn’t actually see it, but
[she] could see the coils.” She said that the second time the Defendant was tased, she
thought that he was on the ground but that he was “still trying to move . . . still trying to
get up.”

       Ms. Ronda Armstrong stated that she lived in Nashville and remembered the
incident that occurred on June 24, 2014. She explained that the incident involved the
police and happened at her apartment complex on Rosa L. Parks Boulevard. She
explained that she was sitting outside of the complex with Ms. Hill, Ms. Simpson, and
Ms. Holt. When asked to explain what happened as she was sitting there with the other
women, she gave the following account:

       [The other women] were talking about something that had happened before
       I had even gotten there and just in the midst of us talking there was this
       noise we heard and I think it might have been [Ms. Simpson who] said,
       “What is the clinging” and she turned around and she said, “He’s back,”
       and we all just took off running and at that time the police officer was still
       outside, because they were there from [before], from the earlier time, and as
       we were running we ran past the police cars, the police got out, there was a
       gentleman running with a crowbar in is hand and he was charging trying to
       get to [Ms. Hill] and she [was] going to the police thinking she [was] going
       to be safe that way, but he [was] still charging as the police [were] right
       there.

       Ms. Armstrong then identified the Defendant as the man who rushed them with the
crowbar. When asked why she ran when she heard the Defendant’s approaching, she said
that she was “[s]cared.” When asked if she heard the Defendant say anything, she
replied, “I know for sure he said, . . . if I don’t die tonight, I am going to kill you if I
don’t die tonight.” She stated that the Defendant was directing these remarks to Ms. Hill.
Ms. Armstrong also explained that she was able to see the Defendant clearly during the
incident because there were lights on the apartment building and the area was “well lit.”
She explained that she had seen the Defendant before “in passing” and that she “knew of”
Ms. Hill because they both lived at the apartment complex. She stated that she had seen
the Defendant and Ms. Hill together at the apartment complex. She testified that after she
and the other women ran past the police, the Defendant continued to move forward, but
one of the officers “tased him . . . twice” and “then finally he fell to the ground.” She
said that at the moment the Defendant was tased, the crowbar “was still in his hand[,]”
and he looked as if he was “[r]eady to use it.”



                                            -10-
       Officer Loewen testified that after he returned to the apartment complex, his
supervisor Sergeant Terrance Demarest, with the Metro Nashville Police Department,
joined him, and they discussed “how to proceed to try to go find [the Defendant] because
[they] felt that he might still be a threat to Ms. Hill.” Officer Loewen explained that they
remained at the complex until a family member arrived to stay with Ms. Hill. He stated
that while they were waiting in the parking lot in their patrol cars, a second incident
involving the Defendant occurred.

        Officer Loewen explained that Ms. Hill and three other women ran screaming
away from the apartment complex. He stated that the women were shouting “something
along the lines of he’s back. He is here. He has come after us[.]” Officer Loewen said
that all four of the women “ran past us” and that he and Sergeant Demarest had “gotten
out of [their] vehicles.” He said that the women “ran right by us and that is when we saw
[the Defendant] walking towards us with a large crowbar in his hand.” When asked how
the Defendant was holding the crowbar, Officer Loewen responded, “[H]e was holding it
down at his side with just one hand . . . when we first saw him [and] as he approached us
he started getting closer he raised the crowbar over his head, holding it with two hands,
similar to how you would hold a baseball bat getting ready to swing[.]” Officer Loewen
said that the Defendant was approximately “eight to ten feet” away from them when he
raised the crowbar.

      Officer Loewen testified that he took the following actions as the Defendant
approached,

              When I saw [the Defendant] raise the crowbar above his head that is
       when I, I was fearful of what he was going to do with the crowbar, at which
       point I drew out my pistol and I directed him to stop, I gave him multiple
       verbal commands to stop, put the, put the crowbar down, to stop coming at
       us, to get on the ground, drop the weapon. I repeatedly gave those
       commands which he completely ignored. He just kept coming right at us.

               At that point, as he continued to approach us I was able to move to
       his side so that myself and the other officer weren’t standing right sid[e]-
       by-side in front of him, trying to get a better angle to keep him from getting
       to the other, Ms. Hill and the other three that were with her.

              He continued to come at us with the crowbar over his head. He
       continued to ignore our verbal commands to stop, put the weapon down, so
       at which point I put my pistol up and pulled out my taser and I tasered him.

Officer Loewen agreed that he believed the Defendant was using the crowbar as a
weapon and testified that he “was certain [the Defendant] was going to try to use [the
                                         -11-
crowbar] on us. . . . I wouldn’t say I was terrified, but I was very scared. I was definitely
concerned for my safety at that point.” He explained that he used a taser when there was
“an active threat against” him and that this was “basically the step below deadly force.”
Officer Loewen stated that after he tased the Defendant, the Defendant fell to the ground,
and Sergeant Demarest “put him in handcuffs.”

      He testified that during this time, he heard the Defendant make “several
statements.” He remembered the Defendant’s repeating the phrases “[i]f I die you die”
and “I’m going to kill you.” Officer Loewen stated that he believed these statements
were directed at Ms. Hill.

       Sergeant Demarest testified that he remembered the incident that occurred in the
early morning hours of June 24, 2014. He explained that he responded to a call for
assistance from Officer Loewen at an apartment complex on Rosa L. Parks Boulevard.
He continued that he had been at the complex for approximately “20 to 30 minutes” when
he “started hearing people screaming[.]” He stated that he exited his patrol car and
several women “came running from the stairwell area[.]” According to Sergeant
Demarest, one of them was screaming, “There he is. There he is.” He said that “the
[Defendant] came running” toward them “carrying a large crowbar up over his head.” He
explained that the women ran past him into the parking lot and “were scared” and “were
screaming at the top of their lungs.” When asked to describe what happened next,
Sergeant Demarest explained that

              [The Defendant] ran around . . . some vehicles parked in the parking
       spaces there as he came to the vehicles he was running at a swift pace and
       then he came to a sudden stop and then he started moving towards us again.

              At that point, I was at a gun point with him, because he had the
       crowbar placing me in fear for my safety and my partner also and not only
       that I was scared for the victims, but he had stopped for a second and he
       started advancing on me and I told him to stop, put the crowbar down. I
       repeated it multiple times to him, and he just ke[pt] screaming. He was not
       yelling at us. He was screaming at [the women].

       Sergeant Demarest further explained that as the Defendant was holding the
crowbar over his head, he was screaming at the group of women, “I’m going to kill you.”
Sergeant Demarest said that the Defendant was directing his comments “toward the group
[of women,]” and he was “not sure if [the Defendant] was specifically screaming at Ms.
Hill, but [Sergeant Demarest] assum[ed] he was.” Officer Demarest said that the
Defendant repeatedly “screamed [this phrase] at the top of his lungs.” Officer Demarest
explained that he was ready to use deadly force against the Defendant because “[h]e was

                                            -12-
clearly a threat” to the officers and the victims and the Defendant was ignoring the
commands from the officers. He explained that he believed Officer Loewen was in a
position to successfully use a taser on the Defendant rather than lethal force. Thereafter,
Officer Loewen deployed the taser; the Defendant fell to the ground; and Sergeant
Demarest placed handcuffs on the Defendant. He said that as he was putting handcuffs
on the Defendant, the Defendant repeatedly shouted, “If I die you die[.]”

       After the State rested, counsel for the Defendant made a motion for a judgment of
acquittal regarding Count 1 (aggravated assault by violating an order of protection),
Count 2 (violation of an order of protection), and Count 4 (aggravated assault by using or
displaying a deadly weapon), all involving Ms. Hill and the first incident on June 23,
2014. The trial court overruled the motion with respect to Count 1 and Count 2 and
granted the Defendant’s motion for judgment of acquittal as to Count 4. The trial court
reasoned that the aggravated assault charged in Count 4 required that the Defendant cause
Ms. Hill “to reasonably fear imminent bodily injury” and that Ms. Hill “was asleep and
didn’t even know that [the Defendant] was there.”

        The jury convicted the Defendant of six counts of aggravated assault (Counts 1, 6,
7, 8, 9, and 10), one count of attempted aggravated burglary (Count 5), and one count of
violating an order of protection (Count 2). The jury found the Defendant not guilty of
Count 3 regarding the aggravated assault against Ms. Simpson on June 23, 2014. The
Defendant received a total effective sentence of eleven years, eleven months, and twenty-
nine days to be served in confinement. The Defendant filed a timely appeal with this
court.

                                       ANALYSIS

                                       I. Sufficiency

       On appeal, the Defendant argues that the evidence was insufficient to support his
convictions for three counts of aggravated assault. Specifically, he argues that the State
failed to prove beyond a reasonable doubt that Ms. Hill’s, Ms. Simpson’s, and Ms.
Armstrong’s fear of imminent danger was reasonable regarding the second incident with
the Defendant during the early morning hours of June 24, 2014. The State responds that
the evidence was sufficient for the jury to find that the Defendant was guilty of
aggravated assault of Ms. Hill, Ms. Simpson, and Ms. Armstrong. We agree with the
State.

       An appellate court’s standard of review when the Defendant questions the
sufficiency of the evidence on appeal is “whether, in viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential

                                           -13-
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.” 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).

       “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 reason for this is because with both direct and circumstantial evidence, “a jury is
asked to weigh the chances that the evidence correctly points to guilt against the
possibility of inaccuracy or ambiguous inference[.]” Id. at 380 (quoting Holland v.
United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this 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).

       As relevant here, a person commits assault who “[i]ntentionally or knowingly
causes another to reasonably fear imminent bodily[.]” See Tenn. Code Ann. § 39-13-
101(a)(2). Aggravated assault is defined as, “Intentionally or knowingly commit[ing] an
assault, . . . and the assault involves the use or display of a weapon .” See Tenn. Code
Ann. § 39-13-102(a)(1)(A)(iii).

        Here, there is sufficient proof to support the Defendant’s convictions for
aggravated assault against Ms. Hill, Ms. Simpson, and Ms. Armstrong on June 24, 2014.
The Defendant intentionally moved towards the victims while carrying a large crowbar.
As he got closer to the victims he raised the bar above his head. Additionally, the
Defendant repeatedly shouted the phrase: “I’ll kill you.” Though this statement may have
been directed specifically at Ms. Hill, she was in close proximity to the other two women.
Furthermore, the Defendant was ignoring commands from two police officers who were
prepared to use deadly force to stop the Defendant from advancing. Ultimately, Officer
Loewen had to use a taser to subdue the Defendant, who fell to the ground and shouted,
“If I die you die.” Both Officer Loewen and Sergeant Demarest testified that they feared
for their own safety and the safety of the four women as the Defendant approached them
                                          -14-
carrying the crowbar. Each of the victims testified that they were afraid that the
Defendant would harm them. Thus, there was sufficient evidence to support the
Defendant’s convictions for aggravated assault against Ms. Hill, Ms. Simpson, and Ms.
Armstrong in Counts 6, 7, and 8.

                          II. Admissibility of Prior Conviction

        Additionally, the Defendant argues that his June 23, 2014 guilty plea for violating
the order of protection in effect as of June 4, 2014, should not have been entered into
evidence under Tennessee Rule of Evidence 404(b). He argues that the conviction was
irrelevant and resulted in prejudice which constituted harmful error, requiring a reversal
of all of his jury trial convictions. He contends that even if the testimony regarding his
prior conviction was relevant, it should have been excluded because its probative value
was outweighed by a danger of unfair prejudice. The State responds that the trial court
did not abuse its discretion in finding that the Defendant’s conviction for violating the
order of protection was relevant to the Defendant’s motive and intent in committing the
offenses. We agree with the State.

      Tennessee Rule of Evidence 404(b) provides as follows:

      Evidence of other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity with the
      character trait. It may, however, be admissible for other purposes. The
      conditions which must be satisfied before allowing such evidence are:

      (1) The court upon request must hold a hearing outside the jury’s presence;
      (2) The court must determine that a material issue exists other than conduct
      conforming with a character trait and must upon request state on the record
      the material issue, the ruling, and the reasons for admitting the evidence;
      (3) The court must find proof of the other crime, wrong, or act to be clear
      and convincing; and
      (4) The court must exclude the evidence if its probative value is outweighed
      by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694
S.W.2d 299, 302 (Tenn. 1985). The term “other purposes” in the aforementioned rule,
permitting evidence of a defendant’s prior crimes, wrongs, or acts to be admitted, has
been defined to include motive, intent, guilty knowledge, identity of the defendant,
absence of mistake or accident, a common scheme or plan, completion of the story,
opportunity, and preparation. State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (citing

                                           -15-
State v. Robert Wayne Herron, No. M2002-00951-CCA-R3-CD, 2003 WL 151201, at *2
(Tenn. Crim. App. Jan. 22, 2003)).

       If a trial court substantially complies with the procedural requirements of Rule
404(b), we will review the trial court’s determination for an abuse of discretion. Thacker,
164 S.W.3d at 240 (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.
Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). However, if a trial court fails to
substantially comply with the requirements of the rule, then the trial court’s decision
should be afforded no deference by the reviewing court. DuBose, 953 S.W.2d at 652.


       Here, the trial court complied with all four necessary requirements. The trial court
held a jury-out hearing to determine the admissibility of the Defendant’s prior conviction
for violating the order of protection. After hearing argument from the State and from
counsel for the Defendant, the trial court made the following findings:

             I have heard your arguments and considered the issue that we had
       and reviewed the documents that have been filed and the [c]ourt is of the
       opinion that this prior conviction should be admitted in this matter.

               The [c]ourt finds that the evidence goes to motive and intent. I
       understand motive is not an element. I understand that, but it goes toward
       intent, and I think it is something that the [c]ourt is going to allow the jury
       to consider, especially the statement about “I told you I would get out,”1
       you know, I mean, it is all in the same day. Very same day, not the same
       week, but the same day.

               I understand the [c]ourt has got different ways they could prove
       about the order of protection, but I think this evidence is relevant on that
       issue, so I find that the proof of the prior convictions which is a violation of
       the order of protection, I find that that is going to be able to be shown by
       clear and convincing evidence from what I have heard in the arguments
       under the 404(b)(3).

               Th[ere] is really no dispute about that, that aspect of it anyway, so,
       finally, the court is of the opinion that the probative value is not outweighed
       by any unfair prejudice and the [c]ourt will instruct the jury as to how they


1
  We note that this phrase never appeared during trial testimony. However, we still believe that the
evidence of the Defendant’s conviction for violation of an order of protection was properly admitted.

                                                -16-
      are to consider this type of evidence, so that is the rule of the [c]ourt on this
      issue[.]

        The trial court properly complied with the procedural requirements of Tennessee
Rule of Evidence 404(b), and we agree that the evidence was relevant in establishing the
Defendant’s motive and intent. Evidence of the Defendant’s conviction for a violation of
the order of protection was relevant to show that the Defendant had motive or intent to
harm the victim and that he knowingly violated the order of protection. See State v.
Jameson Ross Owen, No. M2014-02394-CCA-R3-CD, 2015 WL 5461498, at *5 (Tenn.
Crim. App. Sept. 18, 2015) (holding that Rule 404(b) evidence of the defendant’s alleged
history of stalking the victim at his trial for a violation of an order of protection was
relevant to show the defendant’s motive, relationship between the parties, and to show
that the defendant acted knowingly in violating the order of protection). Traveling to the
very location that was a subject of the order of protection the Defendant was convicted of
violating just hours before was not done with innocent intent. The Defendant knew that
he was ordered not to have any contact with the victim, but he went to her residence
anyway. Furthermore, we hold that the probative value of this evidence was not
outweighed by the danger of unfair prejudice. See id. (holding that the prejudicial impact
of evidence of alleged stalking did not outweigh its probative value). Thus, we conclude
that the trial court did not abuse its discretion in permitting the testimony under Rule
404(b) relative to the conviction for the order of protection.

                          III. Relevancy of Officer’s Testimony

       Finally, the Defendant contends that the trial court erred in allowing Officer
Loewen to testify regarding his opinion that Ms. Hill was “the most terrified” crime
victim he had ever seen. He argues that this testimony was irrelevant under Tennessee
Rule of Evidence 401; thus, the testimony should have been excluded in accordance with
Tennessee Rule of Evidence 402, in the Defendant’s opinion. He argues that Officer
Loewen’s testimony “served no purpose but to inflame the jury’s emotions and
sympathies toward Ms. Hill and invite them to speculate about matters unrelated to this
case” and that the testimony was unfairly prejudicial. Accordingly, the Defendant
contends that the trial court’s error was not harmless and that the State “compounded the
harmful effect of this error when it reminded the jury of [Officer] Loewen’s testimony
during closing argument.” The State responds that the trial court properly allowed
Officer Loewen to describe the victim’s degree of fear. We agree with the State.

      Tennessee Rule of Evidence 401 defines relevant evidence as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tennessee Rule of Evidence 402 states that “[e]vidence which is not relevant

                                            -17-
is not admissible.” Although relevant evidence is generally admissible, it “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence[.]” Tenn. R. Evid.
403; State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). The term “unfair prejudice” has
been defined as “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Banks, 564 S.W.2d at 951. This
court has also stated that “[p]rejudice becomes unfair when the primary purpose of the
evidence at issue is to elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or
horror.’” State v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M.
Graham, Handbook of Federal Evidence, 182-83 (2d ed. 1986)).

       In response to the Defendant’s objection to Officer Loewen’s statement regarding
Ms. Hill, the trial court allowed the testimony because it described the victim’s
“demeanor.” We agree that the evidence is relevant to show that Ms. Hill was afraid of
the Defendant and that she feared he would return and harm her after the first incident at
the apartment complex. The Defendant had been charged with aggravated assault, and
fear is an element of this crime. See Tenn. Code Ann. §§ 39-13-101(a)(2), -
102(a)(1)(A)(iii). Thus, Officer Loewen’s testimony regarding Ms. Hill’s degree of fear
during the interim between the Defendant’s two appearances at her apartment complexes
was relevant, and the testimony’s probative value was not substantially outweighed by
unfair prejudice.

                                      CONCLUSION

       Based upon consideration of the foregoing and the record as a whole, we affirm
the judgments of the trial court.



                                                         _________________________________

                                                       D. KELLY THOMAS, JR., JUDGE




                                            -18-
