        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs May 4, 2010

              STATE OF TENNESSEE v. PATRICIA HOWELL
                  Appeal from the Circuit Court for Madison County
                        No. 08-668 Donald H. Allen, Judge


                  No. W2009-02285-CCA-R3-CD - Filed July 15, 2010




A Madison County Circuit Court jury convicted the Defendant, Patricia Howell, of
aggravated assault, a Class D felony. The trial court sentenced her to four years incarceration
as a Range I, standard offender, suspended to probation after the service of five months. In
this appeal as of right, the Defendant contends that the evidence is insufficient to support her
conviction because the victim’s injury did not constitute serious bodily injury; thus, she
should have been convicted of assault. Following our review, we agree with the Defendant
and remand the case for entry of a modified judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Modified;
                                 Case Remanded.

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.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public
Defender, for the appellant, Patricia Howell.

Robert E. Cooper, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

      The record reflects that on June 16, 2008, the victim, Tigh Dominique Thrift, was
removing furniture from the Defendant’s apartment for his employer, Rent-A-Center. The
Defendant became angry concerning the removal of the furniture and an altercation occurred
during which the Defendant pushed Mr. Thrift down the stairs of the apartment building.

        Mr. Thrift stated that the Defendant was “consistently late” with weekly payments on
her living room furniture so he decided to repossess the furniture when her payments were
“over a month” past due. Another employee, Marcus Demetrius Reed, accompanied Mr.
Thrift to the Defendant’s apartment on June 16, 2008. Mr. Thrift recalled that the
Defendant’s minor son answered the door and told him that the Defendant was not home.
The child’s uncle, an adult who was staying at the apartment, allowed Mr. Thrift and Mr.
Reed to enter the apartment. After a failed attempt to reach the Defendant by her cellular
telephone, the uncle told the men that they could take the furniture.

        After taking several small items to the truck, Mr. Thrift picked up a marble top coffee
end table and suddenly the Defendant “came busting out of the back room.” Mr. Thrift
described the Defendant as “very hostile” and “very aggressive” and said that they
immediately began to argue about the repossession of the furniture. He testified that “[s]he
was talking very aggressively. She was telling us that she wasn’t going to let us leave her
residence with our furniture . . . . She threatened both of us.” When the Defendant refused
to allow the men to leave the apartment, Mr. Reed telephoned the manager who called the
police.

       Mr. Thrift testified that as he tried to leave with the marble top end table, the
Defendant struck him in the back with a cordless telephone. He recalled that he told the
Defendant “to back up off of me” but that as he approached the stair landing, he felt a “hard
shove” in his back and fell down the stairs with the table in his hands. He stated that he fell
about ten or twelve steps down before grabbing a rail and stopping his fall. He felt a sharp
pain in his knee and sat on the steps until the ambulance arrived. Mr. Thrift denied raising
his voice, threatening the Defendant, or striking the Defendant in any way.

        Mr. Thrift suffered a bruised knee with fluid in it, but no broken bones. He spent
“about five hours” at the emergency room. He was in pain for about two weeks and had to
undergo therapy for three days to regain the flexibility in his knee. He wore a knee brace and
used crutches for about a week. Due to the injury, he was unable to do any lifting required
for his job and missed ten days of his regular work duties. He also stated that he missed a
late June tryout for “Canadian league and N.F.L., Arena One [football] teams” due to the
injury. He testified that his last doctor’s visit concerning his knee occurred about a month
after the injury - and about ten months before trial. He said that he still feels some stiffness
from the injury if he bends it for a long time. When asked by the assistant district attorney
if his knee was completely healed, Mr. Thrift replied that it was.

       Mr. Reed testified consistent with the victim’s testimony. He also stated that he was

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locked in the apartment momentarily when the Defendant shoved the victim down the stairs,
slammed the door, and locked it behind her while Mr. Reed was still inside the residence.
He recalled that they were preparing to remove the items without any problems when the
Defendant entered the living room. He stated that “[y]ou can’t talk to her. . . If you say
anything to her, she was going to cuss you out.” He denied raising his voice at the Defendant
or touching her in any way. When asked if he used “any f words” toward her, he testified
that he never would do that because it would get him fired.

        Officer Terry Dyer of the Jackson Police Department testified that he responded to the
call of a disturbance at the apartments and found the victim “laying on the steps in obvious
pain.” The victim told Officer Dyer that he had been shoved down the steps while trying to
repossess some furniture. When officers initially attempted to speak to the Defendant, she
locked herself in the apartment and refused to open the door for the officers. When the
Defendant’s boyfriend arrived, he allowed officers into the apartment where they spoke to
the Defendant and arrested her for aggravated assault. Officer Dyer described the Defendant
as “very irate” about the situation because “she didn’t think she had done anything wrong.”

        Sergeant Alberto Colon of the Jackson Police Department Violent Crimes Division
testified that he took the Defendant’s statement on the day following the incident. After
waiving her Miranda rights, the Defendant told Sgt. Colon that the men broke into her
apartment and assaulted her by pushing her and stomping her foot. Despite her allegation
that Mr. Thrift and Mr. Reed had assaulted her, Officer Dyer stated that there was “[n]o
apparent injury” found on the Defendant.

                                        ANALYSIS

        The Defendant argues that the evidence is insufficient to support her conviction for
aggravated assault because the State failed to prove that the victim suffered serious bodily
injury. The State contends that the jury properly made the determination of the severity of
the injury and that the proof supports the verdict. Following our review, we agree with the
Defendant.

        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
appellate 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

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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 verdict of guilt 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
direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999).

        The offense of aggravated assault, relative to this case, requires proof beyond a
reasonable doubt that the Defendant intentionally or knowingly caused serious bodily injury
to the victim. Tenn. Code Ann. § 39-13-102(a)(1)(A). Serious bodily injury is defined as
“bodily injury that involves a substantial risk of death; protracted unconsciousness; extreme
physical pain; protracted or obvious disfigurement; or protracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty.” Tenn. Code Ann.
§ 39-11-106(a)(34).

        In the light most favorable to the State, the proof shows that the victim suffered acute,
sharp pain at the time of his injury. The victim underwent three physical therapy sessions
within the month following the injury and was unable to perform his normal employment
duties for ten days because he “couldn’t do the lifting that I needed to for my job.” However,
he used crutches for only a week and was able to work “with limited priorities” throughout
his recuperation. Furthermore, a year after the incident, the victim testified that he suffered
only occasional stiffness from the injury when he bends his knees for a prolonged period of
time. He also said that he “works out on his own now” and that his knee is “completely
better today.”

        Based upon this evidence, we conclude that the victim did not suffer serious bodily
injury. See, e.g., State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim. App. 1995) (broken nose
did not constitute serious bodily injury for especially aggravated robbery conviction); see also
State v. Demond Lamont Adkins, M2007-01728-CCA-R3-CD, 2008 WL 5100851 (Tenn.
Crim. App. Dec. 4, 2008), perm. app. denied (Tenn. Apr. 27, 2009) (evidence that victim
suffered permanent impairment of knee and back was sufficient to support conviction for
aggravated assault); State v. Stacy McKinley Taylor, E2003-02458-CCA-R3-CD, 2004 WL
3021128 (Tenn. Crim. App. Dec. 29, 2004) (evidence that victim suffered extreme physical
pain from collarbone injury that necessitated surgical repair and rehabilitative therapy was
sufficient to support conviction for aggravated assault). Thus, there is insufficient proof to
support a conviction for aggravated assault. Accordingly, we modify the Defendant’s
conviction to simple assault and remand the case for sentencing and the entry of a modified
judgment.

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                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is modified and the case is remanded for further proceedings consistent with this
opinion.


                                           D. KELLY THOMAS, JR., JUDGE




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