                                                                                       08/21/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                 May 2, 2018 Session

                 STATE OF TENNESSEE v. MARK LONDON

                  Appeal from the Circuit Court for Obion County
                   No. CC-15-CR-139         Jeff Parham, Judge
                     ___________________________________

                          No. W2017-01396-CCA-R3-CD
                      ___________________________________


Defendant, Mark London, was convicted by an Obion County jury of aggravated assault
and simple assault. At sentencing, the trial court merged the convictions, sentencing
Defendant to one count of aggravated assault for three years as a Range I, standard
offender. Defendant appeals his conviction, alleging that the evidence was insufficient.
Because we determine that the evidence was sufficient to support the conviction, the
judgment of the trial court is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Joseph P. Atnip, District Public Defender (on appeal); and James Powell (at trial), Union
City, Tennessee, for the appellant, Mark Ray London.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Tommy A. Thomas, District Attorney General; and Jim T. Cannon,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       Defendant was indicted by the Obion County Grand Jury in October of 2015 in
Count One for aggravated assault which resulted in serious bodily injury and in Count
Two for aggravated assault involving the use or display of a deadly weapon. The
following proof was presented at trial.
       Jason Coleman, the forty-two-year-old victim, was in a relationship with Shelley
Tidwell for “[q]uite a few years.” The relationship ended about a year before this
incident. The fact that Ms. Tidwell “didn’t work” contributed to the demise of the
relationship. The victim complained that Ms. Tidwell “took $1,000 off [his] debit card
without [his] consent and bought a washer and dryer. . . .” She paid all but $300 of the
money back.

       On August 28, 2015, the victim went to Ms. Tidwell’s house during the afternoon
in order to find out when or if she was going to pay back the $300. She would not talk to
the victim and asked him to leave. The victim went to his parents’ house and stayed until
about 7:00 p.m. From his parents’ house, the victim went to the Bottoms Up bar to have
“two beers” and play “some pool.” While he was at the bar, his debit card “quit
working” so he was unable to pay for the beer.

       The victim left Bottoms Up and drove back to Ms. Tidwell’s house, again trying to
get his money back. The victim had called her on the phone “quite a few times.” Ms.
Tidwell would pick up the phone but would not answer and would not speak before
hanging up on the victim. When he arrived this time, Ms. Tidwell was outside. The
victim “stepped out of [his] truck to confront her about the rest of the money” when
Defendant “got out of his truck with a ball bat, [and] swung for [his] head.” The victim
put his arm up to block the bat, and the bat made contact with his arm, breaking his ulna.
The victim “went for” Defendant, who took off running to the neighbor’s yard. Ms.
Tidwell asked the victim to leave and he complied.

       The victim went to the hospital that night. Doctors “reset the bone” in his arm,
reset two fingers, and put his arm in a cast. He wore the cast for six weeks and has
regained full function of his arm despite some continued pain. The victim was
approximately six feet, one inch tall and weighed about 205 pounds.

        The victim waited until the next day to report the matter to the police because he
still “had feelings” for Ms. Tidwell. Investigator Susan Andrews was involved in the
investigation of the matter. She noted that the incident occurred on August 28th and was
not reported until August 30th, two days after the incident occurred.

       Marty Mitchum, a bartender at Bottoms Up, saw the victim on the night of the
incident. He recalled that the victim was “aggravated because his ATM card wouldn’t
work or something, and he kept on trying the ATM machine and was ranting about that
and saying . . . he couldn’t remember his PIN number or somebody changed his PIN
number.” He appeared “angry” and mentioned that he was going to talk to Ms. Tidwell
about money.

                                           -2-
       Ms. Tidwell admitted that she had a relationship with the victim that started in
high school but that the couple broke up “approximately four to six months” prior to the
incident. The victim came to her house twice on the day of the incident. The first time,
around noon, he wanted to rekindle the relationship. The victim had been working in
Texas for a few months and had just returned to town. Ms. Tidwell denied owing money
to the victim and did not let the victim in to her house. She could tell “that he was not
happy to find out that [Defendant] was staying there.” In fact, she described the victim’s
behavior as “erratic and loud,” even “kicking the door.” When she asked him to leave,
the victim left her house to go “to the bar.” He returned about an hour later, basically
repeating the same behavior as before. Ms. Tidwell again asked the victim to leave. In
addition to coming to the house, the victim called her “repeatedly” that day, about twenty
to twenty-five times. During the day, Ms. Tidwell called Defendant to tell him that she
was “scared.” Defendant suggested that she leave the house and go to a friend’s house.

       The victim returned for the final time around 8:00 p.m. He pulled in to the
driveway “fast” in his truck, stopping “one and a half” to “two feet” from Defendant’s
truck. Defendant and Ms. Tidwell were in their “truck leaving to go to Walmart.” Ms.
Tidwell knew the victim was nearby because she had seen him “making blocks.”1 The
victim put his truck in park and jumped out, “almost running” toward Defendant’s truck,
“hollering at him to get out of the truck.” Defendant exited the truck, took out a baseball
bat, and asked the victim to get back. The victim was “coming at” Defendant, so
Defendant struck the victim in the arm with the baseball bat. Ms. Tidwell got out of the
truck “screaming” at the men to quit. Ms. Tidwell claimed that the victim continued to
come toward them even after being hit with the bat.

        Ms. Tidwell admitted that she never called the police. She later gave a statement
to the police as follows:

       Approximately 9 p.m. Friday August 28, [Defendant] and I were pulling
       out of my driveway in his Dodge truck traveling to Walmart. [The victim]
       pulled in at the same time to talk with me. As soon as [the victim] parked,
       [Defendant] grabbed a ball bat and jumped out. He began to holler and he
       became violent and started swinging the bat as [the victim] struck - - and
       struck [the victim’s] left arm on contact.

       Defendant testified that he was working on the day of the incident. Around noon,
Ms. Tidwell called him because the victim was trying to kick the door down and was
tearing up the back porch. Defendant told her to go to a friend’s house. Defendant

       1
          Ms. Tidwell explained that she saw the victim’s vehicle drive around the block and the next
road over several times.
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arrived home after work around five or six o’clock. He and Ms. Tidwell got ready to
leave the house to go to Walmart when it was “plum dark.” The victim’s truck “[ran] up
behind” his truck “right on [his] bumper.” The victim got out of the car, “hollering he
was going to whoop” Defendant. The victim shouted some “choice words.” Defendant,
who was five feet, ten inches tall and weighed approximately 180 pounds, was scared.
He grabbed a baseball bat that was lying in the back of the truck in the bed. Defendant
was not sure how long the bat had been in his truck; he “just looked and there it laid,” so
he grabbed it. Defendant told the victim to “stop and back up three times” before he “hit
him in the side with the bat.” Defendant was unsure if he swung first or if the victim
swung first. The victim “jumped back up and c[a]me again” toward Defendant.
Defendant struck the victim “twice” with the bat, “swinging level, just like you would at
a baseball.” Defendant was afraid he was going to get hurt because the victim was
“coming for [him].” After getting hit by the bat, the victim got in his truck and drove
away. Defendant did not report the matter to the police because he “didn’t figure [the
victim] would be back.”

       After hearing the evidence, the jury found Defendant guilty of aggravated assault
in Count One and guilty of the lesser included offense of assault in Count Two. The trial
court merged Count Two into Count One and sentenced Defendant to an effective
sentence of three years as a Range I, standard offender.2 At the hearing on the motion for
new trial, Defendant argued that the verdict was contrary to the weight of the evidence.
The trial court denied the motion. Defendant appeals.

                                              Analysis

       On appeal, Defendant argues that there is insufficient proof to support the
conviction. Specifically, Defendant argues that the jury was “either irrational or they just
didn’t understand the instructions” because the “so-called victim” presented “comical”
testimony in which he admitted he “was the one instigating the confrontation.” Further,
Defendant argues that the injury sustained by the victim that “hurt quite a bit” was not
akin to “serious bodily injury.” The State disagrees.

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and

       2
          According to the proof at the sentencing hearing, Defendant was on parole in Kentucky at the
time he committed the crimes at issue herein. Although not noted on the Judgment form (and need not be
so noted), the three year sentence imposed herein must mandatorily be aligned consecutively to any
portion of the Kentucky sentence not yet fully served. See Tenn. R. Crim. P. 32(c)(3)(A). According to
Defendant’s pre-sentence report, Defendant was convicted on November 30, 2011, in McCracken County,
Kentucky, of Schedule II Drugs: Meth, and received a ten year sentence to the Kentucky Department of
Correction.
                                                  -4-
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof, and we
may not substitute our own inferences for those drawn by the trier of fact. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Further, questions concerning the credibility of the
witnesses and the weight and value to be given to evidence, as well as all factual issues
raised by such evidence, are resolved by the trier of fact and not the appellate courts.
State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” Dorantes, 331
S.W.3d at 379 (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       For the purposes of this case, an aggravated assault occurs when a person
intentionally or knowingly commits an assault as defined in Tennessee Code Annotated
section 39-13-101, and the assault results in serious bodily injury to another. T.C.A. §
39-13-102(a)(1)(A)(i). A person commits assault by “[i]ntentionally, knowingly or
recklessly [causing] bodily injury to another.” T.C.A. § 39-13-101(a)(1). Aggravated
assault is a Class C felony. T.C.A. § 39-13-102(e)(1)(A)(ii). Serious bodily injury is
defined as “bodily injury that involves: . . . (C) Extreme physical pain; (D) Protracted or
obvious disfigurement; [or] (E) Protracted loss or substantial impairment of a function of
a bodily member, organ or mental faculty. . . .” The determination of whether an injury is
a serious bodily injury is a question of fact for the jury. State v. Barnes, 954 S.W.2d 760,
765-66 (Tenn. Crim. App. 1997).

       Defendant’s brief is replete with complaints and criticisms about the testimony of
the various witnesses at trial. Defendant’s brief consistently refers to the victim as the
“so-called victim,” claiming that he “told a whopper” about the events leading up to the
confrontation between the two men. Defendant also criticizes Ms. Tidwell’s testimony,
arguing that it was inconsistent—pointing out that she testified that the victim came to
her house both to settle a debt and to attempt reconciliation. These complaints, while
colorful and interesting to read, are nothing more than attacks on the credibility of the
witnesses. Assessing the quality of witness testimony is not within our purview. See
Pruett, 788 S.W.2d at 561. So, we will evaluate the evidence presented at trial with the
jury’s accreditation of the State’s witnesses in mind. See State v. Manning, 909 S.W.2d
                                            -5-
11, 12 (Tenn. Crim. App. 1995) (“A jury verdict approved by the trial judge accredits the
state’s witnesses and resolves all conflicts in favor of the state.”).

       Viewing the testimony presented at trial in a light most favorable to the State, the
evidence pertaining to Count One showed that Defendant intentionally caused serious
bodily injury to the victim by hitting him with a baseball bat which resulted in a broken
ulna and dislocated fingers. Defendant admitted as such. The jury clearly did not buy
into Defendant’s theory of self-defense. From this proof a rational juror could find
Defendant knowingly caused serious bodily injury to the victim. Thus, a rational juror
could find beyond a reasonable doubt that Defendant was guilty of aggravated assault.
Defendant is not entitled to relief on this issue.

                                       Conclusion

      For the foregoing reasons, the judgment of the trial court is affirmed.


                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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