        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 3, 2010

                      STATE OF TENNESSEE v. LEO MAYS

                  Appeal from the Criminal Court for Shelby County
                     No. 06-03993     John P. Colton, Jr., Judge




              No. W2008-02215-CCA-R3-CD - Filed September 17, 2010


Originally charged with aggravated burglary, aggravated rape, and aggravated assault, the
defendant, Leo Mays, was convicted by a Shelby County Criminal Court jury of aggravated
criminal trespass and aggravated assault. The trial court imposed an effective sentence of
seven years’ incarceration. In this appeal, the defendant challenges the sufficiency of the
convicting evidence. Finding sufficient evidence to support the verdicts of the jury, we
affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.

Ruchee J. Patel, Memphis, Tennessee (on appeal); and Juni S. Ganguli, Memphis, Tennessee
(at trial), for the appellant, Leo Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              The convictions in this case relate to the defendant’s forcing his way into the
apartment of his estranged wife to find her in flagrante delicto with another man. During the
ensuing altercation, the defendant stabbed Garrick Saulsberry one time in the groin.
               At trial, Cecil Howard-Mays, the defendant’s wife,1 testified that during the
early morning hours of July 21, 2005, she and her boyfriend, Garrick Saulsberry, were asleep
in her residence at 3954 Autumn Ridge Court in Memphis when she awoke to find the
defendant standing at the foot of the bed wielding what appeared to Ms. Howard-Mays to be
an ax. According to Ms. Howard-Mays, the defendant shouted, “You M.F.’s going to die
tonight,” before swinging the weapon in her direction. She described what happened next,
“Garrick jumped in front of me like he was leaning to grab what [the defendant] had, and
after I saw that, I ran out the room.” Ms. Howard-Mays, who admitted that both she and Mr.
Saulsberry were completely naked, testified that she ran into her daughter’s bedroom and
stayed there until she heard the front door to the apartment close. At that point, she went
back into her bedroom to get her cellular telephone, which she took into the bathroom with
her and used to call 9-1-1. She stated that just as she concluded the call, the defendant
entered the bathroom, threatened her with a knife, and ordered her to lie on the bed. Ms.
Howard-Mays testified that she complied with the defendant’s order and that he then
penetrated her vagina with his penis. She stated that she did not struggle with the defendant
or reject his advances, but she insisted that this was only because the defendant threatened
her with the knife. Ms. Howard-Mays testified that the police arrived just as the defendant
pulled up his pants.

              Ms. Howard-Mays testified that the apartment lease was in her name alone and
that the defendant did not have her permission to enter the apartment on July 21, 2005. She
stated that he did not have a key to the apartment and that they were not romantically
involved at the time of the offenses.

              During cross-examination, Ms. Howard-Mays admitted that she and the
defendant had lived together in the apartment prior to the defendant’s being incarcerated in
Mississippi for a drunk driving offense. She also admitted that she had withdrawn money
from their joint bank account during the defendant’s incarceration but that she had not
deposited any money into the account. She said that she began dating Mr. Saulsberry, whom
she had known for more than 20 years, just after the defendant was incarcerated. Ms.
Howard-Mays conceded that the defendant did not drag her from the bathroom into the
bedroom. She also conceded that officers arrived at the residence within five minutes of her
9-1-1 call.

           Garrick Saulsberry testified that on July 21, 2005, he was asleep in bed with
Ms. Howard-Mays when the defendant appeared at the foot of the bed holding a “tire


        1
          Despite the events in this case and Ms. Howard-Mays’s continuing relationship with Mr. Saulsberry,
Ms. Howard-Mays had not obtained a divorce from the defendant and remained married to him at the time
of the trial.

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hammer” that he had taken from the bed of Mr. Saulsberry’s truck. Mr. Saulsberry stated that
as the defendant swung the tire hammer at Ms. Howard-Mays, Mr. Saulsberry “reached and
grabbed it.” Mr. Saulsberry recalled that at that point, Ms. Howard-Mays ran from the room
and the two men “went to tussling.” Mr. Saulsberry explained, “Well, when we started
tussling with it, and he felt like I done got it out of his hand in some kind of way. He cut me,
and I just felt blood coming running down my leg, so, I knew then I was hurt, and so I just
ran outside.” Mr. Saulsberry testified that despite the stab wound to his groin, he was able
to run out of the apartment into a nearby wooded area, where he hid until the police arrived.
He stated that as he lay hidden in the bushes, he saw the defendant discard the tire hammer
near a tree.

              Mr. Saulsberry testified that he received a combination of stitches and staples
to close the wound to his groin and that he stayed in the hospital overnight.

              During cross-examination, Mr. Saulsberry stated that he had known both the
defendant and Ms. Howard-Mays for a number of years and that he was aware that the two
were married. He claimed that Ms. Howard-Mays told him that she and the defendant were
going through a divorce and was surprised to learn that the two were still married at the time
of the trial. He stated that he and Ms. Howard-Mays were still dating. Mr. Saulsberry
conceded that he did not see a knife in the defendant’s hand but insisted, “He had to have a
knife, because he didn’t have the hammer, because I had the hammer in my hand.” Mr.
Saulsberry stated that the defendant did not chase him from the apartment.

                Memphis Police Department Officer Craig Jamerson responded to Ms.
Howard-Mays’s 9-1-1 call to find that the door to the apartment “had been banged open.”
Officer Jamerson testified that the defendant answered their knock at the door and that, once
they observed blood on the floor, they placed the defendant into custody. Officer Jamerson
stated that he found Mr. Saulsberry in a small wooded area behind the apartment and that Mr.
Saulsberry was bleeding from a wound to his groin. Officer Jamerson found the tire hammer
some 25 to 50 yards from Mr. Saulsberry.

               Memphis Fire Department paramedic Chris Crockett, who treated Mr.
Saulsberry at the scene, testified that Mr. Saulsberry suffered a stab wound to the groin very
close to his penis.

              Memphis Police Department crime scene investigator Alpha Hinds testified
that she discovered a kitchen knife on the floor of the master bedroom just to the right of the
bed. She also photographed the blood on the defendant’s clothing.

              The State rested, and the defendant presented the testimony of Mitchell Lee

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Williams, who testified that he drove the defendant from Mississippi to the Autumn Ridge
apartment in Memphis on the day that the defendant was released from jail in Mississippi.
He stated that he and the defendant had been friends for several years and that the defendant
was living in the Autumn Ridge apartment with Ms. Howard-Mays prior to his incarceration
in Mississippi. Mr. Williams stated that when they arrived at the apartment, he waited in the
car while the defendant went to the door, knocked, and was immediately let inside. He said
that the defendant did not bang on the door or shout obscenities. Mr. Williams left the
defendant at the apartment.

               The defendant testified that he and Ms. Howard-Mays had dated for
approximately nine years before getting married in 2004 and that he had known Mr.
Saulsberry for several years as well. The defendant stated that he and Ms. Howard-Mays
began living in the Autumn Ridge apartment in 2001 and that, although his name was not
included on the lease, he provided Ms. Howard-Mays with money to pay the rent each month.
He testified that after he was incarcerated, he executed a power of attorney to permit Ms.
Howard-Mays to withdraw money from his bank account for the purpose of paying the rent.
He said that during his incarceration, Ms. Howard-Mays did not write him letters but did
place a small amount of money into his inmate trust account.

               The defendant testified that on the day he was released from jail, July 7, 2005,
his parents picked him up and that he was surprised that Ms. Howard-Mays was not with
them. After his parents took him back to their home in Northern Mississippi, he walked to
Mr. Williams’ house and asked Mr. Williams to drive him to the Autumn Ridge apartment
he had shared with Ms. Howard-Mays. He stated that although he was upset that she had not
been at the jail to greet him upon his release, he did not bang on the apartment door or shout
obscenities at her. He testified that they did, however, argue about Ms. Howard-Mays’s
withdrawing large amounts of money from his bank account while he was incarcerated. The
defendant stated that he left the apartment several hours later on good terms with Ms.
Howard-Mays.

             The defendant stated that he learned about the affair between Ms. Howard-
Mays and Mr. Saulsberry on the following day and that he attempted to confront Mr.
Saulsberry about it, but Mr. Saulsberry “took off.” He testified that he spoke with Ms.
Howard-Mays by telephone that day.

             The defendant testified that at approximately 9:00 or 10:00 a.m. on July 20,
2005, Ms. Howard-Mays picked him up near his parents’ house and drove him back to a
temporary employment agency so that he could fill out a job application. He said that
afterwards they returned to the Autumn Ridge apartment, where they stayed for several
hours. During that time, Ms. Howard-Mays denied having an affair with Mr. Saulsberry.

                                              -4-
He stated that when Ms. Howard-Mays drove him back to his parents house, he felt as though
they were working out their problems. He said that Ms. Howard-Mays had never asked him
for a divorce and that they were still married at the time of trial. The defendant testified that
he telephoned Ms. Howard-Mays later on that day and that, while talking to her, he a heard
man’s voice in the background. When he asked her about it, she hung up.

                The defendant testified that he then went to a friend’s house and began
drinking. Sometime later, he asked the friend to drive him to the Autumn Ridge apartment.
The defendant stated that by the time they left, he was intoxicated. He recalled that he
arrived at the apartment during the early morning hours. When no one answered his knock
at the door, the defendant went to the parking lot to look “for something to get in the house
with, because nobody would come to the door.” He took a tool from the bed of Mr.
Saulsberry’s truck and used it to break into the apartment. The defendant stated that he
walked through the apartment and kicked open the door to the master bedroom. He said,
“When I kicked the door open, the victim, Mr. Saulsberry, he jumped up and we tussled.”
The defendant denied being armed with a knife but admitted cutting Mr. Saulsberry during
their altercation. He later stated that he “may have gotten [the knife] when [he] entered the
house.” The defendant recalled that Mr. Saulsberry, who was not wearing any clothes, ran
from the room. The defendant gave chase but could not find Mr. Saulsberry, who had left
the apartment. At that point, the defendant discarded the tire hammer behind a tree and
returned to the apartment. He admitted finding Ms. Howard-Mays in the bathroom but
denied threatening her with a knife or raping her. He stated that the police arrived just as he
located her.

              During cross-examination, the defendant stated that he did not “remember
cutting [Mr. Saulsberry],” but he admitted that Mr. Saulsberry “was injured during the
altercation.”

               On the basis of this proof, the jury convicted the defendant of aggravated
criminal trespass as a lesser included offense of aggravated burglary and aggravated assault.
The jury acquitted the defendant of the aggravated rape of Ms. Howard-Mays. Following
a sentencing hearing, the trial court imposed an effective sentence of seven years’
incarceration.

                In this appeal, the defendant challenges the sufficiency of the convicting
evidence, arguing that the State failed to prove that he did not have permission to enter the
Autumn Ridge apartment or that he intentionally or knowingly caused bodily injury to Mr.
Saulsberry by the use of a deadly weapon. The State contends that the evidence adduced at
trial sufficiently supports each of the convictions. We agree with the State.



                                               -5-
                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. Winters, 137 S.W.3d at 654.

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               As charged in this case, “[a] person commits aggravated assault who . . .
[i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and . . .[u]ses or
displays a deadly weapon.” T.C.A. § 39-13-103(a)(1)(B) (2003). Code section 39-13-101
provides, in pertinent part: “A person commits assault who . . . [i]ntentionally, knowingly
or recklessly causes bodily injury to another.” Id. § 39-13-101(a)(1).

              A person commits aggravated criminal trespass who enters or
              remains on property when . . . [t]he person knows the person
              does not have the property owner’s effective consent to do so;
              and . . . [t]he person intends, knows, or is reckless about whether
              such person’s presence will cause fear for the safety of another.

Id. § 39-14-406(a). Aggravated criminal trespass of a habitation is a Class A misdemeanor.
Id. § 39-14-406(c).

               The defendant contends that the State failed to establish the offense of
aggravated criminal trespass because it failed to establish that the Autumn Ridge apartment
was not the defendant’s own residence. The proof adduced at trial, however, established that
although the defendant lived with Ms. Howard-Mays at the Autumn Ridge apartment prior
to his incarceration in Mississippi, he had not spent a single night at the residence following
his release. Indeed, the defendant’s parents greeted him upon his release and took him to
their residence where he resided until the offenses in this case. The defendant’s name was
not on the lease, he did not have a key to the apartment, and he did not have permission to

                                              -6-
enter, as evidenced by his use of a tire hammer to break into the apartment. The testimony
of both Ms. Howard-Mays and the defendant established that although the two were still
married even at the time of the trial, they became estranged during the defendant’s
incarceration and remained so at the time of the offenses. The jury was free to infer from
these circumstances that the defendant needed permission to enter the apartment on the night
of the offenses and that he did not have Ms. Howard-Mays’s permission to break into the
apartment using a tire hammer. Moreover, the defendant’s wielding the 20-pound weapon
in a threatening manner and kicking in the door to the master bedroom was clearly intended
to cause both Ms. Howard-Mays and Mr. Saulsberry to fear for their safety.

                The defendant also asserts that because no witness affirmatively testified that
the defendant stabbed Mr. Saulsberry with a knife, the State failed to establish the offense
of aggravated assault. Again, the evidence adduced at trial belies this argument. Although
Mr. Saulsberry testified that he did not see a knife in the defendant’s hand, he stated that he
was, in fact, stabbed in the groin. The defendant admitted that he “may have” procured the
knife as he walked through the apartment before kicking in the bedroom door and that Mr.
Saulsberry was stabbed during their altercation. During his testimony, the defendant
specifically admitted “cutting” Mr. Saulsberry. Police officers discovered a kitchen knife in
the area where Mr. Saulsberry was injured. Mr. Saulsberry testified that the stab wound
required both staples and stitches and that he spent one night in the hospital. Under these
circumstances, the jury was free to infer that the defendant used a deadly weapon to cause
Mr. Saulsberry’s injury.

              Accordingly, the judgments of the trial court are affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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