         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 5, 2007


              STATE OF TENNESSEE v. WILLIAM JOE MURPHY

                  Direct Appeal from the Circuit Court for McNairy County
                            No. 2003     Weber McCraw, Judge



                  No. W2006-02199-CCA-R3-CD - Filed September 13, 2007


The defendant, William Joe Murphy, was convicted by a McNairy County Jury of aggravated assault,
a Class C felony. Subsequently, he was sentenced to five years in confinement as a Range I offender.
On appeal, the defendant presents two issues for review: (1) whether the evidence was sufficient to
sustain his conviction; and (2) whether the trial court improperly enhanced his sentence. Upon
review of the full record and the applicable law, we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN , J. joined and JOHN
EVERETT WILLIAMS, J. concurred in result.

Shana Johnson (on appeal), Sr. Assistant Public Defender, and Dave Stockton (at trial), Assistant
District Public Defender, Somerville, Tennessee, for the appellant, William Joe Murphy.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Joe Van Dyke and Cameron B. Williams, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

         The following evidence was presented at trial. Constance Murphy, the defendant’s wife,
testified that she and her husband had a marital dispute, and as a result, she took her four children
and left her house to stay with her sister. On January 1, 2006, around 9:00 a.m., she returned to her
house to get some clothes for her and her children so that they could attend church. Upon her arrival,
the defendant approached and repeatedly stated, “I need to talk to you.” However, Mrs. Murphy


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ignored the defendant and went to her room to get clothes and instructed her children to get their
clothes as well. The defendant then became agitated and demanded that Mrs. Murphy talk to him.

         Mrs. Murphy testified that she and the defendant went to the living room to talk and the
defendant grew increasingly angry with her. The defendant left the living room briefly and returned
with a knife and a section of rope. According to Mrs. Murphy, the defendant stated, “[l]ook what
you made me do, look what you made me do . . . I told you not to ever take my kids from me again.”
 At this time, the defendant “wagged” the knife in front of her face and told her, “I’ll tie you up and
I’ll stab you twenty times before I get tired.” Mrs. Murphy recalled that she was very scared and
believed the defendant meant to kill her. She “felt like the madder he got, the less likely [she] would
walk out.”

        Mrs. Murphy testified that the defendant grabbed her by the hair, drug her from the couch
onto the floor, and began breaking furniture and throwing objects at her. At one point, Mrs.
Murphy’s two daughters came into the living room and Mrs. Murphy told them to go back to their
rooms. Mrs. Murphy stated that after the children returned to their rooms, the defendant began
“hitting” her head. She began screaming when the defendant starting hitting her. The defendant told
Mrs. Murphy he was going to kill their oldest daughter, Tia, if Mrs. Murphy did not instruct Tia to
return to her room. The defendant continued to hit Mrs. Murphy repeatedly. Mrs. Murphy testified
that Tia approached the defendant a second time, crying and telling the defendant to stop hitting her
mother. Mrs. Murphy recalled that the defendant told Tia, “If you don’t go back, I’m going to hurt
you.”

        Mrs. Murphy testified that she stopped crying soon after the defendant threatened her
daughter and she attempted to talk to him again. At that time, the defendant stated, “I’ve come too
far. I can’t turn back now. I’m going to go to jail for murder. I’m not going to go jail for assault.”
Mrs. Murphy believed the defendant intended to kill her and she began screaming for her children.
She begged the defendant to allow her to say good-bye to her children.

       Mrs. Murphy testified that the defendant stood over her, pinning her thigh to the ground with
his knee while holding the knife in his hand. He repeatedly told her he would stab her twenty times
before he got tired, and said the knife had a serrated edge and “would go in sharp because of the
point and when he got ready to pull it out it would tear the flesh.” As Mrs. Murphy hugged and
kissed her sons, the defendant told her, “You don’t want to get blood on the boys, do you?”

      Tia testified that she saw the defendant holding the knife in front of Mrs. Murphy while
making this statement. Tia testified that she was afraid for her own life.

       Michael Monroe testified that he was the pastor of the church Mrs. Murphy and her children
were attending. Pastor Monroe stated that he, his wife, and an associate pastor, visited Mrs.
Murphy’s house after she and her children failed to show up for the morning service. When he
opened the door to the house, he observed that the defendant had a knife in his hand. According to
Pastor Monroe, the defendant appeared distraught and banged the knife on the counter. Pastor


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Monroe explained that the defendant “wasn’t violent or anything” and went outside to talk. He and
the associate pastor then proceeded to talk with the defendant for the next two hours. They
attempted to calm the defendant and tried to get him to permit his wife and children to leave.

        Pastor Monroe testified that his wife, Mary, went into the house and helped Mrs. Murphy and
the children pack to leave. Outside, the police arrived and the defendant calmed down noticeably.
The defendant remained calm until Mrs. Murphy proceeded to leave the house with the children.
As Mrs. Murphy attempted to leave, the defendant became enraged again. He shouted at Mrs.
Murphy and threatened to burn down her relatives’ homes if she left. The police then arrested the
defendant for aggravated assault.

        Mary Monroe testified similarly. Mrs. Monroe added that she observed Mrs. Murphy and
her children scared, upset, and crying. While Mrs. Murphy and her children were packing clothes,
the defendant said “he would kill her family, all of them.”

        The defendant testified on his own behalf at trial. The defendant admitted that he grabbed
the knife because he wanted to scare Mrs. Murphy. He also admitted that he pulled Mrs. Murphy’s
hair and slapped her with his right hand. Contrary to the testimony offered by Mrs. Murphy and Tia,
the defendant asserted that he did not have the knife in his hand when he hit Mrs. Murphy. He did,
however, admit guilt, stating, “I’m not pretending I’m innocent about the assault at all.” The
defendant further testified that he had been the victim of several assaults by his wife prior to this
occasion.

       Based on the evidence, the jury convicted the defendant of aggravated assault. Following
his conviction, he was sentenced to five years in confinement as a Range I, standard offender.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence
        On appeal, the defendant argues that the evidence presented at trial was insufficient to sustain
a conviction for aggravated assault. Specifically, the defendant contends that his holding of the knife
did not constitute “display of a deadly weapon” as defined in Tenn. Code Ann. § 39-13-102(a)(1)(B)
(2006).

        Our review begins with the well-established rule that once a jury finds a defendant guilty, his
or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to the appellate court why the evidence will not support the jury’s verdict.
State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e).
In contrast, the jury’s verdict approved by the trial judge accredits the state’s witnesses and resolves


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all conflicts in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of
the witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all
factual issues raised by the evidence are resolved by the trier of fact and not this court. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the
evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

        Under Tennessee statute, a defendant may be found guilty of aggravated assault if he
“[i]ntentionally or knowingly commits an assault” and “uses or displays a deadly weapon”. Tenn.
Code Ann. § 39-13-102 (2006). “Weapons may be placed, generally, in two categories, namely:
deadly per se, such as fire arms; and deadly by reason of the manner in which they are used. It is
generally recognized by the majority of the States that, ‘a dangerous or deadly weapon is any weapon
or instrument which, from the manner in which it is used or attempted to be used, is likely to produce
death or cause great bodily injury.’” Morgan v. State, 415 S.W.2d 879, 882 (Tenn. 1967).

        In the instant case, the evidence established that the defendant displayed a knife in the course
of making threats toward Mrs. Murphy and assaulting her. Additionally, the evidence established
that the defendant had a knife in his possession, was visibly angry, and made numerous threats to
both his wife and daughter while holding the knife. Moreover, the defendant admitted that he
physically assaulted his wife. Clearly, a jury could find beyond a reasonable doubt that the defendant
knowingly assaulted the victim while using or displaying a deadly weapon. Accordingly, we
conclude that the evidence was sufficient to support the defendant’s conviction of aggravated assault.
The defendant is not entitled to relief on this issue.

                                           II. Sentencing
       The defendant argues that the trial court erred in imposing an excessive sentence, which was
erroneously enhanced by consideration of the “defendant’s . . . previous history of criminal
convictions or criminal behavior . . .” and by a determination that the aggravated assault “involved
more than one (1) victim.” See Tenn. Code Ann. § 40-35-114(1), -(3) (2006).

         When an accused challenges the length and manner of service of a sentence, this court
conducts a de novo review of the record with a presumption that the trial court's determinations are
correct. Tenn. Code Ann. § 40-35-401. This presumption of correctness is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However,
if the record shows that the trial court failed to consider the sentencing principles and all relevant
facts and circumstances, then review of the challenged sentence is purely de novo without the
presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). On appeal, the party
challenging the sentence imposed by the trial court has the burden of establishing that the sentence
is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. We will uphold
the sentence imposed by the trial court if (1) the sentence complies with our sentencing statutes, and



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(2) the trial court's findings are adequately supported by the record. See State v. Arnett, 49 S.W.3d
250, 257 (Tenn. 2001); see also Tenn. Code Ann. § 40-35-210(f).

        Before a trial court sentences a convicted defendant, it must consider: (1) the evidence
received at the trial and sentencing hearing; (2) the pre-sentence report; (3) the principles of
sentencing; (4) the arguments of counsel relative to sentencing alternatives; (5) the nature and
characteristics of the criminal conduct involved; (6) any mitigating or enhancement factors; (7) any
statements made by the defendant in his or her own behalf; and (8) the defendant’s potential or lack
of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210. If our review
reveals that the trial court complied with the statutory sentencing procedure, and the court’s findings
are supported by the record, we cannot disturb the sentence even if we would have preferred a
different result. See State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001); State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App.1991).

        With regard to the court’s consideration of the defendant’s prior criminal history and conduct
under Tenn. Code Ann. § 40-35-114(1), a review of the record indicates that the trial court followed
statutory procedure. The record reflects that the defendant had a previous history of criminal
convictions including drug possession, shoplifting, driving with a revoked license, and failure to
appear in court. The defendant’s pattern and history of prior criminal convictions is therefore well
established.

        The record further reflects that the trial court found the defendant’s daughter, Tia, as a victim
of the defendant in this incident for the purpose of Tenn. Code Ann. § 40-35-114(3). In Imfeld, our
supreme court has held that “there cannot be multiple victims for any one offense of aggravated
assault committed against a specific, named victim.” 70 S.W.3d 698, 706 (Tenn. 2002). In Imfeld,
the court rejected the argument that the multiple victims factor could be applied “on the basis that
there were individuals in the accident on behalf of whom no charges were filed.” Id.; see also State
v. Mitchell Lee Blankenship, No. E2005-02753-CCA-R3-CD, 2006 WL 3751201, at *7 (Tenn. Crim.
App., at Knoxville, Dec. 21, 2006). Blankenship is particularly instructive in the instant matter,
because the defendant was charged with aggravated assault against his spouse in an incident where
his children were present and were used as an enhancement factor to determine the defendant’s
sentence. Id. at *8. In Blankenship, the appellate court applied the Imfeld test and found that the
“more than one victim” test of Tenn. Code Ann. § 40-35-114(3) could not be applied to enhance the
defendant’s sentence because no charges were filed on behalf of the defendant’s children. However,
the supreme court noted that the trial court was able to apply the defendant’s criminal history of
convictions to enhance the defendant’s sentence in that case. Id. In the instant case, no charges were
filed on behalf of Tia, Mrs. Murphy’s daughter. Therefore, following the court’s reasoning in Imfeld
and Blankenship, the trial court cannot consider her for enhancement under Tenn. Code Ann. § 40-
35-114(3).

         Notwithstanding the trial court’s error in finding Tia a victim for the purpose of applying
enhancement factor (3), we determine that on the basis of the defendant’s prior convictions alone,
the trial court properly enhanced the defendant’s sentence. Because the trial court enhanced the


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defendant’s sentence two years for a total sentence of five years, the court was still below the
maximum term of six years and within the appropriate sentencing range. Accordingly, we find no
error in the sentence ordered by the trial court. The defendant is not entitled relief on this issue.

                                         CONCLUSION

       Based on the foregoing authorities and law, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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