        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                         JANUARY SESSION, 1998        February 11, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )    C.C.A. NO. 01C01-9701-CR-00037
                                 )
           Appellee,             )
                                 )    DAVIDSON COUNTY
V.                               )
                                 )    HON . THO MAS H . SHR IVER ,
                                 )    JUDGE
CHRISTOPHER L. PARKER,           )
                                 )
           Appe llant.           )    (AGGR AVATED ASSAUL T)




FOR THE APPELLANT:                    FOR THE APPELLEE:

F. MICHIE GIBSON, JR.                 JOHN KNOX WALKUP
1416 Parkway Towers                   Attorney General & Reporter
404 James Robertson Parkway
Nashville, TN 37219                   DARYL J. BRAND
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      VICTO R S. JO HNS ON, III
                                      District Attorn ey Ge neral

                                      PAMELA ANDERSON
                                      Assistant District Attorney General
                                      200 Washington Square, Suite 500
                                      222 Se cond A venue N orth
                                      Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defendant, Christopher L. Parker, appeals as of right his conviction

following a jury trial in the Davidson County Crim inal Court.           Defendant was

convicted of aggravated assault by reckless conduct, a Class D felo ny. In the

indictme nt, Defendant was charged with aggravated assault by intentional or

knowing cond uct, a C lass C felony.       Following the p roof at trial, the trial court

instructed the jury on the lesser grade offense of aggravated assault by reckless

condu ct, and the jury convicted Defendant of the Class D felony. On appeal, the

Defendant (1) challenges the sufficiency of the evidence to sustain the conviction

and (2) argues that aggravated assault by reckless conduct was not a crime at the

time the offense was committed, therefore the trial court erred by charging the jury

on the les ser grad e offense . We affirm the ju dgme nt of the trial co urt.



      When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could h ave found the essential elements of the

crime beyon d a rea sona ble doubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).




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       Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t

approved by the trial judge accredits the State’s witnesses and resolve s all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       The Defe ndan t argue s that th e injurie s susta ined b y the vict im in th is case do

not constitute “serious bodily injury” and, therefo re, the verd ict canno t suppo rt a

finding of reckless aggravated assault. Under Tennessee Code Annotated section

39-13-102 (a)(2), a pers on wh o “reck lessly c omm its an a ssau lt as defined in § 39-13-

101(a)(1), and causes serious bodily injury to another” commits the offense of

aggravated assau lt. An assault is defined as “inte ntiona lly, know ingly or r eckle ssly

caus[ing] bod ily injury to another.” Tenn . Code An n. § 39-13-10 1(a)(1).



       The Defen dant co ntests the sufficiency of the evidence only as to the proof

regarding the exte nt of the victim’s bodily injuries. As less than the full record was

sufficient to convey a fair, accurate and complete account of those issues that are

the bases of this appeal, the record for this court is condensed from the actual trial

proceedings. Tenn . R. App . P. 24(a). T he proo f showe d that the Defendant and

others assau lted the victim , Charles Williams, on the night of October 30, 1993 at

the Family In n mote l in Nash ville. During th e assa ult, Williams was hit with either

a fist or a bottle a cross the bridge of th e nose . As a resu lt of the attack,

Williams desc ribed h is injuries as a br oken nose , shatte red an d disp laced , a big cut

on the bridge of his nose and a missing front tooth. He described his injuries from

                                             -3-
the assault as “very painful,” and stated that the pain continued for ten (10) days.

He was transported by ambulance to the Summ it Medical Center in Donelson.

Williams described that twice a day for several months following the assault, he had

to stand in front o f the m irror an d pus h his n ose b ack a nd forth to try to line up his

nose so that it would heal c orrect ly. The swellin g did n ot com pletely s ubsid e until

one (1) year afte r the assa ult. Including a root canal, Williams had several surgeries

performed to treat these injuries, including plastic surgery on his nose. Willia ms s till

has a sc ar on his n ose.



       Dr. Debra Holt is an emergency medicine physician at Summit Medical

Center. She treated the victim on October 30, 1993. Initially, Holt noticed that

Williams had a swolle n nos e, swe lling an d bruis ing around the left eye and cheek

area, and some bleeding from the nos e. The victim suffered from a periorbital

contus ion, which is bruising a round th e eye with swelling. There was a cut across

the nose, almost an inch long. The bleeding from that cut had been significant.

Even before performing x-rays, it was obvious that the victim’s nose was broken.

The nose was deviated to the right side of his face, swollen and flattened. The

victim was missing his left front central inc isor tooth, w hich had been b roken o ff

totally to the gum . Holt described this injury as a “true emergency” as certain serious

complications can result from that injury very quick ly if the victim do es not visit a

dentist. The tooth could die from loss of blood supply or from an abscess.



       Dr. Holt specifically described the tooth injury as “very painful for him that

night.” When Holt described the victim’s severe nasal fracture with much d eformity,

she stated that it was broken into several pieces. Holt described this particular type

of broken no se as “severe ” and a “very painfu l type fracture.”

                                             -4-
       The Defe ndan t conte nds th at the m edica l proof a t trial did not support the

findings of the necessary elements of aggravated assault as according to the statute.

He argues that the broken nose and lost tooth do not rise to the level of serious

bodily injury. In support of his arg ume nt, the D efend ant cite s a rec ent ca se in which

this court h eld tha t the evid ence was in sufficie nt to find seriou s bod ily injury

necessa ry for an esp ecially agg ravated ro bbery co nviction. See State v. Sims, 909

S.W .2d 46 (Ten n. Crim. App . 1995).



              Serious bodily injury is defined in Tennessee Code Annotated section

39-11-106 as a bodily injury involving substantial risk of death, protracted

unconsciousness, extreme ph ysical pain, protracted or obvious disfigurement or

protracted or substantial impairment o f a function of a bodily member, organ or

mental faculty. (Emphasis added). In Sims, the court held that the loss of the

victim’s teeth could cons titute pro tracted disfigu reme nt, so lo ng as the los s is proven

to have be en cau sed by th e crimina l incident be yond a re asona ble dou bt. Id. at 49.

The evidence clearly supports that the loss of the victim’s tooth was caused by the

incident, and the Defendant does not dispute that point. A recent case of this court

has uphe ld a con viction re quiring proof o f seriou s bod ily injury based upon Sims and

the victim’s loss of two teeth as constituting protracte d or obvio us disfigu remen t.

See State v. John Wayne Blue, No. 02C01-9604-CC-00124, Madison County (Tenn.

Crim. App ., at Jackson, Ma y 30, 1997) (N o Rule 11 a pplication filed).



       In addition to the loss of the victim’s tooth and the obvious disfigurement, the

victim sustained various severe cuts and bruises to his face. For the laceration, the

victim required stitches and eventually needs plastic surgery to correct the distortion

to his face. His nose wa s brok en into severa l piece s. The nose was a ctually

                                             -5-
deviated to the right side of the victim’s face, requirin g plas tic surg ery to co rrect this

obvious disfigurement and the damage to his nasal cavities. Th e victim is still

unab le to brea th norm ally thro ugh h is nost rils and will need further surgery. In Sims,

neither stitches for the victim’s lacerations nor plastic surgery for her broken nose

was ne cessar y for treatm ent of her injuries. Sims, 909 S.W.2d at 49.



       In the light most favorable to the State, we find that a rationa l trier of fac t could

have found the essential elements of aggravated assault beyond a reasonable doubt

based upon the los s of the victim’s tooth, the scar on his face, and the protracted

disfigurem ent of his n ose. See State v. Sisk, No. 03C01-9410-CR-00367, slip op.

at 9, Cock e Cou nty (Ten n. Crim. A pp., at Kn oxville, Jan. 1 7, 1997 ), perm. to appeal

denied, (Tenn . 1997). T his issue has no merit.



       The Defendant also argues that the trial court erred by instructing the jury on

the lesser gra de offen se of reck less agg ravated a ssault. Defendant alleges that the

statute for that offense was not in effect at the tim e the c rime w as co mm itted. W hile

the Defen dant failed to include the charge to the jury in the record, it is clear that the

Defendant was convicted pursuant to Tennessee Code Annotated section 39-13-

102(a)(2 ).



       Defendant argues that the statute came into effect on November 1, 1996.

Public Act 199 3, Chapter N o. 306 a mend ed the o ffense of a ggravate d assa ult to

include the co mm ission of ass ault with a reckless intent, and this Act took effect on

May 12, 1993. As Defendant committed the offense on October 30, 1993, this issue

has no merit.




                                             -6-
    We affirm the ju dgme nt of the trial co urt.



                                ____________________________________
                                THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID H. WELLES , Judge




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