         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs November 5, 2002

               STATE OF TENNESSEE v. BRUCE MARVIN VANN

                       Appeal from the Circuit Court for Madison County
                             No. 01-551    Donald H. Allen, Judge



                     No. W2002-00161-CCA-R3-CD - Filed March 31, 2003


The defendant, Bruce Marvin Vann, was convicted of aggravated assault. The trial court imposed
a six-year sentence. In this appeal of right, the defendant presents five issues for review: (1) whether
the indictment sufficiently described the offense of aggravated assault; (2) whether the evidence was
sufficient; (3) whether the trial court erred by failing to act as thirteenth juror; (4) whether the trial
court erred by allowing prior convictions as impeachment evidence; and (5) whether the trial court
erred by refusing to apply a mitigating circumstance. The judgment is affirmed.


                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal), and Vanessa D. King, Assistant District Public
Defender (at trial), for the appellant, Bruce Marvin Vann.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        At approximately 2:00 P.M. on April 9, 2001, Sergeant David DeMoss of the Jackson Police
Department arrived at Lincoln Courts to investigate a report made by Darren Douglas that he had
been the victim of an aggravated assault. The defendant had reportedly been a witness to the
incident. When Douglas returned to the scene accompanied by Sergeant DeMoss and another
officer, the suspect, who was sitting on a porch, ran, leaving behind a .45 caliber black gun. The
defendant, who was standing near the front porch with a woman when the police arrived, picked up
the gun and ran several feet to a small opening in a fence.
           At trial, Sergeant DeMoss testified that upon arriving at the scene, he attempted to arrest the
suspect, who was later identified as Kevin Transou. As Transou tried "to jerk away and run,"
Sergeant DeMoss and Officer Mark Lott placed him on the ground and began to apply handcuffs.
At that point, Sergeant DeMoss saw the defendant "shoot" towards the porch, grab the pistol, and
run. Sergeant DeMoss drew his weapon and ordered the defendant to "drop it." The defendant
ignored the command and ran toward a fence at the back of the complex. According to Sergeant
DeMoss, the defendant, who was "swinging and waving the pistol" wildly as he ran, tried to "squeeze
through the fence," turning to one side as he did so, and "as [t]he pistol [came] up in my direction
. . . I fired a shot at him." Sergeant DeMoss testified that he experienced fear for himself and the
others in the vicinity when the gun was pointed in his direction. He said that he was also concerned
about Officer Lott, who was still struggling to gain control of Transou. The defendant, who was
struck by the single shot in his upper left leg, fell to the ground and dropped the pistol.

        At trial, Douglas, who testified for the state, claimed that the defendant had thrown the gun
down before passing through the fence but that he continued to run from Sergeant DeMoss.
Douglas, a friend of the defendant, who had remained in his car on the street as the arrests were
being made, confirmed that Sergeant DeMoss had ordered the defendant to stop before the shot was
fired. Douglas described the defendant as "trying to hide" the gun. He stated that the defendant did
not aim the gun at Sergeant DeMoss.

        Officer Lott testified that he was helping subdue Transou when he heard Sergeant DeMoss
yell, "Gun." He described the defendant as "pretty much flailing the gun . . . wildly" as he ran.
Officer Lott testified that he saw "the gun barrel stick back through the fence" as the defendant
climbed through it and "that's when Sergeant DeMoss shot him." He confirmed that the gun was
pointed in the direction of Sergeant DeMoss, who was a distance of only five or six feet away at the
time the shot was fired. The officer contended that the defendant did not drop the weapon until he
was shot. The weapon was found on the side of the fence opposite the officers. As the shots were
fired, Transou fled on foot from Officer Lott who, after a chase, finalized his arrest.

       Sergeant Stacy Hutchins identified the weapon found at the crime scene as a High Point .45.
She found seven rounds inside the magazine of the weapon and one in the chamber, indicating its
readiness to be fired.

        James Bruce, who was visiting nearby at the time of the shooting, testified for the defense.
He stated that from his vantage point, he only saw one gun, the one that Sergeant DeMoss had in his
possession. Bruce stated that he saw the defendant squeeze through the fence but lost sight of him
when he fell down after being shot in the back of the leg. He was unable to say whether the
defendant was armed.

       The defendant, who testified on his own behalf, confirmed that Transou had "pulled a gun
on [Douglas]." He claimed that after Douglas sped away, he admonished Transou, who was
intoxicated, "[You] didn't have to do him like that." The defendant contended that when Sergeant
DeMoss and Officer Lott arrived at the scene, Sergeant DeMoss picked up the weapon and, while


                                                   -2-
Transou was being arrested by Officer Lott, Sergeant DeMoss "came toward me, and I took out
running." The defendant claimed that he had informed the officers that Transou was drunk and
commented that "they didn't have to do him like that because they was really just roughing him up."
The defendant denied altogether having picked up Transou's gun from the front porch. He asserted
that he never had the weapon in his hand, that he did not point a gun at anyone, and that he ran only
because he was about to be arrested. During cross-examination, the state introduced judgments of
conviction for reckless endangerment with a vehicle and evading arrest for which the defendant had
received two-year sentences.

                                                     I
        Initially, the defendant alleges that the indictment was defective, having failed to sufficiently
describe the offense. In response, the state argues that because the defendant failed to include the
issue in his motion for new trial, the doctrine of waiver applies. See Tenn. R. App. P. 3(e). In the
alternative, the state argues that the indictment was sufficient.

        The charging document, in pertinent part, contains the following information:

        [T]hat BRUCE MARVIN VANN on or about April 9, 2001, in Madison County,
        Tennessee, and before the finding of this indictment, did intentionally and/or
        knowingly by displaying and/or using a deadly weapon, to-wit: a gun, a more
        particular description of which to the Grand Jurors aforesaid is unknown, cause
        DAVID DEMOSS to reasonably fear imminent bodily injury, in violation of Tenn.
        Code Ann. § 39-13-102, all of which is against the peace and dignity of the State of
        Tennessee.

        The defendant submits that the failure to include the specific subsection of the statute,
making reference to the use of a gun as opposed to serious bodily injury as the method of
aggravation, results in an incomplete, defective indictment. He cites Tennessee Code Annotated
section 40-13-202, which requires that the indictment state "the facts constituting the offense in
ordinary and concise language." Because an assault can be committed either by serious bodily injury
or by the use of a deadly weapon, he argues that the failure to include the subsection was fatal to the
prosecution.

        In support of his argument, the defendant makes reference to the holding in State v. Joe
David Sloan, No. W2000-02861-CCA-R3-CD (Tenn. Crim. App., at Jackson, Jan. 4, 2002), wherein
a panel of this court modified a conviction of felony evading arrest to misdemeanor evading arrest
because the indictment charged the latter crime rather than the former. In that case, the panel
determined that the indictment, which failed to list the appropriate statutory subsection, did not
sufficiently allege the elements of Class E felony evading arrest in order to satisfy either the
constitutional or statutory purposes of the indictment:

        When a statute includes three different classifications of an offense, citation of the
        "appropriate" or "pertinent" statute logically requires that the appropriate subsection


                                                  -3-
        be named in order for the indictment to be sufficient to support a conviction.
        Because the indictment in issue omitted the subsection number which would enable
        the accused to know that he was charged with a Class E felony, and the specific
        language (used by the State in drafting the indictment) alleges the offense
        constituting misdemeanor evading arrest, we hold that the indictment in this case
        only alleged the offense of misdemeanor evading arrest.

Slip op. at 6.

        Generally, defenses based upon indictment deficiencies must be presented prior to trial.
Tenn. R. Crim. P. 12(b)(2), (f). A valid indictment is essential to prosecution, however, and may
be subject to attack at any time when the content does not charge an offense or does not confer
jurisdiction. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). A criminal indictment must
include a sufficient description of the offense to ensure that the defendant understands the nature of
the charge. Jackson v. Virginia, 443 U.S. 307, 314 (1979). The essential functions of the indictment
are to provide notice of the charge, enable entry of a proper judgment upon conviction, and protect
against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) (citing State v. Pearce,
7 Tenn. (Peck) 66, 67 (1823); State v. Haynes, 720 S.W.2d 76, 82 (Tenn. Crim. App. 1986)).

        Article I, section 9 of the Tennessee Constitution guarantees that "in all criminal
prosecutions, the accused [has] the right . . . to demand the nature and cause of the accusation against
him, and have a copy thereof." Tenn. Const. art. I, § 9. Tennessee Code Annotated section 40-13-
202, cited by the defendant, provides, in pertinent part, as follows:

                The indictment must state the facts constituting the offense in ordinary and
        concise language, without prolixity or repetition, in such a manner as to enable a
        person of common understanding to know what is intended, and with that degree of
        certainty which will enable the court, on conviction, to pronounce the proper
        judgment . . . .

Tenn. Code Ann. § 40-13-202.

        In State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997), our supreme court held that an
indictment charging aggravated rape was valid even though it did not allege a culpable mental state
because "the required mental state [could] be inferred from the nature of the criminal conduct
alleged." In State v. Stokes, 954 S.W.2d 729 (Tenn. 1997), an indictment for rape of a child was
determined to be sufficient to vest the trial court with jurisdiction where it utilized the language of
the statute but alleged no culpable mental state. A similar result occurred in Ruff v. State, 978
S.W.2d 95, 100 (Tenn. 1998), where the charges included aggravated sexual battery, aggravated
rape, and aggravated kidnaping, and the court held that "where the constitutional and statutory
requirements outlined in Hill are met, an indictment which cites the pertinent statute and uses its
language will be sufficient to support a conviction." Finally, in State v. Barney, 986 S.W.2d 545,
547 (Tenn. 1999), our supreme court ruled that intent could be logically inferred from an indictment


                                                  -4-
including charges of rape of a child and aggravated sexual battery where it was alleged that the
defendant had engaged in "unlawful sexual penetration" and "unlawful sexual contact" with the
victim.

        In State v. Wilson, 31 S.W.3d 189, 191-92 (Tenn. 2000), our high court determined that an
indictment charging delivery of cocaine which referenced the appropriate statute but did not include
an allegation of the culpable mental state was sufficient despite the omission. Similarly, in State v.
Carter, 988 S.W.2d 145, 148-49 (Tenn. 1999), our supreme court ruled that indictments for felony
murder which made reference to the statute but failed to include the required mens rea were
nevertheless sufficient. The court determined that a reference to the statute was sufficient notice of
the required level of intent. Id. at 149.

        In sum, the more recent decisions of our supreme court establish that an indictment is
adequate when it achieves the overriding purpose of notice to the accused. Here, the charge was
aggravated assault. The state referred to the proper statute, Tennessee Code Annotated section 39-
13-102, which provides alternative theories of guilt for the same offense. Alternative theories of
guilt within a single indictment are permissible. Additionally, the indictment alleges a criminal
intent on the part of the defendant. Finally, there was no allegation of serious bodily injury and the
culpable mental state was listed as knowing and intentional, which distinguishes aggravated assault,
a C felony, from reckless aggravated assault, a D felony. See Tenn. Code Ann. § 39-13-102(a)(1)-
(2). In our view, the content of the indictment was sufficient to place the petitioner on notice of the
nature of the charges, confer jurisdiction upon the trial court, and protect against double jeopardy.

                                                  II
        While the defendant concedes that he fled from the police, he argues that inconsistencies in
the evidence offered by the state warranted an acquittal. For example, he submits that if police
testimony placed the weapon in his right hand and he squeezed through the fence right side first, as
evidenced by his being shot in the back of the left leg, "there is no physical way [he] could have
pointed the gun at Sergeant DeMoss." The defendant further submits that the state was unable to
establish that his actions were knowing or intentional rather than inadvertent. See State v. Wilson,
924 S.W.2d 648, 651 (Tenn. 1996) (holding that evidence that the defendant fired shots into a
residence after an angry confrontation with its owner was insufficient to establish that the defendant
intentionally or knowingly caused the victims to fear imminent bodily injury where there was no
proof that the defendant was aware that the residence was occupied at the time).

        On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing the evidence in the light most favorable to the state, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). 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. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956); Byrge


                                                  -5-
v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the convicted
criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        In order to sustain a conviction for aggravated assault, the evidence must establish that the
defendant intentionally or knowingly committed an assault as defined in Tennessee Code Annotated
section 39-13-101 and either caused serious bodily injury to another or used or displayed a deadly
weapon. Tenn. Code Ann. § 39-13-102(a)(1)(A)-(B). An assault may be committed, among other
ways, when the defendant "[i]ntentionally or knowingly causes another to reasonably fear imminent
bodily injury." Tenn. Code Ann. § 39-13-101(a)(2). One acts intentionally "with respect to the
nature of the conduct or to a result of the conduct when it is the person's conscious objective or
desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a). A person acts
knowingly when, with respect to a result of the person's conduct, "the person is aware that the
conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b).

        Initially, possible discrepancies in the evidence would rarely warrant the reversal of a
conviction on insufficiency grounds. This court may neither reweigh nor reevaluate the evidence
and cannot substitute its inferences for those drawn by the jury. Here, the state established that while
two officers attempted to handcuff and arrest Transou, the defendant grabbed a loaded pistol from
the front porch and ran towards a fence, ignoring warnings by the officers to stop and to drop the
weapon. As the defendant turned sideways in order to squeeze through a small open area, Sergeant
DeMoss observed the barrel of a gun pointed in his direction. Because the defendant had ignored
the directive of Sergeant DeMoss, it could be reasonably inferred that his resistance to arrest might
escalate. That the defendant and Transou were together when the officers arrived and that Transou
resisted arrest and struggled with the officers are circumstances that suggest that the defendant's
actions also constituted an effort to resist. That Sergeant DeMoss experienced reasonable fear when
the gun was turned in his direction is not at issue. It was the prerogative of the jury based upon the
circumstances to infer that the defendant had either knowingly or intentionally aimed the barrel in
the direction of the officer. Thus, the evidence is legally sufficient to support the verdict.

                                                   III
        Next, the defendant argues that the trial court failed to exercise its responsibilities to consider
the evidence as a thirteenth juror. The allegation is made based upon comments made by the trial
judge in overruling the motion for new trial:

        The court does not feel that it erred by not granting the defendant's motion for
        judgment of acquittal at the conclusion of the proof. Obviously again, this was
        strictly a jury question whether or not they chose to believe Mr. Vann's version, that
        is, he didn't even have a gun, or whether or not the jury chose to believe . . . what the
        officers testified happened.




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         Rule 33(f) of the Tennessee Rules of Criminal Procedure provides that a "trial court may
grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence." The purpose of the thirteenth juror rule is to be a "'safeguard . . . against a miscarriage
of justice by the jury.'" State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995) (quoting State v. Johnson,
692 S.W.2d 412, 415 (Tenn. 1985)). The rule requires that the trial judge must be personally
satisfied with the verdict. State v. Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995).

         In State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995), our supreme court acknowledged the
restoration of the thirteenth juror rule as it existed at common law, thereby mandating that trial
judges exercise the duty to function as a thirteenth juror in criminal cases. An order overruling a
motion for new trial establishes a presumption that the trial court has exercised the duty and no
explicit statement on the record is required. Carter, 896 S.W.2d at 122; see also State v. Robert
Bacon, No. 03C01-9608-CR-00308 (Tenn. Crim. App., at Knoxville, Jan. 8, 1998). It is only when
the trial court expresses dissatisfaction or disagreement with the jury verdict or makes statements
indicating that it has absolved itself of its responsibility that the judgment should be set aside. See
Bacon, slip op. at 19.

         In State v. Moats, 906 S.W.2d 431 (Tenn. 1995), the state conceded that the trial court had
failed to act as thirteenth juror by entering the judgment while expressing doubts about the weight
of the evidence and concluding that it was inappropriate to overturn the jury verdict. Our supreme
court determined that because the trial court had misconstrued its authority to grant a new trial under
the thirteenth juror rule, a new trial was necessary:

       The trial judge is in a difficult position to make a thirteenth juror determination after
       a remand which would not occur until after the case works its way through the
       appellate courts. By that time, the trial judge is unlikely to have an independent
       recollection of the demeanor and credibility of all the witnesses.

Moats, 906 S.W.2d at 435.

         Here, both the tone and content of the comments made by the trial judge during the hearing
on the motion for new trial signal a satisfaction with the verdict. In fact, the trial judge described
this as "a situation where the court does feel that the evidence was sufficient to support the verdict
of aggravated assault." That is enough.

                                                IV
       Next, the defendant complains that the trial court erred by allowing the state to introduce
prior convictions of felony reckless endangerment and felony evading arrest for impeachment
purposes. The defendant argues that even though the charge was one of aggravated assault in this
instance, the underlying facts were so similar to a reckless endangerment or evading arrest as to
warrant exclusion.




                                                 -7-
         Rule 609 of the Tennessee Rules of Evidence establishes that the credibility of the defendant
may be attacked by presenting evidence of prior convictions so long as the convictions are
punishable by death or imprisonment in excess of one year or for a crime involving dishonesty or
false statement. The rule requires the state to provide written notice of the conviction and that the
trial court determine that the probative value outweighs any unfair prejudice before the evidence may
be introduced. See Tenn. R. Evid. 609(a)(3). Also, no more than ten years may have lapsed between
the commencement of the prosecution and the defendant's release from confinement on a prior
conviction. Tenn. R. Evid. 609(b). In balancing the probative value on credibility against the unfair
prejudicial effect on the substantive issues, the trial court must consider whether the prior conviction
is the same or similar to that at issue. State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). The
admission of prior convictions cannot be the basis for reversal unless the trial court has abused its
discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

        In determining the probative value of the prior convictions, the trial court must consider
whether those convictions involve dishonesty. See State v. Gibson, 701 S.W.2d 627, 629 (Tenn.
Crim. App. 1985). In our view, neither felony reckless endangerment nor felony evading arrest are
indicative of dishonesty. Next, there must be an assessment of the probative value of the prior
convictions on the issue of credibility. In this instance, as in State v. Walker, 29 S.W.3d 885 (Tenn.
Crim. App. 1999), there was a "swearing match" among witnesses. That is, the jury had to assess
the credibility of Sergeant DeMoss and Officer Lott and that of the defendant, who not only denied
that he aimed the weapon but also claimed that he had no weapon at all. As in Walker, the prior
felony convictions here were properly deemed probative. As argued by the defendant, there is a
similarity between the crimes of reckless endangerment and felony evading arrest and the facts
leading to the charge of aggravated assault in this case. Nevertheless, the crimes are sufficiently
distinct from aggravated assault involving the use or display of a deadly weapon as to warrant
admission. This court would defer to the discretionary authority of the trial court which determined
that the probative value on the issue of credibility outweighed any prejudice despite any factual
similarity. Cf. State v. Galmore, 994 S.W.2d 120 (Tenn. 1999).

                                                  V
        As his last issue, the defendant argues that the trial court should have found as a mitigating
factor that the crime was committed under circumstances indicating that it was unlikely that he had
a sustained intent to violate the law. See Tenn. Code Ann. § 40-35-113(11). The trial court
considered and rejected the factor after observing that the jury had concluded that the display of the
deadly weapon was intended to place Sergeant DeMoss in fear.

        Initially, the aggravated assault statute is rather unique in that it requires trial courts to
consider as an enhancement factor that the victim was a law enforcement officer. See Tenn. Code
Ann. § 39-13-102(d) (Supp. 2000). As a Range I offender, the defendant qualified for a sentence
of between three and six years. See Tenn. Code Ann. § 40-35-112(3). The trial court found a total
of four enhancement factors and no mitigating factors. The defendant had a prior criminal history
which included two prior felonies and eight prior misdemeanor convictions ranging from possession
of cocaine to driving on a revoked license and criminal impersonation. In addition to his felony


                                                  -8-
conviction for evading arrest, he had two prior misdemeanor convictions for evading arrest. Also,
the trial court determined that the defendant had a previous history of unwillingness to comply with
the conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-
114(8) (1997). He had twice absconded from probation and on one of those occasions, his probation
was revoked. Finally, the trial court determined that the aggravated assault was committed while
the defendant was on probation for a prior felony offense. See Tenn. Code Ann. § 40-35-114(13)
(1997).

       In our view, even if application of the mitigating factor of lack of sustained intent was
warranted, its weight would have been minimal and, under all of the circumstances, it would not
have served to reduce the six-year sentence.

       Accordingly, the judgment is affirmed.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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