        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs May 18, 2016 at Knoxville

          STATE OF TENNESSEE v. BRANDAN DANE WINDROW

                Appeal from the Criminal Court for Davidson County
                   No. 2014-B-1221 Monte D. Watkins, Judge


                No. M2015-02094-CCA-R3-CD – Filed June 28, 2016


Following a jury trial, the Defendant, Brandan Dane Windrow, was convicted of
aggravated assault involving the use or display of a deadly weapon, a Class C felony, and
vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony.
See Tenn. Code Ann. §§ 39-13-102; -14-408; -11-105. He received a total effective
sentence of fourteen years to be served at thirty-five percent. On appeal, he contends that
the evidence was insufficient to prove that he acted intentionally or knowingly.
Following our review, we affirm the judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Cleveland D. Bain, Nashville, Tennessee, for the appellant, Brandan Dane Windrow.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. (Torry) Johnson III, District Attorney General; and Roger D. Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

       The Defendant’s convictions arose from a January 16, 2014 incident involving the
victim, Kimberly Tennial. Ms. Tennial was leaving her subdivision on her way to work
at approximately 9:00 a.m. when she stopped to check her mail. The neighborhood’s
mailbox area was located near the entrance to the subdivision and was accessible via a
one-way semi-circular drive, delineated by a sidewalk on one side and a landscaped oval
median on the other side. Ms. Tennial parked her car between the two curbs, got out,
checked her mailbox, and returned to her car. When she got back into her car, there were
no other vehicles in the area. She admitted that she was parked facing in the wrong
direction of the one-way drive. Upon entering her car, she placed her mail in the
passenger’s seat and put her mailbox key back in the “cubbyhole” where she usually kept
it. When she looked up, there was a vehicle parked directly in front of her, “front bumper
to front bumper.” She described the vehicle as a sport utility vehicle (“SUV”) and said
that because of the close proximity of the SUV, she could see directly into the vehicle
and could clearly see the driver, a man, who was the car’s only occupant. She identified
the Defendant as the driver.

       The Defendant “yelled out of his window,” and Ms. Tennial “rolled [her] window
down just a little bit.” The Defendant asked for her help, explaining that he had moved
into the neighborhood within the past two weeks and did not yet have his mailbox key.
Ms. Tennial told him that she could not help him and advised him that he should speak to
the homeowners’ association. The Defendant asked to use her mailbox key, and she
declined his request. Ms. Tennial then “put up [her] hand like wait a minute, as if [she]
wanted to get out of his way.” She placed her car in reverse and began backing up. Ms.
Tennial said that because the drive was circular, she hit the curb several times and was
taking her time to back out. According to Ms. Tennial, “every time [she] would go in
reverse, [the Defendant] would push on the gas and come towards [her].” She again put
her hands up, “like hold on a minute.”

       Ms. Tennial said that while attempting to back out, her car went up on the curb
and onto the sidewalk, and the Defendant rammed into the back driver’s side of her car,
“right above the back wheel.” She began yelling at him, saying, “[W]hat is wrong with
you, what is your problem[?]” She said that she became very afraid. The Defendant
exited his vehicle, and he lay down “in a shrubbery area right where the mailboxes
[we]re” and said, “[L]ook, I’m hurt.”

       Ms. Tennial called 911 and drove her car back toward the interior of the
neighborhood. The Defendant got back into his car and “started driving really erratically
around [her] car like he wanted to hit [her] again.” Ms. Tennial pulled in front of a
neighbor’s condominium, explaining that she did not return to her own home because she
did not want the Defendant to know where she lived. Ms. Tennial parked her car in a
parking space, and the Defendant backed his SUV into a parking spot located two spaces
away from her, leaving one space in between their vehicles. The Defendant yelled that
he needed her insurance information, and she yelled back, “[N]o, not until the police get
here.” He again asked for her information, and she gave him the same answer.
According to Ms. Tennial, the Defendant began “yell[ing] expletives about the police . . .
and then he sped off a little bit.” She thought he was driving away, but the Defendant
then “backed up and hit [her] car a second time[,] . . .” again striking the rear driver’s side

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of her car. One of Ms. Tennial’s neighbors exited his home with a gun and “told [the
Defendant] to stop.” At that point, the Defendant “sped on out of the subdivision.”

        Ms. Tennial denied that the Defendant’s actions were accidental, saying that the
first time he hit her car she was “trapped” and attempting to back up her car. The second
time the Defendant hit her, she was parked, and he “sped off” before putting his SUV in
reverse and hitting her car.

       Ms. Tennial said that, although her car was pointing in the wrong direction when
she was parked near the mailboxes, people often went the wrong way through the drive
when checking their mail while leaving the neighborhood. She said that the “common
courtesy” was for anyone who wished to enter the drive from the proper direction to first
allow the person already there to exit the area. She agreed that the semi-circular drive
was short, and if two cars were there at the same time, they would necessarily be very
close together.

       Police officers arrived five to ten minutes after Ms. Tennial called 911, and she
was able to provide them with the Defendant’s license plate number. Detective Robert
Shelton of the Metropolitan Nashville Police Department was assigned to investigate the
incident. He used the license plate information to check the car’s registration. The tag
number matched a Ford Expedition owned by the Defendant. Det. Shelton then put
together a photographic lineup, from which Ms. Tennial was able to identify the
Defendant.

       Ms. Tennial testified that the damage to her car totaled more than $1,000 but less
than $10,000.

       Upon this evidence, the jury convicted the Defendant of aggravated assault and
vandalism. Following a sentencing hearing, the trial court imposed a sentence of eight
years for the aggravated assault and six years for the vandalism, with the sentences set to
run consecutively and to be served at thirty-five percent. This timely appeal followed.

                                       ANALYSIS

       On appeal, the Defendant challenges the sufficiency of the convicting evidence.
In particular, the Defendant avers that there was insufficient evidence to prove that he
acted intentionally or knowingly. The State disagrees.

        First, we feel compelled to address the inadequacy of the Defendant’s brief. The
argument section of the Defendant’s brief contains no citations to the record, and the only
citations to authority are two references to the statutes pursuant to which the Defendant

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was convicted.1 And, although the Defendant alleges that the State failed to prove the
requisite mental states, he provides no citation to the statutes containing the definitions
for “intentional” and “knowing.” Rule of Appellate Procedure 27(a) states that an
appellant’s brief “shall contain . . . [a]n argument . . . setting forth . . . the contentions of
the appellant with respect to the issues presented . . . including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . .” (Emphasis added). The rules of this court dictate that
“issues which are not supported by . . . citation to authorities, or appropriate references to
the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The
inadequacies of the Defendant’s brief make his challenge to the sufficiency of the
evidence suitable for waiver. However, waiver notwithstanding, we choose to address
the merits of the Defendant’s appeal.

       An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657, S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The following standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
1
  The Defendant makes one additional citation to authority: after asserting that the victim was guilty of
fleeing the scene of an accident, he cites to the relevant statute for that crime.

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court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted).

        Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference . . . .” Id. at 380 (quoting Holland v. United States, 348 U.S. 121,
140 (1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).

       The Defendant was convicted of aggravated assault and vandalism. As relevant
here, “[a] person commits aggravated assault who . . . [i]ntentionally or knowingly
commits an assault as defined in [section] 39-13-101, and the assault . . . involves the use
or display of a deadly weapon . . . .” Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). “A
person commits assault who . . . [i]ntentionally or knowingly causes another to
reasonably fear imminent bodily injury . . . .” Tenn. Code Ann. § 39-13-101(a)(2).
Further, the indictment specified that the deadly weapon in this case was a motor vehicle.
See State v. Tate, 912 S.W.2d 785, 788 (Tenn. 1995) (holding that an aggravated assault
conviction may be supported by the State’s proving that a motor vehicle was knowingly
or intentionally used to cause another person to reasonably fear imminent bodily injury).
“A person commits the offense of vandalism who knowingly . . . [c]auses damage to or
the destruction of any real or personal property of another . . . knowing that the person
does not have the owner’s effective consent . . . .” Tenn. Code Ann. § 39-14-408.2

       A person acts intentionally “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 with respect “to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances
exist” and “with respect to a result of the person’s conduct when the person is aware that
the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b).


2
  In his brief, the Defendant incorrectly states that the vandalism statute requires a defendant to act
intentionally.

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       The Defendant characterizes the first collision with Ms. Tennial’s car as
accidental, asserting that he was intending to exit the drive, not hit Ms. Tennial’s car. He
points out that Ms. Tennial had entered the drive in the wrong direction. The Defendant
seemingly believes that this excuses his subsequent behavior. He further argues that Ms.
Tennial’s testimony alone was not sufficient to prove that he hit her car a second time.
We disagree.

       The evidence at trial showed that the Defendant first encountered Ms. Tennial
while she was parked near the mailboxes in her subdivision. He parked his SUV “front
bumper to front bumper” with Ms. Tennial’s car. Ms. Tennial had admittedly entered the
one-way drive and parked in the wrong direction. After refusing to allow the Defendant
to borrow her mailbox key, Ms. Tennial signaled to the Defendant that she was going to
back out of the drive. Rather than waiting for her to back out, the Defendant inched
closer to her each time she progressed backward. Finally, when Ms. Tennial’s car hit the
curb and went up onto the sidewalk, the Defendant “rammed” his SUV into her car. Ms.
Tennial said that she was very afraid.

       After the Defendant exited his SUV, claimed that he was injured, and lay down in
the grass, Ms. Tennial called 911 and finished backing out of the drive. She drove to a
neighbor’s condominium, where she parked her car to wait for the police. The Defendant
followed her, backed into a parking space two spots away from her, and requested her
insurance information. When Ms. Tennial told the Defendant that he would have to wait
for the police, he “yelled expletives” about the police. He then began to drive away
before placing his car in reverse and again ramming his SUV into Ms. Tennial’s car. Ms.
Tennial testified that the damage to her car totaled over $1,000. Accordingly, there was
ample evidence from which the jury could infer that the Defendant intentionally used his
motor vehicle in a way that caused Ms. Tennial to reasonably fear imminent bodily harm.
There was likewise sufficient evidence that he knowingly caused damage to her vehicle.
The jury obviously accredited Ms. Tennial’s testimony, as was its prerogative. The
Defendant is not entitled to relief.

                                     CONCLUSION

       Based upon the foregoing and the record as a whole, the judgments of the trial
court are affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE


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