        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2016

              JOHN N. MOFFITT v. GRADY PERRY, WARDEN

                 Appeal from the Circuit Court for Hardeman County
                 No. CC-15-CR-113    Joseph H. Walker, III, Judge


               No. W2015-01763-CCA-R3-HC - Filed March 24, 2016


The petitioner, John N. Moffitt was sentenced on September 15, 2014, to four years in the
Department of Correction for reckless aggravated assault. He filed a pro se petition for
writ of habeas corpus, claiming that his indictment was so defective that his restraint was
unlawful. We affirm the dismissal of his habeas corpus petition, pursuant to Rule 20,
Rules of the Court of Criminal Appeals.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and D. KELLY THOMAS, JR., JJ., joined.

John N. Moffitt, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Caitlin Smith, Assistant
Attorney General, for the appellee, State of Tennessee.

                             MEMORANDUM OPINION

       The issues raised in the petitioner’s direct appeal were his claims that the evidence
was insufficient to sustain either his conviction or the amount of the restitution order and
that the trial court erred both in instructing the jury and in sentencing. This court
affirmed the petitioner’s conviction and sentence but reduced the amount of restitution.
State v. John N. Moffitt, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *1
(Tenn. Crim. App. Jan. 29, 2016). In a pro se petition for writ of habeas corpus, filed
while his direct appeal still was pending, he added the new claim that the indictment
charging him with aggravated assault was fatally defective.
       In brief, the petitioner’s conviction for reckless aggravated assault resulted from
his cutting the victim with a pocketknife as the petitioner was arguing with the landowner
and the victim, who was doing repair work on a fence. The petitioner admitted cutting
the victim with the pocketknife, which was taken from him at the time of his arrest, but
claimed that he had acted in self-defense after the victim had attacked him with a tripod
tool. Id. at *2. Counsel for the petitioner neither made a pretrial claim that the
indictment was deficient nor objected to it at trial.

       The petitioner’s indictment alleged as follows:

       [O]n or about May 16, 2013, in Henderson County, Tennessee, and before
       the finding of this indictment, [the petitioner] did intentionally and/or
       knowingly cause bodily injury to STEVEN ROY PHELPS by the use of a
       deadly weapon, to-wit: a knife, a more particular description of which to
       the Grand Jurors aforesaid is unknown, in violation of T.C.A. § 39-13-102,
       all of which is against the peace and dignity of the State of Tennessee.

       As to these charges, the petitioner claimed in his habeas corpus petition that “[t]he
indictment does not withstand constitutional muster because it fails to state the essential
elements of the charged offense (Aggravated Assault) of the convicted offense (Reckless
Aggravated Assault).” The petitioner does not add to this brief statement any information
regarding exactly what language was missing from the indictment.

       We will review these claims.

       Assault is defined as:

              (a) A person commits assault who:

             (1) Intentionally, knowingly or recklessly causes bodily injury to
       another;

            (2) Intentionally or knowingly causes another to reasonably fear
       imminent bodily injury; or

              (3) Intentionally or knowingly causes physical contact with another
       and a reasonable person would regard the contact as extremely offensive or
       provocative.

       Tenn. Code Ann. § 39-13-101(a).

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      Sections 39-13-102(a)(1)(A)(i)-(iv) and (B)(i)-(iii) provide that a person commits
aggravated assault who:

            (A) Intentionally or knowingly commits an assault as defined in §
      39-13-101, and the assault:

             (i) Results in serious bodily injury to another;

             (ii) Results in the death of another;

             (iii) Involved the use or display of a deadly weapon; or

             (iv) Involved strangulation or attempted strangulation; or

             (B) Recklessly commits an assault as defined in § 39-13-101(a)(1),
      and the assault:

             (i) Results in serious bodily injury to another;

             (ii) Results in the death of another; or

             (iii) Involved the use or display of a deadly weapon.

       In brief, the indictment alleged that on or about May 16, 2013, in Henderson
County, the petitioner intentionally and/or knowingly, using a knife, caused bodily injury
to Steven Roy Phelps. As we understand, the petitioner claims that the indictment was
defective because it did not allege (1) that the defendant committed an assault, (2) which
resulted in serious bodily injury, (3) and that he used or displayed a deadly weapon. This
argument overlooks the fact that the indictment specifically alleges that the petitioner
violated the aggravated assault statute, Tennessee Code Annotated section 39-13-102.
Further, the petitioner mistakenly believes that the aggravated assault statute requires
both that the victim sustained serious bodily injury and the petitioner used or displayed a
deadly weapon. However, the law is clear that this statute is read in the disjunctive,
meaning either that the victim sustained serious bodily injury or the petitioner used or
displayed a deadly weapon. As this court explained in State v. Charles Edward Wagner,
No. E2012-01144-CCA-R3-CD, 2014 WL 60971, at *17 (Tenn. Crim. App. Jan. 8,
2014), perm. app. denied (Tenn. Sept. 18, 2014):

      [A] conviction for aggravated assault may be predicated upon either serious
      bodily injury or use or display of a deadly weapon. Tenn. Code Ann. § 39-
      13-102(a)(1)(A)(i), (ii). The statutory elements listed in subsection
                                             3
       (a)(1)(A) are disjunctive. The State indicted appellant for use or display of
       a deadly weapon. Id. § -102(a)(1)(A)(ii). Thus, the State was not required
       to prove that the victim suffered serious bodily injury to sustain a
       conviction for this offense.

       Accordingly, we conclude that the indictment is not defective and affirm the
denial of relief to the petitioner.

       When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action taken in a proceeding without a jury and
such judgment or action is not a determination of guilt, and the evidence does not
preponderate against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We
conclude that this case satisfies the criteria of Rule 20. The judgment of the trial court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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