                                                                                        02/13/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              November 15, 2016 Session

              STATE OF TENNESSEE v. RODNEY LEE SCOTT

                  Appeal from the Criminal Court for Knox County
                           No. 103494 Scott Green, Judge
                     ___________________________________

                           No. E2015-01772-CCA-R3-CD
                       ___________________________________


Defendant, Rodney Lee Scott, was found guilty by a jury of attempted voluntary
manslaughter, aggravated assault, reckless aggravated assault, leaving the scene of the
accident, and public intoxication as the result of an incident described as road rage on
December 16, 2013. As a result of the convictions, Defendant received an effective
sentence of six years. Defendant appeals, challenging: (1) the sufficiency of the
evidence; (2) the denial of a motion to sever; (3) the denial of a motion in limine which
sought to allow Defendant to cross-examine the victims about their criminal history; (4)
his dual convictions for attempted voluntary manslaughter and aggravated assault; and
(5) the trial court’s denial of a mistrial. After a review of the evidence and authorities,
we affirm the judgments of the trial court with respect to Defendant’s convictions for
attempted voluntary manslaughter, aggravated assault, leaving the scene of the accident,
and public intoxication. Because reckless aggravated assault cannot be a lesser included
offense of aggravated assault based upon fearing imminent bodily injury, we reverse and
dismiss Defendant’s conviction for reckless aggravated assault. On remand, the trial
court should enter judgment forms dismissing Counts Four and Seven of the indictment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Reversed in Part and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

John M. Boucher, Jr. Knoxville, Tennessee, for the appellant, Rodney Lee Scott.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

       In April of 2014, Defendant was indicted by the Knox County Grand Jury for
attempted first degree murder, aggravated assault, leaving the scene of an accident, public
intoxication, and theft of property valued at $500 or less after incidents taking place on
December 16, 2013. At around 3:42 p.m. that day, a call was made to 911 to report an
ongoing “road rage” incident involving a black SUV and two motorcycles.

        Shortly before the 911 call, J.R. Trisler and his friend Tyler Lakin met at Moto 4
Us motorcycle shop. The two had plans to ride motorcycles on Highway 95. Instead, the
men rode their bikes on I-640 and exited at East Town Mall Road where the exit ramp
splits from one lane into two lanes prior to the end of the ramp. Mr. Lakin was in front of
Mr. Trisler by about “two bike lengths” on the ramp in the right lane. A black SUV was
in front of Mr. Lakin, driven by Defendant. When the ramp split into two lanes, Mr.
Lakin got into the left lane. Before the SUV got to the end of the ramp, “[Defendant]
swerved to try to hit [Mr. Lakin].” Mr. Trisler saw the SUV swerve toward Mr. Lakin
twice.

        Defendant had been at the golf course that day but the weather prevented him from
playing golf so he played a few rounds of cards with his friends instead. He was on the
way home from the golf course when he realized that he needed to run an errand
requiring him to turn left off the exit. He started to move his vehicle from the right lane
over into the left lane when he changed his mind and decided to just go home. He then
moved back into the right lane so that he could turn right and head toward his house. At
that time, he heard motorcycles. As the motorcycles and Defendant approached the end
of the ramp, the motorcycles were in the lane to the left of Defendant’s SUV. Mr. Lakin
“traded words” with Defendant at the end of the ramp and accused Defendant of running
Mr. Trisler off the road. Defendant recalls that he asked the men something like, “What
are you doing?” Defendant claimed that he did not know what Mr. Lakin was talking
about but that he got “angry” nonetheless and the two men “had some choice words”
between each other. Mr. Trisler recalled Defendant had his window down and “was
screaming that he hated motorcyclists.” Mr. Trisler heard Defendant “cussing” and using
“racial slurs” like “N-----” and “yellow boy,”1 so he decided to “get his tag number and
call the cops.” After the exchange at the end of the ramp, Defendant turned right and
went toward his own house. Mr. Trisler described Defendant’s actions as “hysterical.”



        1
          On cross-examination, Mr. Trisler admitted that in his initial statement to police, he only told
police that Defendant was calling them names.
                                                 -2-
       The motorcyclists followed Defendant down Millertown Pike. At one point,
Defendant “hit the brakes real hard” and almost made Mr. Trisler “rear end” Defendant.
Defendant started driving again and eventually pulled in to a Regions Bank parking lot.
Defendant sped around the building in his SUV. Defendant did not stop because he
thought the men on the motorcycles were “going to beat [him] up or do something like
that.” Mr. Trisler pulled into the bank parking lot, hopped off his bike, and screamed at
Ben Bellew, the security guard, to call the police. Mr. Bellew had been standing inside
near the tellers when he “heard the squalling tires come through” the parking lot. He
walked outside, saw a black Saturn SUV and two motorcycles, and was told by Mr.
Trisler to call 911.

       Defendant drove his SUV back onto the main road and the motorcycles continued
to follow him. After traveling down the road for a bit, Defendant stopped the SUV
before he got to a stop sign and “put the brake - - reverse lights on and he backed up into
[Mr. Trisler].” Mr. Trisler claimed Defendant’s “car clipped [his motorcycle]” and he
threw his motorcycle into the ditch to avoid a more serious accident. The bike sustained
a small amount of damage. Thuan Mai, a nearby resident, was outside and heard a
“quick stop from a vehicle” so he turned around just in time to see Defendant “put it in
reverse” for one to two car lengths. The motorcycle behind the SUV tried to avoid the
accident and went into the ditch “to avoid from getting hit.” Mr. Mai helped Mr. Trisler
get his bike back up on to the roadway. Mr. Mai observed minor damage to the
motorcycle.

       Defendant testified the incident at the stop sign was the result of a traffic back up
where he thought “there was enough room to where [he] could probably get out of there”
so he “backed up” in order to try to drive forward around other cars and evade the
motorcycles. Defendant stated, “[N]ext thing I knew, one of [the motorcycle riders] is on
the hood of my car. [The motorcycle rider] grabbed my mirror and he grabbed the area
right where my windshield wipers are, and beat the windshield, and sa[id], ‘I’m going to
kill you, you son of a bitch.’”2 Defendant described backing up as a defensive move and
admitted leaving the scene. Defendant testified he drove as fast as possible to get home,
though the volume of traffic made it difficult.

       At a red light, Mr. Trisler yelled for someone to call 911. Joe Jackson was
stopped nearby and overheard this request. He placed a call to 911 at around 3:42 p.m.
During the phone call, Mr. Jackson reported that a black Saturn Vue just hit a motorcycle
and was trying to leave the scene. He reported the location of the incident and the license
plate number of the SUV. Mr. Jackson saw two motorcycles following the SUV. He
decided to follow both the motorcycles and the SUV. Eventually they turned onto Mary

       2
          The State called Mr. Mai in surrebuttal. Mr. Mai testified that the driver of the motorcycle
never touched Defendant’s vehicle.
                                                 -3-
Emily Lane where the SUV pulled into a driveway. Defendant exited the vehicle and
walked into the house.

       Defendant came out of his house shortly thereafter. Mr. Trisler informed
Defendant that someone had already called the police, but Defendant was “screaming and
he had some guns in his hands.” Mr. Jackson saw the guns, put his car in gear, and
retreated toward the dead end of the street. Mr. Jackson was able to witness the events by
turning partially around in the driver’s seat while he was driving away. Defendant
continued to walk toward Mr. Trisler and Mr. Lakin. As Defendant approached, Mr.
Trisler walked backward and diagonally away from Defendant. At first, Mr. Lakin
thought Defendant was “just trying to intimidate [them], . . . so [he] didn’t run.” Mr.
Lakin put his hands up in the air. Mr. Lakin recalled turning to walk away around the
time Defendant started shooting. Mr. Trisler heard two or three shots. Mr. Lakin did not
immediately fall to the ground, and actually thought Defendant had “shot over [him]” in
order to intimidate him. Mr. Trisler turned and started to run away when he heard the
shots. When he turned back around, Mr. Lakin was “l[]ying face down . . . in the street.”
Mr. Trisler saw Defendant fire the first two shots and thought that they were fired
“straight at [Mr. Lakin’s] face.” The second two shots were fired “in the back” as Mr.
Lakin was lying on the ground.3 Mr. Trisler heard Defendant yelling “racial slurs.”
“After he shot [Mr. Lakin] two more times in the back, [Defendant] kept putting a gun to
[Mr. Lakin’s] head and pulling the trigger.” Defendant stated that he would “kill” the
“mother f’er.” When the shooting was over, Defendant walked back inside. Defendant
exited the house moments later, drinking a soda. Mr. Trisler called 911.4 Mr. Trisler
asked Defendant why he shot Mr. Lakin. Defendant informed him that it was “self-
defense.”

        Mr. Jackson called 911 for a second time at 3:48 p.m. to report the shooting. A
review of the recording clearly indicates that Mr. Jackson was obviously distressed by the
situation and was struggling to breathe. He reported that “this guy just come out and shot
this man” seven or eight times from “point blank” range. He described the shooter as an
“older white guy” who shot the victim in the back. Several other neighbors heard shots
fired and called 911.

       Mr. Lakin was shot one time in the hand, one time in the “lower spine area,” one
time in the “upper spine area” and one time on the “right side of [his] back, about mid - -


        3
          Again, on cross-examination, counsel for Defendant pointed out that the initial statement from
Mr. Trisler did not include information about Defendant shooting Mr. Lakin in the back.
        4
          During the lengthy 911 call, Mr. Trisler exclaims that “this guy just shot my friend in the street”
after he “tried to take us out on the interstate.” On the tape of the call, you can hear Mr. Trisler arguing
with someone, presumably Defendant, but it is not clear who is talking.
                                                    -4-
mid way.” He spent about one week in the hospital. The bullets were not removed from
his body.

       Joan Scott, Defendant’s wife, was home when Defendant, Mr. Lakin, and Mr.
Trisler arrived that afternoon. Mrs. Scott is legally blind as a result of macular
degeneration. Defendant had been at the golf course, a place he went regularly to play
golf or cards. Defendant came into the house, shoved her out of the way, and told her to
stay inside. She testified at trial that she heard Mr. Trisler and Mr. Lakin call her an “old
bitch” and threaten her so she called 911, “hysterical and terrified” that she “was going to
be killed” by the motorcyclists.5 She heard Defendant yelling at them but could not see
what they looked like because they were both wearing helmets. Additionally, she
remained inside and the three men were outside. Mrs. Scott did not think Defendant was
drinking the day of the incident.

        Defendant described himself as “aggravated” when he pulled into his driveway
because some of the things in his car spilled all over the place “during . . . the melee.” He
opened the car door to clean out the mess and heard motorcycles. Defendant claimed that
he did not call 911 while he was driving because he could not see the phone well enough
to dial without his reading glasses.

       Defendant entered the house and instructed his wife to call 911. Defendant went
upstairs to retrieve a pistol thinking that when he went outside with the pistol that the
men would leave. Defendant walked outside and fired the gun in the air. The men were
screaming obscenities at him. There were “a lot of verbal MF’s, both of us, [and]
SOB’s.” Defendant claimed that he was afraid and that the men threatened both him and
his wife. Defendant walked toward the men and told them to “go ahead and leave.”
Defendant insisted his “gun was down” at that time when Mr. Lakin’s arm reached and
came up toward him. Defendant fired and the pistol went “bam, bam, bam, bam, bam as
[Mr. Lakin] went down.” Defendant had “never fired a pistol before in [his] life” and did
not want to kill anyone.

       The first officer on the scene was Detective Heather Rayda with Knox County
Sheriff’s Office Major Crimes Unit, who was on her way to work and received a
“BOLO”6 for a “possible road rage incident.” While she was driving, the matter evolved
into a report of a shooting and changed from city to county jurisdiction. When she
arrived on Mary Emily Lane, she observed “a man l[]ying face down in the grass,”
Defendant “to [her] left standing in a driveway,” and a third person in her “peripheral

       5
           Mrs. Scott admitted that she did not tell officers on the scene that the victims threatened her that
day.
       6
           BOLO is an acronym used in law enforcement meaning “be on the lookout.”
                                                 -5-
vision on the right.” She exited her unmarked patrol car, and Defendant “raise[d] his
hands.” Detective Rayda patted him down and placed him in handcuffs.

       Mr. Lakin was “struggling to breathe.” Once Defendant was handcuffed, Mr.
Trisler came out from where he was seeking refuge. He and the victim were still clothed
in motorcycle gear. Detective Rayda described Defendant as “intoxicated” with
“bloodshot and red” eyes and noticed that he smelled of alcohol. He acted “calm” and
“aloof.” Detective Rayda described his speech as “a little bit slurred.” Mr. Trisler and
Mr. Lakin were both “extremely upset” and seemed “petrified.”

       The scene was processed by Kimberly Trotter of the Knox County Sheriff’s
Department Crime Scene Unit. She recovered eight spent shell casings from a .25 caliber
gun outside, and a “small .25 caliber Beretta handgun” from the garage of Defendant’s
residence. Officers also found a bottle of Fireball whisky in Defendant’s golf bag. A
toxicology test administered five hours after the incident showed Defendant had a blood
alcohol content of .04.

      At the conclusion of the trial, Defendant was convicted of attempted voluntary
manslaughter, aggravated assault, reckless aggravated assault, leaving the scene of an
accident, and public intoxication.7 Defendant was found not guilty of attempted first
degree murder with respect to Mr. Trisler.

      At the sentencing hearing, the trial court sentenced Defendant to an effective
sentence of six years. The trial court ordered Defendant to serve one year in the Knox
County Jail day for day prior to being placed on probation. The trial court also ordered a
mental health evaluation to include anger management.

       Defendant filed a timely motion for new trial. Among other things, he argued that:
(1) the evidence was insufficient; (2) the trial court erred in denying the motion to sever;
(3) the trial court erred in denying the motion in limine; (4) the trial court improperly
instructed the jury; (5) the trial court erred in denying a mistrial; (6) the trial court erred
by refusing to exclude the testimony of the victims after they violated the rule of
sequestration; (7) the trial court erred by failing to give a curative instruction after the
victims violated the rule of sequestration; (8) the trial court erred by refusing to hold the
victims in contempt; and (9) the verdicts are inconsistent. After a hearing, the trial court
denied the motion. Defendant appealed.

       7
          The technical record indicates that the theft count was severed from the remainder of the
offenses and ultimately dismissed. The record does not contain a judgment form disposing of this count
of the indictment. On remand, the trial court should enter a judgment form dismissing the theft count.
See State v. Lemaricus Devall Davidson, ___ S.W.3d ___, No. E2013-00394-SC-DDT-DD, 2016 WL
7339116, at *41 (Tenn. Dec. 19, 2016) (requiring a trial court to prepare a uniform judgment document
for each count of the indictment).
                                                 -6-
                                          Analysis

       At the outset, we are compelled to note that the record on appeal does not contain
a transcript from the hearing on the motions in limine, the motion to sever, or on the
motion for new trial. At oral argument, counsel for Defendant was given ten days to
supplement the record. The appellant has the duty to prepare a record sufficient to allow
meaningful review. Tenn. R. App. P. 24(b) (mandating that “the appellant shall have
prepared a transcript of such part of the evidence or proceedings as is necessary to
convey a fair, accurate and complete account of what transpired with respect to those
issues that are the bases of appeal”); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
Accordingly, the absence of the transcript of a hearing generally constitutes waiver of the
issue. Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997); Ballard, 855
S.W.2d at 560-61 (“Where the record is incomplete and does not contain a transcript of
the proceedings relevant to an issue presented for review, or portions of the record upon
which the party relies, an appellate court is precluded from considering the issue.”).
Defendant was given ample time to supplement the record at oral argument in this Court
and has failed to do so.

                                 Denial of Motion to Sever

        Defendant complains that the trial court failed to sever the public intoxication
charge because it was of evidentiary relevance. The State argues that Defendant waived
this claim because he failed to provide an adequate record for review. The record on
appeal does not include a transcript of the hearing on the motion to sever. Tenn. R. App.
P. 24(b); Ballard, 855 S.W.2d at 560. Defendant does not address this deficiency in the
record. This issue is waived. Thompson, 958 S.W.2d at 172; Ballard, 855 S.W.2d at
560-61.

                                Denial of Motion in Limine

       Defendant argues that he should have been allowed to cross-examine the victims
about their criminal histories. Specifically, Defendant insists that because he was relying
on the affirmative defense of self-defense, the victims’ histories of “violent, assaultive
[behavior], reckless driving, and drug use” were relevant. Additionally, he contends that
“a material issue exists beyond the character trait for being violent,” there is clear and
convincing proof that the victims had a prior criminal history, and the probative value is
not outweighed by the danger of unfair prejudice.

        Just prior to empanelling the jury, the trial court admonished counsel that
“[n]either side is to get into anything outside of what transpired with this event without
first approaching the bench and getting this Court’s permission to go into it. . . . And that
                                            -7-
includes any misdemeanor convictions that these two motorcyclists may have, that
includes any potential prior bad act either [Defendant] or one of them have.” The trial
court instructed the parties to “approach the bench and ask” before delving in to such
matters. From our review of the record, we were unable to locate any attempt by
Defendant to cross-examine the victims about their prior conduct during trial.

       Again, there is no transcript of the hearing on the motion in limine in the record on
appeal, and Defendant does not address this inadequacy in his brief. Tenn. R. App. P.
24(b); Ballard, 855 S.W.2d at 560. Moreover, Defendant has not made any attempt to
supplement the record. This issue is waived. Thompson, 958 S.W.2d at 172; Ballard,
855 S.W.2d at 560-61.

                                   Denial of a Mistrial

      Defendant argues on appeal that the trial court should have granted a mistrial or
excluded the testimony of the victims on the basis that they violated the rule of
sequestration. The State counters that the trial court properly allowed Defendant to cross-
examine Mr. Lakin about violating the rule of sequestration and Defendant failed to show
he was prejudiced by the victims’ conversation.

        At trial, Mr. Trisler testified before Mr. Lakin. Mr. Lakin was not in the
courtroom at the time of his testimony because the rule of sequestration had been
requested. After the direct testimony of Mr. Lakin but prior to his cross-examination, the
trial court admonished the witnesses regarding the rule of sequestration. When court
adjourned for lunch, Greg Lundy, an investigator for Defendant walked out of the
courtroom behind Mr. Lakin and Mr. Trisler. As they walked toward a restaurant, Mr.
Lundy heard a full discussion between Mr. Trisler and Mr. Lakin about their testimony.
Counsel for Defendant asked the trial court to examine the witnesses and exclude the
testimony.

       In a jury out hearing, the trial court examined Greg Lundy, the investigator for
Defendant. Mr. Lundy saw the witnesses leaving together and heard them discussing the
case, the “type of questions that [they] were asked” and generally “comparing notes”
about their testimony. Mr. Lundy actually recorded their conversation but the trial court
declined to listen to the recording.

       Mr. Lakin was questioned by the trial court and cross-examined by counsel for
Defendant and admitted that he “discuss[ed] the details of the day” and made “comments
about the lawyer” but did not “specifically talk[] about situations that happened in this
courtroom.” The court decided not to strike the testimony or grant a mistrial but again
admonished the witness about discussing his testimony while the trial was ongoing.

                                            -8-
        Defendant moved for a mistrial as soon as court reconvened after lunch. After the
trial court denied the mistrial, Defendant raised the mistrial issue in his motion for new
trial and raised the issue again on appeal. However, we must determine whether the
absence of the transcript of the motion for new trial hearing hinders our review of
whether the trial court erred with respect to the denial of a mistrial.

        A trial court has the authority to declare a mistrial, and its decision is reviewed for
an abuse of discretion. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).
“Normally, a mistrial should be declared only if there is a manifest necessity for such
action.” State v. Saylor, 117 S.W.3d 239 (Tenn. 2003). A mistrial is appropriate when “a
trial cannot continue, or a miscarriage of justice would result if it did.” Id. (internal
quotation omitted). A manifest necessity exists when something has occurred that would
prevent an impartial verdict, State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000),
and there is “no feasible alternative to halting the proceedings,” State v. Knight, 616
S.W.2d 593, 596 (Tenn. 1981). The burden is on the party seeking the mistrial to show
that a manifest necessity exists. Land, 34 S.W.3d at 527. “‘[N]o abstract formula should
be mechanically applied and all circumstances should be taken into account.’” Nash, 294
S.W.3d at 546 (quoting State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993)).

       In response to the State’s assertion that this issue is waived, we conclude that the
evidence provided in the record is sufficient “to convey a fair, accurate and complete
account of what transpired with respect to those issues which are the bases of appeal.”
Tenn. R. App. P. 24(b). The record contains the transcript of the trial including the
questioning of the witnesses about the violation of the rule; this is the entirety of what
was before the trial court when the trial court made its decision to deny a mistrial.
Accordingly, we conclude that the record before us “provides a sufficient amount of
information to determine” whether the trial court abused its discretion in declining to
grant a mistrial. State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

       Defendant argues that the sequestration rule was violated. That rule provides: “At
the request of a party the court shall order witnesses, including rebuttal witnesses,
excluded at trial or other adjudicatory hearing . . . The court shall order all persons not to
disclose by any means to excluded witnesses any live trial testimony or exhibits created
in the courtroom by a witness.” Tenn. R. Evid. 615. The sequestration rule is designed
to prevent witnesses from hearing the testimony of other witnesses and subsequently
adjusting their testimony. State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). In
fashioning a remedy for a violation, a trial court can instruct the jury about the witness’s
violation, exclude the witness from testifying, or even allow a defendant to cross-examine
a witness about the violation. See State v. Jordon, 325 S.W.3d 1, 42 (Tenn. 2010); State
v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Of course, more drastic
measures, such as a mistrial, are reserved for egregious cases involving “intentional
violations” of the rule. Jordan, 325 S.W.3d at 41. When a sequestration rule violation is
                                             -9-
raised on appeal, this Court shall consider the seriousness of the violation and the
prejudice, if any, suffered by the defendant. Harris, 839 S.W.2d at 68-69.

        In this case, the trial court recognized the violation occurred and questioned the
witnesses. The violation occurred after the testimony of Mr. Trisler and at the conclusion
of the direct examination of Mr. Lakin. The investigator that overheard the conversation
testified that the men discussed why they were traveling to Highway 95 and the
performance of the trial attorneys. Defendant was given the opportunity to cross-
examine the witnesses in the jury-out hearing. Defendant has failed to show the
witnesses’ conversation resulted in prejudice. This issue is without merit.

                                Sufficiency of the Evidence

       In a rather blanket argument lacking in specificity, Defendant argues that there
was no evidence presented by the State to negate self-defense, defense of another,
necessity, or duress. Defendant makes no challenge with regard to the State’s failure to
prove the essential elements of each offense but argues that the evidence is insufficient to
support his convictions. The State insists that the jury heard sufficient evidence to
sustain the convictions.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.’” Wagner, 382 S.W.3d at 297
(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “‘A guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution’s theory.’” Reid, 91 S.W.3d at 277
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Id. The standard of review is the
same whether the conviction is based upon direct evidence, circumstantial evidence, or a
combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
                                            - 10 -
       After hearing the evidence from the State and Defendant, the trial court instructed
the jury with respect to the elements of the offenses as well as the affirmative defenses
raised by Defendant: self-defense, defense of another, and duress.

                          A. Attempted Voluntary Manslaughter

       Defendant was indicted for attempted first degree murder and the jury returned a
guilty verdict on the lesser included offense of attempted voluntary manslaughter.
Attempted voluntary manslaughter is an attempt to knowingly or intentionally kill
another in a state of passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner. T.C.A. § 39-12-101; T.C.A. § 39-13-
211(a). A person acts knowingly “when the person is aware that the conduct is
reasonably certain to cause the result” and acts intentionally when it is “the person’s
conscious objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-
11-211(a). A defendant commits an attempt to commit voluntary manslaughter when a
defendant “[a]cts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person’s part.”
T.C.A. § 39-12-101(a)(2).

       The facts at trial, viewed in a light most favorable to the State, support the
conclusion that Defendant intentionally or knowingly attempted to kill Mr. Lakin. The
evidence showed that Mr. Trisler and Mr. Lakin followed Defendant to his home on their
motorcycles. During the drive, the men yelled at each other several times. When
Defendant got to his home, Defendant pulled into his driveway, exited his vehicle and
entered his garage. Mr. Trisler and Mr. Lakin parked their motorcycles on the street. A
few minutes later, Defendant exited the residence with at least one loaded pistol and
intentionally fired the pistol multiple times at Mr. Lakin, striking him once in the hand
and at least twice in the back. Defendant testified that the men shouted threats at him and
his wife, pounded on his vehicle at a stop sign, and approached his property. The
testimony of the victims and other witnesses conflicted with Defendant’s version of the
events. Mr. Mai testified that neither victim touched Defendant’s car at the intersection.
Mr. Jackson witnessed the men following each other on the road and saw Defendant fire
at Mr. Lakin at Defendant’s house. His description of the events leading up to the
shooting in the recording of his 911 call and his testimony at trial indicated an escalation
of emotional behavior by Defendant, including the use of aggressive driving and verbal
assaults both by Defendant toward the victims and vice versa.

       Defendant was indicted for attempted first degree murder. Defendant raised the
affirmative defenses of self-defense and duress. A person may use deadly force in self-
defense when that person has a reasonable belief, based upon reasonable grounds, that
there is an imminent, real danger of death or serious bodily injury. T.C.A. § 39-11-
                                           - 11 -
611(b)(2). “[W]hether an individual acted in self-defense is a factual determination to be
made by the jury as the sole trier of fact.” State v. Goode, 956 S.W.2d 521, 527 (Tenn.
Crim. App. 1997) (citing State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993)). In
convicting him of the lesser included offense, the jury obviously concluded that the
victims’ behavior provided adequate provocation for Defendant’s actions, but that the
severity of his response went beyond that necessary to defend himself and his wife.
Moreover, he did not fire on the victims as a result of duress.

       Duress is a defense to prosecution where the person or a third person is
       threatened with harm that is present, imminent, impending and of such a
       nature to induce a well-grounded apprehension of death or serious bodily
       injury if the act is not done. The threatened harm must be continuous
       throughout the time the act is being committed, and must be one from
       which the person cannot withdraw in safety. Further, the desirability and
       urgency of avoiding the harm must clearly outweigh the harm sought to be
       prevented by the law proscribing the conduct, according to ordinary
       standards of reasonableness.

T.C.A. § 39-11-504(a); see also State v. Green, 915 S.W.2d 827 (Tenn. 1995). There
was no proof presented at trial that Defendant was under duress to shoot the victims. The
assessment of the credibility of the witnesses is within the jury’s prerogative. The
evidence was sufficient to convict the defendant of attempt to commit voluntary
manslaughter.

                                  B. Aggravated Assault

       Likewise, we find the evidence sufficient to find Defendant guilty of aggravated
assault of Mr. Lakin by “intentionally or knowingly commit[ting] an assault that
involve[d] the use or display of a deadly weapon.” T.C.A. § 39-13-102(a)(1)(A)(iii). An
assault occurs when a defendant either “intentionally or knowingly causes another person
to reasonably fear imminent bodily injury.” T.C.A. § 39-13-101(a)(2). A firearm is a
deadly weapon. T.C.A. § 39-11-106(a)(5)(A).

      Mr. Trisler and Mr. Lakin followed Defendant to his home and parked their
motorcycles in the street across from Defendant’s home. Defendant entered his home
and exited with at least one gun, pointing it at the victims. As Defendant continued to
approach the victims, Mr. Lakin raised his arms in the air and tried to walk away.
Although Defendant insisted that he acted in self-defense, the jury, by its verdict, did not
find Defendant’s testimony credible. Defendant is not entitled to relief.

                             C. Reckless Aggravated Assault

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       Defendant was indicted for aggravated assault for using his SUV to knock Mr.
Trisler and the motorcycle he was riding into a ditch. The indictment specified that
Defendant “did unlawfully and knowingly cause [Mr.] Trisler to reasonably fear
imminent bodily injury, while [Defendant] was using a deadly weapon, in violation of
T.C.A. [§] 39-13-102.” At the conclusion of the proof, the trial court charged the jury
with aggravated assault and reckless aggravated assault as a lesser included offense.

        After deliberating, the jury found Defendant guilty of the lesser included offense
of reckless aggravated assault. A person commits reckless aggravated assault when he or
she “[r]ecklessly commits an assault as defined in § 39-13-101(a)(1), and the assault: (i)
[r]esults in serious bodily injury to another; or . . . (iii) [i]nvolved the use or display of a
deadly weapon.” T.C.A. § 39-13-102(a)(1)(B). Tennessee Code Annotated section 39-
13-101(a)(1) defines assault as when a person “[i]ntentionally, knowingly or recklessly
causes bodily injury to another.”8 The plain language defining the offense of reckless
aggravated assault requires bodily injury. T.C.A. § 39-13-102(a)(1)(B); State v.
Goodwin, 143 S.W.3d 771, 776 (Tenn. 2004). There was no proof at trial that Mr. Trisler
suffered bodily injury as a result of Defendant’s actions. The proof at trial showed that
the victims followed Defendant on their motorcycles. At an intersection, Defendant put
his SUV in reverse and backed up quickly one to two car lengths toward the victims. Mr.
Trisler testified that the SUV “clipped [his] rear wheel” and “threw” him in the ditch.
While it is plausible that Defendant’s actions caused Mr. Trisler to reasonably fear
imminent bodily injury, it is irrelevant because reckless aggravated assault requires
more—it requires an injury. Mr. Trisler, when asked, testified he was not injured.
Consequently, the evidence is insufficient to support Defendant’s conviction for reckless
aggravated assault. Moreover, in the manner that the State chose to indict, reckless
aggravated assault cannot be a lesser included offense of aggravated assault based upon
fearing imminent bodily injury because reckless aggravated assault requires actual bodily
injury. Goodwin, 143 S.W.3d at 776. Accordingly, this conviction is reversed and
dismissed.

                                 D. Leaving the Scene of an Accident

       When a driver is involved in an accident “resulting in damage to a vehicle,” they
are required to “immediately stop the vehicle at the scene of the accident or as close to
the scene as possible.” T.C.A. § 55-10-102(a) (2013).9 The trial court instructed the jury
on necessity as an affirmative defense. Tennessee Code Annotated section 39-11-609

        8
          The trial court erroneously instructed the jury that “[f]or you to find the defendant guilty of this
offense, the state must prove beyond a reasonable doubt . . . that the defendant caused J.R. Trisler to
reasonably fear imminent bodily injury; . . . [and] that the act involved the use or display of a deadly
weapon, to wit: a motor vehicle.”
        9
            This statute was amended two months after Defendant’s trial.
                                                  - 13 -
explains that for necessity to apply, a defendant must reasonably believe that his “conduct
is immediately necessary to avoid imminent harm,” and the “desirability and urgency of
avoiding the harm clearly outweigh[s] the harm sought to be prevented by the law
proscribing the conduct, according to ordinary standards of reasonableness.”

       In this case, Defendant was stopped at a stop sign when he put his car in reverse,
striking the motorcycle of one of the victims and forcing him off the road and into a
ditch. The back rim of the motorcycle was bent, the headlight was cracked, and there
were scratches on the bike. A bystander helped Mr. Trisler get his motorcycle back up
onto the road. Defendant did not stop, leaving the scene almost immediately. The jury
obviously discredited Defendant’s claim of necessity and accredited the testimony of the
victims and witness. The evidence supports the conviction.

                                  E. Public Intoxication

       Finally, the evidence supports the public intoxication conviction. In order to
sustain the conviction, the proof needed to show that Defendant was in a public place
while under the influence of an intoxicating substance and posed a danger to others.
T.C.A. § 39-17-310. A “public place” is a “place to which the public or a group of
persons has access.” T.C.A. § 39-11-106(a)(29).

       At the time of the incident, Defendant was in the street outside his home. When
Detective Rayda arrived on the scene, she could smell alcohol on his person, noticed his
blood-shot eyes, and heard his slurred speech. Additionally, officers found a bottle of
Fireball in Defendant’s golf bag and the results from a toxicology test administered five
hours after the incident showed a blood alcohol content of .04.

                                    Double Jeopardy

      Citing Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), and State v. Hall, 947
S.W.2d 181 (Tenn. Crim. App. 1997), Defendant argues that dual convictions for
aggravated assault and attempted voluntary manslaughter violate double jeopardy
because they are “the ‘same’ for double jeopardy purposes under our Constitution.” The
State disagrees, pointing out that Defendant relies on outdated law to support his
argument.

       The foundation for Defendant’s argument arises in the Fifth Amendment to the
United States Constitution which provides that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. The
Tennessee Constitution contains a similar provision in Article I, section 10, stating that
“no person shall, for the same offence be twice put in jeopardy of life or limb.” Courts
have interpreted the Double Jeopardy Clause as providing three distinct protections: “(1)
                                           - 14 -
protection against a second prosecution for the same offense after acquittal; (2) protection
against a second prosecution for the same offense after conviction; and (3) protection
against multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d 530,
541 (Tenn. 2012) (citations omitted). Whether multiple convictions violate the protection
against double jeopardy is a mixed question of law and fact, which this Court will review
de novo without any presumption of correctness. State v. Smith, 436 S.W.3d 751, 766
(Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).

       Defendant argues that he received multiple punishments for the same offense.
However, the Tennessee Supreme Court has already determined that dual convictions for
attempted voluntary manslaughter and aggravated assault do not violate double jeopardy.
State v. Feaster, 466 S.W.3d 80, 87-88 (Tenn. 2015) (acknowledging the use of same-
elements test established by the U.S. Supreme Court in Blockburger v. United States, 284
U.S. 299 (1932), to evaluate a double jeopardy claim by a defendant who has been
convicted of multiple crimes under different statutes). Defendant is not entitled to relief.

                                        Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed in part,
reversed in part, and remanded for entry of judgment forms dismissing Counts Four and
Seven of the indictment.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




                                           - 15 -
