         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 14, 2002

                     STATE OF TENNESSEE v. SYBIL BAKER

                 Direct Appeal from the Circuit Court for Franklin County
                           No.13282      J. Curtis Smith, Judge



                  No. M2001-02146-CCA-R3-CD - Filed February 18, 2003


The appellant, Sybil Baker, was convicted by a Franklin County jury of one count of aggravated
assault, one count of reckless endangerment, and one count of leaving the scene of an accident
involving property damage. The trial court properly merged the convictions for aggravated assault
and reckless endangerment and imposed a sentence of five years to be served in community
corrections. On appeal, the appellant contends that the evidence is not sufficient to support the
convictions of aggravated assault, reckless endangerment, or leaving the scene of an accident.
Following a review of the record and the parties’ briefs, we affirm the judgments of the trial court
as to the appellant’s convictions and remand for further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed and
                                       Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

Francis W. Pryor, Jr., Jasper, Tennessee, for the appellant, Sybil Baker.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and William Copeland, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                       I. Factual Background
                The present offenses occurred following an altercation between the appellant and the
victim, Barbara Miller. In March 2000, the victim’s brother, Nathaniel Williams, lived with the
victim at 208 Vine Street in Winchester. Williams was the father of the appellant’s daughter. He
was on parole and had been told to have no contact with the appellant. On March 19, 2000, while
driving to the grocery store, the victim passed the appellant’s vehicle coming out of an apartment
complex. When the victim returned home, she checked her telephone caller identification system
(caller ID) and saw the appellant’s telephone number.

                 The next morning, March 20, 2000, the victim noticed that the appellant’s boyfriend,
Michael Burnette, was in the victim’s backyard removing tools from his employer’s toolshed. At
trial, the victim testified that upon seeing Burnette in her backyard, she stepped outside, showed him
the telephone number on the caller ID, and asked if it was the appellant’s number. When Burnette
responded affirmatively, the victim asked Burnette to tell the appellant to stop calling her home.

                Later that morning, while standing in the doorway of her home, the victim saw the
appellant get out of her vehicle at the end of the victim’s driveway. The appellant walked toward
the victim, saying that she had come to explain why her telephone number was on the victim’s caller
ID. The two women began arguing, and “one word led to another.” The appellant got back into her
vehicle and then threw a cup of water into the victim’s face. In response, the victim threw a
container of pepper spray and struck the appellant’s car. According to the victim, the appellant
“backs back, runs in my yard and knocked me down with her vehicle. Hits the car parked on the side
of the road. And she tries to run over me at least three or four times.” The vehicle’s tire struck the
victim’s hand, wedging her hand between the tire and the concrete sidewalk. Following the incident,
the victim was hospitalized. She had rotator cuff surgery and, at the time of trial, was unable to fully
raise her arm.

                The victim stated that she did not strike the appellant and further denied that she
threatened the appellant with a gun. The victim admitted telling Burnette that if the appellant did
not stop calling, she was “going to whoop her butt.” The victim maintained that during the
altercation she had only a telephone and a can of pepper spray in her possession.

                Officer Richard Tucker of the Winchester Police Department went to the victim’s
home on March 20, 2000, to investigate and photograph the scene. He recalled that when he arrived
at the victim’s home, she was wearing a gray tee shirt. The victim’s shirt was wet. Officer Tucker
also spoke with the appellant on the day of the offense. The appellant told Officer Tucker that she
had been involved in an altercation with the victim and the victim had “pulled a gun or something
on her.” Officer Tucker returned to the victim’s home, but he did not see a gun and the victim
denied having a gun.

                 Michael Burnette testified at trial on behalf of the appellant. In March 2000, Burnette
was getting his employer’s tools from a shed located near the victim’s backyard. The victim
approached Burnette and asked if the telephone number on her caller ID was the appellant’s number.
When Burnette responded that the number was indeed the appellant’s number, the victim requested
that Burnette tell the appellant, “if she comes back over here or calls my house again that [the victim]
was going to blow [the appellant’s] brains out.” Burnette telephoned the appellant and relayed the
message. Michael Burnette’s cousin, Alan Burnette, lived next door to the victim. Michael Burnette
testified that the appellant frequently brought food to him at Alan’s home.



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              At trial, the appellant testified that she did not call the victims’ home on March 19,
2000. She explained that the victim’s brother had called the appellant’s home “17, 18, 19 times.”
As she was removing the numbers from her caller ID, the appellant accidentally “punched” the
victim’s number. The next morning, March 20, 2000, Michael Burnette called the appellant and
asked why she had been calling the victim’s home. The appellant became angry and “hung up the
phone with him.” Later that morning, she decided to go to Alan Burnette’s home to determine where
Michael was working so she could apologize to him.

                When the appellant arrived at Alan Burnette’s home, she saw the victim standing on
her front porch, talking on the telephone. The victim came to Alan Burnette’s home and “[o]ne word
led to another.” According to the appellant, the victim “reaches off into her bra, pulls out a gun,
jacked me up in my collar, put the gun to my head and tell me, ‘Bitch, I will blow your brains out.”’
When the victim released her, the appellant got back into her car, explaining that she was frightened
and “just freaked out.” The appellant picked up a cup of “pop” and threw it in the appellant’s face.
The appellant claimed that the victim struck appellant’s car with the telephone or the gun.

               The appellant admitted that her car struck the victim, but maintained that her action
was not intentional. According to the appellant:
               At this time I pulled my car in reverse and I backed up. When I
               backed up I hit [the victim] with my vehicle. After I hit her with my
               vehicle I really panicked. I put my car in drive and boom, I ran into
               her husband’s car, which she’s saying that it’s his, and I busted out
               the headlight of her husband’s car. Didn’t know I was in a zone.
               Didn’t know which way I was going, shook up from her putting this
               gun to my head. After I hit her husband’s car I put my car back in
               reverse, backed up. Somehow I ended up in her yard. I went all the
               way to [the victim’s] porch, hit her porch, boom, with my car. This
               is how I left the deep tracks in her yard. Somehow or other I finally
               backed up and got out. When I did I went straight to the projects, a
               nervous wreck, to my friend Pat Hendon’s house.

               Shortly thereafter, the appellant went to the Franklin County Courthouse and
attempted to “take out a warrant on [the victim] before she took out a warrant on [the appellant].”
The appellant admitted that she was at fault in striking the victim, but maintained that she was
frightened and provoked by the victim.

               The appellant was indicted on one count of aggravated assault, one count of reckless
endangerment, one count of vandalism, and one count of leaving the scene of an accident involving
property damage. The jury found her not guilty of the charge of vandalism, but convicted her of all
other charges. The trial court merged the conviction of reckless endangerment with the conviction
of aggravated assault. On appeal, the appellant contends that the evidence is not sufficient to support
the convictions of aggravated assault, reckless endangerment, or leaving the scene of an accident.



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                                              II. Analysis
                 In Tennessee, appellate courts accord considerable weight to the verdict of a jury in
a criminal trial. In essence, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this
court why the evidence will not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that “no reasonable trier of fact” could have found the
essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

               Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and
the weight and value to be given to the evidence are resolved by the trier of fact, and not the
appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

               With respect to the aggravated assault conviction, the indictment charging the
appellant alleged that the appellant “unlawfully (knowingly) (intentionally) (recklessly) ma[d]e an
assault upon the person of one Barbara Miller, and did cause the said Barbara Miller to reasonably
fear imminent bodily injury, said assault being accomplished by the (use) of a deadly weapon, to wit:
a motor vehicle, in violation of T.C.A. 39-13-102.” The applicable statute provides:
               (a) A person commits aggravated assault who:
               (1) Intentionally or knowingly commits an assault as defined in § 39-
               13-101 and:
               (A) Causes serious bodily injury to another; or
               (B) Uses or displays a deadly weapon; or
               (2) Recklessly commits an assault as defined in § 39-13-101(a)(1),
               and:
               (A) Causes serious bodily injury to another; or
               (B) Uses or displays a deadly weapon.
Tenn. Code Ann. § 39-13-102(a) (1997). Tennessee Code Annotated section 39-13-101(a)(1) and
(2) (1997) provides that a person commits assault who intentionally or knowingly causes another to
reasonably fear imminent bodily injury.

                 We conclude that the State adduced ample evidence to convict the appellant of
aggravated assault as charged in the indictment. In reaching this conclusion, we note that a motor
vehicle can be a deadly weapon within the meaning of Tennessee Code Annotated section 39-13-
102. See State v. Tate, 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995). Moreover, as previously
noted, the victim testified that the appellant struck the victim with her car, knocked her down, and
attempted to run over her three or four times. Additionally, the appellant admitted that she struck
the victim with her vehicle. The victim was hospitalized and underwent surgery for her injuries. At
trial, the victim testified that she sustained permanent and disabling injuries.




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               The appellant’s own description of events details how, after she struck the victim with
the vehicle, she drove into the victim’s car, placed her own car in reverse, and struck the victim’s
porch. While the appellant was exhibiting her less than desirable driving skills, the victim was
rolling around in the yard, attempting to avoid the appellant’s vehicle. The appellant asserted that
she “was in a zone,” and her actions were not intentional. As we have stated, the jury, not the
appellate courts, determine the credibility of the witnesses and the weight and value to be given their
testimony. The jury, as they were free to do, chose to accredit the evidence presented by the State.
This issue is without merit.

               The appellant was also convicted of felony reckless endangerment. See Tenn. Code
Ann. § 39-13-103 (1997). The indictment alleged that the appellant “did unlawfully, recklessly
engage in conduct which placed another person, to wit: Barbara Miller in imminent danger of death
or serious bodily injury, said offense accomplished with a deadly weapon, to wit: a motor vehicle.”
Tennessee Code Annotated section 39-11-106(31) (1997), in pertinent part, explains:
               “Reckless” refers to a person who acts recklessly with respect to
               circumstances surrounding the conduct or the result of the conduct
               when the person is aware of but consciously disregards a substantial
               and unjustifiable risk that the circumstances exist or the result will
               occur. The risk must be of such a nature and degree that its disregard
               constitutes a gross deviation from the standard of care that an
               ordinary person would exercise under all the circumstances as viewed
                from the accused person’s standpoint.

                The appellant’s own testimony at trial offers a descriptive summary of the offense,
aptly detailing her reckless behavior. Moreover, the victim testified that the appellant “tried to run
over” her three or four times. Subsequently, the appellant drove into the victim’s yard, struck the
porch, and left “deep tracks” in the victim’s yard. The victim testified that she was fearful and was
forced to roll on the ground to avoid another injury. As we have noted, a motor vehicle can be a
deadly weapon. This issue is without merit.

               In a somewhat conclusory argument, the appellant maintains that her conviction of
aggravated assault is inconsistent with her conviction of leaving the scene of an accident. The
appellant essentially argues that an intentional aggravated assault and an “accident” cannot occur
simultaneously. Therefore, she contends that this court “should reverse the convictions for
aggravated assault and reckless endangerment . . . and remand the case to the trial court for
sentencing in accordance with the finding of guilt in the leaving the scene of an accident.”

                In State v. Larry Douglas Bowman, No. 1315, 1991 Tenn. Crim. App. LEXIS 518,
at *10 (Knoxville, June 24, 1991), this court rejected a defendant’s contention that the word
“accident” contained in the leaving the scene of an accident statute did not encompass intentional
conduct. This court observed that in making it a crime to leave the scene of an accident, the
legislature intended “to assist those who are victims of damage or injury from the operation of
automobiles by others.” Id. This court further concluded that the defendant’s contention would


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defeat this legislative purpose. Id.; see also State v. Ronald D. Correll, No. 03C01-9809-CC-00318,
1999 Tenn. Crim. App. LEXIS 990, at *15 (Knoxville, Oct. 8, 1999). In the instant case, the
appellant’s argument is likewise without merit.

                The indictment alleged that the appellant was involved in a motor vehicle accident
and “failed to remain at the scene of said accident until she had fulfilled the requirements of T.C.A.
55-10-103 . . . all in violation of T.C.A[.] 55-10-102.” Tennessee Code Annotated section 55-10-
102(a) (1998) provides:
                The driver of any vehicle involved in an accident resulting only in
                damage to a vehicle which is driven or attended by any person shall
                immediately stop such vehicle at the scene of such accident or as
                close thereto as possible, but shall forthwith return to and in every
                event shall remain at the scene of such accident until that person has
                fulfilled the requirements of § 55-10-103.

                The record reflects that the appellant was convicted of the aggravated assault of the
victim, while the conviction of leaving the scene of an accident resulted from the appellant’s vehicle
striking the victim’s parked and unoccupied vehicle as the appellant drove from the scene. The
appellant admitted that her vehicle struck the victim’s vehicle and “busted out the headlight” of the
victim’s vehicle. The appellant further admitted that after striking the vehicle she immediately drove
away. We find no merit in the appellant’s argument.

                 Our review of the record reflects that the trial court correctly merged the appellant’s
convictions of reckless endangerment and aggravated assault and imposed a five-year community
corrections sentence for the aggravated assault conviction. However, the record does not reflect that
the trial court entered a judgment for the leaving the scene of an accident conviction nor was this
conviction addressed at the sentencing hearing.1 Therefore, this matter is remanded to the trial court
for entry of a judgment of conviction for leaving the scene of an accident and for further proceedings
pursuant to Tennessee Code Annotated section 55-10-102(b)(2).




         1
          In its brief, the State contends that the appellant’s conviction for leaving the scene of an accident was also
merged with the reckless endangerment and aggravated assault convictions. However, there is no proof in the record
of such a merger. Additio nally, we note that in the instant case, leaving the scene of an accident is a Class C
misdemeanor, and the punishment for leaving the scene of an accident is set forth in Tennessee Code Annotated section
55-10-102(b )(2). The State presented proof at the sentencing hearing that the damages exceeded four hundred do llars
($400). See id. at (b)(1).

                                                          -6-
                                          III. Conclusion
                In sum, we remand to the trial court for entry of a judgment of conviction on leaving
the scene of an accident and for further proceedings consistent with this opinion. In all other
respects, the judgments of the trial court are affirmed.



                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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