                                                                                        09/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 10, 2018

               STATE OF TENNESSEE v. TIMERELL NELSON

                 Appeal from the Criminal Court for Shelby County
                      No. 17-00970       Chris Craft, Judge
                     ___________________________________

                           No. W2017-02279-CCA-R3-CD
                       ___________________________________


On August 25 and 26, 2017, the Defendant, Timerell Nelson, was convicted of especially
aggravated robbery, attempted second degree murder, and employment of a firearm
during the commission of criminal attempt second degree murder. The trial court
sentenced the Defendant to a total effective sentence of 16 years and the Defendant now
argues on appeal that the evidence was insufficient to sustain his especially aggravated
robbery conviction because the victim did not suffer serious bodily injury. See Tenn.
Code Ann. § 39-13-401(a). After thorough review, we affirm the judgment of the trial
court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR.,
and CAMILLE R. MCMULLEN, JJ., joined.

Stephen C. Bush, District Public Defender; and William L. Johnson (at trial), and Harry
E. Sayle, III (on appeal), Assistant Public Defenders, for the appellant, Timerell Nelson.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Melanie Cox and Jose
Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

      The Defendant was convicted of especially aggravated robbery, attempted second
degree murder, and employment of a firearm during the commission of criminal attempt
second degree murder on August 25 and 26, 2017. The trial court sentenced him to 16
years in confinement at 100% for especially aggravated robbery, 10 years at 30% for
attempted second degree murder, and 6 years at 100% for employment of a firearm
during the commission of criminal attempt second degree murder, to be served in the
Department of Correction. This totaled an effective 16-year sentence.

        The facts leading up to the Defendant’s conviction are not in dispute. On
September 10, 2015, the Defendant and the victim, Herbert Pritchard, reconnected
through social media after meeting on a dating website the year prior. Mr. Pritchard only
knew the Defendant by his username, “Trouble-Boy-20,” or “T.” Mr. Pritchard testified
at trial that on September 10, 2015, he picked up the Defendant from an apartment
complex so that they could “chat and ride around.” During their time together, the
Defendant asked Mr. Pritchard for money and he refused to give him any, saying that he
“didn’t give grown men no money.” Instead, they went to Mr. Pritchard’s apartment
where the Defendant offered to “masturbate for [Mr. Pritchard] and [Mr. Pritchard] could
film it” in exchange for money.

       Mr. Pritchard testified that the next day, September 11, 2015, he picked up the
Defendant from a different location so that they could “hook up again and just ride
around.” They talked about being “bisexual and coming out of the closet,” and stopped
at a few stores, eventually deciding to visit Mr. Pritchard’s friend, Nathaniel Woods.
However, the Defendant refused to enter Mr. Woods’s apartment, and the two left the
apartment shortly after arriving because Mr. Pritchard “didn’t want to make [the
Defendant] feel uncomfortable” and therefore decided to drive him home. Mr. Woods’s
testimony at trial echoed Mr. Pritchard’s recollection of events. After leaving the
apartment, the Defendant requested that Mr. Pritchard drop him off on the side of a dead-
end street. Mr. Pritchard testified that when he pulled over to drop the Defendant off, he
“punched [Mr. Pritchard] in [his] face [and] in [his] jaw.” Mr. Pritchard then turned to
face the Defendant to ask him why he punched him, and the Defendant then shot him
once in his neck, causing his arms to buckle.

       After he shot Mr. Pritchard, the Defendant held the gun to Mr. Pritchard’s head
and repeatedly told him to “[gi]ve [him] [his] mother-f****** money” and that he was
going to kill him. Mr. Pritchard testified that the Defendant grabbed him by his work
uniform and tried to take his wallet but could not get to it because Mr. Pritchard’s legs
were stuck under the steering column. Instead, the Defendant took $160 out of Mr.
Pritchard’s front shirt pocket and walked away from the car without looking back. After
regaining some feeling in his arms, Mr. Pritchard testified that he drove himself to the
closest police precinct. He was later transported to the hospital via ambulance in critical
condition.

                                           -2-
        Officer Kevin Coleman, who has been employed by the Memphis Police
Department as a patrolman for six years, testified at trial that he was the officer who took
Mr. Pritchard’s statement at the police precinct on September 11, 2015. Officer Coleman
recalled seeing Mr. Pritchard sitting on a parking post between cars in the precinct’s
parking lot with his hand on his cheek. When asked what was going on, Mr. Pritchard
responded that he had “just got shot” and took his hand off of his cheek, causing blood to
“start[] shooting out.” Officer Coleman further testified that Mr. Pritchard had a hole in
his cheek with “an exit wound in the back of his head,” and was “in shock” and “fading
in and out” while he tried to gather information from him. While another officer called
for an ambulance, Mr. Pritchard told Officer Coleman that a man he met on an online
dating site had shot him and gave Officer Coleman his cellular phone, which contained
pictures and videos of the Defendant. Mr. Pritchard was further able to relay where the
shooting had taken place before being transported to the hospital.

        Mr. Pritchard’s medical records were stipulated to at trial and no witness was
presented to testify about their contents. The records indicate that he was diagnosed with
a “Spinous Process Fracture,” which was further described to include a “Neck injury,
fracture” and “Transverse Process Fracture.” Mr. Pritchard’s records further indicate that
he experienced numbness in his hands and shoulders and was discharged from the
hospital with prescriptions for Percocet and Colace, with the recommendation that he
seek orthopedic surgery to follow up his emergency care. Mr. Pritchard described the
bullet as “clip[ping] [his] spinal cord,” forcing him to take three months off from his job
as a mechanic for the United States Postal Service, though it was recommended he take
off six months. Mr. Pritchard testified that he was not able to fully perform his work
duties for a year following the shooting due to numbness and loss of strength in his arms,
and even needed help holding and turning a screwdriver at work. At trial, Mr. Pritchard
had a scar on his neck from the shooting, which he testified would continue to grow due
to his keloid skin. The jury was able to view Mr. Pritchard’s scar in person after hearing
his testimony.

        Sergeant Sheila Green, who has been employed by the Memphis Police
Department for twenty-one years, testified at trial that she was the crime scene
investigator assigned to investigate Mr. Pritchard’s shooting. She processed Mr.
Pritchard’s car for evidence and found blood on the driver’s seat, a spent shell casing, a
bullet fragment, and a bullet hole in the driver door.

       Detective Justin Smith, who has been employed by the Memphis Police
Department for seven years, testified that he was also assigned to investigate Mr.
Pritchard’s shooting. Detective Smith testified that he was able to pull images of the
Defendant from the cellular phone that Mr. Pritchard gave Officer Coleman on the night
of the shooting. He then used the image to issue a media release asking for help in
                                           -3-
identifying the Defendant, who Mr. Pritchard only knew as “Trouble-Boy-20” and “T.”
The media release garnered an anonymous “Crime Stoppers” tip identifying the
Defendant and directing Officer Smith to his Facebook page. Officer Smith retrieved a
picture of the Defendant from his Facebook page and arranged a photographic lineup. He
testified that Mr. Pritchard “immediately pointed out” the Defendant with “no hesitation”
and wrote “[t]his is the man that shot me [and] said he would kill me” after circling the
Defendant’s picture in the lineup. Mr. Pritchard was able to identify the Defendant again
in the courtroom.

       At the conclusion of the trial, the jury convicted the Defendant of especially
aggravated robbery, attempted second degree murder, and employment of a firearm
during the commission of criminal attempt second degree murder. The Defendant now
solely appeals his conviction of especially aggravated robbery.


                                       ANALYSIS

       The Defendant argues that the evidence is insufficient to sustain his conviction of
especially aggravated robbery. When the sufficiency of the evidence is challenged, the
relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues are resolved by the trier of fact.
See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by
the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

                                            -4-
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       The Defendant argues that the evidence is insufficient to sustain his conviction of
especially aggravated robbery because Mr. Pritchard only suffered “the gunshot wound to
the neck” and therefore did not suffer serious bodily injury as is required for a conviction
of especially aggravated robbery. Tennessee Code Annotated section 39-13-403 defines
especially aggravated robbery as robbery “accomplished with a deadly weapon; and
where the victim suffers serious bodily injury.” Further, serious bodily injury is defined
as bodily injury that involves:

              (A) A substantial risk of death;
              (B) Protracted unconsciousness;
              (C) Extreme physical pain
              (D) Protracted or obvious disfigurement;
              (E) Protracted loss or substantial impairment of a function of a
              bodily member, organ or mental faculty; or
              (F) A broken bone of a child who is twelve (12) years of age or less.

Id. § 39-11-106(34).
                                           -5-
        Having reviewed the evidence in the light most favorable to the State, we find that
there is sufficient evidence to sustain a conviction for especially aggravated robbery.
Although the Defendant argues that Mr. Pritchard’s gunshot wound to the neck is not a
serious bodily injury, Mr. Pritchard testified that he was unable to fully perform his work
duties for a year after the shooting and even needed help turning a screwdriver. He
further had to take three months off of work and has a scar on his neck from the shooting
that will continue to expand as time progresses. He medical records also indicate that he
suffered a “Spinous Process Fracture,” which is described as a fracture to his C4 vertebra.

        The Defendant argues that because Mr. Pritchard was able to drive himself to the
nearest police precinct after the shooting, he did not suffer serious bodily injury. Further,
he argues that the growing scar on Mr. Pritchard’s neck is not tantamount to “obvious
disfigurement.” See Tenn. Code Ann. § 39-11-106(34)(D). The Defendant also argues
that although Mr. Pritchard was not able to fully perform his work duties for a year after
the shooting, there was no testimony at trial that he still suffers weakness in his arms or
any other testimony that established serious bodily injury. However, this court has found
that medical records showing a bone fracture with discharge instructions to seek
orthopedic surgery as follow up care equated to a serious bodily injury. See State v.
Jawaras Beauregard, No. 2012-02312-CCA-R3-CD, 2013 WL 6047026, at *14-15 (Tenn.
Crim. App. Nov. 14, 2013) (finding that temporary loss of use of a fractured elbow, as
well as an obvious scar, constituted a serious bodily injury). Further, this court has
consistently held that an obvious scar is enough to satisfy the requirements for a serious
bodily injury. See, e.g., State v. James Richardson Reece, No. M2011–01556–CCA–R3–
CD, 2013 WL 1089097, at *14 (Tenn. Crim. App. Mar. 14, 2013) (listing cases where
this court has held that a scar constitutes serious bodily injury). The determination of
whether an injury is a serious bodily injury is a question of fact for the jury. State v.
Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).

       Accordingly, we find that Mr. Pritchard suffered serious bodily injury because of
both an obvious disfigurement and the substantial impairment of a function of a bodily
member. It is irrelevant that Mr. Pritchard’s testimony did not include whether he still
suffered weakness in his arms at the time of trial. He suffered a spinal fracture, weakness
in his arms, and has a scar on his neck that will continue to expand with time. Further,
the jury examined the scar in person at trial, and heard Mr. Pritchard’s testimony
regarding his injuries. Viewing the evidence in the light most favorable to the State, we
find that a rational jury could easily find beyond a reasonable doubt that Mr. Pritchard
suffered serious bodily injury, and that the Defendant was thus guilty of especially
aggravated robbery. Therefore, the Defendant is not entitled to relief.

                                     CONCLUSION

                                            -6-
       Based on the foregoing authorities and reasoning, we find that there was sufficient
evidence to sustain a conviction of especially aggravated robbery, and we therefore
affirm the judgment of the trial court.

                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




                                           -7-
