        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 10, 2010

                 STATE OF TENNESSEE v. ALVIN PHILLIPS

            Direct Appeal from the Criminal Court for Davidson County
                     No. 2009-B-1782     Steve Dozier, Judge




                 No. M2009-02320-CCA-R3-CD - Filed May 31, 2011


Appellant, Alvin Phillips, was indicted by the Davidson County Grand Jury for aggravated
assault by the use or display of a deadly weapon. After a bench trial, Appellant was
convicted of the charge. Appellant was later sentenced to four years as a Range I, standard
offender. He was ordered to serve the sentence on supervised probation and attend domestic
violence counseling. On appeal, he argues that the evidence was insufficient to sustain the
conviction. After a review of the record, we determine that the evidence was sufficient to
support the conviction. Accordingly, the judgment of the trial court is affirmed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and A LAN E. G LENN, JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant District Attorney
General; and Chase T. Smith, Assistant District Attorney General, Nashville, Tennessee, for
the appellant, Alvin Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and Jennifer McMillen,
Assistant District Attorney General, for the appellee, the State of Tennessee.
                                          OPINION

I. Background

       In April of 2009, Appellant was indicted after an incident at his home on February 23,
2009, during which he allegedly struck his wife, Cecilia Phillips, in the head with a metal
folding chair during an argument.

       Appellant waived his right to a jury trial. At trial, Mrs. Phillips testified that she and
Appellant were still married but were separated and she was currently living in California.
At the time of trial, they had been married for eighteen years. The couple had separated
before; most of their problems resulted from the couple’s issues with drug addiction.

       Prior to the incident at issue herein, Mrs. Phillips told Appellant that she wanted to
separate again. Appellant “wanted to end the marriage.” Appellant went out of town for the
weekend, and Mrs. Phillips started to divide up their property.

        Mrs. Phillips recalled that on the night of February 22, 2009, at around 6:00 p.m., she
and Appellant were “bickering” about a pillowcase. Appellant disagreed with the way that
Mrs. Phillips had divided up some of the property. Appellant was in the bedroom watching
a movie. Mrs. Phillips stated that “a fight broke out” during which Appellant told her to “put
the things back in the linen closet.” When Mrs. Phillips refused, Appellant “came from the
bedroom, he took the chair, he hit the table, which broke the cell phone [and] the house
phone. . . . And he hit me on the side of the head with the chair.” The chair was folded at
the time. Mrs. Phillips was hit “right in the face” and suffered a cut to her eye. She was
unable to stop the bleeding. Appellant tried to help her after he injured her, holding a
package of frozen hamburger against her forehead. At trial, Mrs. Phillips identified pictures
of her injuries as well as pictures of the broken phones, the bloody clothing that she was
wearing during the attack, and the chair with which Appellant struck her in the face.

        Mrs. Phillips described her injury as “serious” despite the fact that she did not seek
medical treatment and actually spent the night with Appellant on the night of the incident.
Mrs. Phillips testified that the “verbal abuse” continued after Appellant hit her. Appellant
instructed her to “stand up, . . . and I’ll kill you.” Appellant allowed Mrs. Phillips to use his
cell phone to call her relatives, but she did not tell them what had happened because “she was
afraid to [tell them].”

       Mrs. Phillips called the police the next day after going to work for part of the day. A
police officer took photographs of the victim’s injuries and home. Mrs. Phillips claimed that
she was “afraid” to call the police after the incident and instead waited until Appellant was

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at work. Mrs. Phillips stated, “no one knows how he is when you’re in the house with him
and he’s angry.”

        Officer Willie Reaves of the Metro Police Department responded to the domestic
violence call placed by Mrs. Phillips. Officer Reaves noticed a cut above Mrs. Phillips’ right
eye, which was swollen. Officer Reaves could not estimate the size of the cut but described
it as “visible” when he looked at Mrs. Phillips. Officer Reaves remembered that Mrs.
Phillips told him that Appellant hit her and that she was “afraid.” Mrs. Phillips informed the
officer that she did not go to the hospital because Appellant told her not to leave and that he
would “kill” her if she got up. Another officer arrived on the scene and took photographs
of the injuries and the area where the attack occurred.

        Appellant testified in his own behalf. His version of the events varied greatly from
that of Mrs. Phillips. Appellant claimed that when he came home from being out of town,
Mrs. Phillips was on the phone. Appellant left to go to the store and Mrs. Phillips was still
on the phone when he returned. At that time, Appellant went to the bedroom to watch a
movie. When Mrs. Phillips got off the phone, she entered the bedroom to talk to Appellant.

        Appellant recalled that during a discussion of the divorce, Mrs. Phillips became upset.
Appellant stated that the argument continued for twenty to twenty-five minutes. Appellant
returned to the bedroom and Mrs. Phillips continued to rant and rave. Appellant stated that
he “got agitated” and told her that he would “destroy” the phones because she loved them so
much. Appellant admitted that he picked up a folding chair and smashed the phones.
Appellant claimed that “something flew off the table and hit her across the eye.” Appellant
stated that he immediately came to Mrs. Phillips’ aid by putting frozen hamburger meat on
Mrs. Phillips’ wound. He described the cut as one-eighth of an inch long.

       Appellant admitted a prior conviction for theft but denied being a dishonest person.
 At the conclusion of the proof, the trial court accredited the testimony of Mrs. Phillips and
found Appellant guilty of aggravated assault by use or display of a deadly weapon. After a
subsequent sentencing hearing, Appellant was sentenced to four years as a Range I, Standard
offender. The trial court suspended the sentence, placing Appellant on probation. Appellant
was also ordered to attend domestic violence classes.

       Appellant filed a timely notice of appeal.

II. Analysis

      On appeal, Appellant complains that the evidence is insufficient to support the
conviction for aggravated assault. Specifically, Appellant contends that the chair, “as used

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in the instant case,” was not a deadly weapon because Appellant used the chair with the
intent of destroying the telephones rather than as a means of inflicting serious bodily injury
upon the victim. However, Appellant concedes that a chair can potentially be used as a
deadly weapon. The State insists that the evidence is sufficient to support the conviction.

        When a defendant challenges the sufficiency of the evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier
of fact could have found all the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Once a jury (or, as in this case, the trial court
in a bench trial) finds a defendant guilty, his or her presumption of innocence is removed and
replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The
defendant has the burden of overcoming this presumption, and the State is entitled to the
strongest legitimate view of the evidence along with all reasonable inferences which may be
drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The trier
of fact is presumed to have resolved all conflicts and drawn any reasonable inferences in
favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions
concerning the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues raised by the evidence are resolved by the trier of fact and not this Court.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both
direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990).

       Appellant was charged with the aggravated assault of Mrs. Phillips. As relevant here,
a person commits aggravated assault who “[i]ntentionally or knowingly commits an assault
as defined in § 39-13-101 and . . . uses or displays a deadly weapon.” T.C.A. § 39-13-102.
“A person commits assault who . . . [i]ntentionally or knowingly causes another to reasonably
fear imminent bodily injury.” Id. § 39-13-101(a)(2). A deadly weapon is defined as
“[a]nything that in the manner of its use or intended use is capable of causing death or serious
bodily injury.” T.C.A. § 39-11-106(a)(5)(B).

       Viewing the evidence in a light most favorable to the State, we conclude that the
evidence is sufficient for a rational trier of fact to find Appellant guilty of aggravated assault
beyond a reasonable doubt. Mrs. Phillips testified at trial that Appellant struck her in the face
with the metal folding chair and threatened to “kill” her if she got up. Mrs. Phillips was so
afraid of Appellant that she did not seek medical treatment and waited to call the police until
Appellant was at work the next day. Appellant contradicted this story, claiming instead that
he smashed the phones with the chair and a piece of something flew across the room and hit
Mrs. Phillips in the eye, causing her to suffer an injury.



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       Also, on appeal, Appellant specifically asserts that the State failed to prove beyond
a reasonable doubt that the chair was a “deadly weapon,” relying upon State v. McGouey, 229
S.W.3d 668 (Tenn. 2007). In McGouey, our supreme court held that if an item is not a
deadly weapon per se it will only be considered a deadly weapon “if the defendant in a
particular case actually used or intended to use the item to cause death or serious bodily
injury.” McGouey, 229 S.W.3d at 673. Appellant asserts that the State failed to prove his
intent was to cause death or serious bodily injury. Appellant’s intent, of course, can be
proven by circumstantial evidence. Appellant’s actions with the chair, first slamming it on
the table and smashing two telephones before striking the victim in the face, coupled with
his verbal threats, are clearly sufficient proof that the chair was a “deadly weapon” as
interpreted in McGouey.

        It is well-established law in Tennessee that the testimony of a victim, standing alone,
is sufficient to support a conviction. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim.
App. 1993); State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). While the
court was not solely presented with the testimony of the victim herein, the trial court was
presented with contradictory accounts of the events that transpired on the evening in
question. As previously stated, questions regarding the credibility of witnesses and the
weight and value of the evidence presented at trial are issues that are resolved by the trier of
fact and this Court will not re-weigh or re-evaluate this evidence. State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000). The trial court specifically accredited the testimony of
the victim. In so doing, the trial court necessarily determined that Appellant intended to use
the chair as a deadly weapon at the time of the assault. The evidence is sufficient to support
the conviction. Appellant is not entitled to relief on this issue.

                                       CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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