              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT JACKSON

                  STATE OF TENNESSEE v. LARRY CURRIE, ET AL.

                     Direct Appeal from the Circuit Court for Henry County
                              No. 12754    Julian P. Guinn, Judge



                      No. W1999-01532-CCA-R3-CD - Decided June 28, 2000


        The defendants, Larry Currie and Christopher Curtis Love, appeal as of right from the jury
verdict in the Henry County trial court that found them guilty of aggravated assault of the victim,
Reginald Franklin Thompson.1 Each defendant was sentenced to three (3) years with one (1) year
of continuous confinement and the balance on supervised probation. Both defendants filed motions
for a new trial, which were denied by the trial court. The defendants collectively raise two issues
for our consideration: (1) whether there was sufficient evidence for a rational trier of fact to find the
defendants guilty of aggravated assault beyond a reasonable doubt; and (2) whether the jury
improperly considered facts that were not in evidence in reaching its verdict. After careful review
of the record, we AFFIRM the judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

LAFFERTY, SR. J., delivered the opinion of the court, in which TIPTON, J., and WELLES, J., joined.

Victoria L. DiBonaventura, Barton F. Robison and Jim L. Fields, Paris, Tennessee, for the
appellants, Larry Currie and Christopher Curtis Love.

Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

         This case was tried on December 7, 1998. The victim testified that on the morning of March
31, 1998, he drove to the house where his ex-girlfriend, Philistine Tharpe, lived with their infant son
and her current boyfriend, James King. King was also a friend of the three defendants. The victim
testified that his purpose in going there was to get money from Ms. Tharpe for a Fish Fry Parade
float that their son was to ride on. He had previously left a message for Ms. Tharpe at her mother’s
house concerning the money. The victim had enlisted a friend, Timmy Tharpe, to go with him in



        1
            The defendant, Bobby Lee Thomas, Jr. is deceased.
case there was trouble with King and his friends. King had previously made threats and comments
to the victim on several occasions when he had been to Ms. Tharpe’s home to pick up his baby.

        When the victim arrived at the residence, he saw four men standing or working on a car in
the driveway. The victim got out of his car, which he had parked on the street, and walked onto an
embankment next to the street, directly in front of the residence. According to the victim, King
asked him what he was doing there, to which the victim replied that he was not there to start trouble
but only to talk to Tilly (Ms. Tharpe). King told the victim, “[G]et out of my f___ing yard, and get
in your car before I kick your ass.” As he spoke, King came down some steps toward the
embankment with Currie on his right and Thomas and Love on his left. The victim testified that
Tilly then came out of the house, and he told her he needed to talk to her. King made more
threatening comments to the victim about speaking to Tilly. The victim denied making any threats
to the defendants during this altercation.

         As the victim and his friend, Timmy, turned back to get into their cars, Currie pushed the
victim from the back. The victim stated that he stumbled on the embankment and was struck in the
face by King. As he fell into the street, Currie, Love, and Thomas began to kick and punch him.
The victim was able to get up on his feet but was backed up into a construction site across the street
from Tilly’s house. The four men caught up with him, and Thomas struck the victim in the back
with a two by four board while the others continued their attack. The victim’s friend, Timmy, drove
his car into the construction site to scatter the attackers and pick up the victim. In the fray, Thomas
struck Timmy’s car in the front with the board. Timmy spun his car around, and the back end hit
Thomas, who hit the car in the rear with the board. As the victim ran to his own car, Love
brandished a sawed off shotgun at the victim and said, “I’ll shoot you, nigger. . . .I’ll kill you,
nigger.” The victim stated that Love also pointed the gun at Timmy. The two men left the scene
and drove to the home of Timmy’s father, who called the authorities.

        At trial, the victim identified a photograph of the car Timmy was driving that showed the
damage to the car. He testified that he received deep scratches on his face, neck, and back, as well
as a swollen lip, and identified two photographs depicting his injuries. The victim stated that he did
not go to the hospital but treated himself for his injuries.

        On cross-examination, the victim testified that he showed the investigating officer, Jock
Bass, the portion of his back where Thomas hit him with the board, but the officer did not take a
picture of his back, because there was no mark from the board. The victim admitted that he had seen
Tilly earlier that morning and had an opportunity to discuss the float money with her but forgot to
do so.

         Timmy Tharpe, the victim’s friend, also testified at trial. He explained that he and the victim
arrived at Tilly’s residence in separate cars on the morning of the incident. He remained in his car
at first but could tell that the victim and King were engaged in an argument. Tilly came out of the
house, and Timmy saw the four men coming toward the victim. Timmy then exited his car to
prevent an altercation from occurring but was grabbed by Tilly as the victim was being attacked by
the four. He stated that the victim did nothing to provoke the attack and that King and his friends

                                                  -2-
threw the first punches. According to Timmy, the men began hitting the victim with two by fours
in his back and legs after reaching the field across the street from the residence. He estimated that
the four men hit the victim more than five times with the two by four boards. Timmy admitted
driving his car into the field to pick up the victim but denied knowing that he had hit defendant
Thomas at the time. As he was leaving the scene with the victim, he saw Love holding a shotgun
down at his side next to his leg. Timmy ducked when he saw the gun. He estimated that the
altercation between the victim and defendants lasted approximately thirty (30) minutes from start
to finish.

         Jock Bass, the investigating officer on the case, testified that he observed the victim’s injuries
on March 31, 1998, but did not look under his clothing. He stated that the incident was first reported
as a hit-and-run with Bobby Thomas as the victim; however, based on his investigation, Officer Bass
ultimately charged the defendants, including Bobby Thomas, with aggravated assault of the victim.
Officer Bass conducted a search of Tilly’s home but did not find a sawed off shotgun on the
premises; nor did he find any clubs or two by fours in the house. He stated that there was a house
being framed on the lot across the street from the scene, and a lot of wood and other items were lying
around the construction area. He did not remember seeing any blood on anything at the construction
site.

        Defendant Larry Donnell Currie, Jr., testified in his own defense. He stated that he had gone
to Tilly’s and King’s residence on the morning of March 31, 1998, to hook up a stereo in King’s car.
While he was working on the car, the victim and Timmy Tharpe pulled up in separate cars, and the
victim asked King if he had a message for him. Currie heard King tell the victim to stay out of the
yard, and words were exchanged between the two. According to Currie, the victim told King that
his mother was a “bitch,” and a fight broke out between the two, with King striking the first blow.
When Currie approached the arguing men, the victim told Timmy to get one of the men while he got
the other. Currie denied seeing anyone with a two by four, a sawed off shotgun, or any other
weapon. He described how Timmy drove his car into the field, hit Thomas, spun his car around, and
attempted to hit him again with the car before leaving the scene with the victim. He also denied
seeing Thomas or Love fighting or hitting anyone. Currie testified that Tilly called the police to
report the disturbance. He denied ever threatening the victim or pushing him in the back during the
incident.

        Bobby Lee Thomas, Jr., testified in his own behalf. His account of the events was essentially
the same as Currie’s, except that he testified that the victim threw the first punch after he exchanged
words with King. He denied swinging at anyone and stated that he was not sure if Currie swung at
anyone or not. According to Thomas, he went back across the street after the fight moved to the
construction site, because he knew the police had been called. The next thing he knew, he was on
top of Timmy’s car. He pushed himself off onto the ground, and Timmy turned the car around again.
Thomas testified that he rolled out of the way. He was taken by ambulance to the hospital for
treatment. Thomas stated that he filed a complaint against Timmy Tharpe, but he was arrested
before he was allowed to file a report. He denied seeing anyone with a two by four board or a stick
that day. He also denied swinging a stick at Timmy’s car.


                                                   -3-
       On rebuttal, the State put the victim back on the stand. He denied using vulgar language in
his conversation with King or telling Timmy to get one of the men. He stated that he never went
onto Tilly and King’s property but proceeded only as far as the sidewalk.

                                 SUFFICIENCY OF EVIDENCE

        The defendants each assert that the evidence at trial was insufficient to sustain a guilty verdict
for aggravated assault. The defendants’ initial presumption of innocence is lost following a jury
conviction and replaced with a presumption of guilt; thus, on appeal, the burden is now shifted to
the defendants to prove the insufficiency of the evidence. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This Court must affirm the convictions unless the evidence presented at trial was so
deficient that no rational trier of fact could have found all of the essential elements of the offense
beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994). This rule has been found by our courts to be applicable to a conviction based on direct or
circumstantial evidence or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App.), perm. app. denied, (Tenn. 1990).

        In determining whether the evidence was sufficient to support a conviction, we do not re-
weigh the evidence or substitute our own inferences for those of the jury. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Furthermore, the State is entitled to the strongest legitimate view
of the evidence presented and all reasonable inferences drawn therefrom. State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993). A jury verdict
accredits the testimony of the State’s witnesses and resolves all conflicts in favor of the State’s
theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

       With this standard in mind, we believe that the evidence, when viewed in the light most
favorable to the State, supports both defendants’ convictions for aggravated assault. Tennessee Code
Annotated § 39-13-101 states in pertinent part:

                (a) A person commits assault who:

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

Tennessee Code Annotated § 39-13-102 states in pertinent part:

                (a) A person commits aggravated assault who:

                        (1) Intentionally or knowingly commits an assault as defined in § 39-13-101
                        and:
                                                ***

                                (B) Uses or displays a deadly weapon.


                                                   -4-
        The defendants were indicted by the State under the theory that they caused the victim to
reasonably fear imminent bodily harm by use or display of a stick, a two by four board, and a sawed-
off shotgun. Both the victim and his friend, Timmy Tharpe, testified that the victim did nothing to
provoke the attack but asked only to talk to his ex-girlfriend, Tilly. Both testified that King initiated
the fight that morning and that King and the defendants aggressively approached and pursued the
victim across the street to the construction site, where they continued their attack. Even defendant
Currie testified that King threw the first blow. The victim testified that Currie, Love, and Thomas
began to attack him after he was knocked down by King. Officer Bass testified that he began his
investigation as a hit-and-run with defendant Thomas as the victim, but, as a result of his
investigation and interview of witnesses, he ended up charging the defendants with aggravated
assault. Both the victim and Timmy testified that the defendants wielded at least one two by four
board and that Love displayed a sawed-off shotgun as they were trying to leave the scene. Both
testified that Thomas hit Timmy’s car with a board or stick when he drove his car into the
construction site to scatter the defendants. In addition, there was photographic evidence of injuries
to the victim and damage to the car that Timmy Tharpe drove into the construction site to rescue his
friend that supports the victim’s story. The fact that Thomas was hit by Timmy’s car also supports
this version of the events. The jury simply did not believe the defendants’ version of the events, and
we defer to the trier of fact’s judgment on the credibility of these witnesses. There is no merit to this
issue.

                                  IMPROPER JURY VERDICT

         The defendant, Larry Currie, alleges that the jury verdict was tainted, because the jury
considered facts not in evidence in reaching their verdict. However, the defendant does not specify
in his brief what extraneous information the jurors improperly considered. He alleges that a juror,
McDowell, stated “that the decision of the jurors to convict was based upon extraneous information.”
After a careful review of the entire record, we find no basis to overturn the jury’s verdict and affirm
the trial court’s denial of the defendant's motion for a new trial.

        In State v. Blackwell, 664 S.W.2d 686 (Tenn. 1984), the Supreme Court adopted Rule 606(b)
of the Federal Rules of Evidence and defined the type of evidence admissible from a juror to
impeach a jury verdict. Blackwell, 664 S.W.2d at 688-90. This holding, subsequently established
as Rule 606(b) of the Tennessee Rules of Evidence, prohibits a juror from giving testimony on any
matter or statement occurring during the course of the jury's deliberations or the effect of anything
upon a juror's mind or emotion as influencing his or her vote. See Tenn. R. Evid. 606(b). However,
the rule permits a juror to testify on the question of whether any extraneous prejudicial information
was improperly brought to bear upon any juror. See id.

         The defendant has the burden of establishing that some prejudicial extraneous information,
fact, or opinion was imparted to a juror by a third person or that some improper outside influence
was brought to bear on a juror. State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App.), perm.
app. denied, (Tenn. 1988).



                                                  -5-
       If it is shown that one or more jurors has been exposed to extraneous prejudicial information
or improper influence, there arises a presumption of prejudice, and the burden then shifts to the
prosecution to explain the conduct or to demonstrate the harmlessness of it. State v. Parchman, 973
S.W.2d 607, 612 (Tenn. 1997); State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992).

        At the hearing on defendant Currie's motion for a new trial, the trial court expressed extreme
reservation at putting the jurors under oath, because Currie had not filed any affidavits to establish
a substantial ground for the trial court to believe that there was any jury impropriety. The trial court
permitted defense counsel to state the substance of the defendant’s position, which was based on
statements made to defense counsel by a juror, McDowell. McDowell apparently told defense
counsel that “facts not in evidence, but facts brought to light by one or more of the other jury persons
… the decision of the jurors to convict was based upon that extraneous information.” Stranger still,
the juror, McDowell, was not subpoenaed as a witness at the hearing.

        Jurors Allen, Puckett, VanDyke, Kidd, Maness, and Atkinson were questioned by the trial
court, under oath, as to what evidence formed the basis of their jury verdict. Allen, Puckett,
VanDyke, Kidd, and Atkinson testified that they did not consider any extraneous information but
used only the evidence at trial and the law as given by the court in reaching their respective verdicts.

       Juror Maness gave the only testimony that raised a question of extraneous prejudicial
information during jury deliberations, which follows:

        Q:      (by the trial judge) Did you, in arriving at your decision, consider any extraneous
                prejudicial information; that is, facts, arguments, or evidence from outside of what
                you heard during the trial of the case?
        A:      Yes.
        Q.      You did?
        A.      I did.
        Q:      What did you consider that was prejudicial?
        A:      Well, I – The talk that there was about gangs and things like that. I considered the
                evidence and then this –
        Q.      Hold on just a minute.

                                                ***
        Q:      I don’t want to get into what talk and arguments were. I want to know did the jury
                consider outside prejudicial information in arriving at their decision?

                                                 ***

        A:      I can only speak for myself. And it’s – I felt there was guilt, but I – I think the – the
                talk might have had an effect. I have to admit that.
        Q.      Okay. You thought there was guilt?
        A.      Yes.
        Q:      Is that the reason you voted guilty?

                                                  -6-
       A:      Yes.
       Q.      Did you decide the case solely upon the evidence that you heard in the courtroom and
               the law given to you by the Court?
       A:      I tried to. I believe I did. I had that – That had an effect. When you hear something
               it does have an effect. But I felt he [Currie] was guilty.

       In denying the defendant's motion for a new trial, the trial court commented:

                       The standard matter for attacking a jury's verdict is by the execution
               of an affidavit that falls within the parameters of the Evidentiary Rules that
               control this.

                                                ***

                       I notice significantly that the juror who supposedly led to all of this
               is not present here today. I suspect, and based upon past experience, the
               reason he's not is because words tend to take on a little bit different color.
               One has a tendency to hear what they want to hear and it just doesn't come
               out that way when you get them under oath and start questioning them.

        Improper extraneous information is information from outside the jury itself. State v. Coker,
746 S.W.2d 167, 171 (Tenn. 1987); Caldararo v. Vanderbilt University, 794 S.W.2d 738, 742 (Tenn.
Ct. App.), perm. app. denied, (Tenn. 1990). Internal pressure or intimidation by other jurors,
premature jury deliberations that are contrary to the trial court’s instructions, a juror’s personal
experiences that are not directly related to the case, a juror’s thoughts, fears, or emotions and
speculation among jurors about the consequences of a verdict have been found to be internal matters
that do not constitute extraneous information or outside influences. Caldararo, 794 S.W.2d at 742
(citations omitted). However, external influences that could warrant a new trial, if found to be
prejudicial, include: (1) exposure to news reports about the trial; (2) consideration of facts not in
evidence; and (3) communications with a third party non-juror about the case. Id.

         From our review of the record, we are not sure just what extraneous prejudicial information
prompted the juror, McDowell, to make such a statement to defense counsel. McDowell did not
testify. Although juror Maness testified that extraneous prejudicial information pertaining to gangs
was mentioned among the jury members, the record reveals that the victim testified that on March
31, 1998, the defendant, Currie, made the statement to him, “[Y]ou better recognize the vice lords.”2
From a close and careful reading of the testimony of juror Maness, we are convinced that her verdict
of guilty was based upon the evidence and law submitted by the trial court to the jury. What jurors


       2
         The trial court sustained the defendant's objection to this response on the grounds that the
question was beyond the scope of cross-examination. The trial court did not give a curative
instruction to the jury, nor was such instruction requested. It appears, then, that there was reference
to gangs during the trial itself that was not outside information.

                                                 -7-
may hear during the course of a trial and from the comments of fellow jurors about their personal
experiences during jury deliberations, may have an affect on their mental processes, but these are
not considered to be extraneous information that would invalidate a jury's verdict. Although Maness
stated the information about gangs had an affect on her, she still believed the defendant to be guilty
of the offense of aggravated assault. Likewise, we note that the record established at the conclusion
of the trial that each juror was polled and acknowledged the verdict of guilty. Thus, we conclude
that the defendant has failed to meet his burden to establish that extraneous information was
considered by this jury that prejudiced its verdict against Currie. The trial court's denial of the
defendant's motion for a new trial is affirmed.




                                                 -8-
