State of Tennessee v. John Liddell ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 2, 2006
STATE OF TENNESSEE v. JOHN LIDDELL
Direct Appeal from the Criminal Court for Shelby County
No. 03-04007 Joseph B. Dailey, Judge
No. W2005-00780-CCA-R3-CD - Filed October 9, 2006
Following a jury trial, Defendant, John Liddell, was convicted of two counts of theft of property
valued at $500 or less, a Class A misdemeanor; one count of the aggravated assault of Robert
Bolinger, a Class C felony; and one count of the aggravated assault of Cheffie Hurt, a Class C felony.
The trial court sentenced Defendant to concurrent sentences of thirteen years as a Range III,
persistent offender for each felony conviction, and eleven months, twenty-nine days for each
misdemeanor conviction, for an effective sentence of thirteen years. Defendant does not appeal the
length of his sentences or the sufficiency of the evidence supporting his theft convictions. In his
appeal, Defendant argues that the evidence is insufficient to support his two convictions of
aggravated assault. After a thorough review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J. C. MCLIN , JJ., joined.
Robert Wilson Jones, District Public Defender; Tony N. Brayton, Assistant Public Defender;
Jennifer Johnson, Assistant Public Defender; and Kathy Kent, Assistant Public Defender, Memphis,
Tennessee, for the appellant, John Liddell.
Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General; Stephen Jones, Assistant District Attorney General;
and Greg Gilbert, Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION
I. Background
On February 3, 2003, Bula McGee fell asleep as she waited for her appointment at the
Veterans Affairs Medical Center in Memphis. When she woke up, her pocketbook, which had been
hanging on the bars of her walker, was missing. Ms. McGee testified that her pocketbook was
subsequently recovered, and her driver’s license and military identification were found in a trash can
in one of the medical center’s bathrooms. Ms. McGee said that the only item from her pocketbook
which was not recovered was her coin purse.
William Thomas Davis, the Chief of Police at the Veterans Affairs Medical Center, testified
that Sergeant Cheffie Hurt had worked in his department for twenty years until he retired due to
illness. Chief Davis visited Sergeant Hurt two weeks prior to trial. He stated that Sergeant Hurt,
who was in the last stages of terminal cancer, was under hospice care and unable to leave his home.
Based on Chief Davis’ testimony, the trial court declared Sergeant Hurt unavailable as a witness
pursuant to Rule 804(4) of the Tennessee Rules of Evidence. Sergeant Hurt’s taped testimony at
Defendant’s preliminary hearing was therefore played to the jury.
Sergeant Hurt saw Defendant exit the medical center’s retail facility around 10:30 a.m. on
February 3, 2003. Sergeant Hurt said that he knew Defendant from prior interactions. Defendant
was carrying a woman’s black pocketbook and a shopping bag. Because Sergeant Hurt had earlier
received a report of a stolen pocketbook, he asked Defendant to stop, but Defendant ran down the
hall. Sergeant Hurt pursued Defendant for awhile but became winded. He asked Robert Lloyd
Bolinger, a medical center employee, to follow Defendant. Sergeant Hurt said that he caught up with
Mr. Bolinger and Defendant as Defendant was emerging from a restroom. Defendant waived a
knife-like box cutter at Mr. Bolinger and said that he was not going back to jail. Mr. Bolinger
struggled with Defendant, and Defendant dropped the box cutter and ran away.
Sergeant Hurt said that he and Mr. Bolinger caught up with Defendant a short time later, and
Defendant had armed himself with a second box cutter with a three-inch blade. Defendant came
toward Sergeant Hurt with the weapon, repeating that he did not want to go back to jail. Sergeant
Hurt said that he was unarmed so he threw his radio at Defendant and hit Defendant in the head.
Larry D. Gipson, an officer with the medical center’s security office, arrived at the scene and drew
his gun. At this point, Defendant dropped his weapon.
Sergeant Hurt said that Ms. McGee’s black pocketbook was discovered in the restroom from
which Defendant exited prior to his confrontation with Mr. Bolinger. Sergeant Hurt said that
Defendant was still carrying the shopping bag when he was apprehended. The bag contained ten
baseball caps and a belt. A subsequent search of Defendant following his arrest revealed five
packages of Hanes underwear concealed underneath his coat. Sergeant Hurt said that all of the items
carried the retail center’s price tags.
Tawana Lashun Johnson testified that she was sitting at the desk in the hospital’s reception
area around 10:00 a.m. on February 3, 2003. Ms. Johnson testified that a man ran by the desk,
followed by Sergeant Hurt and another man. Ms. Johnson identified Defendant at trial as the man
who was pursued. Ms. Johnson said that Defendant pulled out a weapon of some type, and waved
it at Sergeant Hurt. Sergeant Hurt asked him to put his weapon down. Defendant said that he did
not want to go back to jail. Sergeant Hurt threw his radio at Defendant and hit him in the head.
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Defendant ran down a dead-end hallway. Another police officer arrived and drew his gun.
Defendant dropped his weapon and said that he did not want to cause any trouble.
Mr. Bolinger testified that he was on his way to his assigned job site when Defendant and
Sergeant Hurt ran past him. Sergeant Hurt was out-of-breath and asked Mr. Bolinger to help him
catch Defendant. Mr. Bolinger said that he immediately began to pursue Defendant but lost sight
of him at a hallway intersection. Mr. Bolinger said that Defendant was carrying a sack of items.
Mr. Bolinger proceeded to the end of the hallway and then doubled back. Mr. Bolinger said
that Defendant rushed out of a woman’s restroom with a black knife in his hand. Mr. Bolinger said
that he and Defendant were both startled. Defendant thrust the knife at Mr. Bolinger. Mr. Bolinger
said he perceived Defendant’s actions as a threat that Defendant would stab him if he did not step
aside. Mr. Bolinger kicked Defendant in the arm, the knife fell to the floor, and Defendant ran down
the hallway. Sergeant Hurt caught up with Mr. Bolinger, and the two men followed Defendant to
the hospital’s reception area.
Mr. Bolinger said that Defendant was brandishing a second knife when he and Sergeant Hurt
reached the reception area. Sergeant Hurt threw his radio at Defendant and hit him in the side of the
head. Mr. Bolinger said that Defendant threw down his weapon when he was cornered at the end
of a dead-end hallway.
Officer Gipson responded to Sergeant Hurt’s radioed call for assistance. Officer Gipson said
that when he reached the reception area, Sergeant Hurt warned him that Defendant had a knife.
Officer Gipson drew his gun, and Defendant dropped the knife. Officer Gipson said that Defendant
was then handcuffed and taken to the squad room in the hospital.
Defendant testified on his own behalf. Defendant acknowledged that he was at the Veterans
Affairs Medical Center on February 3, 2003, and that he stole some baseball caps and underwear at
the medical center’s retail store. Defendant said he was walking down a hall with the merchandise
when the elevators opened and a man yelled at him and started coming toward him. Defendant said
the man did not have on a police or security uniform and did not identify himself.
Defendant said that he ran down several hallways until he grew tired. He stopped in a
women’s restroom to rest. Defendant said he “peeped out” in a few minutes and did not see anyone,
so he exited the restroom. Defendant said he had taken about five steps when Sergeant Hurt came
around the corner and said, “There he is right there.” Defendant said he started to put his hands on
the wall when Sergeant Hurt grabbed him by the hair and knocked his head on the wall “a couple
of times.” Defendant said he just “snapped” and pulled out the box cutter. Defendant said he tried
to find a way out of the medical center but was unsuccessful. Defendant said that Sergeant Hurt
threw his radio and hit him on the head. Defendant dropped the box cutter and the shopping bag on
the floor when a second officer appeared on the scene and drew his gun. Defendant acknowledged
that the officers also found several packages of underwear underneath his coat when he was searched
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after his arrest. Defendant stated that he did not feel he was guilty of the charged offenses, and said
“[Sergeant] Hurt made me do what I did.”
On cross-examination, Defendant acknowledged that Sergeant Hurt knew who he was
because Sergeant Hurt had arrested him before at the Veterans Affairs Medical Center. Defendant
said that he had two box cutters in his pocket because he had been helping his nephew lay carpet.
Defendant acknowledged that he had approximately twenty-nine prior theft convictions. Defendant
said he was trying to get away from the pursuing officers when he drew his box cutter.
II. Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support his two convictions of
aggravated assault. When a defendant challenges the sufficiency of the convicting 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once
a jury 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 jury 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).
“A person commits aggravated assault who . . . intentionally or knowingly commits an assault
. . . and . . . uses or displays a deadly weapon.” T.C.A. §39-13-102(a)(1)(B). “A person commits
assault who . . . intentionally or knowingly causes another to reasonably fear imminent bodily
injury.” Id. § 39-13-101(a)(2). A “deadly weapon” includes “anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury.” Id. § 39-11-106(a)(5)(B).
Viewing the evidence in a light most favorable to the State, Mr. Bolinger testified that he
nearly collided with Defendant when Defendant ran out of the women’s restroom. Mr. Bolinger said
that Defendant was armed with a “sliding blade knife,” with the blade extended. Mr. Bolinger said
that he and Defendant were about three feet apart, and Defendant thrust the knife at him in an
aggressive manner. Mr. Bolinger said that Defendant was trying to get past him, and Mr. Bolinger
believed that if he did not move out of the way, Defendant would stab him.
Sergeant Hurt testified that the second time he and Mr. Bolinger caught up with Defendant,
Defendant came toward him with a box cutter with a three inch blade, saying that he was not going
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back to jail. Sergeant Hurt said that he was unarmed so he threw his radio at Defendant to stop his
progress. Sergeant Hurt said that he perceived Defendant’s actions as a threat.
Based on the facts and circumstances presented in this case, we conclude that a rational trier
of fact could find beyond a reasonable doubt that Defendant was guilty of aggravated assault against
Sergeant Hurt and Mr. Bolinger by using or displaying a deadly weapon, to wit, a box cutter. See
State v. Eaves, 959 S.W.2d 601, 604 (Tenn. Crim. App. 1997). Defendant is not entitled to relief
on this issue.
CONCLUSION
Accordingly, we affirm the judgments of the trial court.
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THOMAS T. WOODALL, JUDGE
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