State of Tennessee v. Zaciaro Moore ( 2022 )

09/19/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 2, 2022
STATE OF TENNESSEE v. ZACIARO MOORE
Appeal from the Criminal Court for Shelby County
No. 18-03339 Chris Craft, Judge
No. W2021-01352-CCA-R3-CD
A Shelby County jury convicted the Defendant, Zaciaro Moore, of especially aggravated
robbery, aggravated assault, and theft of property valued at more than $1,000. The trial
court sentenced the Defendant to a total effective sentence of eighteen years. On appeal,
the Defendant contends that the evidence was insufficient to support his conviction for
especially aggravated robbery based upon the State’s failure to prove the element of serious
bodily injury. Following our review, we conclude that the evidence was sufficient to
support the jury’s verdict, and we affirm the Defendant’s convictions. However, we must
remand for a clerical error in the judgment form for theft of property in Count 3.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
Affirmed and Remanded
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which TIMOTHY L.
EASTER, J., joined. JOHN EVERETT WILLIAMS, P.J., not participating.1
Phyllis Aluko, District Public Defender; William Johnson and Nigel Lewis (at trial); and
Harry E. Sayle III (on appeal), Assistant District Public Defenders, Memphis, Tennessee,
for the appellant, Zaciaro Moore.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
1 The Honorable John Everett Williams died September 2, 2022, and did not participate in this opinion. We
acknowledge his faithful service to this Court.
I. Background and Facts
This case arises from a domestic violence incident between the Defendant and the
victim, with whom the Defendant was in a sexual relationship after meeting on a dating
website. The Defendant stayed at the victim’s home for several days until the victim asked
him to leave, causing an argument during which the Defendant hit the victim in the head
with a hammer. The victim sustained multiple head injuries and was hospitalized for
several days. Sometime after their altercation, the Defendant drove away in the victim’s
vehicle and later returned to the victim’s apartment, using the victim’s keys to enter the
unit and steal the victim’s television. For these events, a Shelby County grand jury
indicted the Defendant for attempted first-degree premeditated murder, especially
aggravated robbery, and theft of property valued at more than $1,000.
The following evidence was presented at the Defendant’s trial on these charges:
The victim testified that he was forty-five years old and lived in an apartment in Memphis.
He stated that on April 15, 2016, the Defendant attacked him with a hammer. The victim
had known the Defendant for four days at that point, having met him on a dating website.
The victim offered for the Defendant to come over and watch television at the victim’s
apartment. The victim’s brother was scheduled to come into town for a visit, so at the end
of the four days, the victim told the Defendant he needed to leave the apartment. The
victim agreed that the Defendant had been sleeping, eating, and keeping his belongings at
the victim’s apartment during those four days.
The victim testified he returned to his apartment that evening after working all day.
Upon his arrival, the victim told the Defendant about his brother’s visit and asked the
Defendant to leave. The Defendant replied that he had no place to go. The victim went
to bed, but was awakened by the Defendant in the middle of the night asking if he could
stay. The victim told the Defendant that they would discuss it in the morning. Then, the
Defendant “took the hammer from behind his back” and “bashed [the victim] in the head”
with it while the victim lay in bed. The victim said that the Defendant “cracked [his]
skull” and that he lost consciousness, though the victim was unsure for how long. When
the victim regained consciousness, he observed the Defendant rifling through his pants and
looking through his wallet. The Defendant took the victim’s debit card from his wallet.
The victim followed the Defendant out of the bedroom, feeling “disoriented.” The victim
went into his guest bedroom to look at himself in the mirror and was hit from behind by
the Defendant. The victim lost consciousness again. When the victim roused, the
Defendant was still trying to hit him with the hammer and threatened to kill him. The
victim slid behind a door so that the Defendant would not hit him anymore. The victim
testified that he managed to push the Defendant off of him.
2
The victim testified that he had multiple skull fractures and lacerations on his face
from the attack. He also said that he had defensive fractures in his thumb and elbow from
trying to block the hammer hits. The victim asserted that he did not attack or charge the
Defendant in any way.
After the Defendant left, the victim noticed that his cell phone and computer were
missing and that his television was missing from the wall. The victim opined that the
Defendant stole his things while he was unconscious. The Defendant drove away in the
victim’s car, a white 2004 Pontiac Grand Prix with an Arkansas license plate. The victim
went to his neighbor’s apartment and asked him to call the police. Law enforcement
arrived, and the victim recounted the events briefly before being transported to the hospital.
The victim told law enforcement that the Defendant might be at Summer Trace
Apartments, a nearby apartment complex, where the victim had picked the Defendant up
four days before.
The victim was in the hospital for six days and underwent a thirty-hour surgery.
The victim’s medical records were entered into evidence. Following his release from the
hospital, the victim identified the Defendant as his attacker in a photographic lineup.
The victim identified photographs taken of his injuries immediately following the
altercation, which were shown to the jury. The victim said that he had a scar on his face
and scars on the back of his head, which he displayed to the jury. The victim also pointed
out a hole on the left side of his head in one photograph.
In addition, the victim identified photographs of his apartment’s interior, including
his bedroom where the bulk of the attack occurred and where there was a large amount of
blood on the bed. The victim further identified photographs of his television, his vehicle,
his computer, the bloody hammer used to attack him, and his cell phone. The hammer,
computer, and cell phone were found in the woods behind the victim’s apartment.
When the victim’s car was returned to him following the Defendant’s apprehension,
the victim later traded it in for $1500. A bill of sale was entered into evidence reflecting
the transaction.
On cross-examination, the victim acknowledged that the website on which he met
the much younger Defendant was used to arrange sexual encounters. The Defendant
asked if he could spend the night and wash his clothes at the victim’s apartment, and the
victim agreed. The victim denied knowing that the Defendant was homeless until the
Defendant told him that he had no place to stay. According to the victim, the Defendant
stayed four nights total while the victim went to work during the day. The victim recalled
that they slept in the same bed and had sexual intercourse twice. According to the victim,
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when he sat in his neighbor’s apartment talking to the police, he was barely able to
communicate and had lost a lot of blood at that time. The victim also said that he
subsequently tested negative for HIV.
John Valentine testified that the victim knocked on his door during the late evening
or early morning hours of April 15, 2016, and that he let the victim inside after seeing that
the victim was “bleeding pretty badly from the head.” Mr. Valentine got the victim a
towel for his head. The victim told Mr. Valentine that he had been attacked and asked
him to call the police.
Lashondia Williams testified that on April 15, 2016, the Defendant came to her
apartment to sell her a television. According to Ms. Williams, the Defendant was not
injured, bruised, or bleeding at that time. Ms. Williams went with the Defendant to a white
vehicle with the television in the trunk, and as the Defendant was loading the television
into Ms. Williams’s vehicle, the police arrived. The Defendant fled with Ms. Williams’s
cell phone in his hand and left the victim’s car keys inside Ms. Williams’s car.
Patrick Taylor testified that he worked for the Memphis Police Department
(“MPD”) and responded to a call at the victim’s apartment complex on April 15, 2016.
He found the victim sitting in a neighbor’s apartment with multiple injuries to his head and
face and bleeding profusely. Officer Taylor photographed the victim’s injuries. Officer
Taylor proceeded to the victim’s nearby apartment where he photographed the scene.
Officer Taylor described that the apartment was in disarray and that “large amounts of
blood” were seen in various areas of the apartment, which indicated to Officer Taylor that
some kind of struggle had taken place. Officer Taylor confirmed that when he spoke with
the victim, the victim was lucid and responsive. The victim also provided answers to a
multitude of questions and supplied specific information pertaining to the incident.
Information provided by the victim led Officer Taylor to the Summer Trace
apartment complex. Once inside the complex, Officer Taylor found a white Pontiac sedan
with an Arkansas license plate parked close to a dumpster; the vehicle was identified as
belonging to the victim. After speaking with a man “on the back stoop of one of the
apartments,” Officer Taylor turned around and went in search of a white Dodge Avenger
he had passed coming into the complex. At the other end of the same street, Officer Taylor
located the Dodge Avenger, which had the trunk open with a flat screen television sticking
out of the back. While trying to ascertain the Dodge Avenger’s owner, Ms. Williams
approached the officers. Officer Taylor made contact with Ms. Williams and learned that
the Defendant was in possession of Ms. Williams’s cell phone.
Contact was made with the Defendant, and Officer Taylor spoke with the Defendant
very briefly before passing the phone to another officer on the scene. According to Officer
4
Taylor, two police cars were sent to apprehend the Defendant at the location the Defendant
had provided, but it turned out that the Defendant had given “a false address.” While
Officer Taylor was still on the scene compiling his paperwork, the Defendant “appeared”
in the apartment complex and was arrested. According to Officer Taylor, the Defendant
was compliant when he was apprehended, and the Defendant did not appear to have any
visible injuries at that time.
MPD Officer Sammy Batts testified that he responded to the call at the victim’s
apartment complex on April 15, 2016, between the hours of 4:00 and 5:00 a.m. When
Officer Batts arrived at the victim’s apartment, he observed the victim “with several
lacerations, cuts on his head.” Shortly thereafter, Officer Batts accompanied Officer
Taylor to the Summer Trace apartment complex. After Officer Taylor initiated contact
with the Defendant via Ms. Williams’s cell phone, Officer Taylor passed Officer Batts the
phone, and Officer Batts remained on the phone speaking with the Defendant throughout
the encounter. Eventually, the Defendant came out of one of the apartments and was
arrested. Officer Batts said that the Defendant appeared “to be fine” at that time and was
not in need of medical assistance.
MPD Crime Scene Investigator John Stone testified that he arrived at the victim’s
apartment at approximately 4:50 a.m. to take photographs. Investigator Stone testified
that he observed several rooms inside the apartment where blood was present.
Investigator Stone believed that “some sort of struggle had taken place.” When shown a
picture of the bed, Investigator Stone said that there was blood on the headboard, which
was consistent with blunt-force trauma. Investigator Stone also saw blood on the pillow
and comforter of the bed and “more castoff spatter that hit the wall.” In addition,
Investigator Stone observed blood in the bathroom around the basin of the sink and castoff
spatter on the wall of another bedroom.
The twenty-three-year-old Defendant testified that he had been homeless since he
was teenager due to ongoing abuse in his household. According to the Defendant, he was
at Ms. Williams’s apartment on April 8, 2016, when he started talking with the victim over
a dating website. After the victim came and picked the Defendant up from Ms. Williams’s
place, they went back to the victim’s apartment where they watched movies, talked, and
eventually had consensual sex. According to the Defendant, he stayed with the victim for
eight days, and the victim forced him to engage in sex every single day. The Defendant
indicated that the victim knew he was homeless and would threaten to kick him out if he
did not have sex.
The Defendant testified that on the evening of the altercation, he found a piece of
paper from a clinic indicating that the victim was positive for HIV. According to the
Defendant, when he confronted the victim about the test result, the victim started yelling
5
and cussing and began to choke him. The Defendant stated that he was lying on the bed
pinned down by the victim, so he grabbed the hammer from the nightstand and began
hitting the victim with the hammer in self-defense. The Defendant further asserted that
he only took the victim’s belongings out of anger because he felt upset and used. The
Defendant returned to Ms. Williams’s apartment after leaving the victim’s place.
The Defendant confirmed that he gave the police a written statement admitting that
he hit the victim with the hammer. The Defendant explained, “Because I wanted to tell
what happened, and I wanted to tell them why it happened.”
On cross-examination, the Defendant said that the victim was never unconscious
during the altercation. The Defendant indicated that he was not injured in the fight, other
than being choked. In addition, the Defendant denied providing the officers with a false
address and asserted that “he came right on out” of Ms. Williams’s apartment when asked
to do so by the officers.
Relative to the victim’s television, the Defendant said that he merely inquired of
Ms. Williams’s boyfriend how much it was worth and if he knew of a potential buyer. The
Defendant did not deny that he placed the television in Ms. Williams’s car. The Defendant
also admitted that he disposed of the cell phone, computer, and hammer by throwing them
into the woods behind the victim’s apartment.
In the Defendant’s police statement, he told the police that he waited until “the
situation was cool, calm, and collected” before he hit the victim ten times in the head. The
Defendant indicated that he stopped hitting the victim once the victim fell to the floor.
The Defendant told the police that he attacked the victim because the victim had put his
hands on the Defendant first and because the Defendant believed that the victim had given
him HIV. In addition, the Defendant indicated to the police that “[t]he plan was for [him]
to get the tv and leave.” According to the Defendant, the police embellished certain parts
of the Defendant’s statement, and he just went along with it.
In rebuttal, the State called MPD Sergeant Andrew Bishop, who testified to the
circumstances surrounding the Defendant’s police statement. Sergeant Bishop testified
that upon the Defendant’s arrival at the police station, the Defendant requested medical
attention because he was bleeding and had an injury to his ankle. After the Defendant was
“checked over” and was “cleared,” the Defendant waived his Miranda rights. Sergeant
Bishop described the Defendant as coherent and articulate during the interview. Sergeant
Bishop averred that he did not make up any of the details included in the Defendant’s
statement and that the Defendant had a chance to review and correct his statement. The
statement was entered into evidence.
6
Based on this evidence, the jury convicted the Defendant of aggravated assault as a
lesser-included offense of attempted first-degree murder, especially aggravated robbery,
and theft of property valued at more than $1,000. The trial court held a sentencing hearing
and imposed an effective eighteen-year sentence to be served at one-hundred percent. It
is from these judgments that the Defendant now appeals.
II. Analysis
A. Sufficiency of the Evidence
On appeal, the Defendant contends that the evidence was insufficient to support his
conviction for especially aggravated robbery. Specifically, he contends that the trial court
erred when it denied his motion for judgment of acquittal based upon the State’s failure to
prove the element of serious bodily injury.2 The State initially responds that this court
should waive the Defendant’s argument because his notice of appeal was untimely. The
State further submits that the proof was more than sufficient for a rational jury to find
beyond a reasonable doubt that the victim suffered serious bodily injury. We agree with
the State that the evidence was sufficient to support proof of serious bodily injury.
First, we have determined that the notice of appeal was timely filed in accordance
with Rule 4(a) of the Tennessee Rules of Appellate Procedure. A notice of appeal must
be filed “within [thirty] days after the date of entry of the judgment appealed from.” Tenn.
R. App. P. 4(a). The trial court’s order denying the Defendant’s motion for new trial was
filed on October 8, 2021. The Defendant, thereafter, had thirty days to file a notice of
appeal. See Tenn. R. App. P. 4(c). According to the rules of time computation, the
Defendant’s notice of appeal was due on November 8, 2021. See Tenn. R. App. P. 21(a).
Rule 20(a) of the Tennessee Rules of Appellate Procedure provides that “[f]iling
shall not be timely unless the papers are received by the clerk within the time fixed for
filing or mailed to the office of the clerk by certified return receipt mail or registered return
receipt mail within the time fixed for filing.” The State observes that the Defendant’s
notice of appeal bears a filing date of November 16, 2021, and that there was no notation
on the notice of appeal that it was received via certified mail. However, despite this initial
clerical error, the notice was in fact mailed via certified mail on November 4, 2021, and
the mailing envelope in the appellate court file clearly reflected such. Thus, the appellate
court clerk corrected the Defendant’s notice of appeal to reflect that it was mailed via
certified mail on November 4, 2021. Accordingly, the Defendant’s notice of appeal is
timely, and we will proceed to review the sufficiency of the evidence.
2
The Defendant does not challenge on appeal his convictions for aggravated assault or theft. We note that
the Defendant’s aggravated assault conviction, as charged in this case, also required proof that the victim
suffered serious bodily injury. See T.C.A. § 39-13-102(a)(1)(A)(i).
7
Initially, we observe that the Defendant phrases his argument in terms of
challenging the trial court’s denial of his motion for judgment of acquittal at the end of the
State’s proof. “The standard by which the trial court determines a motion for a judgment
of acquittal is, in essence, the same standard that applies on appeal in determining the
sufficiency of the evidence after a conviction.” State v. Little, 402 S.W.3d 202, 211 (Tenn.
2013). A motion for judgment of acquittal is waived if the defendant introduces proof
after making the motion, and the appellate court merely analyzes the sufficiency of all
evidence. Finch v. State, 226 S.W.3d 307, 316-17 (Tenn. 2007). In this case, the
Defendant introduced proof after the State rested its case, and accordingly, the Defendant’s
challenge is simply one to the sufficiency of the evidence.
When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “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)).
In determining the sufficiency of the evidence, this court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this court substitute its inferences for those drawn by the trier of fact from
the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). “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). The Tennessee Supreme Court stated
the rationale for this rule:
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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.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt
against a defendant removes the presumption of innocence and raises a presumption of
guilt, the convicted criminal defendant bears the burden of showing that the evidence was
legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-
58 (Tenn. 2000) (citations omitted).
As relevant to this case, especially aggravated robbery requires the State to prove a
robbery that was “(1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim
suffer[ed] serious bodily injury.” T.C.A. § 39-13-403(a). “Robbery” is the “intentional
or knowing theft of property from the person of another by violence or putting the person
in fear.” T.C.A. § 39-13-401(a). “Serious bodily injury,” as relevant here, 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; [or]
(E) Protracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty[.]” T.C.A. § 39-11-106(a)(34); see also State v. Farmer, 380 S.W.3d 96,
100-01 (Tenn. 2012). Whereas, “[b]odily injury” is defined to include “a cut, abrasion,
bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the
function of a bodily member, organ, or mental faculty.” T.C.A. § 39-11-106(a)(2).
Here, the Defendant challenges the element of serious bodily injury. The
Defendant contends that his actions did not involve a substantial risk of death because the
victim’s “medical records alone do not evaluate the degree” to which the victim’s injuries
presented a substantial risk of death and because an expert witness did not testify to this
effect. He also submits that there “was no testimony or other evidence” that the victim
experienced protracted unconsciousness, noting that the victim could not say how long he
was rendered unconscious and that the lapses appeared to be only momentary. Next, the
Defendant observes that the victim did not testify that he experienced extreme physical
pain and that the victim’s medical records indicated that he only reported above moderate
9
pain on four occasions. The Defendant further asserts that there was no proof of protracted
or obvious disfigurement, citing that the victim did not elaborate “as to the size or
description” of the scars sufficiently to distinguish them from “simple disfigurement.”
Finally, the Defendant contends that there was no proof of protracted loss or substantial
impairment of a function of a bodily member, organ, or mental faculty. For all of these
reasons, the Defendant surmises that the State’s proof did not rise to the level of serious
bodily injury.
The State contends that there was sufficient evidence of serious bodily, noting that
the victim spent six days in the hospital and underwent thirty hours of surgery; that the
victim showed the jury scars on his head and face that he still bore years later; and that the
jury saw pictures of the dents and cuts the hammer left around the victim’s skull
immediately following the incident, including one particular round indentation that was
quite deep. The State also submits that the victim’s medical records were sufficient and
that medical expert testimony was not required. In addition, the State observes that the
victim was unconscious at least long enough for the Defendant to unmount a television
from the wall and begin stealing other items; that the victim’s medical records indicated
that he described his pain as “aching, crushing” and that, at its worst, it “was 10 out of 10
on a pain scale”; that the medical records referred to the pain management the victim
required both during and after his hospital stay; and that the medical records stated that part
of the victim’s ear was amputated. For these reasons, the State concludes that all five
categories of serious bodily injury were supported by the proof at trial.
The distinction between “bodily injury” and “serious bodily injury” is generally a
question of fact for the jury and not one of law. State v. Barnes, 954 S.W.2d 760, 765-66
(Tenn. Crim. App. 1997). “Protracted” in the context of serious bodily means “‘delayed
or prolonged in time.’” State v. Ronald L. Carroll, No. E2013-01781-CCA-R3-CD, 2014
WL 1759101, at *5 (Tenn. Crim. App. Apr. 30, 2014) (quoting State v. Derek Denton, No.
02C01-9409-CR-00186, 1996 WL 432338, at *5 (Tenn. Crim. App. Aug. 2, 1996)).
While the complexity of medical records and the need for the assistance of an expert
to explain those records was pointed out in the concurring opinion in Farmer, see 380
S.W.3d at 103-05 (Koch, J., concurring), the Defendant cites to no authority, and we know
of none, actually requiring medical testimony. See State v. Joshua Hurt, No. E2020-
00236-CCA-R3-CD, 2021 WL 1329460, at *7 (Tenn. Crim. App. Apr. 9, 2021) (finding
sufficient proof to support the element of serious bodily injury based upon the introduction
of medical records only, and rejecting the defendant’s argument “that his actions did not
cause a substantial risk of death because no one testified to this effect”), perm. app. denied
(Tenn. July 14, 2021). In fact, Justice Koch highlighted in his concurring opinion that
“[u]ndoubtedly, there are circumstances in which a juror’s ‘common-sense understanding’
will be sufficient to enable a juror to determine whether a particular injury involves a
10
substantial risk of death[.]” Id. at 104 (footnote omitted); see also State v. William Heath,
No. W2015-01837-CCA-R3-CD, 2016 WL 6135519, at *3 (Tenn. Crim. App. Oct. 21,
2016). We think this to be such a case.
Based upon its verdict, the jury clearly found that the injuries the victim suffered as
a result of his being hit in the head and face with a hammer multiple times by the Defendant
were sufficient to establish the element of serious bodily injury. The victim testified that
he spent six days in the hospital for his injuries and that he underwent a thirty-hour surgery
while there. The victim’s medical records indicated that he suffered “depressed skull
fractures” and required a craniectomy. The jury saw pictures of the victim’s apartment
and of the victim’s injuries that were taken immediately following the incident. The
victim also displayed to the jury the scars on his face and head that were still present years
later. The jury accredited the victim’s testimony and the evidence, as was within its
province. We conclude that these facts were sufficient to support a finding that the
victim’s injuries involved a substantial risk of death and led to protracted or obvious
disfigurement. See State v. Deonte Matthews, No. M2010-00647-CCA-R3CD, 2012 WL
5378046, at *4 (Tenn. Crim. App. Oct. 31, 2012) (“When confronted with the issue of
whether a permanent scar is sufficient for a jury to find ‘protracted or obvious
disfigurement’ . . . , this court has consistently determined that it is.” (collecting cases));
State v. Thomas J. Tackett, No. M1999-02541-CCA-R3-CD, 2001 WL 721852, at *3
(Tenn. Crim. App. June 28, 2001) (finding that the evidence demonstrated a substantial
risk of death where the victim lost significant quantities of blood, suffered a skull fracture,
was hospitalized for a total of ten days for his injuries and a resultant infection, and had
deep cut wounds to his head that required one hundred staples to repair).
We need only find one of the factors in support of serious bodily injury to uphold
the jury’s verdict. Accordingly, the evidence was sufficient to support the Defendant’s
conviction for especially aggravated robbery, and he is not entitled to relief on this issue.
B. Theft Offense Classification
The judgment form in Count 3 reflects that the Defendant was sentenced to two
years as a Range I, standard offender for Class D felony theft. We note that the Defendant
was indicted for theft of property valued at more than $1,000 but less than $10,000, which
was a Class D felony at the time of the offense, but the theft grading statute had reclassified
theft of property valued at over $1,000 but less than $2,500 to a Class E felony by the time
the Defendant was sentenced in 2021. See T.C.A. § 39-14-105(a)(3) (2015); 2016
Tennessee Laws Pub. Ch. 906 § 5 (eff. date Jan. 1, 2017). Tennessee Code Annotated
section 39-11-112, the savings statute, applies to reduce the punishment for theft offenses
committed prior to the change in the law when sentencing takes place after the law has
11
gone into effect. State v. Menke, 590 S.W.3d 455, 468, 469 n.12 (Tenn. 2019); see T.C.A.
§ 39-11-112.
Here, relative to the Defendant’s theft of property conviction, the State relied upon
the Defendant’s taking of the victim’s car, and the jury fixed the value of the victim’s
property at more than $1,000. At trial, the victim testified that his vehicle was worth
$1,500 when he traded it in, and he provided a bill of sale for that transaction. At the
sentencing hearing, the trial court indicated that it was sentencing the Defendant for Class
E felony theft and noted that the Defendant had a prior history of thefts before imposing a
two-year sentence. Thus, it appears that the trial court was aware of the savings statue and
imposed a corresponding sentence. Consequently, we can confidently say that the error
in the judgment notating a Class D felony conviction was simply a clerical error. The case
is remanded for entry of corrected judgment form in Count 3 to reflect the appropriate
Class E felony classification associated with the Defendant’s theft offense.
III. Conclusion
In accordance with the foregoing, we affirm the judgments of the trial court.
However, as noted in this opinion, we remand the case for entry of a corrected judgment
form in Count 3.
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ROBERT W. WEDEMEYER, JUDGE
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