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State v. Lipton

Court of Criminal Appeals of Tennessee, Knoxville

September 4, 2014


Assigned on Briefs June 24, 2014

Appeal from the Circuit Court for Sevier County No. 15118-II Richard R. Vance, Judge.

The Defendant, Mark Lipton, was convicted by a Sevier County jury of aggravated assault and received a five-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the evidence was sufficient to support his conviction, citing to the inconsistencies in witnesses' testimony and to the "physical facts rule"; (2) whether the trial court erred in the admission of improper character evidence, alleging both procedural and substantive errors in that ruling; and (3) whether the trial court properly denied his petition for error coram nobis relief by concluding that the new witness's testimony was not credible.[1]After reviewing the record and applicable authorities, we affirm the judgment of the trial court.

James R. Hickman, Jr., Sevierville, Tennessee (on coram nobis petition and on appeal); and David S. Wigler, Knoxville, Tennessee (at trial), for the appellant, Mark Lipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; James B. ("Jimmy") Dunn, District Attorney General; and George C. Ioannides and Ashley McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer, J., joined. Joseph M. Tipton, P.J., not participating.




This case concerns the November 16, 2009 assault of Henry Sutton ("the victim") by the victim's neighbor, the Defendant, who allegedly, following a verbal altercation with the victim's grandson, pointed a gun at the victim threatening to kill him and also hit him in the face with the pistol. Thereafter, the Defendant was charged with aggravated assault for intentionally or knowingly causing the victim to reasonably fear imminent bodily by using or displaying a deadly weapon. See Tenn. Code Ann. §§ 39-13-101, -102. Prior to trial, the State moved for admission, under Tennessee Rule of Evidence 404(b), of two other acts committed by the Defendant during the November 16, 2009 episode: one, threats made by the Defendant against the victim's grandson, A.S., prior to the incident in question; and two, an assault on the victim's wife, Audry Sutton, immediately following the Defendant's assault on the victim.[2] The Defendant objected to admission of this evidence as improper character evidence, but following a hearing, the trial court allowed its admission. The Defendant proceeded to trial in March 2012.

The evidence presented at trial revealed the following facts. Officer Robert Ellingwood of the White County Sheriff's Department, who worked on this case as a police officer for the Sevier County Sheriff's Department, testified that, at approximately 4:52 p.m. on November 16, 2009, dispatch received a "fight call" off Bryan View Road and that he proceeded to that location. While en route, dispatch informed Officer Ellingwood that the altercation involved an ex-deputy and that someone had been struck by a four-wheeler. Two 911 tapes were admitted into evidence—one call from Natasha Arwood, the victim's stepdaughter, and the other from the Defendant's then girlfriend, Anita Owenby.[3] These recordings portrayed two very different scenarios.

Officer Ellingwood, who had only been an officer for approximately six weeks at that time, was the first to arrive on the scene. Upon Officer Ellingwood's arrival shortly after 5:00 p.m., he observed the Defendant lying under an all-terrain vehicle or "four-wheeler." Officer Ellingwood approached the Defendant and asked him some questions in an attempt to assess the Defendant's physical state. The Defendant provided his name and stated that he had "some pain in his back." However, the Defendant told Officer Ellingwood that he was not in need of an ambulance. Officer Ellingwood testified that he did not see any visible injuries on the Defendant at that time.

Officer Ellingwood asked the Defendant what had happened. According to Officer Ellingwood, the Defendant provided the following version of events:

He heard the four-wheeler outside. He went outside and approached, said that some kids were on a four-wheeler. He approached them. He said that they was [sic] riding at a high rate of speed without a helmet on the road. He stated that it was a county road and that they weren't supposed to be on the road with a four-wheeler and asked them to put it up, and he went back inside.
. . . .
He said the he went back inside. A few moments, I'm not sure exactly how much later, but heard it again. He came outside this time, he stated that an older gentleman, [the victim], was on the four-wheeler at this time, the second time.
. . . .
He stated that he approached the four-wheeler and [the victim]. He stated that when he approached [the victim], [the victim] was cussing him. Stated that [the victim] then knocked him on the ground and ran him over with a four-wheeler.
. . . .
He stated that after [the victim] ran him over [the victim] walked around the four-wheeler and picked up a large rock.
. . . .
He stated [the victim] went and picked up a rock and was going to --standing over top of him and was going to bash his head in on the ground. He said at this time a young lady, the daughter, a daughter of [the victim] came out and stopped him at this time.

Officer Ellingwood advised the Defendant to lie still until the ambulance arrived, and the Defendant again stated that he did not need medical assistance. The Defendant's demeanor during this time, as described by Officer Ellingwood, was "[v]ery calm" although the Defendant did appear "to be in pain from his back." Officer Ellingwood saw that the Defendant's jeans had mud and dirt on them, but they did not, according to Officer Ellingwood, exhibit any tire marks.

Officer Ellingwood then went across the street to speak with the victim and several members of the Sutton family. According to Officer Ellingwood, the victim provided the following recount when asked what had happened:

[The victim] stated that the kids were riding the four-wheeler, that it had ran [sic] out of gas and they[4] were bringing it back to the house. He stated that [the Defendant] approached them, grabbed the front of the four-wheeler. . . . [The Defendant] grabbed the grill and stopped them. [The victim] stated that the [D]efendant was yelling and cussing at them. [The victim] had stated that the [D]efendant punched him in the face where he showed me on the left side of his face a mark. It was red like he had been struck in the face. [The victim] then stated that once [the Defendant] hit him it knocked him off the four-wheeler and he hit his leg on the front peg. [The victim] then pulled his pants leg up . . . and showed where he had a cut, a mark on his leg.
. . . .
[The victim] then stated that after he fell on the ground, the [D]efendant stood over top of him and pulled a pistol out and pointed at him over top of him.

Officer Ellingwood testified that this was "the first [he] had heard of a pistol[, ]" so he returned to the Defendant and inquired about a handgun. According to Officer Ellingwood, the Defendant did not mention the weapon during their prior conversation. The Defendant confirmed at that time that he did have a handgun in the right front pocket of his pants. Officer Ellingwood retrieved the pistol and placed it in his patrol car.

Officer Ellingwood then returned to the victim and asked him to continue with "the rest of the story[.]" The victim provided the following details:

[The victim] stated that while the [D]efendant was pointing the gun at him his grandson, I believe [A.S.], was running up the road. And he stated he pointed the gun at [A.S.] And then after he pointed the gun at [A.S.] he put the gun back in his pocket and laid underneath the four-wheeler. He crawled underneath the four-wheeler.

When asked to describe the victim's demeanor, Officer Ellingwood said that the victim "seemed to stutter a lot, [was] very shook up" and "his hands were shaking[.]" Due to the victim's strained state, Officer Ellingwood had trouble extracting information from him.

Officer Ellingwood confirmed that there was a "red like" mark on the left side of the victim's face and that there was a cut on the victim's leg. Officer Ellingwood also saw a rock on the scene "in the ditch line" approximately fifteen to twenty feet from where ...

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