Assigned on Briefs October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 12-03532 Lee V. Coffee, Judge
Ted I. Jones, Memphis, Tennessee, for the appellant, Joshua Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
The appellant's conviction stems from the December 16, 2011 beating of the victim, Jack Austin. At trial, the victim testified that in December 2011, he was fifty-eight years old. The victim's eighty-two-year-old mother and sister lived in the area of Orleans and Regent, and the victim "stay[ed]" with them. Sometime between 7:00 and 9:00 a.m. on December 16, the victim saw a young man he knew as "Little Will, " whom he had paid fifteen dollars to mow his mother's yard. The victim approached "Little Will" and asked him about the money because the yard had not been mowed. "Little Will" responded, "'I thought you were going to ask me that, " then he told the victim to "'[h]old on a minute.'" After the victim turned to walk away, "Little Will" ran to a house on the hill, put on his shoes, and "came back out."
The victim said that as he was walking away, he heard the sound of running feet and turned around. He saw a group of young men, including "Little Will, " "Dave, " and the appellant, coming from the hill. "Little Will" tried to hit the victim but missed, and the victim hit him. The victim turned to face the rest of the men, and they "started rushing" him. One of the young men stepped on the victim's foot, breaking his ankle. The victim fell to the ground, and the young men "commenced to beating" him. The victim said that the group of young men
included [the appellant], but I'm going to state this just like this here: For the record, he was there, but by me being on the ground and all these people are beating me, he could have backed out, but I ain't going to say he backed out. Because when a bunch of people are on top of you, you cannot say someone did not hit you.
The victim said that several men participated in the beating but that he was unable to identify them individually. He said that all of the men were kicking and beating him.
The victim said that after five or six minutes, Cheryl Marty drove up in a truck, and the young men stopped beating him. Marty called 911 and stayed with the victim until the paramedics arrived. While she waited, people threatened her and told her to leave and to mind her own business. The victim said that Marty was the only person who tried to help him.
After the incident, Sergeant Shawn Schafer showed the victim a photograph lineup, from which he identified the appellant. Sergeant Schafer attempted to discover the identities of the other young men involved; however, the police were unable to locate the assailants because they did not "have permanent living quarters." The victim knew some of the young men but only by their nicknames. He also knew the appellant's parents.
The victim said that after the beating, he was hospitalized for two weeks. He had six surgeries and anticipated more. Plates were put in his jaws and his chin, and seventeen pins were put in his ankle. He was trying to learn how to put pressure on his injured foot. He continued to have numbness on one side of his face and in order to eat, his food had to be put in a blender. He was unable to taste his food and had lost a lot of weight. Additionally, the injuries impaired his ability to speak.
On cross-examination, the victim said that he had known the appellant since the appellant was very young. Several days before the altercation, the victim saw "Little Will" walking down the street pushing a lawn mower. The victim asked what he would charge to mow the victim's yard, and "Little Will" responded that it would cost fifteen dollars. The victim gave "Little Will" the money, and "Little Will" said that he had to get gasoline before mowing; however, he never returned. The victim said that his sister asked "Little Will" why he had not mowed, and he threatened her and told her that if she said anything else, he would "shoot [her] mother's house up."
The victim said that a group of young men, including "Little Will" and the appellant, "r[a]n together." When questioned about why "Little Will" had to put on tennis shoes, the victim explained:
These young guys have a theory. They have to put shoes – tennis shoes on before they approach you. I don't know what the tennis shoes thing is. They have to have them on. Even in jail, they do the same ...