Court of Criminal Appeals of Tennessee, Nashville
Session: May 10, 2016
from the Criminal Court for Davidson County No. 2014-B-1303
Steve R. Dozier, Judge.
Norman, Nashville, Tennessee, for the appellant, Leroy Myers,
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney
General; and Jennifer Charles, Assistant District Attorney
General, for the appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the Court, in
which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
W. WEDEMEYER, JUDGE.
27, 2014, a Davidson County grand jury indicted the Defendant
for the aggravated assault of Sandra Custode. The Defendant
waived his right to a jury trial and a bench trial began on
May 28, 2015, and was continued until June 4, 2015, for
further testimony. A complete transcript of the bench trial
is not included in the record; therefore, we recite the facts
as summarized in the trial court's order.
The State's first witness was Sandra Custode. She
testified that she is a property inspector and has been
employed in that capacity with Metro Codes for twenty-one
(21) years. On March 13, 2014, she testified that she was
present at  Union Hill Road in her official capacity. She
testified that it was her second time there. She testified
that she also sent a letter to abate the codes violation at
this location. She testified that the [D]efendant works on
cars out of his garage, and she has received complaints. She
traveled to the residence to take pictures, and she saw cars
behind the fence in the yard. She testified that she is
familiar with the [D]efendant because she investigated
another codes violation involving the [D]efendant previously.
The State entered photographs of the location into evidence
(Exhibit 1). On the date of the incident, she testified that
she was taking pictures from her car in front of the garage.
She stated that the [D]efendant told her on a prior date that
she should not be on his property. She testified that the
[D]efendant came out yelling at her and said, "Fucking
bitch, why don't you leave me alone" and
"fucking fat bitch, go get someone else". She
testified that he was screaming and she could see the spit
coming out of his mouth. She further stated that the
[D]efendant was approximately five feet from her car while it
was parked on the street. She testified that she tried to
tell the [D]efendant why she was there, but he kept ranting.
She testified that he went back to his garage. She stated
that she "pulled out on the road" and traveled
about thirty (30) feet from the [D]efendant's driveway
when she heard a gunshot. She testified that she looked back
and heard the second shot. When she looked back, the
[D]efendant was lowering the gun in her direction and the
girl with him was laughing. Subsequently, she testified that
she stopped her car farther down the road and called the
police. She stated that she was really scared, crying, and
shaken. She testified that "he shot because of me"
and not at a hawk. She testified that the [D]efendant had
chickens which were enclosed in a small cage. She also
positively identified the [D]efendant in court.
Officer Jason Merithew, Metro Police Department (MPD),
testified when he arrived the [D]efendant was working on a
car at the garage. He testified that he stayed with the
[D]efendant in the front yard.
Officer Jason Dudley, MPD, testified that when he arrived at
the residence, the garage doors were open. He stated that the
gun was inside the garage leaning up against a washing
machine. Without objection, the State entered the gun into
evidence (Exhibit 2). He testified that the gun was unloaded
when he found it. He testified that two young people showed
up at the residence, and they stated they did not see what
Officer Joshua Borum, MPD, testified that on March 13, 2014,
he did not see any chickens at the [D]efendant's
residence. He testified that he saw the [D]efendant and he
said the [sic] he was "shooting at hawks trying to
attack his chickens". He testified that the [D]efendant
said Ms. Custode had been at his house before.
The Court then heard from the [D]efendant. He testified that
he has chickens, Rhode Island Reds. He stated that hawks pull
the chickens through the screen. Further, he testified that,
at the time of this incident, a hawk came in from the road,
approximately fifty (50) yards from the street, and he fired
his gun up in the air. He testified that, at no time, was he
near Ms. Custode or her car at the street.
Ms. Mallory testified on behalf of the defense. She stated
that the [D]efendant did not shoot at the victim. She
testified that he was shooting at hawks. She also testified