Assigned on Briefs September 7, 2016
from the Criminal Court for Shelby County No. 15-03854 W.
Mark Ward, Judge
Defendant, Doyan Anderson, was indicted for aggravated
assault involving the use or display of a deadly weapon, a
Class C felony; aggravated assault based on violation of a
court order, a Class C felony; domestic assault, a Class A
misdemeanor; and unlawful possession of a firearm after
having been convicted of a felony involving the use or
attempted use of violence, a Class C felony. See
Tenn. Code Ann. §§ 39-13-102(a)(1)(A)(iii),
-13-102(c), -13-111, -17-1307. Following a jury trial, the
Defendant was convicted of domestic assault and both counts
of aggravated assault. The jury acquitted the Defendant of
the unlawful possession of a firearm charge. The trial court
merged the domestic assault conviction into the aggravated
assault conviction based on violation of a court order. The
trial court sentenced the Defendant as a career offender and
imposed a total effective sentence of thirty years'
incarceration. In this appeal as of right, the Defendant
contends (1) that the evidence was insufficient to sustain
his conviction for aggravated assault involving the use or
display of a deadly weapon and (2) that the trial court
committed plain error by failing to require the State to make
an election of the distinct conduct it was relying upon
regarding the charge of aggravated assault based on violation
of a court order. After the initial filing of this opinion,
we granted the State's Tennessee Rule of Appellate
Procedure 39 petition to rehear to allow for supplemental
briefing on the issue of whether the Defendant's
aggravated assault convictions should be merged. Following
our review, we affirm the Defendant's convictions.
However, we merge the Defendant's two convictions for
aggravated assault and remand the case to the trial court for
entry of corrected judgment forms reflecting said merger and
the resulting sentence of fifteen years' incarceration.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed in Part; Case Remanded for Entry of Corrected
Stephen C. Bush, District Public Defender; Tony N. Brayton
(on appeal) and Robert C. Felkner (at trial), Assistant
District Public Defenders, for the appellant, Doyan Anderson.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; Jamie Bowers Kidd and
Danielle Marie McCollum, Assistant District Attorneys
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
KELLY THOMAS, JR., JUDGE.
victim, Melanie Tenort, testified that she had been in a
relationship with the Defendant for "five and a half
years on and off" and that he was the father of her
youngest son. To give context to her relationship with
the Defendant, Ms. Tenort testified about an event that
occurred around Thanksgiving 2013. Ms. Tenort testified that
she was staying at a hotel with the Defendant and their son,
who was two years old at the time. Ms. Tenort recalled that
she and the Defendant were "talking about . . . getting
back together" because the Defendant had "just
[come] back" to Memphis. Eventually, the father of her
oldest son dropped him off at the hotel.
Tenort testified that she was "sitting there watching
movies" with the Defendant and her children when the
Defendant received a phone call from his father. After
fifteen or twenty minutes, the Defendant hung up the phone
and was noticeably angry. The Defendant turned off the lights
and the television and said that he was "trying to go to
[f--king] sleep." Ms. Tenort thought that the
Defendant's voice "sound[ed] like [he was] fixing to
get hostile" and "start something." Ms. Tenort
began to gather her things so she and the children could
leave the hotel room.
Tenort asked her oldest son to turn the lights back on so she
could see to pack. As she was packing, the Defendant
approached her and said, "[Y]ou not fixing to go nowhere
[sic]." Ms. Tenort implored the Defendant not to
"put [his] hands on [her] in front of the kids."
The Defendant responded by punching her in the face
"three or four times." The Defendant then pushed
her to the ground and began choking her "[r]eal
hard" to the point that she could not breathe. Ms.
Tenort tried to kick the Defendant off of her and told the
Defendant that the children were watching him.
point, both of the children tried to stop the Defendant by
"hitting him on his back." The Defendant struck
both of the children, knocking the youngest one down. When he
did this, the Defendant "kind of eased up off of"
Ms. Tenort, and she was able to kick him off of her. Ms.
Tenort took the children and left the room. Ms. Tenort called
the police from a nearby gas station. The Defendant was
arrested a short time later at the hotel room.
Tenort opined that the Defendant did not leave the hotel room
because he did not think that she would call the police. Ms.
Tenort explained that she had "never called the police
on him before" because she was scared of "what [the
Defendant] could do to [her] after the fact." Ms. Tenort
continued, testifying that she decided to call the police
because the Defendant "kept doing it" and "it
[had] gotten even worse and in front of [her] kids." Ms.
Tenort was especially troubled by the fact that the Defendant
had hit her children during the attack.
Farrell Brassell of the Memphis Police Department (MPD)
testified that on December 2, 2013, he responded to a call
from Ms. Tenort. Officer Brassell recalled that Ms. Tenort
was "hysterical" and "kind of emotional"
when he spoke to her. Officer Brassell observed that Ms.
Tenort had red marks on her neck, a "busted" lip,
and knots on her forehead. In contrast, the Defendant was
calm and had no injuries when Officer Brassell arrested him.
Tenort testified that she did not return to the hotel room
and that the next day she filed for an order of protection
against the Defendant. The order was entered on December 19,
2013, and Ms. Tenort testified that she watched the Defendant
sign the order. The order enjoined the Defendant from abusing
Ms. Tenort or her children and ordered that the Defendant
"stay away from [her] and . . . the children."
However, in late December 2013 and early January 2014, the
Defendant began to contact Ms. Tenort saying that "he
was sorry" and that "he wanted . . . to get back
Defendant told Ms. Tenort that "he loved [her] and that
he [would] never hit [her] again . . . [and that] he wanted
to marry [her]." Ms. Tenort testified that she
"felt like [the Defendant] really meant it" and
that she believed him. Ms. Tenort began "telling
everybody [that they were] engaged." Ms. Tenort
explained that she loved the Defendant and that she "was
excited" about marrying him because she "thought
that he was going to change." To that end, the Defendant
moved in with Ms. Tenort in February 2014. Ms. Tenort further