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State v. Anderson

Court of Criminal Appeals of Tennessee, Jackson

May 24, 2017


          Assigned on Briefs September 7, 2016

         Appeal from the Criminal Court for Shelby County No. 15-03854 W. Mark Ward, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Case Remanded for Entry of Corrected Judgments

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         The 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.[1] 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.

         Ms. 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.

         Ms. 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.

         At that 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.

         Ms. 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.

         Officer 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.

         Ms. 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 together."

         The 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 ...

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