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State v. Waters

Court of Criminal Appeals of Tennessee, Nashville

May 31, 2017

STATE OF TENNESSEE
v.
JOHN ALFRED WATERS

          Assigned on Briefs January 18, 2017

         Appeal from the Criminal Court for Davidson County No. 2014-D-2991 J. Randall Wyatt, Jr., Judge

         The Defendant, John Alfred Waters, appeals as of right from his convictions for aggravated assault, violation of an order of protection, and attempted aggravated burglary. The Defendant contends (1) that there was insufficient evidence to support his convictions for aggravated assault as charged in counts 6, 7, and 8; (2) that the trial court erred when it admitted evidence of the Defendant's previous conviction for violating an order of protection; and (3) that the trial court erred in allowing a police officer to testify that one of the victims was the "most terrified" victim he had ever seen because such evidence was irrelevant and unduly prejudicial. Following our review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Emma Rae Tennent (on appeal); and Emily Herbert and Ellen Forrester (at trial), Nashville, Tennessee for the Defendant, John Alfred Waters.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney General; Amy Hunter and Jeffrey Jackson Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This case arose after the Defendant twice entered an apartment complex on Rosa L. Parks Boulevard in Nashville, Tennessee, where his ex-girlfriend lived. The Davidson County Grand Jury charged the Defendant with eight counts of aggravated assault; two counts of violating an order of protection; one count of attempted burglary; and one count of aggravated stalking. Specifically, the Defendant was accused of the following crimes:

Count 1: Aggravated Assault against Annette Hill on June 23, 2014, by violating an order of protection.
Court 2: Violation of an Order of Protection by having contact with Annette Hill on June 23, 2014.
Court 3: Aggravated Assault against Kimberly Simpson on June 23, 2014, by use or display of a deadly weapon.
Count 4: Aggravated Assault against Annette Hill on June 23, 2014, by use or display of a deadly weapon.
Count 5: Attempted Aggravated Burglary of Annette Hill's home on June 23, 2014.
Count 6: Aggravated Assault against Annette Hill on June 24, 2014, by use or display of a deadly weapon.
Count 7: Aggravated Assault against Kimberly Simpson on June 24, 2014, by use or display of a deadly weapon.
Count 8: Aggravated Assault against Ronda Armstrong on June 24, 2014, by use or display of a deadly weapon.
Count 9: Aggravated Assault against Officer Troy Loewen on June 24, 2014, by use or display of a deadly weapon.
Count 10: Aggravated Assault against Sergeant Terrance Demarest on June 24, 2014, by use or display of a deadly weapon.
Count 11: Violation of an Order of Protection by having contact with Annette Hill on June 24, 2014.
Count 12: Aggravated Stalking of Annette Hill on June 23 and 24, 2014.

See Tenn. Code Ann. §§ 39-12-101; -13-102, -13-113, -13-402; -14-403; -17-315. Prior to trial, the Defendant pled guilty to Count 11 for violating an order of protection and Count 12 for aggravated stalking. The case proceeded to a jury trial on September 8, 2015, on the remaining ten counts.

         I. Incident One

         Kimberly Simpson testified that on June 23, 2014, she was involved in an incident at an apartment complex on Rosa L. Parks Boulevard. She explained that she called the police because she was "assaulted running in [her] building." Ms. Simpson identified the Defendant as the man who attacked her that day at the apartment complex.

         She stated that she had been at a baseball game, and a friend had driven her home. Ms. Simpson testified that she "always [ran] into her building . . . [b]ecause she lived[ed] all the way at the top, so [she ran] all the way up the stairs." She stated that as she was running to her building, she noticed "[a] guy walking down the sidewalk with a long silver thing and that was out of the ordinary in [her] building[.]" When she ran back to see what was going on, she saw "a guy with a white t-shirt on[, ]" who "was coming down the sidewalk[.]" According to Ms. Simpson, the man "was already behind" her, and she "could hear his shoes and [his] laughing and saying, . . . 'Ah, ha, I got you now b---h." Ms. Simpson also testified that the man said, "I'm fixin' to kill you[r] a-s." She explained that when she "turned around[, ]" she "had her hand up because . . . he was swinging [the thing in his hand] and [she] put [her] arm up . . . and started screaming." She stated that she believed that this man was "trying to kill" her and that she "had to hit him. [She] hit him two, two or three times and knocked him over." She claimed that she blocked the swing from the man, and that defending herself "was how she got [the] scar on her arm[.]" She further explained that when she

blocked the swing [she] put [her] arm up . . . because he was swinging too fast and [she] put [her] arm up . . . and he looked at [her] and [she] just punched him. [She] just punched him and knocked him over . . . the rail - so [she] could get to the step, [she] knocked him over the rail and then [they] . . . had eye-to-eye contact and when he looked at [her], he looked [as if he] got the wrong person and then he continued to go on.

         She testified that at that point, she recognized the man as the Defendant because she had previously "seen him in the building." She stated that once they made eye contact, the Defendant continued up the stairs to the second level of the apartment complex where Ms. Annette Hill lived. Ms. Simpson claimed that she observed the Defendant approach Ms. Hill's door, and using "the thing that he attacked [Ms. Simpson] with[, ]" he tried "to get into [Ms. Hill's] apartment." She explained that the "thing" was "a long thing with a hook on it and it had like a hammer at the end, like a little size of a hammer at the end of it." She said that it was made of "steel" or "metal[.]" She testified that after observing him run to Ms. Hill's apartment door, the Defendant took "the hook and he was just prying and he was trying to get in [Ms. Hill's apartment], but he couldn't get it, so he was still trying, he was kicking it and everything. He couldn't get in." Ms. Simpson testified that she called the police and

when [the Defendant] heard [her] talking to the police he stopped working on [Ms. Hill's] door and then he started taking his clothes off and [Ms. Simpson told] the police that he [was] taking off his clothes. [The Defendant was] getting naked and then . . . he went down the steps . . . he went to the left and came back and he didn't have nothing on and then he went to the right and [Ms. Simpson] didn't see him anymore.

         When asked how she felt during this time, Ms. Simpson testified that she "feared where [she] lived" and that she "feared for [her] life." She further testified that she "couldn't sleep. [She] couldn't eat, nothing, and [she had] never feared anything in her life[.]" She stated that the police officers "showed up . . . three or four minutes later" and that ...


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