Court of Criminal Appeals of Tennessee, Knoxville
Session February 22, 2017
from the Circuit Court for Anderson County No. B2C00571
Donald R. Elledge, Judge
defendant, Charles Edward Day, appeals his Anderson County
Circuit Court jury conviction of reckless aggravated assault,
claiming that the trial court erred by admitting certain
evidence at trial, that the State committed prosecutorial
misconduct during closing argument, that the evidence was
insufficient to support his conviction, that the sentence
imposed was excessive, and that the cumulative effect of
these errors prevented him from receiving a fair trial.
Discerning no error, we affirm.
R. App. P. 3; Judgment of the Circuit Court Affirmed
Marshall, Assistant District Public Defender, for the
appellant, Charles Edward Day.
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Dave S.
Clark, District Attorney General; and Anthony Craighead,
Assistant District Attorney General, for the appellee, State
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
CURWOOD WITT, JR., JUDGEs
Anderson County Grand Jury charged the defendant with one
count of the aggravated assault of the victim, Toni Roberts.
The trial court conducted a jury trial in March 2015.
State's proof at trial established that the victim was
working as a registered nurse in the Intensive Care Unit
("ICU") of Methodist Medical Center
("MMC") on the night of June 8, 2012. On that date,
the defendant was an ICU patient at MMC. At some point that
evening, the victim saw the defendant loudly arguing with his
ICU nurse, Alexander Pierce; the victim was unsure, but she
believed that the defendant was wearing restraints during the
argument. Mr. Pierce recalled that the defendant had
experienced periods of agitation and restlessness earlier in
the evening. Shortly before midnight, the victim observed the
defendant standing by his hospital bed and attempting to free
himself from his wrist restraints. The victim informed Mr.
Pierce of the situation, and Mr. Pierce entered the
defendant's hospital room to instruct the defendant to
return to the bed. Mr. Pierce testified that, despite the
defendant's agitation, the two were still able to
communicate clearly, and he stated that the defendant
understood the directions he was given. During this time
period, the victim "heard some commotion and some
cussing and some struggling, " and she and other nurses,
including Katherine McDowell, entered the room to assist. Ms.
McDowell recalled that the defendant was behaving
the defendant had managed to position his entire body near
the foot of the bed, Mr. Pierce and Ms. McDowell attempted to
reposition the defendant while the victim stood at the foot
of the bed as "backup." The defendant was
"cussing, threatening, [and] saying obnoxious things to
everyone" during this process. As soon as the
defendant's wrist restraints were removed to reposition
him, the defendant, while jerking his arms back and forth,
lifted his legs, looked the victim "dead in the eye,
" and kicked her below her chin. Both Mr. Pierce and Ms.
McDowell witnessed the defendant's kicking the victim in
the face. The force of the impact caused the victim's
body to go airborne, and she landed on her left side 15 to 20
feet away near the nurses' station. She immediately
experienced "excruciating pain" in her hip, pelvic
area, and legs before her legs "went numb." At that
point, she believed that she was paralyzed. Unable to stand,
she was transferred to a wheelchair and taken to the
emergency department. The victim saw a specialist for her
injuries and was out of work for four months before returning
on light duty for two months.
Pierce confirmed that ankle restraints were not placed on the
defendant until after he had kicked the victim, and Ms.
McDowell testified that she overheard the defendant say that
he "wasn't meaning to kick [the victim]" but he
"was trying to kick that big guy."
Max Smith testified that, on June 9, 2012, he was working for
the Oak Ridge Police Department when he was dispatched to MMC
shortly after midnight to investigate an assault. Officer
Smith observed the victim in the emergency department and saw
that she was "physically shaken" and
"emotionally disturbed." When Officer Smith visited
the defendant in his ICU room, he asked the defendant what
had happened, and the defendant responded that "he had
done something bad, " that he "thought it was a man
and not a woman, " and that "he hope[d] she's
okay." Officer Smith testified that the defendant seemed
"sleepy" but that he had no trouble communicating
with him. On cross examination, Officer Smith conceded that
he saw no visible physical injuries to the victim.
Michael O'Brien, an orthopedic surgeon, testified as an
expert witness in the field of orthopedic surgery and
orthopedics. Doctor O'Brien treated the victim following
her injury and ordered two magnetic resonance imaging
("MRI") tests. His review of the MRIs revealed that
the victim's pelvis was broken in three places and that
her abductor tendon was torn. Doctor O'Brien stated that
such injuries are "usually quite painful" and cause
difficulty in walking and sleeping. With respect to her
recovery time, Doctor O'Brien testified that the
victim's bones had healed by December 2012 but that she
was still experiencing residual pain. Doctor O'Brien
described the injury as "serious" and stated that
it was "consistent" with the victim's
description of the defendant's assault. Doctor
O'Brien conceded that the victim was suffering from
osteoporosis at the time of her injury, which would cause her
to be more susceptible to broken bones, but he stated that
the osteoporosis would not have slowed the victim's
healing process and would likely not have contributed to the
victim's torn tendon.
this evidence, the State rested. Following the trial
court's denial of the defendant's motion for judgment
of acquittal and a Momon colloquy, the defendant
elected to testify and to put on proof.
Day, the defendant's mother, testified that the defendant
was taken to a Loudon County hospital in June 2012 following
"an overdose" and that he was later transferred to
the ICU at MMC. Ms. Day was "pretty sure" that she
had visited the defendant on June 8 at 3:30 p.m. and that he
was "not himself." When Ms. Day asked the defendant
what he was doing that day, the defendant had responded that
he was "just shopping here at Walmart picking up a few
things for the girls." Ms. Day also believed that, based
on his behavior, the defendant did not recognize her or other
family members who visited him that day.
McClain, the defendant's fiancée, testified that
she visited the defendant at 5:30 p.m. on June 8 and that he
did not appear to recognize her.
defendant testified that he had overdosed on Seroquel and
Vicoplin. The defendant clarified that he had been prescribed
Vicoplin but not Seroquel. The defendant testified that he
recalled taking both medications and "walking over to
the garbage can" on June 3 and that he recalled nothing
until he awoke in the hospital on June 11. The defendant
remembered nothing about his time in the ICU and did not
recall kicking the victim. The defendant stated that he
"was shocked" and "felt bad" when he
learned what he had done because he "[doesn't] act
Edgar Diaz, a hospitalist with MMC and Roane Medical Center,
testified as an expert witness in the field of internal
medicine and hospital medicine. Doctor Diaz first encountered
the defendant on June 10 when the defendant was moved out of
ICU to a regular hospital room. Doctor Diaz diagnosed the
defendant as suffering from acute encephalopathy, which he
defined as confusion or a lack of orientation "to self,
to what time it is, to what day it is." To treat the
defendant, Doctor Diaz prescribed Librium, a sedative
typically used "to alleviate withdrawal symptoms, "
and Dilantin, an anti-seizure medication. Doctor Diaz
discharged the defendant "two or three days" later,
deeming him medically able to return home.
cross-examination, Doctor Diaz acknowledged that the
defendant's discharge summary from Loudon Medical Center
indicated that the defendant's urine screen was positive
for cocaine, marijuana, and opiates. Doctor Diaz agreed that
the MMC discharge summary stated that the discharging
physician "'after a thorough evaluation of patient
and patient's history, did concur that the patient's
symptomatology was most likely secondary to poly substance
abuse, slash, overdose, slash, withdrawal.'" Doctor
Diaz agreed that the summary indicated that the
defendant's medical issues were due in part to an
overdose and withdrawal from narcotics.
redirect examination, Doctor Diaz stated that Seroquel was an
anti-psychotic medication primarily used to treat bipolar
disorder and that the defendant suffered from bipolar
disorder. With respect to the symptoms of withdrawal
following an overdose of Seroquel, Doctor Diaz opined that
patients could be "very agitated, their heart rate can
be high, [and] blood pressure would be high." Doctor
Diaz also agreed that a patient experiencing withdrawal
symptoms typically would be "resistant and hostile and
combative" prior to receiving sedatives.
on this evidence, the jury convicted the defendant of the
lesser included offense of reckless aggravated assault.
Following a sentencing hearing, the trial court sentenced the
defendant as a standard offender to a term of four years'
incarceration. Following the denial of his timely motion for
new trial, the defendant filed a timely notice of appeal.
appeal, the defendant contends that the trial court erred by
admitting certain evidence at trial, that the State committed
prosecutorial misconduct during closing argument, that the
evidence was insufficient to support his conviction, that the
sentence imposed was excessive, and that the cumulative
effect of these errors prevented him from receiving a fair
trial. We will address each issue in turn.
Admission of Witness Testimony
defendant first contends that the trial court erred by
permitting Doctor Diaz to testify about the defendant's
prior illegal drug use.
the presence of the jury, the prosecutor questioned Doctor
Diaz about the notes in his discharge summary, which
indicated that the defendant's urine screen, upon his
admission to MMC, was positive for cocaine, carotenoids, and
opiates. Doctor Diaz confirmed that his evaluation of the
defendant's history convinced him that the
defendant's "symptomatology . . . was likely
secondary to the poly substance abuse, overdose and
withdrawal." At the conclusion of this testimony, the
prosecutor argued that this testimony should come before the
jury both as evidence of the defendant's voluntary
intoxication and his lack of credibility in that he had
failed to mention having taken cocaine and marijuana prior to
his June 3 overdose. Defense counsel responded that such
testimony was improper evidence of prior bad acts under
Tennessee Rule of Evidence 404(b). The trial court ruled as
[The defendant] said he took two medications; one with
prescription and one without. Nowhere did he mention
[c]ocaine or cannabis, nowhere. And, to me, especially when
he's up here and we have testimony of statements that he
has made that he didn't mean to kick the woman, he was
trying to kick the man and the knowledge. And then when he
testifies that he doesn't remember anything about this
and he testifies that he had a prescription for one of these
drugs and said that to the trier of fact and just happens to
omit the fact that he says [c]ocaine and cannabis. I think
that strongly goes to the issue of credibility. Strongly goes
to the issue. Because the witnesses that we have in support
of him [are] his mother and his fiancé[e]. And the
jury will take whatever decision that they believe is
appropriate based upon the relationship that they have and
their own ability to ...