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State v. Ward

Court of Criminal Appeals of Tennessee, Jackson

February 23, 2018

STATE OF TENNESSEE
v.
LAYLON WARD, JR.

          Assigned on Briefs December 5, 2017

         Appeal from the Circuit Court for Dyer County No. 16-CR-68 R. Lee Moore, Jr., Judge.

         The Defendant, Laylon Ward, Jr., was convicted by a Dyer County jury of reckless aggravated assault. The trial court sentenced the Defendant as a Range II, multiple offender to eight years in the Tennessee Department of Correction. On appeal, the Defendant challenges his classification as a Range II offender, arguing that the trial court erred in considering two previous convictions as felonies. After a review of the record and applicable law, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          James E. Lanier, District Public Defender; and Patrick McGill, Assistant District Public Defender, for the appellant, Laylon Ward, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         Although the trial transcript is not included in the appellate record, we glean from the record that the Defendant and the victim, Mr. Tim Nicolson, were involved in an altercation during which the Defendant employed the use of a firearm. The victim was injured during the altercation, resulting in the loss of his left arm. The Defendant was indicted on attempted first degree premeditated murder on Count 1, aggravated assault with serious bodily injury on Count 2, and aggravated assault with a deadly weapon on Count 3. The jury returned a verdict of guilty for the lesser included offense of reckless aggravated assault on Count 2 and verdicts of not guilty on Counts 1 and 3.

         At a subsequent sentencing hearing, the State asked that the Defendant be sentenced as a Range II, multiple offender based on the Defendant's 2004 South Carolina conviction for harboring a fugitive and 2003 South Carolina conviction for assault and battery of a high and aggravated nature. Defense counsel conceded that the assault and battery conviction would constitute a felony under Tennessee law.

         The fifty-nine-year-old victim testified that he was unarmed when the altercation with the Defendant began but that he armed himself with a shovel at some point during the altercation. The victim sustained an injury that resulted in the loss of his left arm. He testified that he could no longer ride a motorcycle and that daily tasks were difficult to accomplish. The victim asked that the Defendant receive the maximum sentence.

         The Defendant testified that during the altercation, the victim almost broke the Defendant's arm with a shovel. The Defendant voiced his frustration that a photograph depicting a bruise to his arm was not admitted during the trial or sentencing hearing. The trial court informed the Defendant that both the State and defense counsel agreed that the Defendant suffered a bruise to his arm, and the Defendant merely responded that "a picture is worth a thousand words." The Defendant acknowledged that his arm never bled, that he never went to the hospital, and that he told medical personnel that his arm was not broken.

         The Defendant also testified that he had only pleaded guilty to misdemeanors and never any felonies. On cross examination, the Defendant acknowledged that he entered a guilty plea to assault and battery of a high and aggravated nature in South Carolina, but he maintained that the conviction was a misdemeanor. He agreed that he was sentenced to three years of probation for the conviction and that his probation was revoked twice. On redirect examination, defense counsel asked the Defendant if he remembered a discussion he had with defense counsel wherein the Defendant was informed that the assault and battery ...


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