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State v. Myers

Court of Criminal Appeals of Tennessee, Nashville

April 17, 2018


          Session May 10, 2016

          Remanded from the Tennessee Supreme Court September 22, 2017

          Appeal from the Criminal Court for Davidson County No. 2014-B-1303 Steve R. Dozier, Judge

         After a bench trial, the trial court issued a written order finding the Defendant, Leroy Myers, Jr., not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment. The Defendant appealed, asserting that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of this case and that there was not an implicit amendment to the indictment to include reckless endangerment. We affirmed the trial court. State v. Leroy Myers, Jr., No. M2015-01855-CCA-R3-CD, 2016 WL 6560014 (Tenn. Crim. App., at Nashville, November 4, 2016). The Defendant filed an application for permission to appeal with the Tennessee Supreme Court pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. On September 22, 2017, the Tennessee Supreme Court granted the Defendant's application for the purpose of remanding the case to this Court to supplement the record. On remand, we again affirm the trial court's judgment.

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

          Jay Norman, Nashville, Tennessee, for the appellant, Leroy Myers, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney General; and Jennifer Charles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.



         I. Facts

          On May 27, 2014, a Davidson County grand jury indicted the Defendant for the aggravated assault of Sandra Custode. The Defendant waived his right to a jury trial and a bench trial began on May 28, 2015, and was continued until June 4, 2015, for further testimony. We recite the facts as summarized in the trial court's order:

The State's first witness was Sandra Custode. She testified that she is a property inspector and has been employed in that capacity with Metro Codes for twenty-one (21) years. On March 13, 2014, she testified that she was present at [] Union Hill Road in her official capacity. She testified that it was her second time there. She testified that she also sent a letter to abate the codes violation at this location. She testified that the [D]efendant works on cars out of his garage, and she has received complaints. She traveled to the residence to take pictures, and she saw cars behind the fence in the yard. She testified that she is familiar with the [D]efendant because she investigated another codes violation involving the [D]efendant previously. The State entered photographs of the location into evidence (Exhibit 1). On the date of the incident, she testified that she was taking pictures from her car in front of the garage. She stated that the [D]efendant told her on a prior date that she should not be on his property. She testified that the [D]efendant came out yelling at her and said, "Fucking bitch, why don't you leave me alone" and "fucking fat bitch, go get someone else". She testified that he was screaming and she could see the spit coming out of his mouth. She further stated that the [D]efendant was approximately five feet from her car while it was parked on the street. She testified that she tried to tell the [D]efendant why she was there, but he kept ranting. She testified that he went back to his garage. She stated that she "pulled out on the road" and traveled about thirty (30) feet from the [D]efendant's driveway when she heard a gunshot. She testified that she looked back and heard the second shot. When she looked back, the [D]efendant was lowering the gun in her direction and the girl with him was laughing. Subsequently, she testified that she stopped her car farther down the road and called the police. She stated that she was really scared, crying, and shaken. She testified that "he shot because of me" and not at a hawk. She testified that the [D]efendant had chickens which were enclosed in a small cage. She also positively identified the [D]efendant in court.
Officer Jason Merithew, Metro Police Department (MPD), testified when he arrived the [D]efendant was working on a car at the garage. He testified that he stayed with the [D]efendant in the front yard.
Officer Jason Dudley, MPD, testified that when he arrived at the residence, the garage doors were open. He stated that the gun was inside the garage leaning up against a washing machine. Without objection, the State entered the gun into evidence (Exhibit 2). He testified that the gun was unloaded when he found it. He testified that two young ...

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