Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Fisher

Court of Criminal Appeals of Tennessee, Nashville

June 20, 2018

STATE OF TENNESSEE
v.
HOWARD P. FISHER

          Session March 21, 2018

          Appeal from the Criminal Court for Davidson County No. 2015-A-632 Monte Watkins, Judge

         Following a bench trial, the Defendant, Howard P. Fisher, was convicted of aggravated assault and criminal trespass, for which he received a ten-year sentence and a $50 fine, respectively. On appeal, the Defendant argues (1) that the evidence was insufficient to support his conviction of aggravated assault; (2) that the trial court erred in granting the State a continuance for sentencing; and (3) that the trial court erred in denying his ineffective assistance of counsel claim. Upon review, we affirm the judgments of the trial court.

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

          Manuel B. Russ, Nashville, Tennessee, for the Defendant, Howard P. Fisher.

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

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE

         On the night of January 19, 2015, Ismail Salman and William Derrick, the victim, were working at the Discount Mart in Nashville, Tennessee. Earlier that day, Salman[1]had asked the Defendant to leave the store because he was in an altercation with another customer. The Defendant left, but told Derrick, "I will get you after you guys are closed." As Salman and Derrick were closing the store that night, they noticed the Defendant across the street. The Defendant began walking toward Salman and Derrick with a raised baseball bat in hand. Although Salman could not recall exactly what the Defendant was saying as he approached, his words were threatening. Salman warned Derrick that the Defendant was coming, but before the Defendant could reach them, police officers intervened and arrested the Defendant. The Defendant was later charged with and convicted of the instant offenses.

         At the August 2, 2016 bench trial, Salman and Derrick testified consistently with the above facts. In addition, Salman noted that he was in fear as the Defendant approached him, holding a raised baseball bat. A video recording from the store's surveillance camera was played for the court, which Salman narrated. The video showed Salman and the Defendant, while the Defendant was approaching with the baseball bat. However, the video also showed, at one point, the Defendant had lowered the bat. Derrick additionally testified that he was "nervous" and thought the Defendant was going to hit him with the bat. The Defendant was about twenty feet from Derrick, and Derrick jumped into a friend's car to get out of the way. Derrick confirmed that he had seen the Defendant with a baseball bat and a protest sign prior to the instant offense and that the Defendant was known for engaging in protests by himself.

         Officer Cameron Brown testified that on the night of the offense, he was patrolling the area and saw the Defendant in the parking lot, aggressively approaching the store with a baseball bat in his hand. The Defendant was ordered to put the bat down, and he complied. The Defendant declined to testify and did not present any proof. The trial court found the Defendant guilty as charged. The Defendant was later sentenced to ten years' incarceration, to be served consecutively to a previously imposed life sentence. After the denial of his motion for new trial, the Defendant filed this timely appeal.

         ANALYSIS

         I. Sufficiency of Evidence.

         First, the Defendant challenges the evidence supporting his aggravated assault conviction. Specifically, the Defendant argues that the State failed to establish two essential elements of aggravated assault: (1) that the baseball bat was a deadly weapon, as required by Tennessee Code Annotated section 39-11-106, and (2) that the victim was in imminent fear of death or serious bodily injury. In response, the State contends that the evidence was sufficient to support the aggravated assault ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.