Court of Criminal Appeals of Tennessee, Nashville
Session March 21, 2018
from the Criminal Court for Davidson County No. 2015-A-632
Monte Watkins, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
B. Russ, Nashville, Tennessee, for the Defendant, Howard P.
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.,
CAMILLE R. MCMULLEN, JUDGE
night of January 19, 2015, Ismail Salman and William Derrick,
the victim, were working at the Discount Mart in Nashville,
Tennessee. Earlier that day, Salmanhad 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.
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.
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.
Sufficiency of Evidence.
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 ...