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State v. Fykes

Court of Criminal Appeals of Tennessee, Nashville

July 22, 2019

STATE OF TENNESSEE
v.
MICHAEL D. FYKES

          Assigned on Briefs April 16, 2019

          Appeal from the Criminal Court for Davidson County No. 2016-B-518 Monte Watkins, Judge

         The defendant, Michael D. Fykes, appeals his Davidson County Criminal Court jury convictions of especially aggravated burglary and aggravated assault, arguing that the trial court erred by admitting certain evidence in violation of Tennessee Rule of Evidence 404(b) and imposing a sentence greater than necessary and that the evidence was insufficient to support the convictions. Because dual convictions of especially aggravated burglary and aggravated assault in this case are prohibited by statute, we modify the conviction of especially aggravated burglary to aggravated burglary and remand to the trial court for resentencing. We otherwise affirm the judgments of the trial court.

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

          Manuel B. Russ (on appeal); and Nathan Cate (at trial), Nashville, Tennessee, for appellant, Michael D. Fykes.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Glenn Funk, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Davidson County Grand Jury charged the defendant with especially aggravated burglary and aggravated assault arising from an incident in which the victim, Mabline[1] Simmons, was attacked in her home.

         At the August 1, 2018 trial, Ms. Simmons, who suffered from intermittent multiple sclerosis ("MS"), testified that on December 14, 2015, she lived at 903 Blue Ridge Drive in Davidson County. She had known the defendant for 30 years, describing their relationship as friendly. Although "at times . . . [they had] a romantic relationship," during the two months preceding the attack, she and the defendant were "just friends," and she "very seldom saw him then." The victim explained that the defendant was often out of town for work for a week or more at a time. She further explained that, in December 2015, the defendant did not live at nor have any items at her house; however, approximately a week before the attack, the defendant came to her house intoxicated. After that incident, the victim "packed up what little few items he had and put them in a box; and then when he came, [she] gave them to him." She testified that the defendant never had a key to her house.

         At the time of the attack, the victim was unable to drive and would use a cane to walk but was otherwise able to care for herself. As therapy for her MS, the victim swam at the YMCA daily. On the day of the attack, Kenneth Crenshaw, the victim's friend, gave her a ride from her house to the YMCA, and when the victim left her house with Mr. Crenshaw, she saw the defendant parked in front of her house. She recalled thinking that the defendant "felt disrespected or something." While the victim was in the pool at the YMCA, the defendant arrived and said to her, "I ought to just jump in there and kill you right here in front of everybody," to which the victim replied, "[W]hy would you want to do that[?]" The defendant then spoke to the lifeguard before leaving. At that point, the victim "thought he was gone" and continued her exercises, used the sauna, and waited at the YMCA for her daughter to give her a ride home. The victim stated that her daughter drove her home but did not accompany her inside the house.

         After returning home from the YMCA, the victim sat on her bed while she paid bills over the phone. She then "heard [the defendant] out the back window" of her bedroom calling to her to let him in. The victim refused to allow the defendant into the house, and the defendant told her that he would "just knock the window out." Although the victim "[n]ever thought he'd do nothing like that," she "heard this big crash" and "tried to run to the front door in the living room," but the defendant "came running in there and told [her to] leave the light out, cut the light out." The victim testified that the defendant began to hit her. At some point during the attack, the defendant permitted the victim to use the bathroom, but sat on a desk outside of the bathroom door and watched her. The defendant then resumed the attack, hitting the victim and "pulling [her] hair out from the root" and dragging her "through the hall, all the way through to the living room." The victim could not recall how long the attack lasted because "the time went away"; after the defendant hit her a second time, she "lost what was going on." The victim testified that she could hear the defendant "fussing and talking" but that she could not understand what he was saying because "it wasn't registering" with her. While the victim was lying on the floor after being dragged through the house, she heard a knock at the door, and the defendant went to answer the door at which time the attack stopped. Brandon Watson, the boyfriend of the victim's daughter, was at the door, and a short time later, the victim's daughter, Thomasina Gordon, arrived at her house as well. Ms. Gordon took the victim to the hospital, where she was treated for a broken nose and a fracture on the right side of her jaw among other injuries. The victim reported her pain at the time as being 10 out of 10 before being given pain medication. She was released from the hospital the following morning.

         The victim recalled the beating lasting from the time the defendant entered her house to the time Mr. Watson knocked on the door. In addition to the broken nose and jaw, the victim suffered from chest pain and sustained permanent vision problems in her right eye. After being released from the hospital, the victim convalesced at Ms. Gordon's home for two weeks before returning to her own house. During her recovery, the victim "couldn't operate on [her] own," had to eat through a straw, and required assistance in basic tasks.

         During cross-examination, the victim testified that she had had MS for about eight years, and, because the MS was intermittent, she did not always need to use a cane when walking. Prior to the attack, she had not had any issues with memory loss, but at the time of trial, she had trouble remembering dates and times. She acknowledged that, on the day of the attack, the defendant "had a few things" at her house but asserted that he "[d]idn't have that many clothes" and that "he didn't live with [her] constantly" at any point, but rather, he would "come over and visit." She testified that the defendant was living at her house for about three weeks but stated that he did not live there consistently because "he traveled so much, he would just be in town sometime[s]." He would stay at her house "[m]aybe for two or three days at a time."

         The victim testified that her injuries included bruising to her face and chest. She recalled that the defendant had slapped her with an open hand during the attack but could not recall whether he had hit her with a closed fist; she confirmed that the defendant did not use a weapon. She could not recall how long the attack lasted but stated that it was light outside when she saw the defendant outside of her window and that it was dark when she went to the hospital.

         On redirect examination, the victim stated that the defendant knew that she had MS.

         Mr. Watson testified that he was the boyfriend of Ms. Gordon and had known the victim for almost seven years. He lived within a one-minute walk from the victim's house. On the day of the attack, Ms. Gordon became concerned for the victim when she did not answer her phone calls. Mr. Watson went to the victim's house at approximately 8:00 p.m. to check on her and noted that the house was dark, which he thought was unusual because the victim usually kept "a lamp on by the window." The defendant answered the door, and Mr. Watson saw the victim lying on the floor. When he asked what was going on, the victim pointed at the defendant, and Mr. Watson told the defendant to leave, which he did. Mr. Watson helped the victim off of the floor and to her bedroom where he saw her injuries. He described the victim as "unrecognizable," explaining that "her hair was pulled out, her face was like extremely swollen," and "[s]he was bleeding from her nose and mouth." He also saw ...


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