In State v. Jason O. Miller, Public Defenders Jeremy Epperson and Caroline Ballentine from Jackson must have felt like they fell through the looking glass when their client was forced to go to trial and get sentenced to eight years at 100% for a crime that was a misdemeanor at best.
“At best” is a key phrase there, because the state had a weak case even for the misdemeanor. The alleged victim, the defendant’s ex-girlfriend, called the police because the defendant came to her house to give her a birthday present. There was some history there evident in the record — her mother was charged with stabbing him a few years prior. In any event, when the police came, the ex-girlfriend apparently told the officer that Mr. Miller had “displayed” a gun (which is also what she testified to at the preliminary hearing.) By the time of trial, her allegation had changed from “he displayed the weapon” to “he pointed the weapon at me” which led to the aggravated assault conviction and the eight-year sentence.
Her inconsistency, as compelling as it was, probably would have withstood a sufficiency challenge on appeal based on the verdict. Instead, the state’s real problem was that when the police searched the defendant’s vehicle, they found that the gun at issue was a mere pellet gun. Undeterred, the prosecutor told the jury that the pellet gun was a deadly weapon:
I want to ask you something. What’s the point of threatening somebody with something that’s not a deadly weapon? I mean, why — why would he pull this out if he thought it was a toy? That doesn’t make any sense. Of course it’s a deadly weapon. We know it’s a deadly weapon because you get to use your common sense and know that it’s capable of inflicting significant bodily injury, and that’s what the statute says.
It’s hard to understand how the ADA was allowed to argue that, not to mention how the charge got past a motion for judgment of acquittal. Maybe the trial court misunderstood the law – when the jury requested clarification on the definition a deadly weapon, the court simply referred to the rote jury instruction – or maybe the court confused aggravated assault with aggravated robbery, which only requires a weapon or something “fashioned” like one to increase the charge level. Either way, the aggravated assault statute clearly requires an actual deadly weapon, not a facsimile. The Court of Criminal Appeals made quick work of the trial court’s error, writing:
As charged in this case, aggravated assault occurs when a person intentionally or knowingly causes another to reasonably fear imminent bodily injury by using or displaying a deadly weapon. Tenn. Code Ann. §§ 39-13-101(a)(2), -102(a)(1)(A)(iii). Deadly weapons may be placed into two categories – deadly per se or deadly by reason of the manner in which they are used. Morgan v. State, 415 S.W.2d 879, 882 (Tenn. 1967). A deadly weapon per se includes “[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury.” Tenn. Code Ann. §39-11 106(a)(6)(A). A deadly weapon by manner of use includes “[a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. at § 39-11-106(a)(6)(B). Our supreme court has clarified that, in cases that do not involve a deadly weapon per se, the item “will only be considered a deadly weapon if the defendant in a particular case actually used or intended to use the item to cause death or serious bodily injury.” State v. McGouey, 229 S.W.3d 668, 674 (Tenn. 2007). “Serious bodily injury” means, in pertinent part, bodily injury that involves a substantial risk of death, protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty. Tenn. Code Ann. § 39-11-106(a)(36).
The Court found that the pellet gun here was neither deadly per se nor deadly in its manner of use. First, the Supreme Court has clearly held that a pellet gun is not a deadly weapon per se. State v. McGouey, 229 S.W.3d 668, 672 (Tenn. 2007). Second, the defendant sitting in his car – whether he pointed the gun at her or simply displayed it – was not using the pellet gun “in a manner that could cause death or serious bodily injury.” The Court reversed the trial court and found Mr. Miller guilty of simple assault instead.
Congratulations to Mr. Miller and his lawyers, Jeremy Epperson and Caroline Ballentine at trial, and Mitchell Raines on appeal.