State of Tennessee v. Gregory Goff ( 2020 )

11/30/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
October 6, 2020 Session
STATE OF TENNESSEE v. GREGORY GOFF
Appeal from the Circuit Court for Madison County
No. 19-465 Roy B. Morgan, Jr., Judge
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No. W2020-00153-CCA-R3-CD
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A Madison County jury convicted the defendant, Gregory Goff, of especially aggravated
robbery and aggravated assault for which he received an effective thirty-five-year sentence.
On appeal, the defendant challenges the sufficiency of the evidence supporting his
convictions and the trial court’s jury instruction regarding self-defense. After a thorough
review of the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.
Jessica F. Butler, Assistant Public Defender, Tennessee District Public Defenders
Conference, Franklin, Tennessee (on appeal) and Jeremy B. Epperson, Assistant Public
Defender, Jackson, Tennessee (at trial), for the appellant, Gregory Goff.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On March 8, 2019, the defendant attacked the victim, Marshall DeBerry, with a
hatchet as the two conversed at a bus stop located near the In Town Apartments in Jackson,
Tennessee. After doing so, the defendant took $13.00 and a $20.00 bus card from the
victim’s pocket. Apart from Joe Taylor, a mutual acquaintance of both the victim and the
defendant, no one else was in the area at the time of the attack. For his actions, a Madison
County grand jury indicted the defendant for especially aggravated robbery and aggravated
assault. Tenn. Code Ann. §§ 39-13-102(a)(1)(A), -403. The defendant proceeded to trial
where the following facts emerged.
The victim used crack cocaine on the morning of March 8, 2019, before meeting
Mr. Taylor at approximately 2:00 p.m. As the two talked, the defendant, whom the victim
did not know, joined them. The victim soon left the group in order to buy alcohol at a
nearby liquor store. Prior to purchasing a $2.00 bottle of vodka, the victim had $15.00 and
a $20.00 bus pass in his front jacket pocket. Thus, when he left the liquor store and rejoined
the defendant and Mr. Taylor, the victim had $13.00 and the bus pass in his pocket.
The victim, the defendant, and Mr. Taylor proceeded to drink the bottle of vodka
after which the defendant asked the victim for $5.00. The victim responded that he “didn’t
have it” and began walking away. As he did, the defendant approached the victim from
behind and hit the victim in the head three times with a hatchet. At the time, the victim did
not know what type of weapon the defendant used as he had not seen the defendant with a
weapon prior to the attack. However, the victim recalled the defendant’s fist was clenched
and it appeared the defendant was holding something inside his jacket sleeve.
The victim described the attack in further detail, stating the defendant first hit the
left side of the back of his head. The defendant then immediately hit the right side of the
back of the victim’s head. Finally, the defendant hit the victim’s ear, causing the victim to
fall and briefly lose consciousness. When the victim woke, he was still on the ground, his
head was burning, and he felt dazed. The victim saw Mr. Taylor “holding [the defendant]
back” and shouting “why you hit him.” As the defendant, who was holding a hatchet with
a wooden handle, attempted to break free of Mr. Taylor’s grasp, the victim fled the scene.
The victim testified that he did not see the defendant take $13.00 or his bus pass, but both
items were missing after the attack and he believed the defendant took them. The victim
stated though the attack happened quickly, he feared for his life.
After leaving the area, the victim stopped Officer Will Seward of the Jackson Police
Department and reported he was attacked by a black male wearing black clothing. The
victim did not report any missing property to Officer Seward at the time. At trial, Officer
Seward described his interactions with the victim, noting that when the victim approached
him, the victim “was bleeding from his head from a large laceration.” Officer Seward
photographed the victim’s injuries, copies of which were entered into evidence. In addition
to the injuries, Officer Seward also observed signs of intoxication on the victim, including
the smell of alcohol, and noted the victim admitted to drinking though he did not disclose
any drug use. Officer Seward prepared a police report within which he described the victim
as “extremely intoxicated.” However, at trial, Officer Seward explained he did not know
the victim’s level of intoxication at the time of the crimes, noting the victim did not have
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slurred speech but his eyes were glassy and the victim was “a little unsteady, but he also
had a head wound.” The victim testified that he did not consider himself “extremely
intoxicated” at the time as he was no longer high and only had one drink of vodka before
the crimes.
Due to his injuries, EMS responded to the scene and provided first aid to the victim.
The victim initially refused medical attention and did not go to the hospital because he was
angry. After approximately four hours, however, the victim experienced significant
bleeding and ultimately went to the hospital where he remained overnight. The victim
received nearly thirty staples to his head and ear and suffered a skull fracture as a result of
three separate lacerations. At the time of trial, the victim stated he is able to function and
maintain employment though he still experiences pain and occasional dizziness and his
head remains scarred and disfigured in areas. The victim also acknowledged a 2015 theft
conviction.
Regarding the investigation, Officer Seward testified he was unable to identify a
suspect on March 8, 2019. However, the investigation progressed after Investigator Joey
Williams of the Jackson Police Department interviewed and obtained written statements
from both the victim and Mr. Taylor. During the interviews, the victim provided a
description of his attacker as a “black male, stocky build, 40 to 50 years of age,” and Mr.
Taylor stated the defendant carried a hatchet. As a result, Investigator Williams developed
the defendant as a suspect, created a photographic lineup which included the defendant’s
picture, and presented the lineup to the victim. The victim identified the defendant as his
attacker and on the back of the lineup, wrote, “that’s who attacked me with a hatchet. He
took $13.00 and my $20.00 bus card.” Investigator Williams testified the victim was “very
positive” in his identification of the defendant. The photographic lineup was entered into
evidence.
Investigator Williams did not locate the weapon during the investigation but
obtained the victim’s medical records, certified copies of which were entered into evidence.
Investigator Williams acknowledged the records described the victim’s level of pain as
“moderate” and indicated the victim “admits to ETOH use today.” Investigator Williams
did not know to what “ETOH use” referred but noted the victim was forthcoming about his
alcohol and cocaine use on the day of the incident.
Mr. Taylor also testified. On March 8, 2019, he and the defendant drank gin
together before they encountered the victim around 2:00 p.m. After their initial gathering,
Mr. Taylor and the defendant went to the liquor store where Mr. Taylor bought more
alcohol. Mr. Taylor and the defendant returned to the area of the In Town Apartments and
reunited with the victim. At the time, Mr. Taylor was the only person drinking and did not
recall if the victim had a bottle of vodka that was passed among the men.
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While his back was turned to the victim and the defendant, Mr. Taylor heard a
“commotion” that “sounded like something like you just picked up and just dropped it.”
When he turned around, Mr. Taylor saw the victim lying on the ground surrounded by a
pool of blood. The defendant was standing over the victim, and no one else was in the area
at the time. Mr. Taylor “got in between” the defendant and the victim, and the defendant
yelled to the victim, “Get your hands out your pocket.” Mr. Taylor believed the defendant
“felt threatened . . . as if [the victim] might have had something in his pocket.” However,
Mr. Taylor did not see the victim with a weapon and did not see the victim threaten the
defendant.
After separating the two, Mr. Taylor told the defendant to leave the victim alone,
and the three men dispersed. Mr. Taylor did not know why the defendant attacked the
victim, noting he did not witness a disagreement between the victim and the defendant.
Further, Mr. Taylor testified he did not see the defendant attack the victim, did not see the
weapon used by the defendant, and did not see the defendant take anything from the victim.
After reviewing his written statement, Mr. Taylor acknowledged he told Investigator
Williams that the defendant usually carried a hatchet. Mr. Taylor, however, clarified he
did not see the defendant with a hatchet on March 8, 2019, or at any other time. Finally,
Mr. Taylor stated that the defendant called him from jail, the two began yelling, and Mr.
Taylor hung up the phone.
At the conclusion of the proof, the jury convicted the defendant of especially
aggravated robbery and aggravated assault. The trial court subsequently merged the
convictions and imposed an effective sentence of thirty-five years. After the trial court
denied the defendant’s motion for a new trial, this timely appeal followed.
Analysis
I. Sufficiency of the Evidence
The defendant contends the evidence is insufficient to support his convictions for
especially aggravated robbery and aggravated assault because “there is no evidence that
[the victim] was deprived of any property, and his injuries did not rise to the level of serious
bodily injury that is statutorily required for either offense.” The State submits that it
presented ample evidence to support both convictions as the defendant “used a deadly
weapon to attack [the victim], [] [the defendant] stole [the victim’s] money and bus card,
and [] [the victim] suffered serious bodily injury as a result of the attack.” Upon our review
of the record, we agree with the State.
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When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme
Court has stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)). “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);
Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,
335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
Moreover, the jury determines the weight to be given to circumstantial evidence and the
inferences to be drawn from this evidence, and the extent to which the circumstances are
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consistent with guilt and inconsistent with innocence are questions primarily for the jury.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
This Court, when considering the sufficiency of the evidence, shall not reweigh the
evidence or substitute its inferences for those drawn by the trier of fact. Id.
The defendant was convicted of especially aggravated robbery. Robbery is “the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” Tenn. Code Ann. § 39-13-401. An aggravated robbery occurs when a
robbery is “[a]ccomplished with a deadly weapon . . . or [w]here the victim suffers serious
bodily injury.” Tenn. Code Ann. § 39-13-402. When “accomplished with a deadly
weapon” and when “the victim suffers serious bodily injury,” a robbery is elevated to
especially aggravated robbery. Tenn. Code Ann. § 39-13-403.
The defendant was also convicted of aggravated assault. Tennessee Code
Annotated sections 39-13-101(a)(1) and 39-13-102(a)(1)(A)(i) provide that a person
commits aggravated assault by intentionally or knowingly committing an assault that
results in serious bodily injury to another. A person commits assault by intentionally,
knowingly, or recklessly causing bodily injury to another. Tenn. Code Ann. § 39-13-
101(a)(1).
As it relates to both convictions, “[s]erious bodily injury” is defined as bodily injury
that involves: (A) a substantial risk of death; (B) protracted unconsciousness; (C) extreme
physical pain; (D) protracted or obvious disfigurement; (E) protracted loss or substantial
impairment of function of bodily member, organ or metal faculty; or (F) a broken bone of
a child who is twelve (12) years of age or less. Tenn. Code Ann. § 39-11-106(a)(36).
“Protracted” in this context means “‘delayed or prolonged in time.’” State v. Ronald L.
Carroll, No. E2013-01781-CCA-R3-CD, 2014 WL 1759101, at *5 (Tenn. Crim. App. Apr.
30, 2014) (quoting State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338,
at *5 (Tenn. Crim. App. Aug. 2, 1996)). In contrast, “bodily injury” involves “a cut,
abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or
impairment of the function of a bodily members, organ, or mental faculty.” Tenn. Code
Ann. § 39-11-106(a)(3). Concerning these definitions, this Court has stated:
While the phrase “serious bodily injury” . . . is not susceptible to precise legal
definition, it must describe an injury of a greater or more serious character
than that involved in a simple assault. The distinction between “bodily
injury” and “serious bodily injury” is generally a question of fact for the jury
and not one of law.
State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).
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This Court has explained that when determining whether a victim’s injuries amount
to serious bodily injury the “subjective nature of pain is a question of fact to be determined
by the trier of fact.” State v. Ryan Love, No. E2011-00518-CCA-R3-CD, 2011 WL
6916457, at *4; see State v. Eric A. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL
448653, at *5 (Tenn. Crim. App. Feb. 23, 2006) (“The difference between ‘physical pain’
and ‘extreme physical pain’ is analogous to the difference between ‘bodily injury’ and
‘serious bodily injury,’ and as such, determining the severity of pain suffered is within the
province of the jury.”); see also State v. Holly Lack Earls, No. 01C01-9612-CC-00506,
1998 WL 15896, at *7 (Tenn. Crim. App. Jan. 16, 1998) (finding serious bodily injury
where the victim’s injuries included a broken finger, a broken arm, requiring a metal plate,
injuries to the victim’s shoulder, legs, and ankles, loss of “a lot of blood,” was in pain “for
a long time,” and was hospitalized “for a couple of days”); State v. Darren Matthew Lee,
No. M1999-01625-CAA-R3-CD, 2000 WL 804674, at *4 (Tenn. Crim. App. June 23,
2000) (holding serious bodily injury occurred where the victim was kicked “repeatedly” in
the face, resulting in two black eyes, severe facial swelling and a torn lip, was unable to
work for a week, suffered headaches for three to four weeks, and suffered “extreme
physical pain”); State v. Chester Dale Gibson, NO. M2005-01422-CAA-R3-CD, 2006 WL
770460, at *11 (Tenn. Crim. App. Mar. 24, 2006) (finding the victim suffered serious
bodily injury after experiencing repeated blows to the face causing fractures to the nasal
and eye area, two black eyes, a bruise to the right temple, a bruised lip and swollen and
bloody nose, and was in “extreme physical pain”), perm. to appeal denied (Tenn. Aug. 28,
2006).
Here, the evidence is sufficient to sustain the defendant’s convictions for especially
aggravated robbery and aggravated assault. Viewing the evidence in a light most favorable
to the State, the record indicates the defendant hit the victim in the back of the head three
times with a hatchet. After hitting the victim with the hatchet, the defendant stole $13.00
and a bus pass from the victim’s pocket. The victim testified he saw the defendant holding
the hatchet. In both his written statement and at trial, Mr. Taylor provided the defendant
was known to carry a hatchet. The victim identified the defendant in a photographic lineup
as the man who attacked him with a hatchet and then took $13.00 and his bus pass. As a
result of the attack, Officer Seward testified the victim was bleeding from a “large
laceration” and required medical attention, and the victim testified he lost consciousness,
suffered a skull fracture, received nearly thirty stitches, remains scarred and disfigured, and
continues to experience pain and dizziness.
The defendant argues that the victim’s injuries did not rise to the level of serious
bodily injury and that the State failed to prove the defendant “knowingly obtained or
exercised control over the victim’s property” as neither the victim nor Mr. Taylor testified
that they saw the defendant “take any items out of [the victim’s] pockets.” However, based
upon the verdicts returned by the jury, it is clear the jury found the victim’s skull fracture,
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scars, disfigurement, and continued pain and dizziness sufficient to find the defendant
inflicted serious bodily harm on the victim, a finding which was within their province as
the trier of fact. Barnes, 954 S.W.2d 760, 765-66. The jury’s verdict also makes clear the
jury found the victim’s testimony, detailing that he no longer had $13.00 or his bus pass
immediately after the defendant attacked him with a hatchet, sufficient to find the
defendant committed the especially aggravated robbery of the victim. As noted, the jury
determines the credibility of witnesses and the weight afforded to the evidence, and this
Court does not reweigh the evidence or substitute its inferences for those drawn by the trier
of fact. See Campbell, 245 S.W.3d at 335; Dorantes, 331 S.W.3d at 379. Thus, the
evidence is sufficient to support the defendant’s convictions for especially aggravated
robbery and aggravated assault. The defendant is not entitled to relief.
II. Jury Instructions
The defendant contends the trial court failed to properly instruct the jury concerning
the defense of self-defense. Specifically, the defendant argues the trial court committed
reversible error in charging the jury on self-defense by relying on an outdated jury charge
“which incorrectly permitted the jury to nullify the entire theory of self-defense if it
believed that [the defendant] was engaged in unlawful activity.” The defendant requests
plain error review of this issue, acknowledging he failed to object to the instruction during
trial and failed to raise the issue in his motion for new trial. The State concedes the trial
court provided an erroneous instruction based upon State v. Perrier, 536 S.W.3d 388
(Tenn. 2017), but asserts the defendant is not entitled to plain error relief “because the
defendant cannot establish that the issue was not waived for tactical reasons and because
reversal is not necessary to do substantial justice.” Upon our review, we conclude the
defendant is not entitled to relief.
Relying on State v. Perrier, 536 S.W.3d 388 (Tenn. 2017), the defendant contends
the trial court erred in instructing the jury concerning self-defense. In Perrier, our supreme
court clarified that “the phrase ‘not engaged in unlawful activity’ is a condition on a
person’s statutory privilege not to retreat” rather than a complete bar to self-defense. Id.
at 401. “[A] duty to retreat does not mean that a person cannot defend herself or himself.”
Id. at 404. Consistent with the common law duty to retreat, a defendant engaged in
unlawful activity “‘must have employed all means in his power, consistent with his own
safety, to avoid danger and avert the necessity of’” using force. Id. at 404 (quoting State
v. McCray, 512 S.W.2d 263, 265 (Tenn. 1974)). Furthermore, when the defendant’s
unlawful activity is what provokes the other individual’s use of force, the defendant must
“abandon[ ] the encounter or clearly communicate[ ] to the other the intent to do so.” Tenn.
Code Ann. § 39-11-611(e)(2)(A); see also Perrier, 536 S.W.3d at 399 (noting that the
portion of the “no-duty-to-retreat rule” that required the defendant be “without fault in
provoking the confrontation” is presently codified in Tenn. Code Ann. § 39-11-611(e)(2)).
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We hold that a person is entitled to a jury instruction that he or she did not have to retreat
from an alleged attack only when the person was not engaged in unlawful activity and was
in a place the person had a right to be. Perrier, 536 S.W.3d at 401.
As applicable to the defendant’s claim on appeal, the trial court charged the jury, in
pertinent part, with self-defense as,
Now, included in the [d]efendant’s plea of not guilty is his plea of
self-defense. If a defendant was not engaged in unlawful activity and was in
a place where he or she had a right to be, or he or she would have a right --
Strike that. If a defendant was not engaged in unlawful activity and was in a
place where he or she had a right to be, he or she would have a right to
threaten or use force against the alleged victim when and to the degree that
the defendant reasonably believed the force was immediately necessary to
protect against the alleged victim’s use or attempted use of unlawful force.
The defendant would[] also have no duty to retreat before threatening or
using force.
If a defendant was not engaged in unlawful activity and was in a place
where he or she had a right to be, he or she would also have a right to threaten
or use force intended or likely to cause death or serious bodily injury. If the
[d]efendant had a reasonable belief that there was an imminent danger of
death or serious bodily injury, the danger created the belief of imminent death
or serious bodily injury was real or honestly believed to be at the time and
the belief of danger was founded upon reasonable grounds, the [d]efendant
would also have no duty to retreat before threatening or using force likely to
cause death or serious bodily injury.
Based upon our supreme court’s holding in Perrier that a defendant’s engagement
in unlawful activity for the purpose of the self-defense statute is a threshold determination
to be made by the trial court, the trial court’s instruction in this case was erroneous.
However, it is undisputed that the defendant failed to challenge the self-defense instruction
at trial and raised the issue for the first time on appeal. Accordingly, we review this issue
under plain error.
Under the plain error doctrine, a defendant may obtain relief only if all of the
following criteria are satisfied: (1) the record clearly establishes what occurred in the trial
court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the
accused was adversely affected, (4) the issue was not waived for tactical reasons, and (5)
consideration of the error is necessary to do substantial justice. State v. Martin, 505 S.W.3d
492, 504 (Tenn. 2016); State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010).
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The defendant argues he was prejudiced by the trial court’s failure to make a
threshold determination regarding whether he was engaged in unlawful activity and is
entitled to relief under the plain error doctrine. The State contends the defendant is not
entitled to plain error relief because the defendant “cannot establish that the issue was not
waived for tactical reasons,” and consideration of the error is not necessary to do substantial
justice because “the defendant did not present any self-defense theory, so the instruction
had no impact on the jury’s verdict.” Upon our review and as detailed above, it is clear the
trial court failed to make the threshold determination regarding whether the defendant was
engaged in unlawful activity for the purpose of the self-defense statute and as a result,
provided an erroneous jury instruction. However, the record is absent any evidence that
the defendant was engaged in unlawful activity at the time of the assault. Rather, the victim
and Mr. Taylor testified that the defendant, the victim, and Mr. Taylor were simply
gathered in the area of the In Town Apartments drinking alcohol. The only additional
testimony regarding the defendant’s activity prior to the crimes came from the victim who
testified the defendant asked him for $5.00 prior the attack. As a result, no reasonable juror
would have found the defendant was engaged in unlawful activity prior to the crimes.
While the trial court erred in instructing the jury concerning self-defense, the defendant
was clearly not engaged in unlawful activity, and thus, any error on the part of the trial
court is harmless beyond a reasonable doubt. Accordingly, consideration of the error is
not necessary to do substantial justice, and the defendant cannot satisfy the criteria under
the plain error doctrine. Martin, 505 S.W.3d at 504; Hester, 324 S.W.3d at 56. The
defendant is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgments of the trial court.
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J. ROSS DYER, JUDGE
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