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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs July 17, 2002 STATE OF TENNESSEE v. WILLIAM JERRY NEAL, aka WILLIAM JAY NEAL
Direct Appeal from the Circuit Court for Bedford County No. 14846 Charles Lee, Judge

No. M2001-02364-CCA-R3-CD - Filed November 13, 2002

The defendant, William Jerry Neal, also known as William Jay Neal, appeals his jury convictions for especially aggravated burglary, a Class B felony, and vandalism under $500, a Class A misdemeanor, resulting in concurrent sentences of eleven years, three months and eleven months, twenty-nine days, respectively. On appeal, the defendant argues: (1) the evidence was insufficient to establish serious bodily injury, as required for a conviction for especially aggravated burglary; and (2) the trial court erred by failing to grant a new trial after learning that one of the jurors had once been incarcerated with the defendant. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES CURWOOD WITT, JR., JJ., joined. Stephen W. Pate, Murfreesboro, Tennessee (on appeal), and Robert Marlow, Shelbyville, Tennessee (at trial), for the appellant, William Jerry Neal. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS The victim, Troy Enfinger, and the defendant had known each other most of their lives. On November 8, 2000, while at the Jiffy Oil Station on Depot Street in Bedford County, the victim called the defendant and asked to borrow $20. The defendant and his uncle, Jackie Freeman, came to the station where the defendant loaned the victim the money. The victim agreed to go get some money and return to the station "in just a few minutes" to repay the defendant. However, the victim

did not return to the station because he did not have the money. Later that evening, the defendant came to the victim's house. The victim did not answer the defendant's knock and, believing that the defendant had left, went to bed. About ten minutes later, the victim got up to check on some clothes in the dryer and when he returned to his bedroom, the defendant was standing there with an aluminum baseball bat. Screaming that he wanted his $20, the defendant hit the victim across his back with the bat, causing him to fall facedown on the bed and "nearly knocking the breath out" of him. When the victim looked up, he saw the defendant swinging the bat toward his head, so he raised his left arm to block the bat. The defendant hit the victim again, this time breaking his left forearm. The victim said the "bone was sticking out of" his bleeding arm, and the severity of the blow caused him to defecate in his pants. As the victim begged the defendant not to hit him again, the defendant swung the ball bat and broke the headboard of the victim's bed and a stereo. The defendant also knocked a hole in the wall. The defendant told the victim, "You ought to know better than to do me the way you done me. . . . You know I have killed somebody before. What makes you think I won't kill you[?]" After the defendant calmed down somewhat, he allowed the victim to go to the bathroom. The defendant then called someone on his cellular telephone, instructing that person to send his uncles, Bill Freeman and Jackie Freeman, to the victim's house because he had "whipped [the victim's] ass because [the victim] didn't pay him the $20 back immediately." Shortly thereafter, Bill Freeman and Jackie Freeman arrived at the victim's house, and Bill Freeman asked the defendant, "What have you done?" Bill Freeman told the defendant to leave and offered to take the victim to the hospital emergency room, but the victim refused his offer and called his sister instead. The Freemans then left, and the victim called the Shelbyville Police Department. Two officers responded to his call and, soon thereafter, his father and brother arrived to take him to the emergency room for treatment of his injuries. At the emergency room, his arm was put in a splint, he was given an injection of morphine for pain, and he was instructed to see an orthopedic doctor. He subsequently saw an orthopedic doctor in Tullahoma who said he needed surgery because the bones in his arm had been crushed. However, he did not have any insurance and was unable to have the surgery. He next saw his family doctor in Shelbyville who referred him to Dr. Robert Crous. Dr. Crous put a cast on his arm which he had to wear for eight weeks. During that eight weeks, he was unable to work because his job as a shingle layer required the use of both arms. On cross-examination, the victim admitted that he had drunk a six-pack of beer the night of the incident but denied having an axe handle or any type of wooden weapon in his house. He estimated that thirty minutes had elapsed between the time he borrowed the $20 from the defendant and the time the defendant assaulted him. He described the injury to his arm: "I could feel the bone and see the red meat. I couldn't see the bone with the naked eye. I knew the bone had come out of the skin. I have got a scar where the bone came out right here." The victim said that his arm was still bothering him. Officer Cody King of the Shelbyville Police Department testified that he responded to the call at the victim's residence on November 8, 2000. The defendant was not at the residence when he arrived. King walked around the outside of the victim's house and noticed a truck with the -2-

driver's side door open and the victim's bedroom window opened "just a little bit." Underneath the window was a plastic table which had a smeared footprint on top of it. The toe of the footprint was pointed toward the house. Inside the victim's house, he observed blood in the bedroom, kitchen, and bathroom. The victim, who was "very excited" and had a bloody towel wrapped around his arm, appeared to be in significant pain. King did not smell alcohol on the victim or see an axe handle or mallet in the victim's house. He observed the damage to the headboard of the victim's bed and the stereo but did not remember if the walls were damaged. Officer Billy Smith of the Shelbyville Police Department testified that he responded to the call at the victim's residence with Officer King. Outside the residence, he observed a pickup truck with the driver's side door open and an open window in the victim's bedroom. Either an old table top or riding lawnmower was underneath the window, and on top of that object was "what was left of a foot print." The footprint appeared to be leading into the house, with the toes of the footprint pointed toward the house. Smith saw blood on the back concrete step of the house but did not see any blood in the victim's truck. Inside the victim's bedroom, the headboard of the bed and a stereo were "busted up," and there was a hole in the wall. Smith observed blood in the bedroom, hallway, and bathroom. The victim had a bloodstained towel wrapped around his arm and was in severe pain. The victim told him that the defendant had broken his arm and that the defendant might be at his uncles' apartment at Bedford Manor Apartments. The victim said that the defendant's uncles had been there before the police arrived. The victim also gave Smith a description of the defendant's vehicle. Smith subsequently went to the Bedford Manor Apartments and spotted a vehicle matching the description the victim had given him. While waiting outside the apartments in his patrol car, Smith saw someone get into the vehicle, back out onto the street, and head in his direction. When the driver saw Smith, the driver backed the vehicle onto the sidewalk, jumped out, and ran. Smith turned on his spotlight and saw the defendant run into an apartment building but could not see which apartment he entered. Smith got out of his patrol car and was waiting for other officers to arrive when the defendant came out and told him, "You have got me. What do you want? What is going on?" Smith told the defendant that he had been accused of assaulting the victim. The defendant replied, "I wasn't there but he probably owes somebody some money. I wasn't there." Smith arrested the defendant, and Officer King transported the defendant to jail. Dr. Robert Crous, an orthopedic surgeon, testified that he treated the victim for a fracture of the ulna shaft which was commonly known as a "night stick fracture." He first saw the victim five days after the injury on November 13, 2000. He placed the victim's arm, which was "quite swollen," in a splint but could not determine if the fracture was compound because five days had passed. The victim had a small cut close to the fracture which was healing. Dr. Crous last saw the victim on January 18, 2001, at which time his arm had completely healed and he released the victim to return to work. Dr. Crous testified that it took a "moderate to severe amount" of force to cause the fracture to the victim's forearm and rated his injury as "[m]oderately severe." On cross-examination, Dr. Crous testified that the general treatment for a compound fracture is to "cut it open, rinse the ends

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of the bone out, leave the wound open and close it a few days later." He said that the victim did not receive such treatment. The defendant testified that he loaned the victim $20 at the Jiffy Oil Station on the evening of the incident and that his uncle, Jackie Freeman, was with him at the time. The victim told the defendant he would repay him but did not say when. Later that evening, the victim called the defendant and asked him to come to his house because he had the money. The defendant testified as to the events that transpired at the victim's house: I went to [the victim's] house. . . . When I pulled[] in I had the door open. . . . I looked up and [the victim] was standing on like his

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