State of Tennessee v. David Brian Howard, M2016-02256-CCA-R3-CD

Defendant David Brian Howard and neighbor Randall Hickman had a recurring property-line dispute; confrontation occurred June 14, 2014 when Hickman’s group erected a fence on disputed land.
Video and witness testimony showed Howard pointing a loaded handgun at Hickman and others; Hickman and several neighbors testified about the incident with some inconsistencies about whether Hickman grabbed Howard’s hand or only the post.
Howard claimed he acted in self-defense (and defense of others) because Hickman grabbed and pulled him, risking injury to his surgically repaired neck; he acknowledged brandishing the weapon but said he never took the safety off.
A jury convicted Howard of aggravated assault (use/display of a deadly weapon); he received a three-year sentence to be served on probation; the trial court denied judicial diversion and acted as the thirteenth juror approving the verdict.
Posttrial, Howard appealed arguing (1) insufficient evidence due to perjured/inconsistent testimony, (2) trial court failed properly to act as thirteenth juror, (3) juror comment during trial required dismissal or mistrial, and (4) erroneous admission at sentencing of evidence about a prior acquitted charge.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Howard)	Held
Sufficiency of evidence / alleged perjury	Evidence (video, multiple witnesses) proves aggravated assault and negates self-defense beyond a reasonable doubt	Victim’s inconsistent testimony (post vs. hand) creates reasonable doubt; alleged perjury undermines conviction	Affirmed: evidence sufficient; jury resolved credibility; grabbing wrist did not as a matter of law make force reasonable
Trial court as thirteenth juror	Trial court properly reviewed and approved jury verdict in denying new trial	Sentencing remarks showed disagreement with verdict yet court failed to grant new trial	Affirmed: trial court found defendant’s belief honest but unreasonable and properly approved verdict
Juror comment about repetitive questioning	Comment was internal; no extraneous influence; defendant waived by not objecting	Juror’s remark showed bias/compromised impartiality; required dismissal or mistrial	Affirmed: issue waived; no admissible showing of extraneous prejudice; not plain error
Sentencing evidence of prior acquitted charge	Facts underlying acquittal may be considered at sentencing if proven by preponderance	Testimony that defendant had prior charge/acquittal was inadmissible and improperly considered in denying diversion	Affirmed: testimony about prior arrest/acquittal was irrelevant but trial court did not rely on it; denial of diversion supported by other factors

State v. Pope, 427 S.W.3d 363 (Tenn. 2013) (standards for sufficiency review)
State v. Bland, 958 S.W.2d 651 (Tenn. 1997) (credibility and weight of evidence reserved to trier of fact)
State v. Moats, 906 S.W.2d 431 (Tenn. 1995) (trial judge’s role and review as thirteenth juror)
State v. Winfield, 23 S.W.3d 279 (Tenn. 2000) (sentencing may consider facts by preponderance, even if underlying charge resulted in acquittal)
Carruthers v. State, 145 S.W.3d 85 (Tenn. Crim. App. 2003) (juror complaints arising inside jury not admissible as extraneous influence)
Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794 S.W.2d 738 (Tenn. Ct. App. 1990) (distinguishing extraneous influences from intra-jury pressures)
State v. Ellis, 453 S.W.3d 889 (Tenn. 2015) (distinguishing legal sufficiency from thirteenth juror review)
State v. Bise, 380 S.W.3d 682 (Tenn. 2012) (standard of review for sentencing decisions)