Aggravated assault reduced to assault because PVC pipe was not used as a deadly weapon

In an interesting case from 2012, the Tennessee Court of Criminal Appeals reduced a defendant’s aggravated assault conviction to assault because there was insufficient evidence that a PVC pipe was used as a deadly weapon.  It’s incredibly tough to win an appeal based on insufficient evidence because it requires proving that no reasonable jury could have found the essential elements of the offense beyond a reasonable doubt.

The essential element at issue in this case was “deadly weapon.”  A deadly weapon transforms a regular assault, an A misdemeanor, to aggravated assault, a C felony.  Tennessee Code Annotated section 39-11-106 defines “deadly weapon” as a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.  Under the same statute, “serious bodily injury” involves a substantial risk of death; protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty; or a broken bone of a child who is twelve (12) years of age or less.

In this case, the defendant struck the victim ten to twelve times on the legs and buttocks with a PVC pipe that was originally ten to fifteen feet but had broken down to a foot and a half “nub” after the beating.  The victim had welts and bruising from the attack but did not seek medical treatment for her injuries.  She testified that she was not in “severe pain” but was “sore” after the assault.  Based on the foregoing evidence, the jury convicted the defendant of aggravated assault and the trial court imposed a thirteen-year sentence.

Reviewing the facts, the court of criminal appeals determined that the evidence was insufficient to support a finding that the defendant used or intended to use the PVC pipe in a manner that could cause death or serious bodily injury.  The appellate court emphasized that the defendant hit the victim on the legs and buttocks and that the PVC pipe shattered down to a nub.  While the evidence was insufficient for aggravated assault, it was sufficient for assault.  Accordingly, the Tennessee Court of Criminal Appeals modified the defendant’s conviction for aggravated assault to assault and remanded the case for a new sentencing hearing.

As a note of caution, I would add that this case could have easily gone the other way.  For example, if the victim had testified that she was in severe pain, that would have likely been sufficient for a finding of aggravated assault.  Or, if the blows had been harder or struck the defendant in a sensitive area, that may have been sufficient to convict the defendant of aggravated assault.  So, the lesson here is not PVC pipe ≠ deadly weapon.  The lesson is PVC pipe may not be a deadly weapon depending on the facts.

State v. Osborne, No. M2010-02581-CCA-R3-CD (Tenn. Crim. App. Feb. 27, 2012)

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