IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1997 March 4, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9610-CR-00445 )
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER SUE ANN TIDWELL, ) JUDGE )
Appe llant. ) (Assau lt & Disord erly Con duct)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY A. DEVASHER JOHN KNOX WALKUP On Appeal Attorney General and Reporter Senior Assistant Public Defender GEORGIA BLYTHE FELNER
JEFFERSON T. DORSEY Assistant Attorney General At Trial 425 5th Avenu e North Assistant Public Defender Nashville, TN 37243 1202 Stahlman Building Nashville, TN 37201 VICTOR S. JOHNSON District Attorney General
PAMELA ANDERSON
Assistant District Attorney General 1202 Stahlman Building
Nashville, TN 37201
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defe ndan t, Sue A nn T idwell, a ppea ls as of r ight pu rsuan t to Ru le 3, Tennessee Rules of Appellate Procedure. She was convicted after a bench trial of one count of simple assault, a Class B misdemeanor, and one count of disord erly conduct, a Class C misde meano r.1 She was sentenced to six months, suspended with probation, for the assault conviction and orde red to pay a fifty- dollar ($50) fine fo r the disord erly cond uct conv iction. She appea ls both of h er convictions and the sentence for assault, raising two issues: (1) That the evidence was insufficient to support a verdict of guilt for assault or for disord erly condu ct, and (2 ) that the trial cou rt erred in imposing the maximum sentence for assa ult and failing to grant judicial diversion. We affirm the judgment of the trial court.
On January 19, 1996, Willie Burks2 with the Metropolitan Animal Control office in Nashville, Tennessee was conducting a routine patrol. His duties included patrolling for and picking up stray animals as well as issuing citations or summons to animal owners. He was driving on Louisiana Avenue and noticed two loose do gs, a black Labrador Retriever and a German Shepherd mix. They were located in front of a residential dwelling at 6009 Louisiana. While he was attempting to apprehend the dogs, the Defendant emerged from her house across the street a t 6006 L ouisiana . Burks asked the Defendant about the dogs
1 Tenn. Code A nn §§ 39-13-101(a)(3), 39-17-30 5(b).
2 W e not e tha t in the reco rd, he has b een altern ately re ferre d to a s “Bu rks ” and “Bur k.” W e will refer to the witness as “Burks” in this opinion.
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and she replied that she owned the Shepherd mix. Burks informed the Defendant that he would have to issue her a citation or pick up the dogs.
The Defendant attempted to put the Lab inside the fence around the 6009 property. Burks told her she could not do that because it was not her dog and that if the owner was not home, he would have to pick up the dog. The Defendant started talking loudly and cursing Burks . The D efend ant told him that he had no right to be o n the ne ighbor’s p roperty. Burks went into the yard to get the Lab and the Defendant distracted him. The dog ran away. Burks informed the Defendant that he was going to write her a summons for interfering and for letting her dog run loose . She told h im he “w asn’t gon na write h er anythin g.” Burks aske d for pro of of the Shep herd m ix’s vaccinations and the De fenda nt said Burks would have to call the animal clinic. The Defendant told Burks that she was not going to let him pick up the dogs. The Defendant continued to “rant and rave” at Burks, so he called his office to dispatch a police officer to the scene. He informed the Defendant that he was going to call the police and she told him she did not care and went back across the street to her house.
Burks sat in his truck w hile he waited for an officer to arrive. He observed a “Chihuahua lookin g dog ” runnin g bac k and forth be tween the De fenda nt’s property at 6006 and the property at 6008 Louisiana. Both houses were surrounded by a fence. There was a fence dividing the two houses with an opening between them through which the dog was running. Officer Georg e Espinoza of the Na shville Me tropolitan P olice De partme nt arrived. Burks explained the situation to Espin oza. The Defendant ran up to the police car and told Espinoza that the y did not know the law and that Burks could not enter the
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neigh bor’s property. Burks asked who owned the property adjacent to the Defe ndan t’s where he saw the little dog running and she told him she did not know who owned the property. The house at 6008 appeared to be vacant. The Defendant went inside her house. Burks tried to catch the “Chihuahua” and the Defendant yelled “if he don’t leave my dog alone I’m gone(sic) bust him in his damn head.” The D efenda nt bega n to run off her front porch, down a few steps. Officer Espinoza, who was standing at the bottom of the porch steps, stood between the De fenda nt and Burks and to ld the D efend ant tha t she d id not need to do that. The Defendant pushed Officer Espinoza with both hands. He then decided to arrest the Defendant and grabbed her left arm and walked her towards his cruiser. T he De fendan t was yelling that she would not lea ve her elderly mother and aunt alone in the house. She dropped herself to the ground and yelled at passing cars that Espinoza and Burks were trying to hurt her and take her dogs. A neighbor came by and offered assistance with the elde rly ladies if that was needed.
Officer Espinoza radioed for backup. Officer Suel arrived on the scene and also had no luck in gaining the Defendant’s cooperation. The offic ers dec ided to contact Sergeant Ogren. Sergeant Ogren could hear the Defendant yelling in the background during the conversation. When Ogren arrived, the Defendant went back inside her house. Ogren went to the door and knocked and told the Defendant that he needed to come in. The Defendant allowed Sergeant Ogren inside and he requested to see her driver’s license so Burks could issue the citations. The Defendant apologized and attem pted to dem onstra te how lightly she had pushed Officer Espinoza. Sergeant Ogren took the license outside and the Defendant again locked herself inside and would not open the door. No
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arrest was made at that tim e bec ause of con cern fo r the we lfare of th e elde rly women in the home. The officers took her license to the property room for her to retrieve rather than leaving it on the doorstep.
The Defendant testified at trial and presented a quitclaim deed indicating that she wa s an ow ner of the property at 6008 L ouisiana Ave., the p roperty adjacent to hers to which her dog was running. She described her small dog as a Dachshund. When the dogcatcher, Mr. Burks arrived, the Defendant said she assisted him in locating the owner of the black Lab that was running loose. The Defendant also said she attempted unsuccessfully to put the Shepherd mix dog in her yard, b ut did not s tate that it belonged to her. She testified that the Lab started to growl and she was telling B urks “y ou ain ’t supposed to be in this yard, get out of the yard so he said lady go on in your house and shut up, so I kind of stepped back and he said he was going to call the police.” When Officer Espinoza arrived, the Defen dant state d that she did not b elieve that Burks had a right to go in to the neighbor’s yard. The Defendant then noted that Burks was stating that he was going to get her Dachshund that he observed runnin g between the yards. She went inside her house and saw Burks w ith his “dog pole” talking with Espinoza. When she saw Burks and Espinoza enter her yard, she came out of the house and told B urks to lea ve. She s aid “Mak e him sto p” to Espinoza and was standing near him on the porch steps. She testified that she bumped Espinoza to get to her dog, which she was afraid would be hurt by the “dog pole.” When Espinoza arrested her, she dropped to the ground and screamed. The D efenda nt denied threaten ing to “bust” Burks’ head. She also denied pushing Officer Espinoza, but stated that “they kind of hit hands” as she ran by because she was holding them up to protect her chest. She denied
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screaming at passing cars. The Defendant denie d interfering with Burks’ attemp ts to catch the dogs, specifically that she did not physically step in front of him. Sh e adm itted that sh e told him to leave the dog alon e.
Bench warrants were issued in the Dav idson C ounty Metropolitan General Sessions Court on behalf of Willie Burks and Officer Espinoza for two counts of assa ult and one c ount o f disord erly conduct. The Defendant was convicted on March 25, 1996 in General Sessions Court of both counts of assault and the count of disorderly conduct. She appealed to the Criminal Court of Davidson Coun ty on March 29, 1996. A bench trial was conducted, after which the Defendant was convicted of one count of assault on Officer Espinoza and one count of diso rderly conduct. She was sentenced to six months on probation and a fifty-dollar ($50) fine, respectively. The D efenda nt filed a no tice of app eal to this Court on October 1, 1996. She also filed a petition to this Court for extraord inary appea l pursuan t to Rule 1 0, Ten nesse e Rules of Appe llate Procedure, to stay execution of her sentence pending her appeal. This Court ordered, under Rule 8 of the Tennessee Rules of Appellate Procedure, governing conditions of release pending appeal, that the petition be granted because the appeal would become moot in the absence of a stay of execution.
W e now consider the merits of the Defenda nt’s issues in this app eal. In her first issue, the Defenda nt conten ds that the evidenc e was ins ufficient to support her convictions. When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light mos t favora ble to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reas onable doubt. Jackson v.
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Virgin ia, 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the we ight an d value to be g iven the eviden ce, as well as all factual issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S .W .2d 62 0, 623 (Ten n. Crim . App. 1 987). N or ma y this court reweigh or reevalu ate the ev idence . State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 19 78).
In a case tried without a jury, the verdict of the trial judge is entitled to the same weight on appea l as a jury verd ict. State v. H atchett, 560 S.W.2d 627, 630 (Tenn. 1978 ). On a ppea l, the State is entitled to the strongest legitimate view of the evidenc e and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.
The Defendant argues that the eviden ce was insufficient to suppo rt a verdict of guilt for assault. She was convicted based on the following provisions regarding the offense of assault: “(a) A person commits assault who: (3) Intentio nally or knowingly causes physical conta ct with a nothe r and a reaso nable perso n wou ld rega rd the c ontac t as extre mely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a )(3). She contends that the State failed to prove that she intentionally or knowingly committed the assault. “‘Intentional’ refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’s conscious objective or de sire to
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engage in the conduct or cause the re sult.” Tenn. Co de Ann. § 3 9-11-106(a )(18). “Knowing refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduc t or that the circum stance s exist. A pe rson ac ts know ingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably ce rtain to cause the result.” Tenn. Code Ann. § 39-11- 106(a)(2 0).
The Defendant argues that any contact with Officer Espinoza was an unintentional result of her rushing down the sta irs to give aid to her do g. Yet, considering the evidence in the light most favorable to the State, it reflects that the Defen dant actively pushed the officer. Willie Burks testified that as the Defendant was running off the porch, Officer Espinoza told her to stop and stepped in front o f her. H e furthe r testified that “she pushed him and almost knocked him off his feet.” Officer Espinoza testified that the Defendant came down the ste ps an d he to ld her n ot to go toward Burks . He ste pped in front of her and she pushed him “[j]ust opened hand, just pushed me backwards [with] two hands .” The Defendant herself testified that she knew her body would touch the officer’s if she tried to go around him on the steps. She testified that she anticipated him getting in front of her and admitted that she h eld her hands up. From the testimony presented at trial, there is sufficient evidence to establish that the Defe ndan t either intentio nally or k nowin gly eng aged in con duct th at wou ld result in an assault as indicated by Tennessee Code Annotated section 39-13- 101(a)(3).
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The Defendant also argues that the State failed to prove that the contact made with Office r Espino za was “extreme ly offensive o r provoca tive.” Specifically, she contends that the officer did not testify that it was offensive or that he felt prov oked . How ever, e stablis hing th is element of the offense does not require proof tha t a certain individual experience d the act as extrem ely offensive or provocative, but that a “reasonable person” would consider the act as such. See Tenn. Code Ann. § 39-13-101(a)(3). This is an ob jective standard measu red by what a reasonable person would think if he or she were pushed backwards. With this in m ind, it is like ly that a re ason able p erson would consider being shoved by som eone w ith two hands as offens ive or provo cative. In addition, Officer Es pinoza did testify that he felt angry “[w]hen she pushed me yes, I was angry, caus e if I pus hed h er she ’d be angry.” The Defendant testified that after she pushed him the officer said “‘you don’t touch me’ and he pushed me back. He said ‘you keep your hands off of me’ and his mouth started quivering real bad.” This we believe is sufficient to sustain a finding of guilt for the offens e of assa ult.
The Defendant also charges that the evidence was insufficient to sus tain her conviction for disorde rly condu ct. She was convicted under the provision of the statute that reads: “(b) A person also violates this section who makes unreasonable noise wh ich preve nts other s from c arrying on lawful activities .” Tenn. Code Ann. § 39-17-305(b). The Defendant argues that the State failed to prove that she made unreasonable noise although she yelled at passing cars. Furthermore, she claims that her behavior was protected speech as provided for in the Firs t Ame ndm ent to th e Con stitution of the United S tates and Article I, section 19 of the Tennessee Constitution. The Defendant cites two cases from
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this Court for the proposition that her verbal communications constituted legitimate opposition to police action rathe r than “f ighting words ” that wo uld susta in a convictio n for disord erly cond uct. See Garvey v. State, 537 S.W.2d 709 (Tenn. Crim. App. 1975); State v. Ina C. S cott, C.C.A. N o. 17, Me igs Cou nty (Tenn. Crim. App., Knoxville, Mar. 16, 1989). In Garvey, the Defe ndant y elled “sooey” at a police officer, which was not considered to be “fighting words.” Garvey, 537 S.W.2d at 711. In Scott, the defen dant, with the assistance of two compatriots, objected to her husband’s arrest and “mounted a loud, profane and lewd verbal as sault on th e sheriff.” Slip op. at 2. A crowd of 30 or 40 persons gathered, her friends eve n tried to get he r to calm down , yet she eventu ally “‘slung a cup of ice across the lot’ and called the sheriff ‘a fat son of a bitch.’” Id. A panel of this Court found her words to be protected speech, noting that she never threatened any form of physical assault. Slip op. at 5. The State cites State v. Creasy, 885 S .W .2d 82 9 (Te nn. C rim. App. 1994), in which the defendant was convicted of disorderly conduct when, in response to a patrol officer’s attempt to issue him a parking citation, he placed himself between the officer and the car, hu rling ep ithets, c lench ing his fist, and pointing at the officer. Id. at 831. This Court distinguished Creasy from Scott, noting that the defen dant’s behavior was threatening such that it would support a diso rderly condu ct convictio n. Id. at 832.
We note that the opinions cited address differen t portion s of the disord erly conduct statute than that with which we are concerned. While the aforementioned cases dealt with whether the defendants’ speech rose to the level of threate ning conduct, the case sub judice involves the determination of whether the Defendant’s conduct prevented Burks and Espinoza from carrying
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on lawful activity. There is evidence in the record that the Defendant approached Burks when he first attempted to catch the Lab and the Shepherd mix. He testified that the Defendant tried to put the Lab inside the neighbor’s fence and when he went in to catch the dog, she began talking loud and cursing at him. She distracted Burks, which resulted in the dog running off. Burks told the Defendant he was going to write her a citation and she disagreed. The Defendant told Burks she would not allow him to pick up the dogs. When Officer Espinoza was dispatched to the scene, the Defendant continued to object loudly. Burks’ attempts to ca tch the Dach shund run ning betwee n the Defen dant’s yard and the adjacent house were thwarted when the Defendant threatened to “bust your damn head,” and later ran toward him. T his culm inated in the a ssau lt against Espinoza. Afterwards, the D efendant co ntinued to yell at pass ing cars and res isted prod ucing he r driver’s licens e by lockin g herse lf in the hou se.
The Defen dant’s co urse of co nduct, w hich con sisted of ye lling, cursing and threatening Burk s, resulted in his failure to engag e in his ass igned d uty to procure the stray dogs.3 We believe there was sufficient proof to establish that the Defendant engaged in disorderly conduct prohibited by Tennessee Code Annotated section 39-17 -305( b). Th erefor e, we c onclu de tha t this issu e is without m erit.
In her seco nd issue , the Defe ndant c ontends that the trial court erred by impo sing the maximum sentence for assault and for failing to grant judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. The Defe ndan t’s conviction for assault by engaging in extremely offensive or
3 See Nashville, Tenn., Code §§ 8.04.010, 8.04.120.
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provocative contact constitute s a Clas s B mis deme anor. See Tenn. Code Ann. § 39-13-1 01 (a)(3), (b). She was sentenced to six months probation, the maximum length of senten ce for that m isdem eanor c lass. See Tenn. Code Ann. § 40-35-11 1(e)(2).
When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence with a presum ption that the determ inations mad e by the trial court are correct. Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fa cts and c ircums tances ." State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial c ourt's findings of fact are adequately supported by the record, then
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we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
The misdemeanant, unlike the felon, is not entitled to the presumption of a minim um se ntence . State v. Creasy, 885 S.W .2d 829 (Te nn. Crim. Ap p.1994). The Crim inal Sentence Reform Act of 1989 requires trial judges sentencing misdemeanor defendants to set a percentage of the sentence after which a defendant is eligible for certain rehabilitative release programs, such as wo rk release, furloughs, and trusty status. Tenn. Code Ann. § 40-35-302(d). The percentage must be between zero and seventy-five percent. In determining the percentage of the sentence, the court should consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995); see also Tenn. Code Ann. § 4 0-35-30 2(d). Furthermore, the trial judge has the authority to place the defendant on probation immediately after sentencing. Tenn. Code Ann. § 40- 35-302 (e)(2).
The Defendant charges that the trial court failed to consider and to place on the record the a pplicable statutory enhancement and mitigating factors when determining the length of her sentence. However, we find no statutory requirement that a trial judge document consideration of the enhancement and mitigating factors unless ordering a term of confine ment a s part of a misdemeanor sentence. T he Code provision govern ing misdem eanor sentences states that, when imp osing a m isdemea nor sentenc e, the trial court “shall fix a spec ific numb er of mo nths, day s or hou rs . . . The court shall impose a sentence consistent with the purposes and principles of this chapter.” Tenn. Code Ann. §
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40-35-302 (b). When confinement is ordered, “[i]n determining the percentage of the sentence to be served in actual confinement, the court shall consider the purposes of this chapter, the principles of sentencing, and the enhancement and mitigating factors set forth herein, and shall not impose such percentages arbitrarily.” Te nn. Co de Ann . § 40-35 -302(d); Palmer, 902 S.W .2d at 393 -94.
W e observe that the trial judge failed to state on the record his sentencing decis ion in reference to the purposes and principles of the Act, thus warranting a de novo review. Ye t, the misd emea nant, un like the felon , is not entitled to the presum ption of a m inimum senten ce. State v. Buck meir, 902 S.W.2d 418, 424 (Tenn. Crim. App. 1995). The Defendant was convicted of assaulting a police officer as he attempted to prevent another possible assault by the Defendant on an anim al con trol officia l. With the circ ums tance s of the case in mind, we cannot conclude that a six-m onth sentence was excessive. Nor can we conclude that the trial cou rt erred by failing to con sider e nhan cem ent an d mitigating factors because the Defendant was placed on full probation. Cons ideration of the factors is only required when a term of confinement has been ordered. Therefore, we find this issu e to be w ithout me rit.
The Defenda nt also charge s that the trial court erred by failing to order expun gable probatio n, or in othe r words, jud icial diversion . We note initially that, because the Defe ndant h as failed to cite authority to support her argum ent, this issue is waived. T enn. C t. Crim. Ap p. R. 10(b ); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988 ). The Defendant notes that the General Sessions judge ordered such expu ngable prob ation. The reco rd indicates that the Criminal Court judge stated: “I sentence her to six months not on a 40-35-313
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as was below . . . The six months will be on supervised probation . . . .” Yet, we have found nothin g in the record that indicates that the Defendant requested judicial diversion at the Criminal Court level. Under these circumstances, we cannot conclude that the trial court erred in denying judicial diversion.
Accord ingly, the jud gmen t of the trial cou rt is affirmed .
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DAVID H. WELLES, JUDGE
CONCUR:
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JOHN H. PEAY, JUDGE
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JOSEPH M. TIPTON, JUDGE