State of Tennessee v. Lloyd Arlan Jones ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 15, 2015 at Knoxville
STATE OF TENNESSEE v. LLOYD ARLAN JONES
Appeal from the Circuit Court for Williamson County
No. I-CR116852 Joseph A. Woodruff, Judge
No. M2015-00657-CCA-R3-CD – Filed January 14, 2016
The Defendant, Lloyd Arlan Jones, appeals as of right from his jury conviction for
domestic assault. The Defendant contends that the trial court erred by admitting several
hearsay statements into evidence and by declining to charge domestic assault by
extremely offensive or provocative physical contact as a lesser-included offense of
domestic assault by causing bodily injury. Furthermore, he submits that the cumulative
result of these errors entitles him to a new trial. Following our review, we discern no
error and affirm the trial court‟s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.
Vanessa P. Bryan, District Public Defender; Benjamin C. Signer, Assistant Public
Defender (on appeal); and Robert W. Jones and M. James Pulido, Assistant Public
Defenders (at trial), for the appellant, Lloyd Arlan Jones.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim R. Helper, District Attorney General; and Tammy J. Rettig, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On November 5, 2012, a Williamson County grand jury indicted the Defendant
for domestic assault by causing bodily injury to G.K., a thirteen-year-old child (“the
victim”), with whom he lived. See Tenn. Code Ann. §§ 39-13-101, -111. The case
proceeded to a trial by jury in January 2015.
At the Defendant‟s trial, Corporal Michael Deloach of the Williamson County
Sheriff‟s Office testified that, on August 8, 2012, he responded to a residence on
Pinewood Road regarding a domestic disturbance call. Upon his arrival at the home, Cpl.
Deloach observed the Defendant loading his truck, who was apparently in the process of
moving out. According to Cpl. Deloach, the Defendant was being assisted by two
children, G.K. and C.K.1 The children‟s mother, T.K., who placed the 9-1-1 call from a
neighbor‟s house, was not present initially.
Cpl. Deloach asked the Defendant “what was going on.” According to Cpl.
Deloach, the Defendant “seemed a little irritated” by his presence at the residence, and
the children “were just real quiet, . . . hardly look[ing] at [him] at that point.” The
Defendant replied to Cpl. Deloach, “She‟s mad at me and she called the cops . . . on me
again, and something about a phone.” At that time, T.K. emerged from the neighbor‟s
house, and Cpl. Deloach approached T.K. and asked her “what was going on[.]” T.K.
informed him that the verbal altercation “was about a phone that [the Defendant] had
taken[,]” and “[s]he was wanting the phone back, stating it was hers.” Cpl. Deloach said
that he then spoke with the Defendant again, who told him that he had bought the cellular
telephone for T.K. and paid for the plan, so Cpl. Deloach concluded that he could not
make the Defendant return the phone to T.K. Cpl. Deloach informed T.K. that “there
[was] nothing else [he] [could] do at that point.” Cpl. Deloach testified that he was
“about to clear the call,” when T.K. told him that the children “needed to show [him]
something, that they had an injury from an altercation they had the day before.”
Cpl. Deloach interviewed the children either on the front porch or inside the home;
he could not recall the exact location. G.K. and C.K. informed Cpl. Deloach that the
Defendant had spanked them the day before, August 7. G.K. showed Cpl. Deloach an
injury “that was right below his right buttocks[,]” which “was a real deep purple
bruise[,]” and C.K. showed him a “red scratch” “on his right buttocks.” Cpl. Deloach
further described G.K.‟s bruise: “It was probably about the size of—probably 3 inch
diameter. . . . It would be about softball size in area.” The Defendant admitted to Cpl.
Deloach “that he did take a switch to the children[,]” and Cpl. Deloach thereafter placed
the Defendant under arrest for domestic assault.
Cpl. Deloach took written statements from the children and T.K. that day and took
pictures of G.K.‟s injury. Two photographs of G.K.‟s bruise were admitted as an exhibit
to Cpl. Deloach‟s testimony.
1
Consistent with the policy of this court, minors are identified by their initials. And to further protect the
anonymity of the minor children, we will refer to their mother by her initials also.
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Detective Melissa Colvin with the Williamson County Sheriff‟s Office testified
that she worked primarily on domestic cases, including elder abuse and child abuse cases,
and that she conducted a “follow-up” in this case. Det. Colvin interviewed T.K., the two
children, and a neighbor, and she collected a “two foot long” tree branch, which was
identified by T.K. The branch was not “logged . . . into evidence” until October 2012.
Both C.K. and T.K. testified about the whipping they received at the hands of the
Defendant on August 7. C.K., fourteen years old at the time of trial, testified that in
2012, he lived on Pinewood Road with his mother, two brothers, sister, and the
Defendant. C.K. was asked about the incident leading to the Defendant‟s arrest.
According to C.K, he and G.K. were supposed to mow the yard that day but, after a lawn
mower tire went flat and there was a “yellow jackets‟ nest in the yard[,]” they could not
finish mowing the entire yard. When the Defendant returned home, “[h]e got mad”
because the yard was not completely mowed and “there was a tool left in the yard[.]”
The Defendant had the two boys “line[] up against the truck” behind the family‟s garage
and “tore a branch off the tree and . . . whooped [them] with it.”
C.K. described the tree branch as two to three feet long and roughly “three inches
tall” or thick. According to C.K., the Defendant said that, if C.K. attempted to cover his
bottom with his hands, C.K. would “get whipped harder.” The two boys bent over the
tailgate of the truck, and the Defendant “whooped [them] really hard” with the tree
branch. G.K. was spanked first and started screaming, according to C.K. When the
Defendant began hitting C.K. on the bottom, “a little piece” of the branch “broke off[.]”
C.K. claimed that the Defendant left the screwdriver in the yard. However, the
Defendant thought he was lying and made C.K. do push-ups for leaving it in the yard. If
C.K. did not do them as instructed, the Defendant said “he would whoop the holy hell out
of [him].” He could not remember if his brother was also forced to do push-ups.
The following morning, his mother called 9-1-1 about the Defendant‟s taking her
cellular telephone. According to C.K., after his mother made this call, G.K., in C.K.‟s
presence, told their mother about the spanking. C.K. recalled seeing a “purple and
brown” bruise on his brother‟s body, “[a] little lower than his butt[,]” following the
whipping. Furthermore, according to C.K., both he and his brother “point[ed] out” the
branch used to spank them, which was left in the fire pit in the yard.
G.K., born in January 1999, was sixteen at the time of trial. G.K. provided the
following version of events:
Well, at the time we were all, me, C.K., my mother, [and] my little
brother . . . were living with [the Defendant]. At the time he had come
home and the yard was not done, and he was angry during the day. And so
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when he came home he was yelling, he was angry. He had us working with
him on the yard. But then he found his tools out in the yard and asked us if
it was us. We said, no, it wasn‟t and he didn‟t believe us. So, at that time,
he had put us up against an old truck we had out in our back yard and he
went and broke a branch off a tree, and had us lined up against the car and
hit us with it.
....
[The yard] was supposed to be cut. But the reason why it wasn‟t
was a week before he came home, we were cutting the grass but came upon
a nest of yellow jackets in the ground that came out and stung us. And so
my mother . . . had called him and said he would take care of it. But when
he came home, it wasn‟t done.
Once the Defendant found the tool in the yard, which G.K. said was a hammer, the
Defendant “started cussing” and calling them names because he thought they were lying
to him. G.K. said that they remained quiet for fear “it would only get worse.” The
Defendant then “took off the branch” from a tree and whipped them, according to G.K.
G.K. depicted the branch as approximately two and one-half feet long with “a knot on the
end, kind of where he had his hands around it.” G.K. remembered that he was whipped
first and that he responded by “crying” and “yelling.” He could not recall exactly how
many times he was hit. The Defendant then spanked C.K., who was also “screaming and
crying.” According to G.K., the Defendant threw the branch in the fire pit when he was
finished whipping them, and their mother later retrieved it when C.K. and G.K. pointed it
out to her. G.K. testified that he pointed the stick out to his mother “close to the original
date” of the spanking. G.K. identified the stick collected by Det. Colvin as the one used
by the Defendant that day, and it was entered into evidence.
As a result of the whipping, G.K. suffered “[a] large bruise on [his] back thigh[,]”
which he described as a “giant, blue [and] purple bruise” that lasted for about a week.
When asked if there was any pain associated with the bruise, G.K. said, “Yes, ma‟am,
every time I would sit down it hurt and every time [I] would pick up to run a little bit it
would kind of ache in a way.” He also said that the force of the hit was “[p]robably a
little less than a baseball bat.” G.K. affirmed that the photographs previously entered into
evidence accurately depicted his injury. When asked if he let his mother know about the
incident, G.K. said not directly but claimed he “mouthed to her when she burst into the
house, . . . „help us,‟ in a silent way.”
On cross-examination, G.K. agreed that he helped the Defendant with projects
around the house, including putting up a fence. He confirmed that, while digging holes
for the fence, he fell into one of those holes. On redirect examination, G.K. testified
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about his broken elbow that resulted from the fence hole fall and about another incident
that resulted in a broken leg.
The Defendant was convicted as charged of domestic assault by intentionally,
knowingly, or recklessly causing bodily injury to G.K. He received a sentence of eleven
months and twenty-nine days to serve. This timely appeal followed.
ANALYSIS
On appeal, the Defendant contends the following: (1) the trial court erred by
admitting several hearsay statements into evidence; (2) the trial court erred by refusing to
charge domestic assault by extremely offensive or provocative physical contact as a
lesser-included offense of domestic assault by causing bodily injury; and (3) the
cumulative result of these errors entitles him to a new trial. We will address each in turn.
I. Hearsay Statements
The Defendant argues that the testimony offered (1) by the victim that he had been
diagnosed with Osteogenesis Imperfecta or “brittle bone disease”; (2) by Cpl. Deloach
concerning T.K.‟s stated reasons for making the domestic abuse 9-1-1 call; and (3) by
C.K. that the victim told his mother “about what happened”; are all inadmissible hearsay
and do not fit within any of the hearsay exceptions. Hearsay is defined as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). In general,
hearsay statements are inadmissible. Tenn. R. Evid. 802. Whether a statement
constitutes hearsay and whether it falls under one of the exceptions to the hearsay rule
“are questions of law subject to a de novo review.” Kendrick v. State, 454 S.W.3d 450,
479 (Tenn. 2015), reh‟g denied (Feb. 6, 2015), cert. denied -- U.S. --, 136 S. Ct. 335
(2015).
A. The victim‟s testimony about his brittle bone disease diagnosis. The Defendant
argues that the trial court erred by allowing the victim to testify about his diagnosis for
brittle bone disease because such testimony was inadmissible hearsay. The State
responds that the testimony was not offered for the truth of the matter asserted therein
because, according to the victim, the diagnosis was unconfirmed. Alternatively, the State
submits that, even if the statement is hearsay, its admission was harmless.
First, we feel it necessary to place the testimony and the trial court‟s ruling in
proper context. On cross-examination of the victim, defense counsel asked G.K. the
following:
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Q. But [the Defendant] had been living with you off and on when he was in
town? He‟s a heavy equipment operator so he goes out of town a lot, is that
right?
A. Yes, sir.
Q. When he comes in, you do things together don‟t you?
A. Yes, sir.
Q. And you had projects that you worked on?
A. Yes, sir.
Q. And one of the projects was putting up a fence. You were digging fence holes?
A. Yes, sir.
Q. Did you fall in one of the fence holes?
A. Yes, sir.
On redirect examination, the prosecutor asked the victim to explain what happened
when he fell in the fence hole. The victim described the incident:
[W]e were out back grooving pieces of wood, two by fours and four by
fours, I‟m not sure. We are digging holes, making a fence and the truck we
were using had—the battery had died out. So, we were going to use his
current charge that he uses to travel and such to charge it back up. And
when we did so, he was inside of the older truck and when it started up, it
scared me and I took a step back. When I took a step back, I did not realize
the hole was behind me and I fell and hit my elbow on the rim of the hole.
....
It was just kind of a numbing feeling, it didn‟t really hurt. So, I was
like, oh, and I got out of the hole and I was feeling a bit dizzy, so I asked to
go sit down inside. I went down inside and sat down at the dining table
with my hand over my elbow and fell asleep. I woke up, probably about
ten minutes later and he said to me, must not be hurting that bad because if
it were, you would be crying. And so the rest of the night, I just kind of did
the regular and you know, relaxed a little bit.
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According to the victim, his mother took him to the hospital the following morning
because the elbow continued to hurt. Once there, it was determined that the elbow was
“shattered.” The prosecutor then asked, “Have you ever been diagnosed with anything
such as brittle bone disease or any other type of ailment such as that?” The victim
responded, “I was diagnosed with [b]rittle [b]one [d]isease, but it was never confirmed . .
. because the only reason that they considered it was because the whites of my eyes were
blue. But all my normal breakings have been from normal situations.” Defense counsel
objected on hearsay grounds, which objection was overruled without discussion, and the
victim then testified about “some other breaks” he had before, including a broken leg.
At the motion for new trial hearing, the trial court ruled that the Defendant had
“opened the door” to testimony about the brittle bone diagnosis because of the questions
posed by defense counsel during the victim‟s cross-examination. The trial court further
determined that, even if the statement was hearsay, it was admissible as an exception to
the rule against hearsay as a statement made for the purposes of medical diagnosis or
treatment. See Tenn. R. Evid. 803(4).2
Initially, we conclude that the trial court mischaracterized what occurred at trial by
finding that defense counsel “brought up the fact that [the victim] had been diagnosed
with [b]rittle [b]one [d]isease” on cross-examination of the victim. What defense counsel
did inquire about on cross-examination was whether the victim and the Defendant
worked together to build a fence and whether, during that project, the victim fell into a
fence hole that had been dug. Although it was not established when this fall occurred, the
only apparent purpose of this line of questioning by the defense was to offer an alternate
source for the victim‟s injury, i.e., that the victim‟s bruise resulted from the fall into the
fence hole and not from a blow by the Defendant. No question was posed and no
testimony was given about a possible diagnosis of brittle bone disease on cross-
examination.
The victim‟s testimony is his recollection of a doctor‟s unconfirmed medical
opinion, and it amounts to an out-of-court statement made to him by the doctor.
2
Tennessee Rule of Evidence 803(4) excepts from the general prohibition against hearsay:
Statements made for purposes of medical diagnosis or treatment and describing medical
history; or past or present symptoms, pain, or sensations; or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
The theory behind this exception to the hearsay rule is that information given to medical personnel for the
purpose of securing diagnosis or treatment may be deemed inherently trustworthy. See State v. Gordon,
952 S.W.2d 817, 822 (Tenn. 1997) (citations omitted). The text of the rule makes it clear that only the
statements of the person being diagnosed or treated are excepted from the prohibition against hearsay.
See State v. Rucker, 847 S.W.2d 512 (Tenn. Crim. App. 1992). The brittle bone disease diagnosis was a
statement made by the doctor in assessing the victim‟s medical condition.
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However, contrary to the Defendant‟s allegations on appeal, this does not end our inquiry
because we must also determine if the out-of-court statement was offered for the truth of
the matter asserted therein. On redirect examination, the State asked the victim for
further details about the fall into the fence hole in an attempt to disparage the Defendant‟s
insinuation of an alternate source of injury for the victim‟s leg bruise. The victim then
provided particulars about the incident, including his resulting broken elbow. No
mention was made of any injury to the leg.
The State then asked if the victim had ever been diagnosed with brittle bone
disease. The form of the prosecutor‟s question—“[h]ave you ever”—makes it unclear if
this diagnosis was discussed during treatment for the broken elbow or at some other time.
The victim then testified that the diagnosis “was never confirmed” and that all of his
broken bones came “from normal situations.” Thereafter, the victim testified about
“some other breaks” that he had before, including a broken leg.
We agree with the attorney general‟s representation on appeal that “one might ask
what the State‟s rational[e] might have been for asking [the victim] about his [b]rittle
[b]one diagnosis.” At the motion for new trial hearing, the prosecutor herself
characterized the diagnosis as “really irrelevant to the entire trial.” The State sought to
discredit any possibility of the victim‟s having brittle bone disease and show that the
victim‟s prior breaks all occurred “from normal situations.” However, a correlation
between the broken elbow from the fence hole fall, a brittle bone disease diagnosis, and
the victim‟s leg bruise was never provided. Given the victim‟s testimony, the irrelevant
nature of the diagnosis, and the trial court‟s ruling without discussion, it is unclear from
the record whether the brittle bone disease diagnosis was offered for the truth of the
matter asserted. However, because the brittle bone disease diagnosis did not significantly
enhance or detract from the evidence against the Defendant that he caused the leg bruise
to the victim by hitting him with a branch, admission of the statement, even if incorrect,
can be classified as harmless error.
B. Cpl. Deloach‟s testimony about T.K.‟s stated reasons for calling 9-1-1. The
Defendant contends that Cpl. Deloach‟s testimony about T.K.‟s statements to him
explaining why she called 9-1-1 was inadmissible hearsay not subject to any exception.
The State responds that the trial court properly allowed Cpl. Deloach to testify about the
call that brought him to the scene.
On direct examination, the State asked Cpl. Deloach to explain his actions upon
arriving at the scene. Cpl. Deloach testified that he first spoke with the Defendant and
asked “what was going on.” The Defendant replied that the victim was mad at him, so
she “called the cops . . . on [him] again[.]” He also said “something about a phone[,]”
according to Cpl. Deloach. At that point, T.K. emerged from the neighbor‟s house, and
Cpl. Deloach approached her and asked what was going on. As Cpl. Deloach began to
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relay what T.K. said to him, defense counsel objected on hearsay grounds. No ruling was
made, but the prosecutor then rephrased the question. The following colloquy ensued:
Q. Don‟t say what she said, okay, just tell us what happened. You
came and had a discussion with [T.K.]?
A. Yes. It was about a phone that [the Defendant] had taken. She
was wanting it the phone back, stating it was hers.
Q. Okay.
A. Then I went and talked with [the Defendant] about the phone. In
which he stated, it was my phone, I bought it for her and I paid for the plan.
Which at that point I couldn‟t make him give the phone back. Which I had
already told [T.K.], I could go and ask him about the phone, but if he says
no, there‟s nothing else I can do at that point.
Q. And after you told them there‟s nothing you can do about the
phone, what happened after that?
A. Shortly after, I was about to clear the call, and I was made
aware—[T.K.] came up to me and said that she needed to speak with me
about—
[DEFENSE COUNSEL]: Your Honor, I object.
THE COURT: That‟s overruled—as far as it‟s gone, it‟s overruled.
[CPL. DELOACH]: Told me that the kids needed to show me
something, that they had an injury from an altercation they had the day
before.
Q. Okay, and did you assist her with that?
A. Yes, I went and talked to the kids.
Cpl. Deloach then recounted his conversation with the children about the whipping and
their injuries. Defense counsel continued to object on hearsay grounds to statements
made by the children to Cpl. Deloach, and at one point, the trial court sustained the
objection. The prosecutor also frequently reminded Cpl. Deloach not to testify about
statements made by the children. On cross-examination, defense counsel asked many
questions about the initial conversation concerning the cellular telephone and insinuated
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that T.K. only brought up the children being spanked because Cpl. Deloach told her there
was “nothing [he could] do about her cell phone[.]”
Initially, we note that, once the prosecutor rephrased the question and asked Cpl.
Deloach to “tell . . . what [had] happened” without “saying what [T.K.] said,” defense
counsel lodged no further objection regarding Cpl. Deloach‟s account of his interaction
with the couple about the cellular telephone. Thus, it could be concluded that defense
counsel found the prosecutor‟s rephrasing acceptable. The next objection came when
Cpl. Deloach said that T.K. asked to speak with him before he left the residence, and he
began to relay what she had said to him. The trial court‟s subsequent ruling, “as far as it
has gone, it‟s overruled,” is unclear and seemingly pertains to the specific statement
being solicited, and not the prior exchange about the phone.
Regardless if an adequate objection was raised, we agree with the State that the
objectionable statements concerning why T.K. called 9-1-1 and the cellular telephone
were not being offered for the truth of the matters therein but to explain Cpl. Deloach‟s
actions in assessing the domestic disturbance call which precipitated his arrival at the
residence. Moreover, Cpl. Deloach said that, after speaking with the couple, he could not
order the Defendant to return the phone to T.K.; thus, any allegation by T.K. about the
phone was deemed non-criminal in nature, and he intended to depart the scene. We
conclude that Cpl. Deloach‟s testimony about the statements made by T.K. in this regard
was offered to provide an explanation for Cpl. Deloach‟s presence on the scene and give
context for his observations and interactions while there. See, e.g., State v. Marvin
Wendell Kelley, No. M2011-02260-CCA-R3-CD, 2013 WL 5827646, at *10 (Tenn.
Crim. App. Oct. 29, 2013) (concluding that statements were not hearsay because they
were “offered to provide context for [the victim‟s father‟s] actions: going to the hospital
and, ultimately, removing the victim from life support”); State v. Kendell Edward
Johnson, No. M2011-00792-CCA-R3-CD, 2012 WL 3731699, at *18 (Tenn. Crim. App.
Aug. 29, 2012) (determining that witness‟s statements on a tape recording were not
offered for the truth of the matter asserted but solely for the purpose of providing the
context for the defendant‟s statements).
The State was not asking the jury to believe what T.K. said to Cpl. Deloach about
the phone but instead sought to provide context for why Cpl. Deloach interviewed the
children about their alleged injuries and ultimately arrested the Defendant for domestic
assault that day. Cpl. Deloach did not testify as to any statement of fact asserted by T.K.
regarding the alleged abuse to the children. The challenged statements were not hearsay,
and moreover, any error in this regard would be harmless as the Defendant thoroughly
cross-examined Cpl. Deloach about T.K.‟s motive for calling the police and informing
him of the children‟s injuries.
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C. C.K.‟s testimony about the victim‟s statements to their mother. The victim‟s
brother, C.K., relayed the details of the whipping he and his brother received at the hands
of the Defendant. On direct examination, C.K. was asked the following:
Q. After you and your brother were whipped that day, what
happened?
A. My—we were in bed and [the Defendant] took my mom‟s phone,
that‟s why she called the police. And G.K. also told her about what
happened—
Defense counsel lodged a hearsay objection, which the trial court overruled, stating, “It
wasn‟t a hearsay statement in there.” Questioning continued,
Q. You went to bed that night?
A. And woke up like early in the morningish [sic] and G.K. told her
what happened.
Defense counsel again objected, and that objection was again overruled for the same
reason. Thereafter, C.K. testified that his mother called 9-1-1 the day after the Defendant
spanked them and that the victim did not tell their mother “about what happened” until
after she called the authorities about the cellular telephone. C.K. said that he did not tell
his mother because the victim had already told her.
The Defendant asserts that “C.K. repeating what G.K. told their mother was surely
offered for the purpose of showing that G.K. repeated the story to their mother, for the
truth of the matter asserted essentially.” The State responds that testimony was not
hearsay because C.K. “did not recite any fact regarding the offense of which the
[D]efendant was charged.”
No hearsay specifics were elicited from C.K. regarding G.K.‟s statements to their
mother “about what happened.” C.K.‟s testimony established their mother‟s basis of
knowledge of the victim‟s injuries and when she was informed of the whipping. C.K.‟s
testimony counteracted the Defendant‟s insinuation that T.K. did not tell the police of the
whipping on the telephone and only told Cpl. Deloach as retribution once he told her that
he could not do anything about returning the cellular telephone to her. Additionally, C.K.
was also present during the spanking of the victim and was himself spanked by the
Defendant. His first-hand recounting of the spanking significantly bolstered the victim‟s
credibility, and the challenged statements did little in that regard contrary to the
Defendant‟s assertion. Again, we agree with the State and conclude that the statements
were not hearsay, but even so, any error in admission was harmless.
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II. Lesser-Included Offense Instruction
The Defendant argues that the trial court erred by refusing to instruct on the lesser-
included offense of domestic assault by extremely offensive or provocative physical
contact. The State replies that the evidence did not justify a jury instruction on the lesser-
included offense.
A defendant has a constitutional right to a full and complete charge of all lesser-
included offenses charged in the indictment. State v. Ely, 48 S.W.3d 710, 727 (Tenn.
2001). When an issue is raised regarding the trial court‟s failure to instruct on a lesser
included offense, our analysis typically involves a determination of: (1) whether the
offense is a lesser-included offense; (2) whether the evidence supports an instruction on
the lesser-included offense; and (3) whether the failure to instruct on the lesser-included
offense constitutes harmless error. State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002).
“A person commits domestic assault who commits an assault as defined in § 39-
13-101 against a domestic abuse victim.” Tenn. Code Ann. § 39-13-111. Tennessee
Code Annotated section 39-13-101, as referenced in the domestic assault statute, defines
assault as follows:
(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to
another;
(2) Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another
and a reasonable person would regard the contact as extremely offensive or
provocative.
Tenn. Code Ann. § 39-13-101(a). When bodily injury results or is reasonably feared, the
offense is a Class A misdemeanor. Tenn. Code Ann. § 39-13-101(b)(1). If only physical
contact which is extremely offensive or provocative occurs, the offense is a Class B
misdemeanor. Id.
Here, the Defendant was indicted for domestic assault by causing bodily injury:
“[The Defendant], . . . on August 07, 2012, . . . unlawfully, and intentionally, knowingly
or recklessly did cause bodily injury to a minor child with a date of birth of [January]
1999 and with whom [the Defendant] has lived with . . . .” The trial court charged the
jury only with domestic assault by causing bodily injury and declined the Defendant‟s
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request to charge, as a lesser-included offense, domestic assault by extremely offensive or
provocative contact. Our supreme court has determined that assault by an extremely
offensive or provocative contact is a lesser-included offense of assault by causing bodily
injury. See State v. Smiley, 38 S.W.3d 521, 525 (Tenn. 2001). However, this does not
end our inquiry, as the proof must also support such a charge. Id.
The trial court determined that the lesser-included offense was not “embraced by
the evidence in this case.” We agree. Under the facts of this case, the Defendant‟s
actions were not of the type that our supreme court has characterized as “offensive or
provocative”—that is, actions which offend one‟s sense of personal dignity but do not
cause injury, such as “kissing without one‟s consent, cutting one‟s hair without consent,
or spitting in one‟s face.” Smiley, 38 S.W.3d at 525 (citing Stuart M. Speiser, et al., The
American Law of Torts, § 26:15). Accordingly, we conclude that no reasonable jury
could conclude that the Defendant committed an assault by extremely offensive or
provocative physical contact. See, e.g., State v. Michael Cammon, No. M2001-00592-
CCA-R3-CD, 2002 WL 31414089, at *3-4 (Tenn. Crim. App. Oct. 25, 2002) (concluding
that a lesser-included instruction on assault by extremely offensive or provocative
touching was not warranted were there was proof that the deputy sustained bodily
injuries—minor cuts and abrasions, a chipped tooth, and bite marks on his hands—during
the struggle with the defendant). The Defendant, using a tree branch, struck the victim‟s
backside, leaving visible bruising. Cpl. Deloach described it as “a real deep purple
bruise” that was approximately the “softball size in area.” The victim testified that his
bottom hurt every time he sat down and that it would “ache” when he “would pick up to
run a little bit[.]” The bruise was exhibited for the jury in a photograph. This injury
clearly rises to the level of “bodily injury.” See Tenn. Code Ann. § 39-11-106(a)(2)
(“„Bodily injury‟ includes a cut, abrasion, bruise, burn or disfigurement, and physical
pain or temporary illness or impairment of the function of a bodily member, organ, or
mental faculty.”); see also Smiley, 38 S.W.3d at 525. Because the evidence in this case is
insufficient to support a conviction of assault by “extremely offensive or provocative”
physical contact, the jury should not have been instructed on the lesser-included offense,
and the trial court did not err.
III. Cumulative Error
Lastly, the Defendant argues that the cumulative effect of the alleged errors entitle
him to a new trial. However, “[t]o warrant assessment under the cumulative error
doctrine, there must have been more than one actual error committed in the trial
proceedings.” State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010). Therefore, we conclude
that the Defendant is not entitled to a new trial on this basis.
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CONCLUSION
Based on our review of the record, the briefs of the parties, and the applicable
legal authority, we affirm the judgment of the trial court.
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D. KELLY THOMAS, JR., JUDGE
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