State of Tennessee v. William Waylon Hanson ( 2018 )

03/02/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 10, 2017
STATE OF TENNESSEE v. WILLIAM WAYLON HANSON
Appeal from the Circuit Court for Marshall County
No. 2015-CR-97 Forest A. Durard, Jr., Judge
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No. M2016-00502-CCA-R3-CD
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A Marshall County Circuit Court Jury convicted the Appellant, William Waylon Hanson,
of violating an order declaring him to be a motor vehicle habitual offender, failing to
provide evidence of financial responsibility, and passing another vehicle in a no passing
zone. On appeal, the Appellant contends that the trial court erred by granting the State’s
motion in limine to prohibit the Appellant from collaterally attacking the order declaring
him to be a motor vehicle habitual offender, by limiting the defense’s closing argument,
and by admitting the Appellant’s driving record into evidence through an employee of the
Department of Safety and Homeland Security. Upon review, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.
M. Wesley Hall IV, Unionville, Tennessee (on appeal), and Brian M. Griffith, Nashville,
Tennessee (at trial), for the Appellant, William Waylon Hanson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert J. Carter, District Attorney General; and Weakley E. Barnard and Drew Wright,
Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The Appellant was indicted for violating an order declaring him to be a motor
vehicle habitual offender (MVHO), a Class E felony; failing to provide evidence of
financial responsibility, a Class C misdemeanor; and passing another vehicle in a no
passing zone, a Class C misdemeanor. See Tenn. Code Ann. §§ 55-10-616; 55-12-139;
55-8-121.
On September 11, 2015, the State filed a motion in limine asking the trial court to
prohibit the Appellant from collaterally attacking the validity of the MVHO order. Citing
State v. William Tony Wright, No. M2001-01418-CCA-R3-CD, 2002 WL 1336655
(Tenn. Crim. App. at Nashville, June 19, 2002), the State contended that any argument or
testimony suggesting the Appellant had no notice of the MVHO order was misleading
because the Appellant had been convicted of violating the MVHO order on three prior
occasions; therefore, such argument or testimony was inadmissible.
On September 30, 2015, immediately prior to trial, the trial court granted the
State’s motion. Defense counsel informed the trial court that he did not plan to
collaterally attack the MVHO order. Instead, the defense strategy was to show that the
State did not introduce proof the Appellant had notice of the MVHO order and that,
accordingly, the State could not prove the Appellant intentionally, knowingly, or
recklessly violated the MVHO order. The State then suggested that the easiest way to
establish the Appellant’s awareness of the MVHO order was to introduce proof of the
Appellant’s prior convictions of violating the order. Defense counsel responded that the
State could prove the Appellant had notice of the order without informing the jury that
the Appellant had prior convictions of the same crime, which were “more prejudicial than
probative.” The trial court warned that if the Appellant proceeded with the argument he
did not have notice of the MVHO order, it would allow the State to rebut the claim by
introducing “documents regarding service of process and awareness of court dates.” The
State again noted the Appellant’s three prior convictions of violating the MVHO order
and argued that because of those convictions, the Appellant was prohibited from asserting
he had no notice of the order according to case law. The trial court agreed that the State
could not “try the case with its hands behind its back like that,” and reiterated its warning
that if defense counsel raised the issue of notice, it would allow the State to rebut the
defense’s claims. Nevertheless, the trial court stated that it would not allow the State to
introduce proof of the prior convictions until the Appellant “opens that door.”
At trial, Chapel Hill Police Officer Andrew Kon testified that at 9:40 p.m. on
Tuesday, March 31, 2015, he was driving his marked patrol car north on Highway 31-A
in the area of Henry Horton Park when he saw a red Chevrolet Monte Carlo that was
traveling southbound pass a blue Ford Expedition. Officer Kon saw the headlights of the
Monte Carlo two or three hundred yards in front of his car “coming toward” him. Officer
Kon said that although it was dark, the double yellow line indicating it was a no passing
zone was clearly visible. Officer Kon made a U-turn and activated his patrol car’s blue
lights to initiate a traffic stop.
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The red Monte Carlo stopped in a Dollar General Store parking lot. Officer Kon
parked and approached the Appellant, who was the driver. Officer Kon advised the
Appellant that he had been stopped for passing another vehicle in a no passing zone. He
asked for the Appellant’s driver’s license, automobile registration, and proof of
insurance, but the Appellant did not produce the documents. Officer Kon requested the
Appellant’s name and date of birth, then he conveyed the information he obtained to the
police dispatcher. After receiving a response from the dispatcher, Officer Kon arrested
the Appellant for driving on a revoked license, violating a MVHO order, failing to
provide proof of financial responsibility, and improper passing. Officer Kon recalled that
other vehicles were on the roadway when the Appellant passed the Expedition.
On cross-examination, Officer Kon acknowledged that the Appellant did not cause
an accident and that no one was injured.
Nicholas Kiefer testified that he was a deputy clerk in the Davidson County
Criminal Court Clerk’s Office and that he was a “keeper of the records.” From the
Appellant’s file, Kiefer identified a certified copy of an “Order to Appear . . . in an
habitual offender matter.” Kiefer explained that according to the order, the Appellant
was ordered “to appear before the criminal court on the 19th of January, 2005, to show
cause why he should not be declared an habitual traffic offender.” Kiefer said that on the
second page of the order was a “certificate of service from the deputy sheriff.”
Kiefer identified another order by the Davidson County Criminal Court, which
stated that the Appellant was declared to be an habitual traffic offender. The order,
which was dated January 20, 2005, prohibited the Appellant from driving for three years
and ordered that he surrender his license to the court. On the second page of the order
was a signed certificate of service reflecting that a “true and exact copy” of the order had
been “mailed or hand-delivered” to the Appellant “and/or” his attorney.
Kiefer also identified a “certified copy of what we call a file jacket. It’s the front
of the file that – it’s the front of what would be a criminal case file.” He explained that
“only two specific clerks” in the office made notations on the front of the file jacket. The
grand jury clerk wrote the case number, the division assignment, and the reason for the
case. The “judge’s in-court clerk” wrote the date of the docket and “notations similar to
what would be on a minute entry.” Kiefer examined the Appellant’s file jacket and
noticed that the first date listed was January 19, 2005. Kiefer said, “The notation for that
day states that the [Appellant], Mr. William Hanson, was served and that the case was
reset.” The next date listed was January 20, 2005, which was the same date the MVHO
order was entered.
On cross-examination, Kiefer acknowledged that he began working in the clerk’s
office in 2011 and that he was not present for any of the 2005 court proceedings.
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Glendora Graves testified that she was a district manager with the Tennessee
Department of Safety and Homeland Security. Through her employment, she had access
to driving histories. In preparation for trial, she accessed the Appellant’s driving history,
which included a January 20, 2005 order declaring the Appellant to be a MVHO. The
order resulted in the revocation of the Appellant’s license. Graves stated that the
Appellant’s driving privileges were never restored and that the order was in effect on the
day of the Appellant’s arrest.
On cross-examination, Graves acknowledged that the branch of the Department of
Safety and Homeland Security which was responsible for maintaining driving records
was located in Nashville. She further acknowledged that she did not maintain the driving
records. She also acknowledged that sometimes a driving record contained incorrect
information but that it did not happen often.
On redirect examination, Graves asserted that the Appellant’s driving record had
“been certified as true and accurate by Susan Lowe of the financial responsibility
division.”
The jury convicted the Appellant as charged. On appeal, the Appellant contends
that the trial court erred by granting the State’s motion to prohibit the Appellant from
collaterally attacking the motor vehicle habitual offender order, by limiting the defense’s
closing argument, and by admitting the Appellant’s driving record into evidence through
State’s witness from the Department of Safety and Homeland Security. The Appellant
also contends that the evidence was insufficient to sustain his conviction for violating an
order declaring him to be a motor vehicle habitual offender.
II. Analysis
A. Collateral Attack on MVHO Order
As his first issue, the Appellant contends that he “makes a good faith argument for
[a] change in the law thus allowing this case to be remanded to allow collateral attack on
the Davidson County [MVHO] Order.” In the trial court, the Appellant repeatedly
asserted that he was not collaterally attacking the MVHO order and was instead claiming
that the State failed to prove he received notice of the order and thus failed to prove he
violated the order intentionally, knowingly, or recklessly. On appeal, however, the
Appellant concedes that he is collaterally attacking the MVHO order.1 The Appellant
contends that the trial court misconstrued State v. William Tony Wright, No. M2001-
1
We caution that “an appellant is bound by the evidentiary theory set forth at trial, and may not
change theories on appeal.” State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001).
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01418-CCA-R3-CD, 2002 WL 1336655 (Tenn. Crim. App. at Nashville, June 19, 2002),
as authority to grant the State’s motion in limine restricting collateral attack on the
MVHO order. He maintains that Wright did not stand for the proposition that a
defendant could not collaterally attack an MVHO order. The Appellant did not cite any
other cases in support of his contention. The Appellant contends that the trial court’s
erroneous ruling limited his ability to argue that the State had failed to prove that the
Appellant knew about the MVHO order and, accordingly, that the Appellant could not
have violated the order intentionally, knowingly, or recklessly.
This court has explained previously that “[a] proceeding under the Motor Vehicle
Habitual Offender Act is civil in nature and therefore is governed by the Tennessee Rules
of Civil Procedure.” State v. Malady, 952 S.W.2d 440, 444 (Tenn. Crim. App. 1996). As
the State notes, this court has held consistently that a defendant cannot collaterally attack
an order declaring him to be a MVHO. See Davis v. State, 793 S.W.2d 650, 651 (Tenn.
Crim. App. 1990); Everhart v. State, 563 S.W.2d 795, 797-98 (Tenn. Crim. App. 1978);
State v. Tony Lynn Allen, No. M2007-00826-CCA-R3-CD, 2008 WL 2743882, at *3
(Tenn. Crim. App. at Nashville, July 15, 2008); State v. Nelson Keith Foster, No. E2001-
02976-CCA-RM-CD, 2002 WL 181359, at *5 (Tenn. Crim. App. at Nashville, Feb. 1,
2002); State v. Michael Samuel Eidson, No. 03C01-9711-CR-00506, 1999 WL 160944,
at *1 (Tenn. Crim. App. at Knoxville, Mar. 24, 1999). Instead, “the appropriate
procedure for challenging a habitual [motor vehicle] offender order is to file a motion
pursuant to Tennessee Rule of Civil Procedure 60.02.” State v. Ernest Michael Turner,
No. W2006-02661-CCA-R3-CD, 2008 WL 1700338, at *5 (Tenn. Crim. App. at Jackson,
Apr. 4, 2008) (citing Bankston v. State, 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991)).
We agree with the State that the Appellant’s arguments regarding Wright are “not
entirely accurate.” The Appellant contends that the defendant in Wright was allowed to
collaterally attack the MVHO order. However, in Wright, the defendant pled guilty to
violating an MVHO order. Wright, No. M2001-01418-CCA-R3-CD, 2002 WL 1336655,
at *1. Thereafter, he filed a motion to withdraw the guilty plea, arguing that he was
“‘legally innocent’” of the violation because the order did not comply with Tennessee
Rule of Civil Procedure 58. Id. Simultaneously, the defendant filed a motion
challenging the MVHO order under Tennessee Rule of Civil Procedure 60.02. Id. at *2.
On appeal, this court determined that the defendant’s issues turned upon whether he was
entitled to relief under Rule 60.02 and, after consideration, held that “the trial court did
not err in denying [the defendant’s] motion for relief from the order declaring him to be a
motor vehicle habitual offender.” Id. at *4.
The record before us does not reflect that the Appellant ever filed a motion
pursuant to Rule 60.02 challenging the MVHO order, and he has not filed such a motion
in the instant case. Moreover, the State did not argue that Wright stood for the
proposition that an MVHO order could not be collaterally attacked; instead, the State
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cited Wright to support the proposition that a defendant who had pled guilty to violating
the MVHO order previously consequently has notice of the order. We agree. The
Appellant’s arguments are unavailing.
B. Closing Argument
The Appellant next contends that the trial court erred by limiting defense counsel’s
ability to argue during closing argument that the State introduced no proof the Appellant
had notice of the MVHO order and that, accordingly, he could not have intentionally,
knowingly, or recklessly violated the order. The State responds that the Appellant is not
entitled to relief on this issue.
It is well-established that closing argument is an important tool for both parties
during a trial; thus, counsel is generally given wide latitude during closing argument, and
the trial court is granted wide discretion in controlling closing arguments. See State v.
Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such,
arguments must be temperate, based upon the evidence introduced at trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” State v. Goltz,
111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).
The record reflects that during closing argument, defense counsel acknowledged
that the State had shown the jury the MVHO order but argued that it was required also to
prove that the Appellant intentionally, knowingly, or recklessly violated the order.
Defense counsel told the jury that all three mental states “require [the Appellant’s]
knowledge. That he knew this [order] existed.” Defense counsel contended, however,
the State presented no witnesses who testified that they saw the order being given to the
Appellant or that he was in court the day the order was issued. The State objected to
defense counsel’s argument as a collateral attack on the MVHO order after the proof was
closed. Defense counsel responded that he was not arguing that the order was invalid.
The trial court said that it was being “liberal” with defense counsel’s argument but
cautioned that if defense counsel went “too far,” it would let the State respond “within the
confines of the proof.” The trial court agreed that the Appellant’s prior convictions were
not part of the proof; nevertheless, the court observed that defense counsel was
attempting to “sand bag” the State by claiming the Appellant had no notice of the MVHO
order after the proof was closed in order to render the State unable to rebut the claim.
Defense counsel maintained that the State could have introduced the minutes or
transcript of the MVHO hearing or called the district attorney who prosecuted that case to
prove the Appellant had knowledge of the MVHO order. However, the trial court
responded that the State was not required to go to such lengths to prove the Appellant’s
knowledge of the order and that it was “dis[i]ngenuous” for defense counsel to argue that
the Appellant did not have notice of the MVHO order. The trial court allowed defense
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counsel to argue “about what is on the order” but refused to let him argue that the
Appellant did not have notice of the order. The court cautioned that if defense counsel
persisted in his argument, the court might “have to craft a specific instruction,” noting
that the standard MVHO instruction did not explain that the State did not “have to prove
a negative. They have to prove there was an order and he drove.”
Initially, we note that the Appellant failed to cite any authority in support of his
argument that the trial court erred by limiting his closing argument. Generally, “[i]ssues
which are not supported by argument, citation to authorities, or appropriate references to
the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see
Tenn. R. App. P. 27(a)(7).
Further, the Appellant argues that the trial court warned defense counsel that if he
“continued this sort of argument, that the Court would allow the State to present to the
jury evidence to show the [Appellant’s] knowledge of the [MVHO] order.” The
Appellant provided no citation to the record where the court issued the foregoing
warning. Our review of the record reveals that the trial court issued no such warning;
instead, the trial court told the Appellant that it would allow the State to “do what they
have got to do within the confines of the proof” and that the trial court would fashion a
special jury instruction to inform the jury that the State did not have to prove the
Appellant was in court on the day the MVHO order was issued.
Moreover, once defense counsel continued his closing argument, he argued to the
jury that the certificate of service on the second page of the MVHO order was “pro
forma” and did not specify the method in which the order may have been delivered to the
Appellant. Defense counsel also argued that Kiefer did not work at the court at the time
the order was issued and therefore could not testify specifically about how the Appellant
received the order, whether it was mailed or hand-delivered, and could not assert that the
Appellant definitively had received the order. Although defense counsel was allowed to
make this argument, it was inappropriate and an attempt to collaterally attack the
underlying judgment. The Appellant is not entitled to relief on this issue.
C. Graves’s Testimony
As his next issue, the Appellant argues that Graves was not qualified to testify
about his driving record because she was not the keeper of the records at the Department
of Safety and Homeland Security and that the driving record was not a self-authenticating
document. He complains that the trial court required the Appellant to choose between
allowing Graves to testify that his driving privileges had not been reinstated since the
MVHO order or allowing the Appellant’s redacted driving history to be entered into
evidence as a self-authenticating document. The State responds that the Appellant has
waived the issue by failing to include the Appellant’s driving record in the appellate
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record for our review. In the alternative, the State argues that the trial court did not err by
limiting Graves’s testimony to whether the Appellant’s driving privileges had been
reinstated. We agree with the State.
During a jury-out hearing, the State announced that it intended to call Glendora
Graves as the keeper of the records of the Department of Safety and Homeland Security.
She said that her department was responsible for issuing driver’s licenses and keeping
information regarding driver’s histories. Graves asserted that the Appellant’s driving
history reflected that his driver’s license had been revoked and had never been reinstated.
Defense counsel objected to Graves being allowed to testify, arguing that although
she could access the records, she was not the keeper of the records. The trial court asked
whether the records were self-authenticating. The State responded that the records were
self-authenticating.
We are unable to address any of the Appellant’s concerns regarding whether the
Appellant’s driving record was self-authenticating because the Appellant failed to include
the driving record in the appellate record for our review. The Appellant carries the
burden of ensuring that the record on appeal conveys a fair, accurate, and complete
account of what has transpired with respect to those issues that are the bases of appeal.
Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim.
App. 1997). “In the absence of an adequate record on appeal, this court must presume
that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, the Appellant is not entitled to
relief on this issue.
D. Sufficiency of the Evidence
As his final issue, the Appellant challenges the sufficiency of the evidence
sustaining his conviction for violating the MVHO order, asserting that the State failed to
prove that he violated the order intentionally, knowingly, or recklessly. The State
responds that the proof was sufficient. On appeal, a jury conviction removes the
presumption of the appellant’s innocence and replaces it with one of guilt, so that the
appellant carries the burden of demonstrating to this court why the evidence will not
support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The
appellant must establish that no reasonable trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
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credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the
appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).
This court previously has observed that in order to sustain a conviction under
Tennessee Code Annotated section 55-10-616(a), the State must “prove (1) that [the
A]ppellant was subject to a judgment or order prohibiting him from operating a motor
vehicle and (2) that he operated a motor vehicle while that judgment or order was in
effect.” State v. Mark A. Crites, No. M2013-01681-CCA-R3-CD, 2014 WL 2567146, at
*5 (Tenn. Crim. App. at Nashville, June 6, 2014). This court also has noted that because
the statute does not plainly dispense with a mens rea requirement, the necessary culpable
mental states are intentional, knowing, or reckless.2 State v. James Stacy Carroll, No.
W2003-01182-CCA-R3-CD, 2004 WL 541130, at *2 (Tenn. Crim. App. at Jackson, Mar.
2
Tennessee Code Annotated section 39-11-302 provides in pertinent part:
(a) “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 desire to engage in the conduct or
cause the result.
(b) “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 conduct or that the circumstances
exist. A person acts knowingly with respect to a result of the person’s
conduct when the person is aware that the conduct is reasonably certain
to cause the result.
(c) “Reckless” refers to a person who acts recklessly with respect
to circumstances surrounding the conduct or the result of the conduct
when the person is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that its disregard constitutes
a gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the accused person’s
standpoint.
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15, 2004) (citing Tenn. Code Ann. § 39-11-301(b) (2003); Crittenden v. State, 978
S.W.2d 929, 930 (Tenn. 1998)).
In the light most favorable to the State, the proof adduced at trial revealed that on
the evening of March 31, 2015, Officer Kon was driving north on Highway 31-A when
he saw a red Monte Carlo pass a blue Ford Expedition in a no passing zone. Officer Kon
stopped the Monte Carlo, which was being driven by the Appellant. The Appellant was
unable to produce his driver’s license, automobile registration, or proof of insurance.
Davidson County Criminal Court records reflected that on January 19, 2005, the court
issued an order for the Appellant to appear in an habitual traffic offender matter. On the
order was a certificate of service from the deputy sheriff. The court records also reflected
that on January 20, 2005, the court issued an order declaring the Appellant an habitual
traffic offender. The second page of the order reflected that a copy of the order was to be
sent to the Appellant or his attorney and also reflected a signed certificate of service. The
Appellant’s driving privileges were never restored. We conclude that the foregoing
evidence was sufficient to sustain the Appellant’s conviction of violating an MVHO
order.
III. Conclusion
In sum, we conclude that the Appellant is not entitled to relief on any of his issues.
The judgments of the trial court are affirmed.
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NORMA MCGEE OGLE, JUDGE
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