State of Tennessee v. William Charles Burgess , 532 S.W.3d 372 ( 2017 )

05/15/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 16, 2016 Session
STATE OF TENNESSEE v. WILLIAM CHARLES BURGESS
Appeal from the Criminal Court for Knox County
No. 103785 Bob R. McGee, Judge
No. E2015-02213-CCA-R3-CD
The Defendant, William Charles Burgess, was convicted by a Knox County Criminal
Court jury of one count of preventing or obstructing an arrest and two counts of
obstructing or preventing service of process, Class B misdemeanors. See T.C.A. § 39-16-
602 (2014). The trial court sentenced the Defendant to six months, with all but ten days
suspended to supervised probation. On appeal, the Defendant contends that the evidence
is insufficient to support his convictions. Because the Defendant’s conduct did not
constitute a criminal offense, we reverse the judgments of the trial court, vacate the
Defendant’s convictions, and dismiss the charges.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
Convictions Vacated; Charges Dismissed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.
A. Philip Lomonaco, Knoxville, Tennessee, for the appellant, William Charles Burgess.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Amanda Cox and
Nathaniel Ogle, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
This case arises from an October 24, 2013 incident in which Knox County
Sheriff’s deputies conducted a warrantless entry into the Defendant’s mother’s home in
order to arrest the Defendant for evading civil process related to a delinquent credit card
account. The Defendant hid in a basement crawl space and refused to emerge, at which
point deputies ordered a police dog to attack the Defendant and shocked him multiple
times with a Taser.
The trial testimony established that the Defendant was the owner of an optical lens
business and worked part-time for his brother as a commercial landscaper. Both
businesses were located at the Defendant’s mother’s house, and the Defendant had a
workshop in his mother’s basement.
Knox County Sheriff’s Deputy Chuck Bowers testified that he had worked for the
sheriff’s office in the civil warrants division for twenty-seven years, that he had
previously served the Defendant with a civil warrant, and that he attempted to serve the
Defendant in the present case. Deputy Bowers identified a civil warrant issued against
the Defendant and said Discover Bank was the plaintiff. Deputy Bowers stated that in
order to serve the Defendant, Deputy Bowers needed to hand him a copy of the warrant.
Deputy Bowers testified that beginning in early September 2013, he attempted to
serve the Defendant between twenty-two and twenty-four times. Deputy Bowers said
that he went to the Defendant’s house multiple times, that no one answered when he
knocked, and that he left a business card. Deputy Bowers stated that on one occasion, he
heard an unknown person moving in the house, that Deputy Bowers identified himself,
that the person hid and did not open the door, and that Deputy Bowers left. Deputy
Bowers said that on another occasion, he spoke with the Defendant’s wife and that she
was unwilling to accept service on the Defendant’s behalf. Deputy Bowers said that he
had to have the Defendant’s permission to leave the civil warrant with someone at the
Defendant’s house. Deputy Bowers said that he could not obtain the Defendant’s
permission to leave the warrant with his wife.
Deputy Bowers testified that he went to the Defendant’s mother’s house on
multiple occasions and that he spoke to the Defendant’s parents. Deputy Bowers said
that on one occasion, the Defendant’s mother told him that the Defendant had just left,
that the Defendant’s mother called the Defendant and asked him to return, and that he
refused. Deputy Bowers stated that the Defendant told his mother to tell Deputy Bowers
to get off the Defendant’s property because he was trespassing.
Deputy Bowers testified that generally, if he had difficulty serving a civil warrant
because he could not find the person, he returned the warrant unserved after thirty and
sixty days and that the plaintiff would have to re-file “for us to keep trying it.” He said
that the only circumstances in which he would serve the warrant by leaving it with a third
party was if he spoke to the named defendant on the telephone and obtained permission
to leave the warrant with a designated agent. He denied ever leaving a warrant in the
screen door of a house. He said that in twenty-seven years, he had never had as much
difficulty serving someone as he did the Defendant.
-2-
Deputy Bowers testified that on September 18, he parked at the end of the
Defendant’s driveway, stood outside, and began walking up the driveway when he heard
a truck’s engine start. Deputy Bowers stated that the truck began coming down the
driveway, that the truck came “right at [him],” and that when the truck came within arm’s
reach, Deputy Bowers drew his gun. Deputy Bowers said that he did not know if the
truck was going to hit him and that when he drew his gun, the truck swerved into the
yard, crossed the curb onto the road, and “fled the scene.” He said that two people were
in the truck, that he could not identify the Defendant as the driver, and that he did not
take any legal action.
Deputy Bowers identified a list documenting the twenty-four times he attempted
to serve the Defendant. He also identified a photograph of the Defendant’s lawn. The
photograph showed tire tracks on a grassy space connecting a roadside curb and a
wooded area. Deputy Bowers said that the line of a driveway was present in the
photograph and identified where his vehicle had been parked, where he was standing, and
where the truck began to swerve into the grass. He stated that the tire tracks came from
“the vehicle that was coming at me.”
Deputy Bowers testified that after the incident with the truck, he was cautious in
attempting to serve the Defendant and sometimes asked other deputies to accompany
him. He stated that his subsequent attempts were unsuccessful. He said that when he
could not contact a defendant, he returned “the process not to be found.”
Deputy Bowers testified that on October 24, 2013, he went to the Defendant’s
mother’s house, that he parked at a restaurant beside the house, and that he thought he
saw the Defendant walking across the driveway. Deputy Bowers said that he pulled into
the driveway and that an employee of a business in the house told him the Defendant was
inside. Deputy Bowers stated that he watched the house and that he requested backup.
He said that Sergeant Jenkins arrived first and that other deputies joined them, including
a K-9 deputy and his dog.
Deputy Bowers testified that Sergeant Jenkins was his supervisor and that once
she arrived, he “sat back” while Sergeant Jenkins spoke with the Defendant’s mother.
Deputy Bowers said that he entered the front door, went downstairs into the basement,
and returned outside to search for the Defendant. Deputy Bowers denied opening
drawers or searching in small spaces. He said that other deputies went inside the house.
He said that he believed the Defendant had “evaded,” obstructed, and prevented service.
On cross-examination, Deputy Bowers testified that he was persistent in his
attempt to serve the Defendant and that generally, he did not have to try twenty times to
serve someone. He denied being frustrated by the Defendant and said that he drove past
the Defendant’s house daily because it was on his way to work.
-3-
Relative to the September 18 incident, Deputy Bowers testified that he began
walking up the driveway before the truck appeared, that he saw two individuals in the
truck, and that he told every deputy who accompanied him after the incident that the
Defendant had attempted to run over him. Deputy Bowers denied that every deputy who
responded on October 24 thought the Defendant had attempted to run over Deputy
Bowers and that the September 18 incident was “general conversation” among the
department. Deputy Bowers acknowledged that Sergeant Jenkins and his supervisors
knew about the September 18 incident. He said relative to the September 18 incident that
he “had a pretty good feeling” the Defendant was driving the truck and that on September
18, he was holding his radio and was dressed in uniform.
Deputy Bowers testified that his uniform consisted of a t-shirt with the sheriff’s
office logo, a badge worn on his belt, a gun, and a radio. Deputy Bowers disagreed that
the Defendant did not try to hit him with his truck. Relative to the Defendant’s swerving
the truck away from him, Deputy Bowers said that if someone drew a weapon at him, he
would have swerved as well. Deputy Bowers agreed that he believed the Defendant was
trying to avoid being served that day and that later in the day, he spoke to the Defendant’s
mother at the Defendant’s workplace. Deputy Bowers said that he stood close enough to
hear the Defendant tell his mother to tell Deputy Bowers to leave because he was
trespassing. Deputy Bowers denied that the Defendant’s mother told him the Defendant
would return at 5:00 p.m. Deputy Bowers denied telling an employee at the Defendant’s
workplace that he had to use the restroom and walking away. Deputy Bowers denied
telling another employee at the Defendant’s workplace, “[Y]ou better tell [the Defendant]
that he better let me serve him or I’m going to get him[.]” Deputy Bowers thought that
he spoke to the Defendant’s father on September 18 and denied that he spoke to the
Defendant.
Deputy Bowers testified that he requested backup on his radio or by calling his
supervisor. He said that generally, when a deputy called for backup, everyone responded.
Deputy Bowers believed he spoke to the Defendant’s wife before the September 18
incident but was uncertain. Deputy Bowers did not know what Tennessee Civil
Procedure Rule 4 stated about methods of service. Deputy Bowers agreed that the
Defendant’s wife was a person of suitable age and discretion with whom he could have
left the civil warrant. After reviewing Rule 4, he acknowledged that the rule did not
require a third party to consent to service on behalf of a named defendant. He agreed that
he could have dropped the warrant at the Defendant’s wife’s feet and told her to give it to
the Defendant but said that he had been taught to “cover my rear end” and only to leave
the warrant with a defendant, unless he had the defendant’s consent. When asked
whether the Defendant had to be “avoiding” process, as opposed to “evading” process, in
order to serve the Defendant’s wife in the Defendant’s stead, Deputy Bowers responded,
“[T]hat’s the way I understand it[.]” Deputy Bowers said that he did not feel
comfortable leaving the warrant with the Defendant’s wife.
-4-
A copy of Tennessee Code Annotated section 16-15-604 was received as an
exhibit. Subsection (a) read,
Original process shall be served on individuals by delivering a copy of the
warrant personally . . . or if he evades or attempts to evade service . . . , by
leaving a copy thereof at his dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein[.]
Deputy Bowers testified that the Defendant merited arrest on October 24 when he
“[r]olled himself up in plastic [and] hid in a crawl space” and told his mother that he
would not come to the door. Deputy Bowers denied that the Defendant put nails in the
driveway, shot at him, or prevented him from approaching the house. Relative to the
September 18 incident, Deputy Bowers stated that he told a few deputies that the
Defendant drove away from him.
Defense counsel played a portion of an October 24 police cruiser video recording.1
In the recording, Deputy Bowers said “[he] did go that way.” Deputy Bowers denied
obtaining an arrest warrant for evading. He believed that the Defendant was preventing
service of process and said that he did not know if he could have obtained a warrant for
the Defendant’s arrest based upon his preventing service of process. Deputy Bowers
stated that at the time he entered the Defendant’s mother’s house, he thought a warrant
for the Defendant’s arrest had been signed by an on-call judge.
Deputy Bowers identified a copy of the Defendant’s arrest warrant and agreed the
charge listed was “preventing or obstructing service of process.” He acknowledged that
the narrative section of the warrant stated deputies had requested permission to enter the
house, the Defendant’s mother told them the Defendant was hiding, and the deputies
searched most of the house using a police dog. Deputy Bowers said that he was “not
usually involved with arrest warrants” and that he did not know how the warrant was
obtained. Deputy Bowers stated that when a crime was being committed in a deputy’s
presence, the deputy did not always have to obtain a warrant. He said that Sergeant
Jenkins and Captain Norris had a conversation about “taking extra steps” to ensure they
had a warrant and that Deputy Bowers was not part of the conversation.
On redirect examination, Deputy Bowers testified that if he served someone other
than the named defendant, the person he served might claim he or she never received the
papers. He said that he did everything he could do to avoid involving the Defendant’s
parents. He stated that he did not have permission to serve the Defendant’s mother and
1
The video recording, parts of which were played during the testimony of Deputy Bowers and Captain
Norris, was from Deputy Greg Stanley’s police cruiser. The State introduced a redacted copy of the
recording, and the complete recording was introduced by the Defendant during Deputy Stanley’s
testimony.
-5-
that even if she had wanted to accept service on his behalf, “I’m not going to do that. I
don’t care what the statute says, I’m covering my rear end.” Deputy Bowers denied that
frustration influenced his attempts to serve the Defendant.
On recross-examination, Deputy Bowers testified that he “followed statutes, but I
followed the one I chose to choose” and that he chose not to follow the statute permitting
him to serve the Defendant’s wife. Deputy Bowers did not know whether the
Defendant’s mother volunteered to accept service on October 24. He said that Deputy
Thompson eventually served the Defendant and that seven or eight deputies responded to
the Defendant’s mother’s house.
Knox County Sheriff’s Captain Wesley Norris testified that he was Deputy
Bowers’s supervisor and that he discussed with Deputy Bowers the difficulty of serving
the Defendant. Captain Norris said that on October 24, he was concerned about the
numerous times Deputy Bowers had tried to serve the Defendant and about “some safety
concerns[.]” Captain Norris stated that on October 24, he spoke to Sergeant Jenkins, who
was the supervisor on the scene, as well as Mike Ruble, legal counsel to the Sheriff’s
Office. Captain Norris said that his conversation with Mr. Ruble concerned “evasion of
process, any alternative means, which had pretty much been exhausted at that point.”
Captain Norris stated that he made the decision to charge the Defendant with “evading
service of process” because it was “obvious” that the Defendant would “go to any length
to avoid being served.” When asked whether the Defendant obstructed service of
process, Captain Norris stated that the Defendant obstructed service by “making himself
unavailable, putting other people in positions . . . [to] say he’s not here or either say, he’s
not coming out, basically, things along those ways. Putting other people in the position
to obstruct the process.” When asked whether the Defendant prevented service of
process, Captain Norris stated that the Defendant prevented service by refusing to accept
it.
Captain Norris testified that the deputies at the scene did not have an arrest
warrant and that an arrest warrant was not required when a misdemeanor occurred in a
deputy’s presence. When asked which misdemeanor the Defendant committed in the
deputies’ presence, Captain Norris responded, “Evading process.” He said that the
Defendant resisted arrest, although he did not see it.
Captain Norris testified that a federal lawsuit was pending as a result of the
October 24 incident. He identified a copy of the federal complaint and said that it
bothered him. Captain Norris read the substance of the complaint to the jury. Captain
Norris stated that several parts of the federal complaint were incorrect. Captain Norris
said that the federal complaint requested a $50,000 judgment for the Defendant’s mother
and $250,000 for the Defendant.
-6-
Captain Norris testified that the Defendant’s mother said she did not want the
deputies to enter her home but that no force was used. Captain Norris said he asked the
Defendant questions while they stood at the back of a police cruiser. Captain Norris did
not recall seeing Deputy Thompson serve the Defendant, although he was confident
Deputy Thompson did. He identified Deputy Thompson’s signature on the civil
warrant’s return. Captain Norris noted that service could have involved “informing” the
Defendant because the Defendant was handcuffed and could not hold the warrant.
Captain Norris agreed that service required handing a person the warrant, although he
later said that service did not require handing it to a person, but rather making the person
“personally aware of the service . . . face-to-face, hand-to-hand.” He stated,
Naturally, the occurrence, if I’m there to serve a paper, is to hand it, after
you have been told why I’m here to serve this, whatever it is. Naturally,
I’m going to hand that to you, as a copy. Is it required? I don’t think it is
required. You don’t have to take it. I can simply drop it at your feet and
walk away.
Captain Norris agreed that after Deputy Bowers determined the Defendant was “evading”
process, Deputy Bowers could have dropped the warrant at the Defendant’s wife’s feet.
He said, though, that Deputy Bowers’s contact with the Defendant’s wife occurred at a
point in time in which the sheriff’s office did not yet know whether the Defendant was
evading process.
Captain Norris testified that he instructed Sergeant Jenkins to arrest the Defendant
if she believed she had probable cause. He denied that Mr. Ruble told him he had
probable cause to arrest the Defendant or enter the house. He denied telling Sergeant
Jenkins that she had probable cause to enter the house and said that the deputy at the
scene made probable cause determinations. He said that without probable cause to arrest,
a deputy could not enter a house. When asked whether hiding from service of civil
process gave a deputy probable cause to arrest, Captain Norris responded, “Hiding once,
probably not. Hiding 24 times, maybe . . . . it’s, I guess, a totality of everything that’s
occurred up to that point. That’s where you arrive at the evading.” When asked whether
evading was an element of the offense, Captain Norris responded, “It’s obstruction,
prevention, evading. They pretty much all say the same thing to me.” Captain Norris
said that he thought evading was the same as obstructing or preventing and that he would
have to read the statute to know whether the statute included the word “evading.”
On redirect examination, Captain Norris testified that the Defendant was served at
the police cruiser by telling the Defendant the contents of the civil warrant. He said that
the warrant was placed in the Defendant’s belongings to be transported to the jail because
the Defendant was handcuffed. Captain Norris stated that if a named defendant refused
to take the warrant, the serving deputy could drop it in front of the defendant. He said,
-7-
though, that the deputy could not drop it if the deputy were serving another person in the
named defendant’s stead.
On recross-examination, Captain Norris testified that the Defendant’s wife did not
have to accept the civil warrant and that service of process consisted of informing the
individual of the charges, not simply leaving the warrant. Captain Norris said that
handing a person the warrant “doesn’t necessarily complete that process” and that the
warrant was a copy of the information and “your corroboration of what I just told you.”
Relative to leaving the warrant with the Defendant’s wife, Captain Norris responded that
if a third party were reluctant to take the paper, he would not leave the paper with the
third party “because I have a duty otherwise to not do it.” He said that he did not know
when Deputy Bowers first spoke with the Defendant’s wife.
Knox County Sheriff’s Sergeant Deborah Jenkins testified that she had worked in
the civil warrants division for twenty years and that she was Deputy Bowers’s supervisor.
Sergeant Jenkins said that Deputy Bowers occasionally asked her to accompany him
when trying to serve the Defendant because he had not been able to reach him several
times. She stated that on one occasion, she went with Deputy Bowers to the Defendant’s
house and that no one answered the door. She stated that she accompanied Deputy
Bowers to the Defendant’s workplace once or twice before October 24, and that she
spoke to the Defendant’s parents. Sergeant Jenkins said that she told the Defendant’s
mother she needed to serve the Defendant with civil process and that she felt
uncomfortable leaving the papers with his mother because his mother was “very nervous”
and the location was not the Defendant’s home address. Sergeant Jenkins stated that the
Defendant’s mother called the Defendant and that the Defendant wanted the deputies to
leave because they were trespassing. Sergeant Jenkins heard the Defendant say that he
was not going to make himself available to them.
Sergeant Jenkins testified that on October 24, she received a dispatch call
requesting assistance from Deputy Bowers. She said that while driving to Deputy
Bowers’s location, she called Captain Norris to discuss Deputy Bowers’s attempts to
serve the Defendant. She said that Captain Norris told her to arrest the Defendant for
“evasion of service” if she had probable cause to believe that the Defendant was inside
the house.
Sergeant Jenkins testified that when she arrived, two deputies were speaking with
the Defendant’s mother at the back door. Sergeant Jenkins said that she was still
speaking to Captain Norris on the telephone, that she asked Deputies Stanley and
Thompson whether the Defendant was inside, and that they responded affirmatively. She
said the Defendant’s mother stated that she had asked the Defendant to come out but that
he refused. Sergeant Jenkins stated that she could hear the Defendant and his mother
talking, although she could not see him, and that the Defendant’s mother begged him to
-8-
come out. Sergeant Jenkins stated that the Defendant’s mother offered to pay the debt if
the Defendant would come out and the deputies would leave.
Sergeant Jenkins testified that she asked the Defendant’s mother for permission to
enter the house, that the Defendant’s mother refused, and that Captain Norris told
Sergeant Jenkins that if she had probable cause, she should go in and make an arrest for
“Evasion of service, obstruction of justice.” When asked how the Defendant was
obstructing service of process, Sergeant Jenkins responded, “Well, because of the history
in the past . . . [when] his mother had him on the telephone and I plainly heard him say
that we were trespassing, that we needed to leave, he was not going to make himself
available. That was probable cause.” When asked how the Defendant obstructed service
on October 24, Sergeant Jenkins said the Defendant “ran into the business, the building
there, and would not come out. He would not make himself available . . . . He hid. He
hid inside this building.”
Sergeant Jenkins testified that she asked the Defendant’s mother where the
Defendant was located and that the Defendant’s mother told her the Defendant was in the
kitchen, living area, or bedroom. Sergeant Jenkins stated that she and other deputies
entered the house and searched the kitchen, living area, and bedroom. She said that the
Defendant’s mother began “hysterically crying” and that Sergeant Jenkins attempted to
comfort her. Sergeant Jenkins stated that she went downstairs into the basement, looked
around, and returned upstairs. Sergeant Jenkins said that two deputies remained in the
basement, that she did not search desk drawers, and that she did not see any other
deputies search desk drawers. She stated she saw one police dog with Deputy Ballard.
She said that she did not know where the Defendant was and that she was not present
when the deputies spoke with the Defendant in the basement. She stated that she did not
usually arrest a person while serving civil process unless she knew the person had an
outstanding criminal warrant.
Sergeant Jenkins testified that she wrote the Defendant’s arrest warrant and that
she thought the Defendant had obstructed and prevented service of process. She stated
that the Defendant did everything possible to prevent the process servers from speaking
with him and that the Defendant repeatedly “escalated the situation.” She said that if the
Defendant had come to the door on October 24, she probably would not have charged
him. She stated that she believed the Defendant could have been charged in connection
with other incidents before October 24 and that she thought she had been patient with the
Defendant. She denied that other deputies behaved aggressively toward the Defendant.
She acknowledged that she was named in a federal lawsuit related to the October 24
incident.
On cross-examination, Sergeant Jenkins testified that she reviewed the Rules of
Civil Procedure every two or three months. She said that a person’s avoiding service of
process was a reason to arrest the person and that if a person avoided civil process, the
-9-
process server could leave the civil warrant at the person’s residence with an adult of
appropriate age and discretion. She agreed that the process server’s noting the name of
the person with whom the server left the warrant complied with the Rules. When asked
whether a person’s wife was a suitable person to receive process, Sergeant Jenkins
responded that it depended on the circumstances. She said that this case was the first
time she had made an arrest for “evasion of service” of process and that it was the first
time “that anyone has gone to these measures.”
Sergeant Jenkins testified that Captain Norris gave her a “direct order to enter the
home and make the arrest” if she determined she had probable cause to believe a crime
was being committed in her presence and that the Defendant was committing the crime of
“evading service of process” by hiding in the house. She said the law stated she could
make an arrest every time a person hid from a process server.
On redirect examination, Sergeant Jenkins testified that she believed the
Defendant prevented and obstructed service when he instructed his mother to tell the
deputies they were trespassing, when he told his mother he was not going to make
himself available to them, and when he “made himself not available to us again” when
the deputies entered the house. Sergeant Jenkins agreed that she knew the Defendant’s
intent was to make himself unavailable “no matter what he had to do.” She said that she
determined the Defendant was communicating with his mother when she was at the back
door, although Sergeant Jenkins could not hear the Defendant’s voice.
Knox County Sheriff’s Deputy Gregory Stanley testified that on October 24,
2013, he was dispatched to the Defendant’s mother’s house to assist with a service of
process. Deputy Stanley said that he told the Defendant’s mother they were there to
serve civil process. He said that he told her if the Defendant came to the door and took
the warrant, the deputies would leave. He said that the Defendant’s mother pleaded with
someone to come out of the house and that he could not hear another person’s voice.
Deputy Stanley testified that the Defendant’s mother returned and told them the
Defendant would not come out and that the Defendant’s father, who was next door,
refused to help the Defendant’s mother with the situation. Deputy Stanley said that
Sergeant Jenkins joined the conversation and that the three deputies entered the house
because the Defendant had committed a misdemeanor in their presence “by refusing to
come to the door.”
Deputy Stanley testified that the deputies explained to the Defendant’s mother that
they had to enter the house because they did not want to force their way past her. He said
that he searched the “main area” near the back door, a bedroom, and the basement and
that another deputy searched the attic and the middle level.
-10-
Deputy Stanley identified photographs of the crawl space, which were received as
exhibits. The photographs depicted the crawl space, a large plastic sheet, which was torn
and contained a red substance, a tennis shoe, and a cell phone. He said that half of the
basement had a concrete floor and that the other half was a crawl space. He stated that
the crawl space had a dirt floor and a layer of plastic as a moisture barrier, that “clutter”
was stored in the crawl space, and that the crawl space was accessible through a
dumbwaiter door. He stated that the door was about two feet by two feet in size and that
he did not generally enter such small spaces because he was a large man. Deputy Stanley
said that he went upstairs and called for a K-9 deputy and his dog because entering the
space would have been difficult while wearing police equipment and because it would
have posed a “serious risk” to the deputies. Deputy Stanley stated that he was concerned
about safety because the Defendant was familiar with the building, would have known
where a weapon was located, and could have had a weapon. Deputy Stanley said that he
generally assumed any suspect was armed and that the Defendant might have been in a
position to assault him.
Deputy Stanley testified that he never entered the crawl space, that he loudly
announced himself several times, and that he told the Defendant to come out. Deputy
Stanley announced that if the Defendant failed to emerge, he would send in the police
dog. Deputy Stanley said he told the Defendant the dog would bite if the Defendant
resisted. Deputy Stanley stated that he heard no response, that he returned upstairs, and
that he spoke to the Defendant’s mother. He said that he told the Defendant’s mother a
police dog was en route and that he wanted to prevent anyone from being bitten. He
stated that the Defendant’s mother asked if he was threatening her, that he told her he was
not, and that he said he was trying to prevent any harm to the Defendant. Deputy Stanley
said that the Defendant’s mother was overwhelmed and did not know what to do, that
Deputy Stanley was concerned for her, and that he “thought it was pretty bad to do your
mom this way.”
Deputy Stanley testified that he went downstairs and waited about fifteen minutes
for the police dog to arrive. He said that Deputy Ballard arrived and announced himself
and his dog repeatedly and that the dog had a fifteen-foot leash. Deputy Stanley stated
that the dog searched the right side of the crawl space, that it did not find anything, and
that it returned to Deputy Ballard. Deputy Stanley said that Deputy Ballard entered the
crawl space with the dog to search the left side, that Deputy Stanley heard a commotion,
and that Deputy Ballard began commanding the Defendant to show his hands. Deputy
Stanley stated that he saw the dog bite the Defendant’s pants leg, that the Defendant held
his hands underneath his body and refused to move them, and that Deputy Ballard
continued to command the Defendant to show his hands.
Deputy Stanley testified that the Defendant attempted to trap and stomp the police
dog’s head. He said that he was concerned for the safety of Deputy Ballard and the dog
because the Defendant hid his hands. Deputy Stanley said he shocked the Defendant
-11-
with his Taser but did not remember if he announced his intent to use the Taser before
firing it.
Deputy Stanley testified that when he fired the Taser, Deputy Ballard immediately
pulled the police dog off the Defendant to protect the dog from being shocked. Deputy
Stanley said that pulling the dog away also protected the Defendant because being
shocked could cause the dog to “go outside of his training” and lose control. Deputy
Stanley stated that the Defendant began to comply after the second shot from the Taser.
Deputy Stanley said that another deputy fired his Taser, that the Defendant threw up his
hands, and that Deputy Stanley did not intend to fire his Taser at the same time as the
other deputy.
Deputy Stanley testified that after the Defendant complied, Deputy Ballard and the
police dog left the crawl space and that the Defendant complied with Deputy Stanley’s
commands about how to exit the crawl space. Deputy Stanley stated that during the
altercation, the Defendant and the dog did not make any sounds. Deputy Stanley said the
Defendant’s silence was unusual.
Deputy Stanley testified that he handcuffed the Defendant and told him he was
under arrest for “[e]vading process and resisting arrest.” Deputy Stanley stated his
opinion that refusing to move was “passive resistance” and constituted resisting arrest.
He said that the Defendant’s refusing to show his hands “put our lives in jeopardy,” that
the Defendant put the police dog’s life in jeopardy when he attempted to harm it, and that
both of these actions constituted resisting arrest.
Deputy Stanley testified that when he handcuffed the Defendant, he noticed a dog
bite on one of the Defendant’s arms and that the wound looked typical of a dog bite.
Deputy Stanley said that he took the Defendant upstairs, that he ensured an ambulance
was en route to treat the Defendant, and that he escorted the Defendant to his police
cruiser. Deputy Stanley stated that the Defendant was cooperative, that the Defendant
did not have any weapons, and that Deputy Stanley did not accompany the Defendant
into the ambulance.
On cross-examination, Deputy Stanley testified that Sergeant Jenkins made the
decision to enter the house and that before the deputies entered the house, they told the
Defendant’s mother, “[A]ll we want to do is give him this piece of paper.” Deputy
Stanley recalled that Deputy Bowers was present but could not remember whether he was
at the door. Deputy Stanley said that the deputies set up a perimeter around the house to
prevent the Defendant’s escaping. Deputy Stanley stated that he had a “duty and
obligation” to serve the Defendant. When asked whether he felt he had to serve the
Defendant “at all costs,” Deputy Stanley responded, “Because once he began hiding . . .
he was avoiding process . . . . [Breaking] the law, yes, sir.”
-12-
When asked to recite the wording of the statute he used to arrest the Defendant,
Deputy Stanley responded, “He was obstructing service of process.” Deputy Stanley said
that the Defendant obstructed service because he was “around the corner and . . . by his
inaction, refusing to come to the door and accept process . . . . [E]ventually, he chose to
go in the crawl space downstairs and conceal himself in plastic” and did not respond to
commands for him to come out. When asked whether the Defendant’s actions before the
deputies entered the house were sufficient to justify his arrest, Deputy Stanley responded,
“He was committing a misdemeanor in our presence . . . [by] avoiding service of
process[.]” Deputy Stanley stated that the Defendant’s moving into the crawl space and
concealing himself in plastic was “more than hiding.” Deputy Stanley said that when the
Defendant’s mother spoke to someone at the door, the Defendant had to have been close
because the Defendant’s mother had a conversation with him, although the deputies could
not hear the Defendant’s voice. Deputy Stanley stated that when the deputies entered the
house, the Defendant’s mother began to cry.
Knox County Sheriff’s Deputy Steven Ballard testified that he was the handler for
Marco, his police dog, that he and the dog had worked together for three years, and that
he was dispatched to the Defendant’s workplace on October 24. Deputy Ballard said that
he was called to assist in locating a person hiding in a crawl space. He stated that when
he arrived, he harnessed his dog and attached a fifteen-foot leash. Deputy Ballard said
that he and his dog entered through a back door and that he went downstairs, where
Deputy Stanley explained the situation. Deputy Ballard stated that he announced himself
and ordered the Defendant to come out with his hands up and that he warned the
Defendant that he would be bitten. Deputy Ballard did not recall if he gave the warning
multiple times, and he noted that Deputy Stanley had already given the Defendant the
opportunity to surrender.
Deputy Ballard testified that he sent his dog into the crawl space, that the dog
remained attached to his leash, that the dog “cleared” the right side of the crawl space,
and that Deputy Ballard was unable to direct the dog toward the left side. Deputy Ballard
said he entered the crawl space to redirect the dog. Deputy Ballard stated that he was
uncomfortable entering the small space, that he drew his gun, and that the dog alerted to a
human odor and began digging at rolled-up plastic against the foundation wall. Deputy
Ballard said that he ordered the Defendant to show his hands, that the Defendant did not
comply, that Deputy Ballard prompted the dog to show him the Defendant’s location, and
that the dog continued digging at the plastic until shoes were visible.
Deputy Ballard testified that he continued commanding the Defendant to show his
hands, that the Defendant continued not to comply, and that Deputy Ballard gave his dog
a command to bite the Defendant. Deputy Ballard said that although it was dark, he saw
a struggle in which the Defendant hit and kicked the dog in the ribs. Deputy Ballard
stated that the dog and the Defendant did not make any sounds during the struggle and
that the interaction was short. Deputy Ballard said that when the Defendant began
-13-
kicking the dog, Deputy Ballard told the Defendant that he would call off the dog if the
Defendant stopped kicking.
Deputy Ballard testified that he heard a Taser deployment, that he recalled his dog,
that he wrapped the leash around his hand, and that he heard two subsequent Taser
deployments. Deputy Ballard said that he was in the crawl space and that he continued
commanding the Defendant to stop resisting and to come out. He stated that the
Defendant said, “[O]kay,” and that Deputy Ballard and the dog backed out of the crawl
space. Deputy Ballard said that he backed up the staircase, watched the Defendant
emerge, and left the building with his dog.
On cross-examination, Deputy Ballard testified that initially, he was not told the
charges for which the Defendant would be arrested. Deputy Ballard said that to his
knowledge, the other deputies did not locate the Defendant before he arrived. Deputy
Ballard stated that he may have told Deputy Stanley he told the dog to “bite his a--.”
Deputy Ballard testified that Deputy Stanley was not standing beside him in the
crawl space. Deputy Ballard agreed that his dog bit the Defendant’s left arm. Deputy
Ballard stated that he never saw the Defendant try to hold the dog away from him. When
asked whether the first Taser affected the Defendant, Deputy Ballard said that once he
recalled the dog, the other two Taser deployments were simultaneous. Deputy Ballard
stated that the dog was by his side before the Defendant was totally affected by the
Tasers.
After the conclusion of the State’s proof, the Defendant made a motion for a
judgment of acquittal. The Defendant argued that the evidence was insufficient to prove
that on October 24, he prevented or obstructed service of process. The Defendant noted
that “prevented or obstructed” was not further defined in the statute and that the trial
court had agreed to apply the normal meaning of the words. The Defendant argued that
his hiding and the State’s use of the words “evading” or “avoiding” did not rise to the
level of preventing or obstructing. In support of his motion, he cited State v. Harris, 919
S.W.2d 619 (Tenn. Crim. App. 1995), for the proposition that a defendant’s hiding from
service of civil process did not create probable cause for an officer to search a place not
open to the public. The Defendant noted that Civil Procedure Rule 4 set out an
alternative means of service if a person avoided service and that the alternative means did
not include obtaining an arrest warrant or searching a residence without a warrant.
The State responded that it was a jury question whether the Defendant prevented
or obstructed service when he “used his physical power to prevent himself from being
available to go out there,” “physically walked away into that house,” “placed himself” in
the crawl space, concealed himself in the plastic, and refused to comply with the
deputies’ demands.
-14-
Relative to preventing or obstructing service, the trial court found that the
Defendant was “not just hiding” because he was “not just preventing the police from
knowing where he was.” The court found that the police knew where the Defendant was
on several occasions, “[a]nd so that’s not hiding.” The court found that the Defendant
knew the police needed to “put something in his hand and he made sure they couldn’t do
that.” The court found that the Defendant’s actions were the equivalent to preventing the
deputies from serving him because he refused to come to the door and “made it
impossible for them to put that piece of paper in his hand. That’s not just hiding.” The
court noted that the Defendant said he was not going to make himself available or
cooperate with deputies in order to prevent them from serving him. The court also noted
that the Defendant’s possibly “wheeling out” in his truck was a “positive act.” The court
found that the Defendant prevented the deputies from serving process on October 24, as
well as on previous occasions for which he was not charged.
Tammy Burgess,2 the Defendant’s wife, testified that she and the Defendant had
been married for thirty-one years, that the Defendant worked part time with his brother’s
landscaping company, and that she and the Defendant had a business designing and
making binoculars and telescopes. She said that the machine shop for the business was at
his mother’s house and that he was arrested at the machine shop.
Ms. Burgess testified that she obtained a Discover credit card in the Defendant’s
name, that she did not remember how she obtained the card, that she generally did not use
the card, and that she decided to use the card and sign the Defendant’s name without his
knowledge. Ms. Burgess agreed that they received collection calls and that the
Defendant did not believe he owed the credit card company.
Ms. Burgess testified that she received a letter from a local attorney indicating a
civil lawsuit had been filed in connection with the credit card and that she did not tell the
Defendant about the letter. Ms. Burgess denied being afraid of the Defendant and said, “I
can’t really explain why I don’t tell him everything, but I just don’t.”
Ms. Burgess testified that on September 16, 2013, at 7:00 p.m., a man came to the
door in connection with the civil lawsuit, yelled, and beat on the windows and door. She
said that the Defendant was not home, that she was caring for her young grandson, and
that she was afraid because the man sounded “crazy.” She said that she reached for her
cell phone to call 9-1-1 and that the man yelled he was going to call a “squad car.”
Ms. Burgess testified that the man beat on at set of sliding-glass doors “like he
want[ed] to break them” and yelled that he was going to call for a police dog. She said
that the man went to his car for several minutes before returning to her house and that the
2
Because the Defendant’s wife and the Defendant’s mother share the same surname, we refer to them as
Ms. Burgess and Mrs. Burgess, respectively.
-15-
man told “Charlie and Whiskers to go around to the side.” Ms. Burgess stated that she
did not believe that the man had dogs with him because Whiskers was an unusual name
for a dog. She said the man left after several minutes. She stated that she told the
Defendant about the incident and that she did not recall the Defendant’s taking any
action.
Ms. Burgess testified that on September 25, she was preparing her grandson for
school when she saw police cars in the driveway. She said that she left the house and
spoke to the deputies, that she did not remember what was said, and that the deputies
tried to give her a summons. She stated that Deputy Bowers was present and that he was
not the deputy who attempted to hand her the summons. She said that she told the
deputies she would rather not take it, that she did not wish to make the Defendant mad,
that the summons was “his business,” and that he probably wanted to accept it himself.
Ms. Burgess stated that the Defendant would not hurt her and denied reporting to the
deputies that the Defendant was violent.
Ms. Burgess testified that she did not refuse to take the summons but that she said
she would rather not take it. She said that had the deputy said she had to take it, she
would have accepted it. She agreed that the deputies knew she was the Defendant’s wife
and that the house was the Defendant’s residence. Ms. Burgess stated that she was not
present during the September 18 incident.
Joshua Roberts, the Defendant’s coworker, testified that on September 18, he was
at the Defendant’s mother’s house where landscaping equipment was kept. He said that
the Defendant was present, that Deputy Bowers came into the shop, and that the
Defendant asked if he needed help. Mr. Roberts stated that Deputy Bowers was thirty or
forty feet from the Defendant, that Deputy Bowers said he needed to use the restroom,
and that Deputy Bowers walked away. Mr. Roberts denied that Deputy Bowers asked for
the Defendant.
On cross-examination, Mr. Roberts testified that he knew who Deputy Bowers
was because the Defendant had pointed out Deputy Bowers. Mr. Roberts said that it was
possible the Defendant knew Deputy Bowers was trying to contact him.
The Defendant testified that he designed and produced telescopes and binoculars
and worked for his brother’s commercial landscaping business. He stated that he
generally left for work around 7:00 a.m. and returned between 7:00 and 8:00 p.m. He
said that years before the trial, a Discover credit card representative called and left a
voicemail message threatening to repossess his car and disconnect his electricity. The
Defendant said that he called Discover and told them he did not have a credit card and
had never used one. The Defendant stated that he asked the person to call him back with
a list of the transactions but that the person did not return the call. He said that he called
again one week later, spoke to the person, and considered the matter settled after the
-16-
conversation. He stated that he “just left them with, I don’t want to be contacted. I don’t
want anybody coming to my door.”
The Defendant testified that no one contacted him about the debt for years and that
on an autumn day, a male sheriff’s deputy came to his house asking for “Charles
Burgess,” which was the Defendant’s son’s name. The Defendant said that this incident
was the first time he knew a credit card debt still existed and that the deputy did not call
the Defendant by his name or serve him. The Defendant stated that he asked the deputy
if this was about a Discover card and that the deputy responded he did not know. The
Defendant said the deputy was not Deputy Bowers.
The Defendant testified that he first became aware Deputy Bowers was trying to
serve him when he drove down his driveway and saw a black SUV blocking the entrance.
The Defendant said that his son was with him, that the SUV was turned diagonally across
the driveway, and that a man leaned against the front of the SUV. The Defendant stated
that utility companies habitually parked in his driveway because he lived off of a rural
road, that no roadside parking existed, and that the Defendant considered the SUV’s
presence normal. The Defendant said that he drove through the yard, that the man began
to run toward him when he curved off of the driveway, and that the man was about thirty-
five feet from the Defendant’s truck.
The Defendant testified that he saw the man in his mirror, that the man held
something in his hand, and that the Defendant thought the man had drawn a gun. The
Defendant said his son thought the man held a radio or “walkie-talkie.” When asked
whether he intended to hit the man with his truck, the Defendant said, “No. I was just
going around him like I normally do.” The Defendant said that he did not know the man
and that he only saw him for a second before his view was obstructed.
The Defendant identified photographs of his driveway, which were received as
exhibits. The Defendant marked the location of the black SUV on one photograph. He
said that in one photograph, which was taken just after the September 18 incident, he
parked a van in the same location as the black SUV, although the SUV was about two
feet shorter than the Defendant’s van. He stated that the photograph also depicted the tire
tracks he made in the grass.
The Defendant testified that later the same day, he went to his mother’s house and
as he walked toward the house, a man walked “through the narrow place where you can
get to the back of the house.” The Defendant said that he believed the man had come to
buy mulch and that he asked the man if he could help him. The Defendant stated that the
man stopped, said he had to use the bathroom, and turned and walked away. The
Defendant said that he recognized the man’s black SUV as the one parked in his
driveway. The Defendant stated that his son and Mr. Roberts saw the man and that the
man drove to a restaurant beside the house.
-17-
The Defendant testified that he began his work route and that his mother called
and told him Deputy Bowers was there. The Defendant said he told his mother that he
was out of town, that Deputy Bowers could meet him out of town, and that he would
return to the house at 5:00 p.m. He stated that he told her to tell “them” to leave because
they were trespassing. The Defendant said that he returned to the house before 5:00, that
he waited for two hours for Deputy Bowers to return, that Deputy Bowers did not return,
and that he left. The Defendant said that Deputy Bowers spoke to Ms. Burgess on
September 25.
The Defendant testified that on October 24, he went to his mother’s house and
spoke to his parents, who were preparing to leave. He said that they saw five or six
police cars pull in the driveway and that he told his mother he was going to the basement.
The Defendant said that he went into the basement and that the basement had “vent
doors” every ten feet, which allowed him to see and hear the police. He stated that the
deputies circled the house and knocked at the back door. The Defendant said that after
the deputies made a “very threatening statement” to his mother, he hid under a plastic
vapor barrier.
The Defendant testified that Sergeant Jenkins came downstairs, that she was alone,
and that she said, “I’m going to get you, you little s---.” The Defendant said that he and
his mother cried. The Defendant said that when Deputy Ballard came downstairs, the
Defendant was in disbelief that the deputies threatened him with a dog. The Defendant
stated that the deputies released the dog into the crawl space and that the dog bit his feet
and hands. The Defendant said that Deputy Ballard was about ten feet away from him
near the crawl space’s access door and that Deputy Stanley was standing next to the
Defendant, although the Defendant did not think Deputy Stanley was aware of it.
The Defendant testified that he did not hear any commands or conversation from
Deputy Ballard’s location, although he heard instructions and conversation directed at
him and the dog coming from Deputy Stanley’s location. The Defendant said that he
held the dog away from him with his hands, that the dog twisted around and bit him, and
that he had scars on his fingers and arms.
The Defendant testified that suddenly, he was shocked multiple times with Tasers.
He said that the pins were fired into his leg, chest, and arm, that he dropped the dog, and
that he lay still. The Defendant stated that he had never been shocked and that he could
not breathe. The Defendant said that the dog “latched onto” his arm and dragged him
three feet in the crawl space. The Defendant stated that Deputy Ballard did not pull the
dog back until after the deputies stopped shocking him and that the dog remained near the
Defendant’s feet and pulled off his shoe and socks. The Defendant identified a
photograph of his left ankle, which was received as an exhibit. The photograph showed
blood, two large lacerations, small abrasions, and puncture wounds. The Defendant said
that the wounds left scars.
-18-
On cross-examination, the Defendant testified that he and Discover reached an
agreement and that he considered the matter settled years before he spoke to the other
process server. The Defendant stated that the man showed him a summons and read from
it, that the Defendant did not go by the name Charles, that he invited the man inside, and
that the man said he could not enter the house. The Defendant said that he told the man,
“[T]his better not be about a Discover card.”
The Defendant testified that he told the man he had already resolved the matter
with Discover. The Defendant also told the man that he told Discover he would sue if he
received collection calls or anyone came to the house. The man responded that he was
“just the messenger.” The Defendant said that they discussed the Defendant’s name not
being reflected on the summons and that the man told him he was not going to have the
Defendant sign it. The Defendant said the man returned to his truck, made a telephone
call, returned, and spoke to the Defendant again.
The Defendant testified that on September 18, the black SUV was parked in such a
manner that the rear bumper was about ten feet from the road and that the front bumper
was about twenty feet from the road. The Defendant noted that the SUV “left residue”
such that he was able to recreate the SUV’s position in a photograph. The Defendant
denied stopping when he saw the SUV blocking his driveway. He stated that for eighteen
years, a tower had been located at the top of a ridge on the property and that the
Defendant signed an agreement allowing six utility companies to enter his property in
order to service utility lines running to the tower. He said the utility workers told him to
drive around their vehicles. The Defendant denied calling the police and said his son did
not think the man had a gun.
The Defendant testified that a date stamp on one of the photographs reflecting
“10-30-2013” was created when he transferred the file and that the photograph was taken
one or two days after the September 18 incident. The Defendant said that he became
afraid and contacted the Federal Bureau of Investigation (FBI) and that Ms. Burgess told
him about the previous incident in which a person beat on the door. The prosecutor noted
that the Defendant’s photographs reflected orange leaves on the trees but that the State’s
photograph did not. The Defendant said that his photographs showed more trees and
different trees than the State’s photograph.
The Defendant testified that September 18 was the first time he saw Deputy
Bowers. The Defendant said that he saw Deputy Bowers at his mother’s house and when
the Defendant asked if he needed help, Deputy Bowers said he needed a restroom and
drove away. The Defendant said that during the telephone conversation, his mother
identified Deputy Bowers to the Defendant. He denied that his mother gave him Deputy
Bowers’s telephone number and told him to call Deputy Bowers. The Defendant stated
that he thought it was odd that the man he saw at the end of his driveway later spoke to
his mother.
-19-
The Defendant testified that he kept equipment at his mother’s house, that he spent
his childhood there, and that he was familiar with the basement as a hiding place. He
said that he did not generally hide in the basement when he saw a police car. He stated
that he was afraid and apprehensive based upon “some things” his mother told him and
the incident when Deputy Bowers “pull[ed] a gun.” The Defendant stated that he did not
call the police after the September 18 incident and that he and Ms. Burgess performed an
Internet search “on who handles police things.” He said that he discovered the FBI
handled the prosecution of police departments and that he contacted the FBI.
The Defendant testified that he decided to crawl under the vapor barrier after he
heard five to seven deputies at the back door tell his mother they were there to arrest him.
He agreed that after the deputies entered the house, they told him to come out of the
basement. He said that he did not come out because he did not think they had the right to
enter his workshop without a warrant. He denied wrapping himself in the plastic and said
it was impossible to wrap oneself in the plastic because it was held down by rocks. He
said that he went under the plastic before the deputies ordered him to come out. When
asked whether he left his mother to “deal” with the deputies, the Defendant responded
that he thought they would go away.
The Defendant testified that he heard a police dog come down the basement steps
and that he did not see it. He agreed that when the dog approached him, he did not come
out for about five seconds.
Relative to the federal lawsuit, the Defendant testified that the FBI told him that he
and his mother had “a very good case” and that his version of events was contained in the
complaint. The Defendant read from the federal complaint and agreed that it stated that
he was trying to evade and hide from Deputy Bowers. The Defendant agreed that he was
seeking $250,000 in damages from the deputies and that he “fully expect[ed]” the case to
be resolved in his favor. He noted that he had permanent damage to his arm and a
“blown out” eye that interfered with his binocular business. A photograph of the
Defendant’s arm was received as an exhibit. The photograph depicted four two- and
three-inch lacerations on an upper arm. One laceration was sutured with six staples, and
another was sutured with two staples.
Joseph Michael Burgess, the Defendant’s son, testified that he worked for his
uncle’s commercial landscaping business. He said that on September 18, 2013, he and
the Defendant left the Defendant’s house and that when they were halfway down the
driveway, they saw a vehicle parked in the driveway such that they could not go around
it. He stated that a man stood at the front driver’s side of the vehicle, that they began
turning to go through the yard and around the vehicle, and that the man began walking
toward them. Mr. Burgess denied that it was the first time the Defendant had driven
through the yard. Mr. Burgess said that “about the time [the Defendant] had turned at
about 90 degrees,” the man lunged at the truck and stuck his hand out “to try to get in the
-20-
way.” Mr. Burgess stated that the man had a walkie-talkie in his hand and that the man
did not move from the truck’s path. Mr. Burgess agreed that there was “plenty of room”
to go around the man. Mr. Burgess denied that he and the Defendant said anything to one
another about the man.
Mr. Burgess testified that when he and the Defendant pulled into the parking area
at their workplace, he saw the same vehicle pull up, stop, and back up. Mr. Burgess said
that he went inside and that when he came out, he saw the vehicle parked at a restaurant
next door. He did not see the person in the vehicle talk to anyone. Mr. Burgess stated
that the Defendant later received a telephone call from the Defendant’s mother. Mr.
Burgess said that they returned to their workplace between 4:30 and 6:00 p.m., although
he did not remember exactly when they arrived.
On cross-examination, Mr. Burgess testified that the man in the driveway drove an
SUV. He agreed that he and the Defendant did not say anything after encountering the
man. Mr. Burgess denied seeing a man wearing a sheriff’s uniform approach the
Defendant with a piece of paper later the same day.
Richard Bean, the operations manager for the Defendant’s brother’s landscaping
company, testified that he was the Defendant’s friend and brother-in-law. He said that
sometime after September 18, he met Deputy Bowers, that Deputy Bowers asked if the
Defendant was there, and that Mr. Bean told Deputy Bowers he was not. Mr. Bean stated
that Deputy Bowers told him to tell the Defendant that he needed “take care of this
summons, because if he doesn’t, I’m going to get him.”
Margaret Grace Burgess, the Defendant’s mother, testified that she saw Deputy
Bowers and a female deputy walk into her yard from the parking lot of a restaurant, that
Mrs. Burgess spoke to Deputy Bowers, and that as a result of their conversation, she
telephoned the Defendant to tell him Deputy Bowers was there. Mrs. Burgess said that
the Defendant told her he was out of town but would return and meet with Deputy
Bowers around 5:30 p.m. She stated that she relayed the message and that she had the
impression Deputy Bowers was going to meet with the Defendant. She said that the
Defendant returned about 5:30 or 6:00 p.m. and waited for Deputy Bowers for “several
hours.”
Mrs. Burgess testified that on October 24, five police cruisers pulled into her
driveway, three additional police cruisers parked at the restaurant next door, and
unmarked cars parked in her backyard. Mrs. Burgess stated that deputies knocked
abruptly on her back door and that when she answered the door, she told them the home
was hers. She said that she thought the police were intruding on her home. She stated
that deputies were everywhere and that she did not want them to come inside. She said
that she did not give them permission to enter, that they entered anyway, and that she
counted six deputies. Mrs. Burgess stated that the deputies searched her entire house,
-21-
opened and searched her closets and shower, and scared her dogs. She said that the
deputies did not show her any documents and that a large police dog was taken to the
basement. She stated that when the police were at the door, she attempted to talk to the
Defendant and that although she heard his voice, she could not see him.
On cross-examination, Mrs. Burgess testified that the Defendant did not go to the
basement until after the police arrived. She said that she asked the Defendant to come
out and that she knew the Defendant heard her because he answered her.
Upon this evidence, the Defendant was convicted of obstructing service of
process, preventing service of process, and preventing or obstructing an arrest. The trial
court merged the obstructing and preventing service of process convictions and sentenced
the Defendant to six months’ supervised probation and service of ten days in jail.
I. Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his
convictions. The State responds that the evidence is sufficient.
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
a. Obstructing or Preventing Service of Process
Relative to the convictions for preventing and obstructing service of process, the
Defendant argues that hiding is not criminal behavior as contemplated by the statute. The
State responds that the Defendant did more than simply “evade” process because he used
“his workshop and mother to hinder service efforts and [hid] to impede the officers.”
-22-
Tennessee Code Annotated section 39-16-602(c) (2014) states that “[it] is an
offense for a person to intentionally prevent or obstruct an officer of the state . . . in
serving, or attempting to serve or execute, any legal writ or process.” Whether an overt
act is required to constitute obstructing or preventing service is an issue of first
impression.
In construing a statute, this court must ascertain and give effect to the legislative
intent without unduly restricting or expanding the statute beyond its intended scope.
State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007). The words in the statute must be given
their natural and ordinary meaning in light of their statutory context. Keen v. State, 398
S.W.3d 594, 610 (Tenn. 2012). “[A]ny forced or subtle construction that would limit or
extend the meaning of the language” must be avoided. Id. (citation omitted). “If the
statutory language is clear and unambiguous, we apply the statute’s plain language in its
normal and accepted use.” Id.; see State v. Gibson, 506 S.W.3d 450, 455-56 (Tenn.
2016).
Merriam-Webster defines “obstruct” as “to block or close up by an obstacle,” or
“to hinder from passage, action, or operation: impede.” Obstruct, THE MERRIAM-
WEBSTER DICTIONARY (New ed. 2016). “Prevent” is defined as “to deprive of power or
hope of acting or succeeding” or “to keep from happening or existing.” Prevent, id.
“Evade” is defined as “to slip away” or “to take refuge in escape or avoidance.” Evade,
id. Although hiding by its nature makes service of process difficult, we do not think the
common understanding of “obstruct” and “prevent” includes mere concealment in the
absence of an overt act against an officer serving process. Hiding is more appropriately
categorized as a form of evading or avoiding.
A commonsense reading of Code section 39-16-602 leads us to conclude that the
legislature did not intend to criminalize merely evading or avoiding civil process servers.
We note that throughout the trial and this appeal, the State and its witnesses referenced
the Defendant’s placing the sheet of plastic over him, placing the house between the
Defendant and the deputies, and placing his mother between the Defendant and the
deputies as overt acts by which he “prevented” the deputies from reaching him.
However, the Defendant had no legal obligation to facilitate service of process or
otherwise cooperate with the deputies by accepting service of process. The Defendant
was inside a private residence and chose not to engage with the deputies, who had other
means of effecting service of process available to them but elected not to pursue them.
His actions did not foreclose the deputies’ opportunity to serve him and merely
constituted a lack of cooperation with the deputies’ chosen method of service of process.
Further, the extraordinary measures taken by the deputies offer some explanation for the
Defendant’s not being inclined to cooperate with them—the large number of deputies
who responded to serve a civil warrant, a warrantless intrusion into a private residence by
those deputies, the presence of a police dog to serve a civil warrant, and threats that the
dog would bite the Defendant amply explain the Defendant’s actions.
-23-
We also find State v. Harris, 919 S.W.2d 619, 623 (Tenn. Crim. App. 1995), to be
instructive. In Harris, this court held that even if a sheriff believed a person were hiding
from a process server, the sheriff was not justified in entering the curtilage of a home
without a warrant. The court noted that “nothing justifies the sheriff’s proceeding [into
the curtilage] to serve civil process even if the sheriff had believed that [the defendant]
[were] ‘hiding’ from service” and that Tennessee Civil Procedure Rule 4 governed the
procedure to be followed if a person evaded service. Id. The court specifically noted
that, as in the present case, no evidence had established that the defendant intentionally
prevented or obstructed the officers who came to serve the civil warrant. Id. As a result,
we read Harris to limit the methods of service available to officers to those specified by
Rule 4 and Code section 16-15-903(1) when an individual evades or attempts to evade
service of civil process.
Tennessee Civil Procedure Rule 4, as codified by Tennessee Code Annotated
section 16-15-903(1) (2014), provides that civil service
shall be made . . . [u]pon an individual . . . by delivering a copy of the
warrant, writ or other papers to the individual personally, or if the
individual evades or attempts to evade service, by leaving copies of the
warrant, writ or other papers at the individual’s dwelling house or usual
place of abode with some person of suitable age and discretion then
residing in the dwelling house or usual place of abode, whose name shall
appear on the proof of service[.]
The deputies’ misunderstanding of the elements of the offense notwithstanding,
the record reflects in the light most favorable to the State that the conduct each State’s
witness described was mere avoiding or evading service. The Defendant retreated to the
basement when the deputies knocked on the door, and Mrs. Burgess told the deputies he
refused to come out and speak to them. When the deputies entered the home without a
warrant, the Defendant was found lying beneath or rolled in a sheet of plastic. The
evidence also reflects that the deputies unsuccessfully attempted personal service more
than twenty times and that as a result, they could have determined the Defendant was
evading or avoiding service of process and left the summons and civil warrant with the
Defendant’s wife pursuant to Civil Procedure Rule 4. However, the deputies chose not to
serve her in accordance with the Rule. The Defendant simply declined to cooperate with
a process server, which is not a criminal offense.
In rendering this conclusion, we have also considered the statutory context of the
Code section at issue. Code section 39-16-602(a) prohibits preventing or obstructing an
officer from effecting an arrest and mirrors the language of subsection (c), although
subsection (a), unlike subsection (c), requires force to be used against a law enforcement
officer. The legislature enacted a separate statute, Code section 39-16-603, to prohibit a
-24-
person’s evading arrest.3 Notably, the legislature did not include language criminalizing
evading service of process in either the evading arrest statute or in Code section 39-16-
602(c), evidencing its intent to exclude evading service of process from being categorized
as a criminal offense. In addition, the existence of alternate methods of service for a
named defendant determined to be evading service articulated in Civil Procedure Rule 4,
when read in conjunction with Code sections 39-16-602 and -603, indicates that the
legislature was aware of evasion of service as a possible behavior and declined to create
an affirmative duty on the part of civilians to facilitate their being served with civil
process. Again, a lack of cooperation in accepting service of process is not a criminal
offense.
We conclude that the Defendant’s actions on October 24 did not rise to the level of
preventing or obstructing an officer in service of process, and we reverse his convictions
in Counts 1 and 2, vacate the convictions, and dismiss the charges.
b. Preventing or Obstructing an Arrest
Relative to his conviction for preventing or obstructing an arrest, the Defendant
argues that he acted in self-defense and that the deputies used excessive force to
effectuate the arrest. The State responds that the Defendant used force against the police
dog, an instrumentality of the police, and therefore prevented or obstructed his arrest.
Tennessee Code Annotated section 39-16-602(a) states that “[it] is an offense for a
person to intentionally prevent or obstruct anyone known to the person to be a law
enforcement officer . . . from effecting a[n] . . . arrest . . . by using force against the law
enforcement officer or another.” Code section 39-16-602(b) states, “Except as provided
in § 39-11-611, it is no defense to prosecution under this section that the . . . arrest . . .
was unlawful.” “Passive resistance” generally does not constitute using force as
contemplated by the preventing or obstructing an arrest statute. See State v. Corder, 854
S.W.2d 653, 655 (Tenn. Crim. App. 1992), (concluding that a defendant’s not moving
and directing obscene language at officers were not sufficient to support a conviction for
resisting arrest); see also Tenn. Op. Att’y Gen. 00-147, 2000 WL 159391 (Sept. 26,
2000) (articulating that passive inaction, specifically sitting in a car and refusing to exit,
was not resisting arrest).
As a preliminary matter, we do not agree with the State’s assertion that a “plain
reading” of Code section 39-16-602(a) prohibits a defendant from using force against “an
instrumentality” an officer uses to effectuate an arrest. The State relies upon Robinette v.
Barnes, 854 F.2d 909 (6th Cir. 1988), and State v. Jose Roberto Ortiz, No. M1998-
00483-CCA-R3-CD, 1999 WL 1295988 (Tenn. Crim. App. Dec. 30, 1999), perm. app.
3
We note that the legislature amended Code section 39-16-603 to include the word “conceal,” effective
July 1, 2016.
-25-
denied (Tenn. Sept. 25, 2000). However, the cited cases only state that police dogs are
legitimate law enforcement tools and do not determine whether using force against a
police dog is contemplated under the preventing or obstructing an arrest statute.
The record reflects that the indictment for Count 3, preventing or obstructing an
arrest, states that the Defendant used force against “law enforcement officers.”
Tennessee Code Annotated section 39-11-106(a)(21) (Supp. 2011) (amended 2014)
defines a law enforcement officer as “an officer, employee or agent of government who
has a duty imposed by law to . . . maintain public order . . . [or] make arrests for offenses
. . . [and] investigate the commission or suspected commission of offenses.” 4
As the State notes in its brief, our courts have acknowledged the use of police dogs
as a legitimate law enforcement tool. However, neither our courts nor our legislature
have adopted the concept that a police dog is the equivalent to a human law enforcement
officer. For example, in State v. Kenneth Hayes, No. W2010-00309-CCA-R3-CD, 2011
WL 3655130, at *1 (Tenn. Crim. App. Aug. 19, 2011), perm. app. denied (Tenn. Nov.
16, 2011), a defendant repeatedly stabbed a police dog but was not prosecuted for
aggravated assault or attempted murder, but rather “attempt to commit the intentional
killing of an animal worth over $1000[.]” Similarly, if a person killed a police dog, the
person could be prosecuted under Tennessee Code Annotated section 39-14-205 (2010)
(amended 2015), which appears in the “Offenses Against Property” chapter of the Code
and governs the killing of any animal belonging to a person. In addition, the punishment
for such an offense is governed by the dog’s value, as indicated by an internal citation to
the theft statute. See id.; see also id. § 39-14-105 (Supp. 2012) (amended 2016, 2017).
Our legislature has not evidenced an intent to include police dogs in the definition of law
enforcement officers based on the plain language of the relevant statutes. See Keen, 398
S.W.3d at 610; Gibson, 506 S.W.3d at 455-56.
The record reflects that, in the light most favorable to the State, the Defendant’s
kicking the police dog was the only time he used force in the crawl space, which was
presumably to defend against the dog’s complying with an order from Deputy Ballard to
bite the Defendant. Because the dog was not a law enforcement officer, and no evidence
was presented to suggest the Defendant used force against any of the numerous deputies
involved in this case, the evidence is insufficient to support the Defendant’s conviction
for preventing or obstructing an arrest. We reverse the judgment of the trial court relative
to Count 3, preventing or obstructing an arrest, vacate the conviction, and dismiss the
charge.
4
We note that the jury instructions, which were attached to the Defendant’s brief but not included in the
appellate record, tracked the statutory language. The Defendant should have sought to supplement the
record with the jury instructions if he intended to reference them in his brief. We note that the Defendant
has the burden of preparing a fair, accurate, and complete account of what transpired in the trial court
relative to the issues raised on appeal. See, e.g., State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983);
T.R.A.P. 24(b).
-26-
In consideration of the foregoing and the record as a whole, we reverse the
judgments of the trial court, vacate the Defendant’s convictions, and dismiss the charges.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
-27-