State of Tennessee v. Lester Arnold Clouse ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville September 16, 2014
STATE OF TENNESSEE v. LESTER ARNOLD CLOUSE
Appeal from the Criminal Court for White County
Nos. CR-00676 & 00686B Donald P. Harris, Senior Judge
No. M2013-02633-CCA-R3-CD - Filed December 23, 2014
Appellant, Lester Arnold Clouse, was convicted of aggravated assault, a Class C felony;
simple assault, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor. After
merger of the resisting arrest conviction with the aggravated assault conviction, the trial court
sentenced him to fifteen years and eleven months, twenty-nine days, respectively. Appealing
from his convictions and sentences, appellant argues that: (1) the trial court improperly
denied his motion to suppress; (2) the trial court failed to approve the verdicts as thirteenth
juror; (3) the evidence was insufficient to support his assault convictions; and (4) the trial
court erred in sentencing him to fifteen years in confinement consecutive to other outstanding
sentences. Following our review, we affirm the convictions. However, we reverse
appellant’s sentences and remand this cause for a new sentencing hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed in Part; Remanded
R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OBERT H. M ONTGOMERY, J R., JJ., joined.
Billy Keith Tollison III, Sparta, Tennessee, for the appellant, Lester Arnold Clouse.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Randall A. York, District Attorney General; and Howard Chambers, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History
Appellant was indicted for seventeen counts of arson, two counts of aggravated
assault (Deputies David Gibbons and Bill Harris), and resisting arrest. His first trial in 2001
resulted in convictions on five counts of arson, two counts of aggravated assault, and one
count of resisting arrest. State v. Lester Arnold Clouse, No. M2004-00124-CCA-R3-CD,
2004 WL 193069, at *1 (Tenn. Crim. App. Jan. 30, 2004). This court reversed appellant’s
convictions and remanded the cause for a new trial on all counts. Id.
Following the June 2005 retrial on all of the charges, the jury found appellant not
guilty of the arson counts, guilty of aggravated assault (Deputy Bill Harris), guilty of the
lesser-included offense of assault (Deputy David Gibbons), and guilty of resisting arrest. The
trial court approved the jury’s verdicts. The trial court conducted a sentencing hearing on
October 11, 2005. At the conclusion of the hearing, the trial court requested the parties to
submit supplemental briefs as to the validity of certain prior convictions that appellant
contested. The court indicated its desire to issue an order within thirty days. When the
original trial judge left the bench, a sentencing order had not been issued.
A successor judge was appointed and signed the judgment orders on February 22,
2008. The court sentenced appellant as a persistent offender to fifteen years in confinement
for aggravated assault, to be served consecutively to other outstanding sentences. The court
merged appellant’s conviction for resisting arrest into his conviction for aggravated assault,
and the court imposed a sentence of eleven months, twenty-nine days for his assault
conviction, to be served concurrently with the aggravated assault conviction but
consecutively to other outstanding sentences.
A second successor judge was appointed to hear the motion for a new trial. The
hearing was conducted, and the successor judge issued a written order denying the motion
on October 11, 2013. This timely appeal follows.
II. Facts
A. Facts from Suppression Hearing
At the beginning of the hearing, appellant conceded that he was a passenger in the
vehicle driven by his co-defendant Michael Shane Carter and that he did not have standing
to challenge the search of the vehicle. He clarified that his position was that “anything the
State intend[ed] to use as a result of the seizure” was inadmissible.
-2-
The State presented Deputy David Gibbons with the Putnam County Sheriff’s
Department as a witness. He testified that on October 26, 1999, he was performing a routine
traffic patrol when he was alerted to several fires being set in the area. He responded to an
area around Stone Seminary Road and was instructed to be on the lookout (“BOLO”) for a
small black car with two male occupants who were possibly involved. The area Deputy
Gibbons was patrolling ranged from one to five miles from the Putnam/White County line.
During the patrol, Deputy Gibbons noticed fires on the right side of the road, and the fires
decreased in size as he followed the trail into White County. While following the line of
fires, he spoke with a delivery man who told him that a small black car was a short distance
in front of him. Deputy Gibbons continued and observed the vehicle about a mile into White
County. The vehicle was moving at an “extremely” slow rate of speed; Deputy Gibbons
estimated that the rate of speed was approximately five miles per hour. He followed the
vehicle and initiated a traffic stop. He asked the driver for his license, but the driver did not
have it. Deputy Gibbons asked for the driver’s personal information, which he used to run
the license information through his computer. During this process, appellant exited the
vehicle from the passenger’s side and began moving things around in the back seat.
On cross-examination, Deputy Gibbons confirmed that he had jurisdiction to stop a
vehicle in White County while in the process of investigating a case. The usual procedure
involved notifying the county of an officer’s actions, and he believed that the notification had
been made in this case. Deputy Gibbons explained that he estimated the vehicle’s speed by
following it but that he had also been trained in estimating the speed of a vehicle by
observing it. He stated that he initiated the traffic stop because of the BOLO and because
of the extremely slow rate of speed, which caused him to believe that something might have
been wrong.
The trial court ruled that Deputy Gibbons was a credible witness and that he had
reasonable suspicion to initiate the traffic stop. It stated that it was “very, very, very clear,
. . . almost a textbook classic case.” The court summarized that Deputy Gibbons was
patrolling near the county line when he received a BOLO about the fires and the small black
car that had been seen earlier driving slowly. He then saw larger fires on the right side of the
road, becoming smaller as he continued, “which would lead one to believe that we might be
on the right trail here.” Deputy Gibbons confirmed with the delivery man that the suspect
vehicle was ahead of him and continued into White County to further investigate. Deputy
Gibbons observed the vehicle about a mile into White County, traveling in the same direction
as the fires. Based on the totality of the circumstances, the trial court held that Deputy
Gibbons had reasonable suspicion to stop the vehicle.
-3-
B. Facts from Trial
Deputy Gibbons was the State’s first witness at trial. His testimony was substantially
similar to that at the suppression hearing. At trial, he continued with his recollection of the
events of October 26, 1999, by stating that as he was running co-defendant Carter’s
information, he noticed both occupants exit the vehicle. Around that time, Deputy Bill Harris
arrived, and Deputy Gibbons learned that there was a warrant for co-defendant Carter’s
arrest. Deputy Gibbons requested Deputy Harris to approach the passenger side of the
vehicle but advised him that he had previously seen a crossbow in the back seat. Deputy
Gibbons then approached the driver’s side and placed co-defendant Carter under arrest.
In the meantime, Deputy Linda Dilldine arrived on the scene. Deputy Gibbons then
noticed that appellant had exited the vehicle but was leaning into the backseat of the vehicle.
He heard Deputy Harris order appellant to move away from the vehicle and place his hands
on top of it. Appellant said that he was “checking on some clocks, [and] he didn’t want them
to get damaged.” When appellant stepped away, he was holding the crossbow and then
placed it on top of the vehicle. Deputy Gibbons described appellant as “irate.” He began
screaming at officers, “‘I’ve not done anything wrong.’” Appellant walked around to the
front of the vehicle and wielded a pocket knife.
Deputy Gibbons testified that he transferred control of co-defendant Carter, who was
then handcuffed, to Deputy Dilldine. He and Deputy Harris approached the front of the
vehicle and each stood close to the front tires on opposite sides. Appellant continued
“screaming” at officers, “‘I’ve not done anything wrong.’” He continued waving the knife
at them. Officers shouted commands at appellant, but he refused to comply. He repeated
that he had done nothing wrong and told the officers to “leave [him] alone.” Deputy Gibbons
confirmed that the knife had been in appellant’s right pocket. During the encounter they
were four to five feet away from appellant, and Deputy Gibbons felt threatened.
Deputy Gibbons explained that after about a minute had passed, appellant began to
flee. He ran down the road, and officers gave chase. They pursued appellant through a field
toward the back of it. He continued to threaten them with the knife, and at one time,
appellant held it to his own neck and threatened to kill himself. Other officers responded to
the scene, and someone sprayed appellant with mace pepper spray then kicked the knife out
of his hand. Deputy Gibbons confirmed that the encounter took place in White County.
After co-defendant Carter and appellant were arrested, there were no further reports of fires
being set in the area.
On cross-examination, Deputy Gibbons acknowledged that he and Deputy Harris had
their guns drawn on appellant when he wielded the knife. He clarified that although he
-4-
maintained a short distance between himself and appellant, he was still within the
“reactionary gap” of six feet in which he could have potentially been cut by the knife despite
his holding a weapon.
The State’s next witness was Deputy Bill Harris with the Putnam County Sheriff’s
Department, who stated that he responded to the area where someone had reported that
people in a small black sports car were setting fires. He began his patrol about two or three
miles from the Putnam/White County line, and as he followed the fires, he arrived at the
location where Deputy Gibbons had stopped co-defendant Carter’s vehicle. When he first
arrived, Deputy Gibbons was in his patrol car checking warrants and personal information
on co-defendant Carter, and Deputy Harris observed that appellant had exited the two-door
vehicle and was leaning into the backseat area through the open door. When Deputy Harris
approached appellant to ask him to back out of the vehicle, appellant produced a crossbow
from the back seat and placed it on the roof of the vehicle. He then attempted to re-enter the
vehicle, stating that there was an antique clock that he did not want damaged. While
appellant was searching for the clock, Deputy Harris observed arrows for the crossbow and
some matches. At that time, Deputy Harris reached toward appellant to grab his arm and pull
him away from the arrows. However, before he could do so, appellant pulled away from him
and ran to the front of the vehicle.
Deputy Harris recalled that at that time, appellant withdrew a knife from his right
pocket and opened it. Deputy Harris drew his weapon and ordered appellant to put down the
knife. Appellant began “screaming and yelling not to come any closer, to stay away from
him.” Deputy Harris said that he “felt threatened, very threatened.” He recognized that he
was within the “reactionary gap” where he could be cut with the knife before he was able to
defend himself. Appellant then began to “back-pedal” down the road while still holding the
knife. The chase continued into a nearby field. Somehow, appellant retrieved his cellular
telephone and called his mother. He told her, “‘[T]hey’re trying to kill me.’” Eventually,
other law enforcement officers arrived, including a canine handler who brought a “dual
purpose attack dog.” The canine officer told appellant that if he did not put down the knife,
he would release the dog on him. Deputy Harris stated, “The dog was eventually let loose[,]
and . . . I don’t know that it ever bit him, but it was just enough for us to get on him and get
the knife out of his hand.”
On cross-examination, Deputy Harris confirmed that there were no fires on the
roadside beyond the location where appellant was apprehended. Prior to reaching co-
defendant Carter’s vehicle, there were fires every ten to twenty yards.
The State called Kimberly Sells as its next witness. On October 26, 1999, she lived
on Cunningham Road in White County, which is located approximately one-half mile south
-5-
of the county line. Prior to moving to Tennessee, Ms. Sells had been employed as a sheriff’s
deputy in Indiana and had received training in “flash recognition,” among other areas. On
that date, around 4:30 p.m., a small black car drove southbound past her house very slowly,
and “it was not one known to be in that area.” She was standing next to a fence
approximately five or six feet from the road, and the passenger leaned out of the window and
yelled, “Hey, baby,” in her direction. Ms. Sells identified the passenger as appellant.
Shortly after the vehicle passed, Ms. Sells looked northward and “noticed smoke
billowing from the ditch.” She looked south and observed another small fire located south
of her house, also in a ditch. Both fires were on the west side of the road, which would have
been the passenger side of the passing vehicle. Between fifteen to thirty seconds later,
several law enforcement vehicles sped by.1
Appellant then presented Gus Barbutis as his first witness, who was appellant’s
seventy-eight-year-old neighbor. He recalled seeing appellant on the date in question around
2:00 p.m. when he drove home, but he did not see appellant after that.
Rita Clouse, appellant’s mother, also testified and said that she returned home on the
date in question around 3:00 or 3:15 p.m. and that appellant was at home when she arrived.
He had been repairing a truck. A little while later, co-defendant Carter arrived, and after the
two men conversed in the back yard, they left together around 4:00 p.m.
Charlene Austin, appellant’s next witness, testified that she visited appellant at his
home around 1:00 or 2:00 p.m. on the date in question.
Appellant testified on his own behalf. He explained that on the date in question, his
mother had a dentist appointment and that he had to stay at home in case she needed a ride
after her procedure. He said that he worked on cars for a living and that he owned a small
junkyard. While his mother was away, he worked at home and replaced the glass in a truck
between 10:30 a.m. and 1:00 p.m. As he was working, another individual stopped by and
asked him to replace the sliding glass window in his vehicle. Appellant stated that around
2:00 p.m., he went across the road to the junkyard, where he removed the glass from another
vehicle and saw Mr. Barbutis walking his dog. Appellant returned home and completed the
repair around 3:00 or 3:15 p.m. His mother returned home and began to prepare something
1
The State presented five additional witnesses who testified with regard to the extent of the damage
caused by the fires and the identification of a vehicle that may have been involved. However, because
appellant was found not guilty of all counts of arson, we have omitted a summary of that testimony in this
opinion.
-6-
to eat. Co-defendant Carter arrived between 4:00 and 4:07 p.m., and they subsequently left
together.
Appellant stated that they were going to drive to Livingston so he could sell some
antique clocks and other items. He said that they drove to Cookeville via the interstate and
exited to get a drink. According to appellant, co-defendant Carter wanted to drive to Sparta
because he intended to sell his crossbow to someone there. They traveled various roads and
eventually turned onto Post Oak Road from Cunningham Road. The vehicle had proceeded
“a short distance” on Cunningham Road when a Putnam County law enforcement officer
approached with emergency equipment activated. Appellant testified that he instructed co-
defendant Carter to pull over and let the vehicle pass but that the vehicle stopped behind
them. Appellant exited the vehicle and Officer Gibbons addressed him, “‘[W]hat’s going on,
Pokey?’” Officer Gibbons asked co-defendant Carter for his driver’s license, and when he
could not produce it, Officer Gibbons “ran a check” on Carter. Appellant explained that the
glass clock had fallen onto the floorboard of the back seat so he retrieved it and wrapped a
shirt around it to protect it from damage. He was about to place the clock back in the car
when Officer Dilldine walked up and said, “‘[L]ook out, he’s got a gun in the car.’”
Appellant responded that there was no gun in the car, and he picked up the crossbow and
placed it on top of the car.
Appellant recalled that someone then mentioned the warrant for co-defendant Carter,
so he reached into the vehicle to obtain his belongings because he did not want his valuables
to be towed away. When he backed out, officers “had guns pulled” on him. He said that he
asked officers what was wrong with them. He stated that he called the man in Livingston
whom he was supposed to meet and told him, “‘Putnam County Police [have] me pulled over
in White County and [have] their guns drawn on [me] . . . call the White County Sheriff’s
Department and the FBI and let them know what [is] going on . . . .” He thought they were
“going to try to kill” him. Appellant testified that he reached into his pocket and pulled out
a knife. He opened it, stuck it toward his throat, and told officers he would kill himself
before he would let them kill him. He also said that he informed officers that they lacked
jurisdiction in White County. He explained that he was afraid of the officers because they
had killed two people previously in Putnam County, including his father. Appellant
concluded his direct testimony by disavowing any knowledge of the fires that were set.
On cross-examination, appellant acknowledged that he had pleaded guilty to theft of
property valued at more than $1,000 but less than $10,000 in 1999 and that he was on
unsupervised probation when these offenses occurred. He denied having shouted anything
at Ms. Sells because he “was a married man at the time” they were stopped by officers. He
confirmed that the encounter with law enforcement ended when he was sprayed with pepper
spray and the knife was kicked from his hand. He added that the attack dog bit him in the
-7-
leg in the melee. Appellant denied having threatened officers with his knife. He said that
his mother wanted to speak to one of them to ask what was happening but that they would
not speak to her. Following this testimony, appellant rested his case.
Upon this evidence, the jury found appellant guilty as charged of aggravated assault
of Deputy Bill Harris, guilty of the lesser-included offense of simple assault of Deputy David
Gibbons, guilty of resisting arrest, and not guilty of the five counts of arson.
C. Facts from Sentencing Hearing
At the outset of the hearing, the State argued that appellant should be sentenced as a
career offender. Appellant argued against this contention. The State presented Don Fox, a
probation and parole officer, who reviewed appellant’s prior convictions as contained in the
presentence report. Mr. Fox indicated that appellant’s criminal history included the
following felony convictions that were supported by certified judgments: 1999, theft of
property valued at more than $1,000 but less than $10,000, a Class C felony, four-year
sentence; 1989, receiving stolen property, a Class C felony, ten-year sentence; 1989, aiding
and abetting grand larceny, (no grade given), ten-year sentence; 1987, burglary, a Class C
felony, five-year sentence; 1987, grand larceny, a Class C felony, three-year sentence; 1987,
two counts of concealing stolen property, Class C felonies, three-year sentences; 1987,
possession of property with the serial number altered or removed, a Class D felony, two-year
sentence; and 1986, concealing stolen property, a Class C felony, three-year sentence.2 Mr.
Fox also confirmed that appellant was on unsupervised probation when he committed the
offenses in the instant case.
On cross-examination, Mr. Fox acknowledged that the judgment form for the 1987
conviction for possession of property with the serial number altered or removed did not list
the felony grade and that he assigned the grade himself. He admitted that he could have been
mistaken and that it could have been a Class E felony due to the sentence appellant received.
He also acknowledged that the 1989 judgment of conviction for receiving stolen property did
not bear a felony grade and that he assigned the grade based upon the range of punishment
and appellant’s being sentenced as a persistent offender for that offense, which would have
made the punishment “above the grade.”
2
For clarification, the only certified judgment form that lists a felony grade for a conviction is the
1999 judgment form for theft of property. When Mr. Fox testified to the felony grades, he did so based upon
his working knowledge of the ranges of punishments for the different felony grades as well as the enhanced
punishments imposed by an increase in one’s sentencing range. We have included the grades as recited in
his testimony and note that for the 1989 conviction for aiding and abetting larceny, Mr. Fox did not testify
to a felony grade.
-8-
Appellant again testified on his own behalf. He contested several of the offenses
listed in the presentence report and stated that he had not been charged with many of them.
He also offered into evidence an Order Clarifying Prior Judgments and Rescinded Amended
Judgments Stated Herein, which he asserted should serve to “cover[] the orders that were
previously testified to by the probation officer regarding for [sic] enhancement factors[,] and
. . . they all should have been embodied into this one order and . . . that’s the only prior order
or conviction the court should consider when making a ruling on his sentence.”
On cross-examination appellant testified that probation is “just not for [him]” and that
he “wouldn’t take it.” He acknowledged that he had been incarcerated for approximately
twenty-one of the past twenty-two years and that when he was not in jail, he worked odd jobs
such as “[m]owing yards, cutting trees, killing hogs[,] . . . [and] [f]locking chickens.” He
disagreed that he was a professional criminal, positing, “How can I be a professional career
criminal when I’ve been convicted and sitting in jail the whole time?”
Without making any findings on the record, the trial court allowed the parties thirty
days within which to file supplemental briefs and stated that it would issue an order
thereafter. However, the record contains only judgment forms and no order or findings with
respect to sentencing. The judgment forms indicate that appellant was sentenced as a
persistent offender at forty-five percent release eligibility to fifteen years for aggravated
assault and eleven months, twenty-nine days for assault. Appellant now appeals his
convictions and sentences.
III. Analysis
Appealing from his convictions and sentences, appellant argues that: (1) the trial court
improperly denied his motion to suppress; (2) the trial court failed to approve the verdicts as
thirteenth juror; (3) the evidence was insufficient to support his assault convictions; and (4)
the trial court erred in sentencing him to fifteen years in confinement consecutive to other
outstanding sentences.
A. Motion to Suppress
Appellant argues that the trial court erred by denying his motion to suppress. In his
motion, appellant asserted that Deputy Gibbons lacked “a reasonable articulable suspicion”
for initiating a traffic stop of co-defendant Carter’s vehicle and that he lacked jurisdiction to
initiate an out-of-county traffic stop.
In reviewing the trial court’s decision on a motion to suppress, we review the trial
court’s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008).
-9-
In doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial judge as the trier of fact.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d
at 23). In reviewing the findings of fact, evidence presented at trial may “‘be considered by
an appellate court in deciding the propriety of the trial court’s ruling on the motion to
suppress.’” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) (quoting State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the motion to suppress is afforded the
“‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from that evidence.’” Northern, 262 S.W.3d at 748 (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000);
Odom, 928 S.W.2d at 23.
1. Validity of Stop
A stop of a vehicle constitutes a seizure, entitling a vehicle’s occupants to the full
protections of the United States and Tennessee Constitutions. Whren v. United States, 517
U.S. 806, 809-10 (1996); State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010); State v.
Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). A stop of a vehicle subjects the passengers, as well
as the driver, to a seizure. State v. Tyrone Ralph Wright, No. M2010-02096-CCA-R3-CD,
2012 WL 601332, at *9 (Tenn. Crim. App. Feb. 23, 2012) (citing Brendlin v. California, 551
U.S. 249 (2007)). Accordingly, law enforcement must act reasonably when initiating such
a stop. Whren, 517 U.S. at 809-10. In other words, authorities must have at least “an
‘articulable and reasonable suspicion’ to believe that a . . . violation has occurred when they
initiate a traffic stop.” Brotherton, 323 S.W.3d at 870 (quoting Whren, 517 U.S. at 810).
“Reasonable suspicion exists when ‘specific and articulable facts . . . taken together with
rational inferences from those facts, reasonably warrant that intrusion.’” Id. (quoting Terry
v. Ohio, 392 U.S. 1, 21 (1968)). “An investigatory traffic stop under Terry ‘is a far more
minimal intrusion [than an arrest pursuant to probable cause], simply allowing the officer to
briefly investigate further. If the officer does not learn facts rising to the level of probable
cause, the individual must be allowed to go on his way.’” Id. (quoting Illinois v. Wardlow,
528 U.S. 119, 126 (2000)).
Our supreme court has explained that reasonable suspicion is “a particularized and
objective basis for suspecting the subject of a stop of criminal activity.” State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). More specifically,
[w]hen an officer has reasonable suspicion, supported by specific and
articulable facts, to believe that a criminal offense has been or is about to be
-10-
committed, a brief investigatory detention is permitted. Reasonable suspicion
must be supported by more than the officer’s inchoate and unparticularized
suspicion or ‘hunch[ ]’; however, reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause . . . [and] can arise from information that is less
reliable than that required to show probable cause.
Trial courts must examine the totality of the circumstances when evaluating
whether an officer has established the requisite level of suspicion to justify a
[brief investigatory] stop. These circumstances include an officer’s
observations, information from other law enforcement personnel or agencies,
information from citizens, known patterns of criminal offenders, or deductions
based upon experience. When evaluating the reasonableness of the police
officer’s suspicion, the nature of the crime suspected may be a factor.
State v. Moats, 403 S.W.3d 170, 178 (Tenn. 2013) (citations and internal quotation marks
omitted).
Following the hearing on the motion to suppress, the trial court ruled that Deputy
Gibbons was a credible witness and that he had reasonable suspicion to initiate the traffic
stop. The court summarized that Deputy Gibbons was patrolling near the county line and
received a BOLO about the fires and the small black car that had been seen earlier moving
slowly. He then saw larger fires on the right side of the road, becoming smaller as he
continued, “which would lead one to believe that [he] might be on the right trail here.”
Deputy Gibbons confirmed with the delivery man that the suspect vehicle was ahead of him
and continued into White County to further investigate. Deputy Gibbons observed the
vehicle about a mile into White County, traveling the same direction as the fires at the speed
of around five miles per hour. Based on the totality of the circumstances, the trial court held
that Deputy Gibbons had reasonable suspicion to stop the vehicle.
Because the evidence does not preponderate otherwise, we give deference to the trial
court’s findings of fact. The court also made credibility determinations that we will not
disturb. We agree with the trial court that the totality of the circumstances established
reasonable suspicion for officers to stop the car driven by co-defendant Carter. The trial
court did not err in denying appellant’s motion to suppress.
2. Jurisdiction
A proper analysis of this issue involves a two-fold inquiry: (1) was Putnam County
Sheriff’s Deputy Gibbons authorized to pursue appellant from Putnam County into White
-11-
County; and (2) was Deputy Gibbons authorized to arrest appellant in White County? We
answer both questions in the affirmative.
Addressing the same issue, this court has held that when an officer is in pursuit of a
vehicle within his jurisdiction, he is authorized to stop the vehicle after it crosses into another
county. State v. Gilbert, 751 S.W.2d 454, 458 (Tenn. Crim. App. 1988) (citing Francis v.
State, 498 S.W.2d 107, 114 (Tenn. Crim. App. 1973)). Once the officer stops the vehicle,
he has every right to continue his investigation. Id. This case presents the same situation.
Although he had not actually seen the vehicle while in Putnam County, Deputy Gibbons was
aware that he was searching for a small black car occupied by two males and traveling at a
very slow speed. Thus, he began his pursuit of co-defendant Carter’s vehicle while within
the jurisdiction of Putnam County. Upon information from a delivery man, he continued into
White County in pursuit of the vehicle, which he learned was just ahead of him. Moreover,
Deputy Gibbons observed that fires continued to be set along the route he was traveling; thus,
he had an obligation to prevent further risk to lives or property. Deputy Gibbons was
permitted to travel beyond the confines of the county line in pursuit of the vehicle and to
continue his investigation therein.
However, once the vehicle was stopped and Deputy Gibbons continued his
investigation, circumstances developed that culminated in the arrest of appellant. This arrest
was made by Deputy Gibbons in White County. With regard to our second inquiry, this court
has concluded that when a police officer effectuates an arrest of an alleged perpetrator
outside of the jurisdiction of his law enforcement agency, he is legally authorized to do so
if the arrest is one a private citizen would be authorized to make. State v. John C. Kersey,
No. M2005-01653-CCA-R3-CD, 2006 WL 1896347, at *3 (Tenn. Crim. App. July 7, 2003)
(citations omitted). Tennessee Code Annotated section 40-7-109(a) permits a private person
to arrest another under the following circumstances:
(1) For a public offense committed in the arresting person’s presence;
(2) When the person arrested has committed a felony, although not in the
arresting person’s presence; or
(3) When a felony has been committed, and the arresting person has
reasonable cause to believe that the person arrested committed the
felony.
As this applies to the instant case, Deputy Gibbons retained his status as a police officer
when he entered White County but was only authorized to effectuate arrests outside his
-12-
jurisdiction as a private citizen. After the vehicle was legally stopped, Deputy Gibbons had
the authority to arrest appellant pursuant to the above conditions only.
We conclude that two exceptions existed that permitted Deputy Gibbons to arrest
appellant. First, Deputy Gibbons had probable cause to believe that appellant had committed
several arsons, which are felony offenses. In connection with the outbreak of fires, Deputy
Gibbons was alerted to be on the lookout for a small black car occupied by two males that
was traveling very slowly. As he drove, he observed a line of fires on the side of the road,
progressively becoming smaller as though newly set. Believing he was on the correct path,
he spoke with a delivery man, who confirmed that a vehicle matching that described in the
BOLO was just ahead of the officer. Deputy Gibbons then continued and observed a vehicle
that matched the description. He had reasonable cause to believe that the occupants of the
vehicle had been involved in setting the felonious fires. Moreover, appellant committed the
crime of aggravated assault in Deputy Gibbons’ presence, authorizing him to arrest appellant
in White County.
We further note:
An illegal stop, arrest or seizure does not justify the total exclusion of
whatever takes place after the illegal stop, seizure, or arrest. This conclusion
is especially true when applied to crimes committed subsequent to the illegal
stop, seizure, or arrest. Such evidence is not obtained as a direct result of
exploitation of a constitutionally infirm stop, arrest, or seizure. For instance,
if an officer makes an illegal stop of a motor vehicle, and the driver of that
vehicle subsequently gets out of his or her car and assaults the officer,
prosecution for the assault, and any evidence seized as a result of an arrest for
the assault, should not be suppressible even though there was an illegal stop
of a vehicle.
State v. Robert Lee Mallard, No. M2000-00351-CCA-R3-CD, 2001 WL 178461, at *4
(Tenn. Crim, App. Feb. 23, 2001). Therefore, even if there was a “constitutionally infirm
seizure” of appellant, when appellant wielded a knife and threatened the deputies with it, they
had probable cause to arrest him for aggravated assault. Id. Appellant is not entitled to relief
on this claim of error.
B. Thirteenth Juror
Appellant argues that the original trial judge failed to explicitly approve the jury’s
verdicts as required by the Tennessee Rules of Criminal Procedure and that the successor
judge could not have properly done so.
-13-
“Rule 33[(d)] imposes upon a trial court judge the mandatory duty to serve as the
thirteenth juror in every criminal case, and . . . approval by the trial judge of the jury’s verdict
as the thirteenth juror is a necessary prerequisite to imposition of a valid judgment.” State
v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995) (citing Messer v. State, 385 S.W.2d 98, 101
(Tenn. 1964); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)); see Tenn.
R. Crim. P. 33(d). Just as at common law, Rule 33(d) does not require the trial court to recite
talismanic language when approving a jury’s verdict. Id. Rather, an appellate court may
presume that the trial judge has served as the thirteenth juror and approved the jury’s verdict
when the trial judge overrules a motion for new trial. Id.
In this case, after reciting the jury’s verdict, the original trial court stated, “[T]he court
agrees and adopts the verdict in this case . . . .” We conclude that said language is sufficient
to meet the requirements of Tennessee Rule of Criminal Procedure 33(d). See State v. Joel
E. Blanton, M2007-01384-CCA-R3-CD, 2009 WL 537558, at *9 (Tenn. Crim. App., Mar.
4, 2009); cf. State v. Biggs, 218 S.W.3d 643, 654 (Tenn. Crim. App. 2006) (holding that a
trial judge’s statement of approval “based on the jury’s verdict” was insufficient to fulfill its
obligation as the thirteenth juror). Appellant is not entitled to relief.
C. Sufficiency of the Evidence
Appellant claims that the evidence underlying his convictions for aggravated assault
and assault was insufficient to sustain his convictions. He specifically contends that had the
officers reasonably feared imminent bodily injury, they would have retreated from the
confrontation rather than moving closer to appellant.
The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
-14-
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
As indicted in this case, one commits the offense of assault who “[i]ntentionally or
knowingly causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. §
39-13-101(a)(2). The assault becomes “aggravated” by use or display of a deadly weapon.
Id. § 39-13-102 (a)(1)(A)(iii). Although appellant was indicted for aggravated assault of
both officers, the jury found him guilty of aggravated assault of Deputy Harris and guilty of
simple assault of Deputy Gibbons. The same evidence was relied upon by the State for both
counts of the indictment.
The evidence established that appellant displayed a knife, which is a deadly weapon.
He wielded it in the direction of law enforcement officers. They each testified to their fear
and stated that they were in the “reactionary gap” in which appellant could have stabbed them
before they could defend themselves. Deputy Harris was closer in proximity to appellant
than was Deputy Gibbons. The reasonableness of the deputies’ fear in light of their failure
to retreat was a question of fact for the jury, which we will not revisit. The trial court
approved this verdict, and appellant is not entitled to relief on this claim.
D. Sentencing
Appellant claims that the trial court erred in sentencing him as a persistent offender
to fifteen years in confinement to be served consecutively to other outstanding sentences
because the trial court failed to place on the record the reasons for its decision. Our review
of the record indicates that the trial judge who heard the case also conducted a sentencing
hearing. The trial judge made no oral findings and indicated that she would issue a
sentencing order. However, that was never done. A subsequent trial judge entered the
-15-
judgments without entering a sentencing order. Therefore, neither oral nor written findings
setting forth the reasons for appellant’s sentences are available.
At the original sentencing hearing, appellant contested his offender status. The trial
court took the matter under advisement. In this unique procedural posture, the original trial
court received all of the testimony, and it is unclear from the record what information the
successor judge utilized in ordering consecutive sentencing and setting the offender status
as persistent. Because the trial court failed to set forth any reasons for its sentencing
decision, we must reverse appellant’s sentences and remand for a new sentencing hearing.
See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).
CONCLUSION
Based on the record as a whole, the briefs of the parties, and the applicable legal
authorities, we affirm appellant’s convictions. However, we reverse his sentences and
remand for proceedings consistent with this opinion.
_________________________________
ROGER A. PAGE, JUDGE
-16-