State of Tennessee v. Nicole Flowers ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 9, 2015 Session
STATE OF TENNESSEE v. NICOLE FLOWERS
Appeal from the Circuit Court for Maury County
No. 22821 Robert L. Holloway, Jr., Judge
No. M2014-01744-CCA-R3-CD – Filed September 28, 2015
The Defendant-Appellant, Nicole Flowers, was indicted by the Maury County Grand Jury
for one count of stalking, a Class A misdemeanor. See T.C.A. § 39-17-315(b)(2) (Supp.
2012). Following a bench trial, Flowers was found guilty of the charged offense. The
same day, the trial court imposed a sentence of eleven months and twenty-nine days to be
served on supervised probation. On appeal, Flowers argues that the evidence is
insufficient to support her conviction. Upon review, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.
Claudia S. Jack, District Public Defender; Travis B. Jones, Assistant Public Defender,
Columbia, Tennessee, for the Defendant-Appellant, Nicole Flowers.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Mike Bottoms; District Attorney General; and Kevin S. Latta, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Trial. Jason Dale, the victim, testified that he had worked for the Maury County
Board of Education for the last fifteen years. He stated that he had six children, including
one daughter with Nicole Flowers, the Defendant-Appellant. Dale said that his daughter
with Flowers1 was fourteen years old on May 8, 2013.
1
We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
In the days leading up to the incidents on May 8, 2013, the victim received
“several text messages” from Flowers, wherein she called the victim a “deadbeat dad”
and informed him that he needed to “step up one time in [his] life and be a father.” He
said these text messages were related to the issue of transporting their daughter to and
from band practice. The victim said that he informed Flowers via text that he did not
want to receive any more text messages from her. He did not remember any phone
conversations with Flowers after he received the text messages from her but before he
found the three signs calling him a “deadbeat.”
At 6:25 p.m. on May 8, 2013, an individual at work informed the victim that a sign
about him had been posted on the fence of the Maury County Board of Education.
Although the victim usually arrived at work around 7:00 a.m., he went to work early that
day after learning of the sign. When he arrived at work, the victim saw the sign posted
on the fence that stated, “Jason Dale is a deadbeat.” There was a second sign posted on
the main gate that likewise stated, “Jason Dale is a deadbeat.” The victim said that he
took both of these signs down.
As the victim was leaving work on May 8, 2013, he saw Flowers and her sister,
Priscilla Dawson, sitting in a gray Malibu Max that was parked just down the street.
Flowers and Dawson followed him in their car as he exited the parking lot and continued
to follow him as he drove in the direction of his home. The victim then drove to the
sheriff‟s department and informed a magistrate of the events that had transpired. The
magistrate instructed him to go to the police department to file a report on Flowers. The
victim met with Detective Mike Barnett of the Columbia Police Department, filed a
report regarding Flowers‟s conduct, and brought the report back to the magistrate, who
issued a warrant for Flowers‟s arrest.
The victim said there was a third sign lying in his yard on May 8, 2013, which
stated, “Jason Dale is a deadbeat dad, and he works for the Department of Education.”
His neighbor had found the sign first and had thrown it into a ditch in his yard. Although
the victim had not seen who had placed the signs, he believed that they had been posted
by Flowers because of her earlier text messages calling him a “deadbeat dad.” When
asked if there was anything else that he wanted the trial court to hear about this case, the
victim replied:
You know, I don‟t want my name defamed like that. You know, I wouldn‟t
do my worst enemy like that. You know, this is something that, you know,
to as Mr. or Mrs. or by his or her proper title.
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you don‟t do nobody like this, or jeopardize a job and everything like that.
You know, I wouldn‟t do that to nobody.
The victim stated that after the arrest warrant was issued on May 8, 2013, Flowers did not
place any more signs at his home or work.
Flowers, the Defendant-Appellant, testified that she had known the victim for
fifteen or sixteen years and that they had a daughter together. In the spring of 2013, their
daughter was a flag girl in the marching band at Central High School.
Flowers said their daughter had talked to the victim, who told her that he was not
going to transport her to and from band practice. When she learned of the victim‟s
response, Flowers sent the victim some text messages, which included statements like
“Step up and be a man for once in your life” and “You don‟t do anything else for her.
The least you could do [is] give her a ride [to band practice].” She stated that the victim
responded to her text messages.
Flowers said that after she sent these text messages, she called the victim. During
this conversation, the victim told Flowers that he did not understand why she was
bothering him about their daughter‟s transportation, and Flowers responded, “Don‟t
worry about it. I‟ll get her there the best that I can.” At the time of this conversation, the
victim knew that Flowers did not have a driver‟s license. The victim then hung up on
her. Flowers asserted that her phone records confirmed that this telephone conversation
took place. Following this telephone conversation, Flowers did not try to contact the
victim through text messages or phone calls.
Flowers acknowledged that she made signs stating that “Jason Dale is a deadbeat”
and placed them at the victim‟s home and work the night of May 7, 2013. She said that
prior to sending the text messages to the victim, she had not talked to him in three years,
even though they had a daughter together.
Flowers also acknowledged that she and her sister, Priscilla Dawson, went to the
victim‟s work on May 8, 2013. She said she went to the victim‟s place of employment
“to see if [she and the victim] could have [a] sensible conversation about [the victim]
getting [their daughter] back and forth [from band practice]” because she was “tired of
paying people to get her back and forth.” When Flowers was asked if the victim saw her
at his work, she stated, “He might have looked over. I don‟t know.”
When the victim left work, Flowers and Dawson, who was driving, followed the
victim. She said that at one point, they “got beside [the victim] to let him know we
[were] right here.” However, she said that they did not swerve into the victim and did not
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make any signals for him to pull over. Flowers said that as they were following the
victim, the victim never said anything to her, never called her on her cell phone, and
never told her to stop following him. She said the victim drove directly to the sheriff‟s
department. At the time, she believed the victim went to the sheriff‟s department to meet
with her on “neutral ground” so that she “wouldn‟t do anything to him, and he wouldn‟t
do anything to [her].” However, when Flowers saw the victim enter the sheriff‟s
department, she knew that they would not be having a discussion, and she and her sister
left. Flowers said that since May 8, 2013, she has had no contact with the victim, and the
victim had not spoken to their daughter.
Flowers asserted that she was not trying to frighten or terrorize the victim or cause
the victim any sort of emotional distress with her actions. Instead, she claimed she was
trying “to get a ride for my child back and forth to practice.” Because the victim refused
to help regarding the transportation of their daughter, Flowers paid people to drive their
daughter back and forth to practice when her sister was unavailable to help.
Flowers explained why she contacted the victim about their daughter‟s
transportation issues:
I mean, her father doesn‟t deal with her, or have a relationship with her. He
can walk by with the other kids and post pictures on Facebook and
Instagram, and that‟s where she sees it all, and that‟s where she had a
problem with it. As a parent, I stepped in. Up until that point[,] I hadn‟t
said anything to [the victim] about it. I have over the years [told the victim]
you are a deadbeat [father]. But once my child let me know that it bothered
her, then, of course, it bothered me.
She added that the victim did not call their daughter when the daughter‟s sibling passed
away three or four years prior. She said, “I‟m not doing a defamation of character of
him, but [the victim] is a deadbeat [father] to my child. I can‟t speak for the other
mothers [of the victim‟s children].” Flowers admitted that on May 8, 2013, she was
angry with the victim. She also admitted that she placed the signs so that other people
would see that the victim was a “deadbeat” and so that the victim would feel bad.
Priscilla Dawson, Flowers‟s sister, testified that she was with Flowers the
afternoon of May 8, 2013. Dawson believed that Flowers only wanted to talk to the
victim about helping her transport their daughter. She explained why transportation for
their daughter had been such a problem:
[Their daughter] is my niece, and I love her, but I cannot continue to be the
sole transportation. I have to work. I have to take off from my job to come
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home to take her to the doctor, to the dentist. [The victim] provides no
transportation for this child whatsoever.
Dawson acknowledged that she and Flowers saw the victim leave work on May 8,
2013, and then followed him. However, she asserted that she was not “riding his
bumper,” “blowing [her] horn,” or “doing anything out of the normal.”
When the trial court asked Dawson if she believed that the signs at the victim‟s
workplace were going to encourage a meaningful discussion between the victim and
Flowers, Dawson acknowledged that the signs were not as much “for them to have a
meaningful discussion” as they were to let the victim know that the daughter was “a
child” with “feelings” who was hurt when he treated her differently from his other
children. When the court asked if the signs were posted for the benefit of the victim‟s
employers rather than the victim, Dawson replied:
I‟m not going to say that it‟s so much [to] let [the victim‟s
employers] know. It‟s just to let it be known that you can walk around with
your head held up, and have a relationship with five of your six kids. But
you make this one child feel so ostracized and so unimportant in your life,
that what else—what is she supposed to do? She‟s a good kid. She goes to
school. She makes good grades. You have no relationship with this child
at all. When this child‟s grandmother died, and 52 days later, her sister
died, [the victim] didn‟t pick that phone up and call that child at all.
When the trial court asked Dawson why she thought the victim would talk to Flowers
after she posted the two signs at his work, Dawson responded, “I didn‟t know if he
wanted to talk to her or not. It didn‟t really matter to me if he talked to her or not.”
ANALYSIS
Flowers argues that the evidence is insufficient to sustain her conviction for
stalking. The State responds that the evidence is sufficient because the proof established
that Flowers called and texted the victim, placed signs stating that the victim was a
“deadbeat” at his work and home, and followed the victim after work. After addressing
all of Flowers‟s specific arguments, we conclude that the evidence is sufficient to sustain
her stalking conviction.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009). When considering the sufficiency of the evidence on
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appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn from that evidence. State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)). When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support the finding by the trier of fact of guilt beyond a
reasonable doubt.” Tenn. R. App. P. 13(e).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„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
Hanson, 279 S.W.3d at 275). The trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses‟ testimony, and reconcile all conflicts
in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the trier of fact
determines the weight to be given to circumstantial evidence and the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the trier of fact.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
When considering the sufficiency of the evidence, this court shall not reweigh the
evidence or substitute its inferences for those drawn by the trier of fact. Id.
An individual who intentionally engages in stalking commits a Class A
misdemeanor. T.C.A. § 39-17-315(b)(1)(2). “Stalking” is defined as “a willful course of
conduct involving repeated or continuing harassment of another individual that would
cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed,
or molested, and that actually causes the victim to feel terrorized, frightened, intimidated,
threatened, harassed, or molested[.]” Id. § 39-17-315(a)(4). A “course of conduct” is “a
pattern of conduct composed of a series of two (2) or more separate noncontinuous acts
evidencing a continuity of purpose[.]” Id. § 39-17-315(a)(1). “Harassment,” as it is used
in the stalking statute, is defined as follows:
Harassment means conduct directed toward a victim that includes, but is
not limited to, repeated or continuing unconsented contact that would cause
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a reasonable person to suffer emotional distress, and that actually causes the
victim to suffer emotional distress. Harassment does not include
constitutionally protected activity or conduct that serves a legitimate
purpose[.]
Id. § 39-17-315(a)(3). “Unconsented contact” is defined as follows:
“Unconsented contact” means any contact with another person that is
initiated or continued without that person‟s consent, or in disregard of that
person‟s expressed desire that the contact be avoided or discontinued.
Unconsented contact includes, but is not limited to, any of the following:
(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or
on private property;
(C) Appearing at that person‟s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or
occupied by that person;
(E) Contacting that person by telephone;
(F) Sending mail or electronic communications to that person; or
(G) Placing an object on, or delivering an object to, property
owned, leased, or occupied by that person[.]
Id. § 39-17-315(a)(5). “Emotional distress” is defined as “significant mental suffering or
distress that may, but does not necessarily, require medical or other professional
treatment or counseling[.]” Id. § 39-17-315(a)(2). Moreover,
In a prosecution for a violation of this section, evidence that the defendant
continued to engage in a course of conduct involving repeated unconsented
contact with the victim after having been requested by the victim to
discontinue the conduct or a different form of unconsented contact, and to
refrain from any further unconsented contact with the victim, is prima facie
evidence that the continuation of the course of conduct caused the victim to
feel terrorized, frightened, intimidated, threatened, harassed, or molested.
Id. § 39-17-315(f).
Therefore, in order to sustain the offense of misdemeanor stalking, the State must
prove that a defendant engaged in two or more acts of unconsented contact that actually
caused emotional distress to the victim and would also cause a reasonable person such
distress.
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In her first challenge to the sufficiency of the evidence, Flowers claims that she
did not engage in a pattern of conduct because all of the acts in question “occurred within
less than twenty-four hours” and were “connected by both time and purpose.” We
disagree. The evidence in this case firmly established that Flowers engaged in a course
of conduct. She made signs the night of May 7, 2013. She then placed two signs at the
victim‟s place of work and one sign at the victim‟s home that same night. She went to
the victim‟s place of work on May 8, 2013, and waited for him to leave. She then
followed the victim when he left work and only stopped following him when she saw the
victim enter the police station. These acts certainly meet the definition of a course of
conduct. Id. § 39-17-315(a)(1)(“a pattern of conduct composed of a series of two (2) or
more separate noncontinuous acts evidencing a continuity of purpose”). Moreover,
Flowers‟s acts constituted a pattern, were two or more in number, and were clearly
distinct. Finally, as we will explain, these acts had a continuity of purpose because they
were committed in order to intimidate, threaten, or harass the victim after he declined to
provide transportation for their daughter.
Second, Flowers asserts that the evidence was insufficient to establish that the
victim suffered “emotional distress” because there was no evidence showing that her
conduct caused the victim “significant mental suffering or distress.” She claims that the
only evidence presented regarding the victim‟s mental state was when the victim testified
to the following:
You know, I don‟t want my name defamed like that. You know, I wouldn‟t
do my worst enemy like that. You know, this is something that, you know,
you don‟t do nobody like this, or jeopardize a job and everything like that.
You know, I wouldn‟t do that to nobody.
She claims that while this testimony showed that the victim was “upset, irritated, or even
angered, it simply does not translate into „significant mental suffering.‟”
The evidence at trial established that Flowers‟s unconsented contact would cause a
reasonable person to suffer emotional distress and actually caused the victim in this case
to suffer emotional distress. “Emotional distress” is defined as “significant mental
suffering or distress that may, but does not necessarily, require medical or other
professional treatment or counseling[.]” Id. § 39-17-315(a)(2) (emphasis added). The
fact that medical or professional treatment or counseling is not mandatory substantially
reduces the level of mental suffering or distress required under the stalking statute. Here,
the victim testified that after he was informed that Flowers had hung signs at his work
calling him a “deadbeat,” he drove to work early and took the signs down. The victim
stated he did not want his name “defamed like that,” that he would not treat his “worst
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enemy” the way Flowers had treated him with her conduct, and that Flowers had
jeopardized his job by hanging these signs at his work. Based on the evidence presented
at trial, a rational trier of fact could have found that the victim suffered significant mental
distress from the signs Flowers posted, particularly the signs she posted at his work,
because they jeopardized his employment. Moreover, it is important to note that
Flowers‟s conduct met each and every example of unconsented contact described in the
stalking statute. In light of the non-exclusive nature of the emotional distress language in
the definition of harassment as well as the deliberately broad definition of emotional
distress itself, we conclude that the proof presented at trial was sufficient to meet the
definitions of harassment and emotional distress in the stalking statute.
Third, Flowers contends that her conduct did not amount to harassment of the
victim because the definition of harassment in the stalking statute “expressly exempts
[constitutionally] protected speech, or conduct that serves a legitimate purpose.” She
asserts that while many individuals might disagree with the manner in which she tried to
rectify the victim‟s lack of parental involvement, the signs were a form of speech
protected by the United States and Tennessee Constitutions and did not constitute
“harassment.” Alternatively, she contends that “[f]ew more legitimate purposes exist
than efforts by a child‟s mother to increase the father‟s involvement in the life of their
child.” Flowers further claims that when the signs are removed from the evidence, the
legal insufficiency of the evidence is unquestionable.
The Free Speech Clause of the First Amendment to the United States Constitution,
which is made applicable to the states by the Fourteenth Amendment, provides that
“Congress shall make no law . . . abridging the freedom of speech[.]” U.S. Const. amend.
I. Likewise, the Tennessee Constitution states, “The free communication of thoughts and
opinions, is one of the invaluable rights of man and every citizen may freely speak, write,
and print on any subject, being responsible for the abuse of that liberty.” Tenn. Const.
art. I, § 19. “„[T]he right of free speech is not absolute at all times and under all
circumstances.‟” Spence v. State of Washington, 418 U.S. 405, 417 (1974) (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)). Instead, “[t]he right of free
speech, though precious, remains subject to reasonable accommodation to other valued
interests.” Id. It is well established that “speech or writing used as an integral part of
conduct in violation of a valid criminal statute” is not protected by the First Amendment.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949); see also United States
v. Stevens, 559 U.S. 460, 468-69 (2010) (noting that the prevention and punishment of
speech integral to criminal conduct has “never been thought to raise any Constitutional
problem”); United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982) (“The [F]irst
[A]mendment does not provide a defense to a criminal charge simply because the actor
uses words to carry out his illegal purpose.”); United States v. Varani, 435 F.2d 758, 762
(6th Cir. 1970) (“[S]peech is not protected by the First Amendment when it is the very
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vehicle of the crime itself.” (citations omitted)). In other words, “it does not abridge the
freedom of speech to make a course of conduct illegal, even though the conduct is in
some respect carried out by means of expression.” Smithfield Foods, Inc. v. United Food
& Commer. Workers Int‟l Union, 585 F. Supp. 2d 789, 803 (E.D. Va. 2008) (citing Cox
v. Louisiana, 379 U.S. 559, 563 (1965); Giboney, 336 U.S. at 502). As relevant in this
case, “[t]he First Amendment . . . does not prohibit the evidentiary use of speech to
establish the elements of a crime or to prove motive or intent.” Wisconsin v. Mitchell,
508 U.S. 476, 489 (1993).
Although Flowers claims that her signs were constitutionally protected free
speech, the proof at trial established that Flowers used the words on the signs to carry out
the offense of stalking. We have already recognized that speech integral to criminal
conduct does not enjoy constitutional protection. See Stevens, 559 U.S. at 468; Giboney,
336 U.S. at 498. Accordingly, we conclude Flowers‟s signs are not constitutionally
protected speech and, therefore, are not exempted from the harassment definition in the
stalking statute. In reaching this conclusion, we recognize that the stalking statute serves
the legitimate goal of making conduct illegal before it escalates to violence. Although
the facts in this particular case did not result in violence, one can easily envision a
scenario in which Flowers‟s conduct could have resulted in physical injury or death to
either Flowers or the victim. As we noted, “[t]he right of free speech, though precious,
remains subject to reasonable accommodation to other valued interests.” Spence, 418
U.S. at 417. In this case, Flowers does not enjoy constitutional protection for posting
these signs because her right to free speech is subject to the valued interests of preventing
the offense of stalking and deterring conduct that often escalates to violence.
We also conclude that Flowers‟s conduct is not exempted from the harassment
definition of the stalking statute because it did not serve a legitimate purpose. The proof
at trial showed that although Flowers claimed that she made and posted the signs and
followed the victim after work for the legitimate purpose of having a conversation with
the victim about his transportation of their daughter, Flowers admitted that she was angry
with the victim and that she posted the signs to show other people that the victim was a
“deadbeat” and to make the victim feel bad. Moreover, Priscilla Dawson testified that the
signs were not so much for the purpose of Flowers and the victim having a meaningful
conversation about their daughter‟s transportation but to send a message to the victim
about what he had done wrong. We agree with the court that Flowers‟s conduct did not
serve a legitimate purpose because she could not have reasonably expected for the victim
to talk to her about transportation issues concerning their daughter after taking the
aggressive steps of posting signs at his home and work calling him a “deadbeat” and
following the victim as he left work. Because Flowers‟s conduct did not serve a
legitimate purpose, it is not exempted under the definition of harassment in the stalking
statute. Consequently, Flower‟s signs and her conduct can be considered in determining
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the sufficiency of the evidence.
Fourth, Flowers asserts that the language of the statute, which defines stalking as
“a willful course of conduct involving repeated or continuing harassment of another
individual that would cause a reasonable person to feel . . . harassed . . . and that actually
causes the victim to feel . . . harassed” is confusing and requires “much more serious
conduct than unwanted prodding, nagging, bothering, irritating, or embarrassing.” While
we acknowledge that the aforementioned language of the statute is not a perfect example
of clarity, we nevertheless conclude that it sufficiently identifies the elements of the
stalking offense. Stalking is defined as “a willful course of conduct involving repeated or
continuing harassment of another individual that would cause a reasonable person to feel
terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually
causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or
molested[.]” T.C.A. § 39-17-315(a)(4). Flowers‟s conduct in making the signs, posting
one sign at the victim‟s home, posting two signs at the victim‟s work, following the
victim as he left work, and pulling beside the victim to get his attention as he left work
certainly constituted “a willful course of conduct” and involved “repeated or continuing
harassment.” Moreover, we conclude that these acts would, at a minimum, cause a
reasonable person to feel “intimidated, threatened, [or] harassed” and actually caused the
victim in this case to feel “intimidated, threatened, [or] harassed.” The evidence
presented at trial established that after Flowers‟s attempts to procure the victim‟s
cooperation in transporting their daughter proved unsuccessful, she resorted to posting
the signs at his home to ruin his reputation in the community, posting signs at his place of
employment to jeopardize his job, and following him after work to bully him. Flowers‟s
intent in committing these acts was not to encourage a legitimate conversation with the
victim about their daughter‟s transportation but to intimidate, threaten, or harass him
because of his refusal to grant her request. We agree with the trial court that Flowers
could have and should have pursued any issues regarding parenting responsibilities in a
court of law, either pro se or with the assistance of an attorney, rather than resorting to
the tactics she employed in this case. Nevertheless, her conduct meets all of the elements
for the offense of stalking.
Fifth, Flowers asserts that she did not “intentionally engage” in stalking pursuant
to Tennessee Code Annotated section 39-17-315(b)(1) because she did not, nor did she
intend to, cause the victim significant mental suffering or distress and only intended to
“spur the father of their 14 year old daughter . . . to be involved and help in the
additional, non-monetary responsibilities of raising a child.” We have already resolved
the issue regarding emotional distress and have previously concluded that Flowers‟s
conduct did not serve a legitimate purpose. “„Intentional‟ refers to a person who acts
intentionally with respect to the nature of the conduct or to a result of the conduct when it
is the person‟s conscious objective or desire to engage in the conduct or cause the result.”
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Id. § 39-11-302(a). Based on the facts presented at trial, we conclude that a rational trier
of fact could have found that it was Flowers‟s conscious objective not only to engage in
the conduct associated with the stalking charge but also to cause the result, which was to
intimidate, threaten, or harass the victim in this case.
Finally, Flowers argues that while the facts in the recent case of State v. Jose A.
Iniguez, No. W2009-01067-CCA-R3-CD, 2010 WL 4621890 (Tenn. Crim. App. Nov.
15, 2010), presented a clear case of stalking, the evidence in her case is insufficient to
sustain her conviction for stalking. In Jose A. Iniguez, the defendant was convicted of
misdemeanor stalking after he, over a period of three months, repeatedly appeared at the
victim‟s work and stared at her, approached the victim several times and attempted to
engage her in conversation even though the victim ignored him, endeavored to give the
victim a gift and a card that she refused, continued to approach the victim after she
informed him that she was married and told him to leave her alone, and deposited on the
windshield of the victim‟s car a flower, gift, and card stating that he wanted to marry the
victim and take her to Mexico. Id. at *6. We acknowledge that the facts in Flowers‟s
case, which have First Amendment implications and involve a parental relationship
between the parties, constitute a rather atypical stalking scenario. Nevertheless, we
recognize, as discussed above, that the stalking statute was broadly drafted to include
various types of conduct and to cover a variety of relationships between assailant and
victim.2
2
The stalking statute has been amended several times. Prior to its amendment in 2005, the statute
criminalizing the offense of stalking provided:
(a)(1) A person commits the offense of stalking who intentionally and repeatedly follows
or harasses another person in such a manner as would cause that person to be in
reasonable fear of being assaulted, suffering bodily injury or death.
(2) As used in this section:
(A) “Follows” means maintaining a visual or physical proximity over a period of time to
a specific person in such a manner as would cause a reasonable person to have a fear of
an assault, bodily injury or death;
(B) “Harasses” means a course of conduct directed at a specific person which would
cause a reasonable person to fear an assault, bodily injury, or death, including, but not
limited to, verbal threats, written threats, vandalism, or unconsented-to physical contact;
and
(C) “Repeatedly” means on two (2) or more separate occasions.
T.C.A. § 39-17-315 (Supp. 2004). While the 2004 version of the stalking statute was limited to conduct
that causes a person to be in reasonable fear of being assaulted, suffering bodily injury, or death, the
current version of the statute includes conduct that “would cause a reasonable person to feel terrorized,
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The evidence presented at trial showed that Flowers engaged in a willful course of
conduct involving repeated or continuing harassment of the victim that would cause a
reasonable person to feel intimidated, threatened, or harassed, and that actually caused
the victim to feel intimidated, threatened, or harassed. Prior to May 8, 2013, Flowers sent
several text messages to the victim calling the victim a “deadbeat dad,” and the victim
told Flowers to stop texting him.” Flowers also telephoned the victim, and the victim
hung up on her.3 On May 7, 2013, Flowers placed signs calling the victim a “deadbeat”
at the victim‟s home and at his place of employment, the Maury County Board of
Education. After the victim was informed by another employee of the presence of at least
one of these signs, the victim arrived at work early on May 8, 2013, and observed two
signs, which stated, “Jason Dale is a deadbeat.” He promptly removed these signs.
There was a third sign posted at the victim‟s home that his neighbor threw in a ditch,
which stated, “Jason Dale is a deadbeat dad, and he works for the Department of
Education.” When the victim left work on May 8, 2013, Flowers followed him and
pulled beside the victim‟s car before the victim parked and entered the sheriff‟s
department to file a report against Flowers. The victim testified that Flowers maligned
him and jeopardized his employment by placing the aforementioned signs at his work and
home. Flowers admitted at trial that she was angry at the victim on May 8, 2013, and that
she had intentionally placed the signs so other people would view the victim as a
“deadbeat” and so that the victim would feel bad. Dawson testified that Flowers posted
the signs not so much for the purpose of encouraging a meaningful conversation with the
victim about their daughter‟s transportation but to let others know what the victim had
done wrong. As we previously held, Flowers‟s signs were not a constitutionally
protected activity, and her conduct did not serve a legitimate purpose. Viewing the
evidence in the light most favorable to the State, we conclude that a rational trier of fact
could have found the essential elements of stalking beyond a reasonable doubt.
frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel
terrorized, frightened, intimidated, threatened, harassed, or molested[.]” Id. § 39-17-315 (Supp. 2012). In
addition, while the 2004 version of the statute required the person to intentionally or repeatedly follow or
harass the victim, the current statute provides several examples of unconsented contact with the victim but
does not limit unconsented contact to these examples. Moreover, there is currently proposed legislation
expanding the offense of aggravated stalking to include individuals who commit stalking against a victim
who is at least sixty-five years of age when the individual committing the stalking is five or more years
younger than the victim. See S.B. 369, 109th Gen. Ass., 1st Reg. Sess. (Tenn. 2015); H.B. 410, 109th
Gen. Ass., 1st Reg. Sess. (Tenn. 2015).
3
While the proof established that the victim told Flowers he did not want to receive any more
text messages from her and hung up on her during their telephone conversation, the evidence did not
show that the victim told Flowers not to have any other unconsented contact with him. Consequently, this
proof is not prima facie evidence that Flowers‟s continuation of her course of conduct caused the victim
to feel terrorized, frightened, intimidated, threatened, harassed, or molested. See T.C.A. § 39-17-315(f).
Nevertheless, Flowers‟s text messages and her phone call to the victim should be considered in
determining whether the elements of stalking are satisfied.
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Accordingly, Flowers‟s conviction is affirmed.
CONCLUSION
Based on the above authorities and reasoning, the judgment in this case is
affirmed.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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