State of Tennessee v. Gary Mitchell Hestand ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 9, 2015 Session
STATE OF TENNESSEE v. GARY MITCHELL HESTAND
Appeal from the Criminal Court for Clay County
No. 2013-CR-39 Leon C. Burns, Jr., Judge
No. M2014-02208-CCA-R3-CD – Filed October 7, 2015
The Defendant-Appellant, Gary Mitchell Hestand, was convicted by a Clay County jury
of assault upon a law enforcement officer, a Class A misdemeanor, and resisting arrest, a
Class B misdemeanor. The trial court imposed an effective sentence of eleven months
and twenty-nine days, suspended to supervised probation. On appeal, the Defendant
argues that: (1) the trial court erred by refusing to grant a new trial based on destroyed
evidence; (2) the trial court erred by not allowing the Defendant to deploy a taser for
demonstrative purposes; (3) the evidence is insufficient to support his convictions; (4) the
trial court erred by not setting reasonable time limits for the length of the trial days; and
(5) the trial court abused its discretion in not dismissing a biased juror for cause.
Discerning no error, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal 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.
Richard M. Brooks, Carthage, Tennessee, for the Defendant-Appellant, Gary Mitchell
Hestand.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Randall A. York, District Attorney General; and Mark E. Gore,
Deputy District Attorney General, for the Appellee, State of Tennessee.
OPINION
A Clay County Grand Jury returned a four-count indictment charging the
Defendant-Appellant, Gary Mitchell Hestand, with driving under the influence (DUI),
first offense, resisting arrest, assault upon a law enforcement officer, and theft of property
valued at $500 or less. The following proof was adduced at trial.1
State’s Proof. Chief Deputy Rick Lisi of the Clay County Sheriff‟s Department
testified that on June 15, 2012, he was transporting two inmates to Overton County. As
he was traveling southbound over a hill on Highway 53, he observed a white vehicle on
the opposite side of the road going backward down the hill “in a serpentine kind of
fashion.” He noticed other motorists crossing the center line in the two-lane road to
avoid the vehicle. Because Deputy Lisi was concerned about a possible accident, he
activated his blue lights and parked at the side of the road to warn oncoming traffic to
slow down. When the white vehicle continued to move downhill in the wrong direction,
Deputy Lisi made a U-turn and pulled up behind it. He said that the vehicle kept rolling,
and he had to reverse his car to avoid being hit. The white vehicle then backed into the
side of the road, and Deputy Lisi pulled up beside it. He identified the Defendant as the
driver.
According to Deputy Lisi, both he and the Defendant had their car windows down.
He asked the Defendant if everything was alright but received no response. Even though
his blue lights were on, the Defendant did not acknowledge his presence. Deputy Lisi
raised his voice in case he was not heard. He did not want to exit his vehicle because
there were two inmates in the back. He continued to attempt to make verbal contact with
the Defendant and his passenger, but was unsuccessful. Deputy Lisi called for backup to
investigate a possible DUI situation. He then observed the driver and passenger speak to
one another, and the passenger proceeded to exit the vehicle. He instructed the men to
remain in their vehicle because he wanted to contain the situation until another deputy
arrived. In response, the Defendant turned toward Deputy Lisi and stated something
indiscernible. Deputy Lisi observed that the Defendant had watery eyes and was red-
faced and sweaty. He also thought the situation was problematic because the Defendant
provided no response or assurances that he did not need help.
Deputy Lisi said that his senses were heightened because he wanted to maintain
control of the traffic, the men in the vehicle, and the inmates. When he repeated his
warning to the passenger to stay in the car, the Defendant responded with vulgar
language and began to exit the vehicle. According to Deputy Lisi, the Defendant stated,
“„You don‟t talk to my dad that way. . . . I‟m going to kick you . . .‟” The situation
rapidly escalated, and Deputy Lisi was concerned that the Defendant had a weapon. He
ordered the Defendant and his father to show their hands. As he exited his vehicle, the
Defendant began to charge at him. Deputy Lisi observed that the Defendant was not
armed but that he had an object that he wanted to throw. Deputy Lisi reached for his
1
The record reflects that sixteen witnesses testified at trial. We only address the testimony that is
relevant to the issues that the Defendant raised on appeal.
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taser and ordered the Defendant to stop. When the Defendant was a few feet away, he
threw a plastic Pepsi bottle at the deputy. Deputy Lisi attempted to deflect the bottle, but
it hit the side of his head. At that point, he also deployed his taser as the Defendant
charged at him. He said that the taser had no effect because it did not make contact with
the Defendant‟s skin.
Deputy Lisi stated that the Defendant continued to swing at him. As he was
fending off the blows, he observed the Defendant run across the highway. He ordered the
Defendant to stop, and he had to dodge traffic as he chased after him. Deputy Lisi
testified that his goal was to take the Defendant into custody at this point. He
commanded, “Halt, stop, you‟re under arrest.” However, the Defendant did not comply
with his orders. When they were across the road, the Defendant swung violently at the
deputy, and the two men engaged in a fist fight. During the scuffle, the Defendant was
tackled to the ground, and Deputy Lisi tried to handcuff him without success. Another
deputy arrived and shot a taser into the Defendant‟s forearm with immediate
effectiveness. The Defendant complied with the arrest and complained that he could not
breathe. Deputy Lisi then sat the Defendant up and called an ambulance. He stated that
the Defendant was very combative and refused medical assistance from emergency
responders. The Defendant was then brought to the jail.
Deputy Lisi remained at the scene to collect evidence and to search the
Defendant‟s vehicle. He found street signs, a cup, and a nearly empty whiskey bottle
inside the car. The signs represented roads in Clay County and appeared to have been
ripped from their posts. Two prescription pill bottles were also recovered from the
Defendant at the jail. During an interview, the Defendant told Deputy Lisi that he had
taken his medication earlier in the day. He agreed to submit to a blood test. A booking
photograph of the Defendant and a video recording of the stop were admitted into
evidence and shown to the jury.
On cross-examination, Deputy Lisi said that his vehicle was unmarked, though the
front and back lights were flashing. He conceded that according to the official TBI
report, the Defendant did not have alcohol in his system. He agreed that he did not have
probable cause to arrest the Defendant until the Pepsi bottle was thrown at him. When
asked where the bottle was, Deputy Lisi stated that it had been run over by a motorist on
the highway. He said that the bottle was half-empty and that it sounded like a gunshot
when it was crushed. He did not collect the bottle as evidence because “[i]t was
smashed.” He acknowledged that the street signs found in the car were not marked as
Clay County property.
Special Agent April Bramlage, a forensic scientist with the TBI Nashville Crime
Laboratory, testified as an expert witness in toxicology. She performed the drug analysis
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of the Defendant‟s blood sample after another agent completed the alcohol analysis. The
result of the blood alcohol test was negative. The drug analysis revealed the presence of
nordiazepam, diazepam, trazodone, methadone, and chlorpheniramine. Agent Bramlage
explained that nordiazepam and diazepam, also known as Valium, were anti-anxiety
medications that were present in the Defendant‟s blood within therapeutic levels. She
said that trazodone was an anti-depressant medication, though her instrument could not
measure the precise amount. Methadone, a synthetic opiate, and chlorpheniramine, an
antihistamine, were present at less than 0.05 micrograms per milliliter. Agent Bramlage
prepared an official toxicology report, which was admitted into evidence.
Ernest Garrison testified that he was the road superintendent in Clay County. It
was his job to maintain the roads and replace street signs. He estimated that three
hundred road signs had been stolen in the past few years. He said that four of the five
signs recovered from the Defendant‟s vehicle represented roads in Clay County. He
stated that the total value of these signs was about forty dollars.
Deputy Daniel Marquess of the Clay County Sheriff‟s Department testified that at
about 1:35 p.m. on June 15, 2012, he was dispatched to the Defendant‟s location on
Highway 53. He was called to investigate a possible DUI and to relieve Deputy Lisi. As
he was traveling up the hill, he heard Deputy Lisi command the Defendant to stop and
show his hands. He then activated his blue lights and the video recording system in his
patrol car. Deputy Marquess observed the Defendant exit his vehicle and advance toward
Deputy Lisi “in an aggressive manner.” He also saw the Defendant throw a Pepsi bottle
at Deputy Lisi. He then parked and exited his patrol car as Deputy Lisi chased the
Defendant across the road. He said that the two men were fighting and had “landed in the
drainage ditch on the other side of the road[.]” Deputy Marquess said that he deployed
his taser because the Defendant did not comply with the arrest. He succeeded in
subduing the Defendant, who was then handcuffed by Deputy Lisi. Deputy Marquess
said that he transported the Defendant to the Sheriff‟s Office for booking.
Tristan Dailey testified that he was an inmate in Deputy Lisi‟s vehicle at the time
of these events. He was seated on the right side in the back and could see the entire
incident involving the Defendant and Deputy Lisi. He testified, in large part, consistently
with the testimony of the deputy.
Defense’s Proof. The fifty-one-year-old Defendant testified on his own behalf.
He said that he was born and raised in Clay County and that he was a disabled Navy
veteran. He explained that he had training and work experience in law enforcement. The
Defendant described his various physical impairments and preexisting injuries, including
four traumatic brain injuries and a broken back. He also said that he had less than ten
percent hearing in one ear and only about forty percent hearing in the other ear. He took
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multiple medications for his ailments, including pills for pain, allergies, high blood
pressure, anxiety, and thyroid problems.
On June 15, 2012, the Defendant took his morning medications and prepared to
drive to Cookeville with his father to purchase tractor parts. He usually drove a pickup
truck, but he was driving his daughter‟s 2001 Mercury Cougar that day because the car
had been giving her problems. As he traveled up a hill, the car completely broke down.
The Defendant said that he maneuvered the car back about twenty feet and moved it to
the side of the road. He stated that several people stopped and offered assistance, which
he refused. He said he was sweating in the 90-degree weather and that he had watery
eyes due to severe allergies.
As the Defendant was trying to start his car, Deputy Lisi arrived up the hill. He
stated that Deputy Lisi pulled up beside him, though he could not hear what the deputy
said. When Deputy Lisi asked what was wrong, the Defendant told him that the car
would not start. He said that he paid more attention to the car than to the deputy. He did
not see any blue lights on Deputy Lisi‟s vehicle.
The Defendant‟s eighty-four-year-old father, who was hard of hearing and who
previously had bladder cancer, exited the car to use the bathroom. According to the
Defendant, Deputy Lisi began “hollering” but his elderly father did not hear the
command to remain in the car. As a result, Deputy Lisi “jump[ed] out of the car,
yank[ed] his taser” and ran toward the Defendant‟s father. The Defendant then opened
his car door and told Deputy Lisi that he had no right to disrespect his father. He exited
his car because the deputy was pointing a taser at his father. He then threw an empty
plastic bottle at Deputy Lisi to distract him. He denied that the bottle came close to
Deputy Lisi.
The Defendant said that the deputy then tased him, and it felt “like being wrapped
up in [an] electric fence wire.” He tried to run away because he felt as though he had
been set on fire. The Defendant stated that Deputy Lisi chased him across the road. He
testified that “before [he] ever hit the ground, the other guy [Deputy Marquess] jumped
out and shot [him] with a taser again[.]” He said he then “took about two steps
backwards” and fell and twisted his right ankle after tripping on some concrete. The
Defendant stated that both deputies were on his back, and he could not move his hand to
comply with their orders. Once he was able to move his hand out, Deputy Lisi restrained
him with “torture type handcuffs[.]” He said that he was flat on his stomach and that he
could not breathe due to his weight, which was about 350 pounds at the time. The
Defendant was then propped up and checked by emergency responders. He said that he
refused further treatment because EMS would not transport him to a hospital of his
choice.
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The Defendant testified that Deputy Marquess brought him to the jail and that he
observed Deputy Lisi pick up the plastic bottle that he had thrown. He did not know
anything about the road signs and denied ever seeing them in his daughter‟s car. He said
that he had not had a drink in ten years and that the whiskey bottle did not belong to him.
After he left the jail, his wife took him to the hospital.
Based on the above evidence, the jury convicted the Defendant of assault and
resisting arrest as charged and acquitted him of driving under the influence and theft of
property. The trial court sentenced the Defendant to concurrent probated sentences of
eleven months, twenty-nine days for the assault and five months, twenty-nine days for
resisting arrest. After the denial of the Defendant‟s motion for new trial, this appeal
followed.
ANALYSIS
On appeal, the Defendant challenges the sufficiency of the convicting evidence
and alleges that the trial court committed multiple errors. For various reasons, the State
argues that many of the Defendant‟s issues are waived. We will address each issue in
turn, along with the State‟s specific waiver arguments.
I. Failure to Preserve Evidence. The Defendant first contends that he is entitled
to a new trial pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), because the
State failed to preserve the plastic soda bottle that was thrown at Deputy Lisi. He claims
that the missing evidence would have played a significant role in his defense because
“[i]f the bottle had been preserved and available for inspection by the jury during trial,
the outcome of the assault charge would have been different.” Consequently, he asserts
that “the trial court erred in not dismissing this case or giving an applicable jury
instruction.”
In response, the State argues that the issue is waived because the Defendant failed
to raise a Ferguson claim at any time prior to his amended motion for new trial. The
State further asserts that the Defendant is not entitled to plain error relief and that the
plastic bottle had no exculpatory value. We agree with the State.
State v. Ferguson governs claims regarding the State‟s duty to preserve potentially
exculpatory evidence. 2 S.W.3d 912 (Tenn. 1999). The proper inquiry is “„[w]hether a
trial, conducted without the [lost or] destroyed evidence, would be fundamentally fair[.]‟”
State v. Merriman, 410 S.W.3d 779, 785 (Tenn. 2013) (quoting Ferguson, 2 S.W.3d at
914). “Generally speaking, the State has a duty to preserve all evidence subject to
discovery and inspection under Tennessee Rule of Criminal Procedure 16, or other
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applicable law.” Id. at 917 (internal footnote omitted). The analysis under Ferguson is
only triggered, however, if the alleged exculpatory evidence is determined to be material.
Id. To be material, the “evidence must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.”
Id.
Once the court determines that the evidence is material and the State failed in its
duty to preserve the evidence, Ferguson requires the trial court to consider the following
factors which bear upon the consequences of the State‟s breach of its duty: (1) the degree
of negligence involved, (2) the significance of the destroyed evidence, considered in light
of the probative value and reliability of secondary or substitute evidence that remains
available, and (3) the sufficiency of the other evidence used at trial to support the
conviction.” Id. (internal footnote omitted). If the trial court, after considering these
factors, determines that the trial would not be fundamentally fair, then the court may
dismiss the charges. Merriman, 410 S.W.3d at 785.
Initially, we agree with the State that the Defendant waived this issue. Prior to his
amended motion for new trial, the Defendant never asserted that his case should be
dismissed or that he was entitled to an appropriate jury instruction because of lost or
destroyed evidence pursuant to Ferguson. Relief on appeal is typically not available
when a party is “responsible for an error” or has “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of any error.” See Tenn. R.
App. P. 36(a). The record reflects that the Defendant raised the missing evidence issue
for the first time in his amended motion for new trial, which was filed two months after
his trial. In the motion, the Defendant argued as follows:
The Court erred in that Officer Lisi has stated in a separate Motion hearing
that the plastic drink bottle was in the evidence room at the Clay County
Sheriff‟s Department. Then during the trial, he testified that he did not
have the plastic drink bottle.
However, we are unable to review the trial court‟s ruling in this matter because the
Defendant failed to include the transcript from the motion for new trial hearing in the
record on appeal. The appellant has a duty to prepare a record that conveys “a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of appeal.” Tenn. R. App. P. 24(b). The appellant risks waiving the issues on
appeal if an incomplete record is submitted to this court. State v. Ballard, 855 S.W.2d
557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, we must
presume that the trial court‟s ruling was supported by the evidence.” State v. Bibbs, 806
S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812
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(Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App.
1979)). Consequently, we cannot conclude that the trial court erred with regard to the
missing evidence.
Waiver notwithstanding, we fail to see how the plastic soda bottle would have
been exculpatory. It is undisputed that the Defendant threw a plastic bottle at the deputy.
Here, the Defendant‟s argument amounts to no more than speculation that the bottle
recovered by the deputies would have in some way yielded exculpatory evidence had it
been subject to jury inspection. We have previously stated that “the mere possibility of
exculpatory content does not trigger a finding that the State failed in its general duty to
preserve evidence under Ferguson.” State v. Ronnie D. Sims, No. M2004-02491-CCA-
R3-CD, 2005 WL 3132441, at *8 (Tenn. Crim. App. Sept. 21, 2005), perm. app. denied
(Tenn. Mar. 20, 2006) (citing State v. Coulter, 67 S.W.3d 3, 54-55 (Tenn. Crim. App.
2001)). Moreover, the record does not reveal anything unique about the plastic soda
bottle that would have prevented the Defendant from obtaining and producing a similar
plastic soda bottle during trial. We conclude that the plastic bottle was not exculpatory;
therefore, it is not necessary to engage in any further analysis under Ferguson. The
Defendant is not entitled to relief on this issue.
II. Demonstrative Evidence. Next, the Defendant argues that the trial court
committed reversible error by refusing to allow Deputy Lisi to demonstrate the use of his
taser. He asserts that “the demonstration of the taser is relevant because . . . [the jury]
could have determined if Defendant/Appellant‟s reaction was voluntary or involuntary,
the damage a taser causes, and how long the effects of the taser lasts [sic].” The State
responds that the demonstration was irrelevant evidence that the trial court properly
excluded. We agree with the State.
“Generally, the admissibility of evidence rests within the trial court‟s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d
799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial
court is found to have abused its discretion when it applies “an incorrect legal standard or
reaches a conclusion that is „illogical or unreasonable and causes an injustice to the party
complaining.‟” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006)).
“„Relevant evidence‟ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. Tennessee Rule of
Evidence 402 provides that “[a]ll relevant evidence is admissible except as [otherwise]
provided. . . . Evidence which is not relevant is not admissible.” Id. at 402. However,
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even relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Id. at 403.
During defense counsel‟s cross-examination of Deputy Lisi, the following
exchange occurred:
Q. Okay. Are you familiar with the taser policy for Clay
County; right?
A. Yes, sir, I am.
Q. Did you bring your taser with you?
A. Yes, sir, I did.
Q. Do you mind doing a demonstration for us?
[STATE]: Your Honor --
[COURT]: We‟re not going to have a demonstration, [defense counsel].
Q. It‟s a pain mechanism, is it not?
A. It‟s a neural muscle incapacitator.
Q. And you send 50,000 volts into a person initially, and every
time you pop that thing, it‟s another 50,000, isn‟t it?
A. No, sir.
Q. It‟s not?
A. No, sir.
Q. Have you been shot with a taser?
A. Six times, sir.
In his amended motion for new trial, the Defendant argued that “[t]he
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demonstration would have enlightened the jury as to the pain inflicted by Officer Lisi.”
As previously mentioned, the motion for new trial hearing transcript is not included in the
appellate record, and we therefore presume that the trial court properly ruled on this
issue. See Bibbs, 806 S.W.2d at 790; Vermilye, 584 S.W.2d at 230. Moreover, we fail to
see how Deputy Lisi‟s taser demonstration would have negated the elements of the
offenses charged in this case. In other words, showing how a taser is deployed would not
have made the fact of the Defendant‟s pain or subsequent actions any more or less
probable. Finally, in light of the eyewitness testimony surrounding the circumstances of
the taser use and the Defendant‟s arrest, the Defendant cannot show that any erroneous
exclusion of the demonstrative evidence “more probably than not affected the outcome of
the trial.” See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (when assessing
the impact of a non-constitutional error, the reviewing court may appropriately consider
the properly admitted evidence of a defendant‟s guilt). Accordingly, the Defendant is not
entitled to relief on this issue.
III. Sufficiency of the Evidence. Based on the alleged errors in the previous two
issues, the Defendant contends that the evidence is insufficient to sustain his convictions.
He asserts that the admission of the plastic soda bottle and the taser demonstration would
have established a reasonable doubt as to his culpability. The State responds that there
was sufficient evidence for a jury to find beyond a reasonable doubt that the Defendant
assaulted an officer and resisted arrest. We agree with the State.
The State, on appeal, 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.” “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).
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
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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
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as 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 jury 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 jury. 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.
Here, the Defendant was convicted of assault upon a law enforcement officer and
resisting arrest. To sustain the assault conviction, the State was required to show that the
Defendant “[i]ntentionally or knowingly cause[d] another to reasonably fear imminent
bodily injury[.]” T.C.A. § 39-13-101(a)(2) (2012). “„Intentional‟ means that a person
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[.]” Id. § 39-11-106(a)(18). “„Knowing‟ means that a person acts knowingly with
respect to the conduct or to circumstances surrounding the conduct when the person is
aware of the nature of the conduct or that the circumstances exist. A person acts
knowingly with respect to a result of the person‟s conduct when the person is aware that
the conduct is reasonably certain to cause the result[.]” Id. § 39-11-106(a)(20). “Bodily
injury” is statutorily defined to include “a cut, abrasion, bruise, burn or disfigurement,
and physical pain or temporary illness or impairment of the function of a bodily member,
organ, or mental faculty[.]” Id. § 39-11-106(a)(2).
As relevant to this case, to sustain a conviction for resisting arrest, the State had to
prove that the Defendant “intentionally prevent[ed] or obstruct[ed] anyone known to
[him] to be a law enforcement officer . . . from effecting . . . [an] arrest . . . by using force
against the law enforcement officer[.]” See T.C.A. § 39-16-602(a) (2012). Force is
defined as “compulsion by the use of physical power or violence and shall be broadly
construed to accomplish the purposes of this title[.]” Id. § 39-11-106(a)(12). Unless a
defendant is claiming self-defense against excessive force from officers, see T.C.A. § 39-
11-611(e), “[w]hether the arrest was or was not supported by probable cause is not
determinative as to whether defendant resisted arrest.” State v. Edward Iroghuehi Isibor,
No. 01C01-9610-CC-00441, 1997 WL 602945, at *3 (Tenn. Crim. App. Sept. 30, 1997),
perm. app. denied, (Tenn. Aug. 3, 1998).
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A. Assault. In challenging the sufficiency of the evidence to sustain the assault
conviction, the Defendant argues that “[i]f the jury had been allowed to inspect the plastic
Pepsi bottle, they would have been able to feel the weight of the plastic bottle, throw the
plastic bottle to see how far it went, see how much liquid was in the plastic bottle, and see
the damages the plastic bottle caused if it came into contact with anyone.”
Viewed in the light most favorable to the State, the evidence presented at trial was
sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the
Defendant caused Deputy Lisi to reasonably fear imminent bodily injury. Deputy Lisi
testified that the Defendant swore at him and exited his vehicle while threatening, “You
don‟t talk to my dad that way. . . . I‟m going to kick you.” Multiple witnesses observed
the Defendant aggressively charge at Deputy Lisi, and by the Defendant‟s own
admission, he weighed 350 pounds at the time of his arrest. The Defendant did not
dispute the fact that he threw a plastic bottle at the deputy. Deputy Lisi testified that he
was struck by the bottle, and witnesses Deputy Marquess and Tristan Dailey corroborated
this testimony. It is well-established that the testimony of the victim, alone, is sufficient
to sustain a conviction. See, e.g., State v. James Theron Hale, No. M2004-00870-CCA-
R3-CD, 2005 WL 711908, at *4 (Tenn. Crim. App. Mar. 29, 2005) (rejecting defendant‟s
claim that assault victim‟s testimony was not corroborated by independent evidence); see
also State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000). The State presented
sufficient proof to sustain the assault conviction, and it was not necessary to produce the
plastic soda bottle as evidence.
B. Resisting Arrest. In challenging the sufficiency of the evidence to support his
conviction for resisting arrest, the Defendant contends that “[i]f the jury had been allowed
to see a demonstration of the taser, they would have been able to see the affects [sic] on
an individual, how a person‟s body reacts involuntarily to a taser, the damages the taser
causes to an individual, how an individual reacts to a taser, and the inherent excessively
forceful nature of the taser.”
Viewed in the light most favorable to the State, the evidence was sufficient for a
rational trier of fact to conclude beyond a reasonable doubt that the Defendant used force
to resist arrest. Both deputies testified that Deputy Lisi chased the Defendant across the
highway where they proceeded to fight. The Defendant resisted official commands to
halt and to show his hands in order to be handcuffed. He continued to resist, and both
deputies were necessary to subdue the Defendant on the ground in order to handcuff him.
The deputies stated that the Defendant only complied with his arrest after he was tased in
the forearm. In contrast, the Defendant testified that he ran away from Deputy Lisi
because the taser felt like an electric fence. He said that he was tased again “before [he]
ever hit the ground[.]” He stated that he could not move his arm to comply with his
arrest and that he was subsequently restrained with “torture type handcuffs[.]” In our
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view, this case amounted to a classic credibility contest between the Defendant and the
Clay County deputies. The jury accredited the testimony of the law enforcement officers,
as evidenced by the verdict, and rejected the Defendant‟s testimony. It was the
prerogative of the jury to weigh and evaluate the evidence and to make reasonable
inferences based on the proof. Moreover, this court has consistently held that a
defendant‟s efforts in preventing an officer from handcuffing him are sufficient to
support the element of force. See State v. Jeremy D. Parvin, No. E2014-01569-CCA-R3-
CD, 2015 WL 2128585, at *3 (Tenn. Crim. App. May 6, 2015) (citing cases in which this
court held that actions taken to prevent handcuffing constitute force to support a
conviction for resisting arrest). We conclude that the evidence was sufficient to sustain
the Defendant‟s convictions.
IV. Length of Trial. Next, the Defendant asserts that the trial court erred by
conducting the trial beyond reasonable hours. Specifically, he argues that defense
counsel was fatigued due to his age and medical condition and that the court should have
granted his motion to set reasonable time limits for the length of the trial days. The State
argues that the Defendant waived this issue because he failed to object on the first day of
trial and failed to renew his oral motion after the trial court reserved its ruling on the
second day.
We agree that the Defendant failed to make contemporaneous objections regarding
this claim. See Tenn. R. App. P. 36(a). We further note that although the Defendant
raised this issue in his amended motion for new trial, he did not include a transcript of the
hearing in the appellate record. See Tenn. R. App. P. 24(b). Waiver notwithstanding,
this issue is without merit.
The record reflects that jury selection began on Thursday morning, April 10, 2014.
It is unclear when the proceedings ended on the first day of trial.2 The trial resumed on
Friday, April 11, 2014, at 8:00 a.m. at which point defense counsel placed his objection
to working past 5:30 p.m. on the record. Defense counsel noted that he had prepared for
a three-day trial under the assumption that the case would extend into Saturday. He
stated that based on his age, medical condition, and the hour-long drive back to his home,
conducting the trial beyond normal hours would “become[] an endurance contest.”
Counsel argued that the jury would treat the Defendant unfairly if forced to stay past 7:00
p.m.
The trial court responded that it would “play it by ear,” though its intent was “to
2
In his oral motion on the second day of trial, defense counsel noted that the proceedings ended
at around 7:00 p.m. the night before. In his amended motion for new trial, the Defendant argued that
“court was not dismissed until approximately 7:30 or 8:00 p.m.” Finally, in his brief, the Defendant
asserts that the first day of trial lasted “until approximately 9:00 p.m.”
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push on.” The court urged defense counsel to stay on point with his examination of
witnesses and to avoid wasting time on irrelevant questions to “get through the case at a
reasonable hour.” The court noted that “it would be speculation” that the jury would treat
the Defendant unfavorably. It reserved its ruling on the Defendant‟s motion but stated
that it was not inclined to adjourn at 5:00 p.m. absent unforeseen circumstances. In
response, defense counsel stated that he would “probably be ineffective from 5:00 on.”
Thereafter, the jury retired at 4:15 p.m. on Friday, April 11, 2015, to begin its
deliberations. At 7:15 p.m., the jury returned a verdict of guilty as to assault and resisting
arrest and acquitted the Defendant on two counts. The jury elected not to impose any
fines for the Defendant‟s two convictions.
The record further reflects that the Defendant did not renew his motion to adjourn
at 5:30 p.m., when the jury was deliberating the case. At approximately 5:40 p.m., the
jury asked the court to review the video recording of the Defendant‟s stop, and the court
obliged. During its deliberation, the jury sent the court written questions at 6:20 p.m. and
at 6:35 p.m., which the court addressed on the record in the presence of counsel.
We note that the scheduling of a trial rests within the sound discretion of the trial
court. See State v. Poe, 755 S.W.2d 41, 47 (Tenn. 1988) (trial court did not err in
requiring the trial to proceed past 5:30 p.m. despite defense counsel‟s request to adjourn);
see also State v. Reid, 213 S.W.3d 792, 826 (Tenn. 2006) (trial court did not abuse its
discretion in extending court hours beyond eight hours per day). In State v. Parton, 817
S.W.2d 28, 33 (Tenn. Crim. App. 1991), this court addressed the issue of “late night”
court sessions as follows:
It is clear in this state that late night court sessions should be
scheduled “only when unusual circumstances require it. . . .” [State v.]
McMullin, 801 S.W.2d [826, 832 (Tenn. Crim. App. 1990)]. Regardless of
whether counsel or any juror objects, the late night sessions should be
avoided; and they must be justified because of unusual circumstances. If
the requisite unusual circumstances do exist and late night sessions are
scheduled because of necessity, good practice would be to also let the
record affirmatively reflect that all counsel and all jurors expressly agree.
But the threshold question which must always be determined by the court is
whether the circumstances justify the unusual session.
Id. at 33-34.
Upon review, we cannot conclude that the trial court abused its discretion or that
there was any abridgement of the Defendant‟s constitutional rights. As an initial matter,
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the record does not support the Defendant‟s argument that the trial days extended beyond
reasonable hours. We note that this case is distinguishable from other cases where this
court found reversible error on the part of the trial court. Here, the proceedings
adjourned at around 7:00 p.m. each night, rather than late into the evening hours. See
Hembree v. State, 546 S.W.2d 235 (Tenn. Crim. App. 1976) (trial court committed
reversible error when it required defense counsel to try the case from 9:00 a.m. until 1:00
a.m. the following day despite counsel‟s protest); McMullin, 801 S.W.2d at 827 (granting
defendant a new trial after the trial court extended the length of trial to 11:45 p.m. on the
first day and to 11:50 p.m. on the second day, over the objection of defense counsel and
the jurors); Parton, 817 S.W.2d at 33 (finding plain error where trial court conducted
proceedings until 2:15 a.m.). Here, the Defendant‟s failure to object during jury
deliberation and his resulting acquittals belie his contention that he was denied due
process or that counsel was ineffective based on the length of the trial days.3 The
Defendant is not entitled to relief on this issue.
V. Jury Selection. Finally, the Defendant argues that the trial court erred in
rehabilitating a biased juror who should have been dismissed for cause. He asserts that
“the trial court allowed the bias of a potential juror to permeate the proceeding” because
the “juror announce[d] in court that they would believe the witness no matter what that
witness sa[id][.]” He contends that this abuse of discretion warrants a new trial. The
State responds that this issue is waived because the Defendant failed to cite to the record
or even identify the juror in question.
We agree with the State that Defendant failed to support his argument with
appropriate references to the record. “Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.” Tenn. Ct. Crim. App. R. 10(b). Moreover, a brief shall contain “[a]n
argument . . . setting forth the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record .
. . relied on.” Tenn. R. App. P. 27(a)(7). We note that although the Defendant did cite to
3
Interestingly, this court noted in McMullin that:
The nature of the session being held is of considerable importance in judging
whether the ability of counsel is affected adversely. Certainly, once a case has been
submitted to the jury the function of the attorneys is much less demanding, and the right
to the assistance of counsel would hardly be denied if a jury is allowed to deliberate into
the evening hours. The key due process question in that instance is whether or not all of
the jurors are both alert and desirous of continuing deliberations, assuming in the first
instance that there is a good reason not to recess court at the end of a normal work day.
McMullin, 801 S.W.2d at 830 (emphasis added).
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the relevant sections of the transcript in the facts section of his brief, he did not cite to the
record in his argument section in four of his five issues. Based on our review of the
record, we conclude that the Defendant insufficiently outlined his contentions with regard
to the jury selection issue. We will not speculate as to which potential juror the
Defendant refers, and the Defendant has waived appellate review of the claim. See Tenn.
Ct. Crim. App. R. 10(b); State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App.
1987).
CONCLUSION
Upon review, we affirm the judgments of the Clay County Criminal Court.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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