State v. Leslie Thompson ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1997
STATE OF TENNESSEE, )
FILED
C.C.A. NO. 02C01-9607-CR-00245
) September 10, 1997
Appellee, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN
LESLIE THOMPSON, ) JUDGE
)
Appellant. ) (Assault)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
BILL ANDERSON, JR. JOHN KNOX W ALKUP
138 North Third Street Attorney General and Reporter
Memphis, TN 38103
JANIS L. TURNER
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
P.T. HOOVER
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Leslie Thompson, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure. He was convicted by a Shelby
County jury of two counts of assault.1 The trial court sentenced him as a Range
I standard offender to six months imprisonment in the county workhouse for each
count, with the sentences to run concurrently. The trial court also imposed a two
hundred fifty dollar ($250) fine for each count. In this appeal, the Defendant
argues that the trial court erred both in permitting the State to question his
character witness about knowledge of his prior bad acts and in sentencing him
to six months incarceration. After reviewing the record, we conclude that the
Defendant’s issues lack merit. Accordingly, we affirm the judgment of the trial
court.
W e begin with a summary of the pertinent facts. Over Labor Day weekend
in 1994, the Defendant accompanied two minor boys, J.A. and S.B., 2 from
Henderson, Texas to Memphis, Tennessee. The victims were students at
Henderson High School at the time, and the Defendant was employed as a choir
teacher at their school. The victims met the Defendant through the choir. The
Defendant suggested that they go to Memphis for the experience of seeing
another choir sing in front of an audience. According to the testimony of J.A.’s
mother, the Defendant stated that the trip was being funded by the school.
1
Tenn . Code A nn. § 39-13-101(a)(3).
2
It is th e policy of this Co urt not to refer to m inor vic tim s by nam e. W e will refer to th e victim s
in this case as “J .A.” an d “S.B.,” or s imply as “the victim s.”
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The Defendant and the victims left Texas late on Friday night, drove
through the night, and arrived in Memphis on Saturday morning. They stayed at
the Defendant’s sister’s home in Memphis. On Saturday afternoon, they went to
a church to hear the Defendant sing, but the victims did not practice or sing with
the choir. The Defendant and the victims went out on Saturday evening to see
Memphis. W hile they were touring Memphis, the Defendant bought beer and
cigarettes for the victims. At the conclusion of the evening, they cam e back to
the Defendant’s sister’s home and went to bed. The victims shared a bedroom
with its own bathroom, and the Defendant slept in a separate bedroom.
They awoke on Sunday and went to church to hear the Defendant sing.
After church, they toured more of Memphis and later attended a social function
where the Defendant sang again. They went to a movie after the social function.
After the movie, the Defendant bought the victims wine coolers and they drove
around Memphis. The Defendant began to bring up matters of a sexual nature
as they were conversing. He bought the victims more wine coolers, and they ate
late that night shortly before returning to the Defendant’s sister’s home.
Once home, the Defendant joined the victims in their bedroom. All three
of them were dressed for bed. The Defendant sat down on the bed next to S.B.
and told him that he loved him and that “if there is anything that you ever need
just tell me.” The Defendant began to rub S.B.’s chest and thigh. As he was
rubbing S.B.’s thigh, the Defendant began to rub “around the crotch area.” At
that point, S.B. feigned that he was drunk and turned over. The Defendant then
moved to J.A.’s side of the bed. He rubbed the inside of J.A.’s thigh and his
penis. J.A. acted like he was asleep.
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The Defendant then got up from the bed and went into the bathroom
attached to the victims’ bedroom. The victims heard noises which indicated to
them that the Defendant was masturbating. Five to ten minutes later the
Defendant exited the bathroom and left the victims’ bedroom. S.B. and J.A. were
alarmed and agreed that they needed to get out of the house immediately. They
did not want to risk leaving the bedroom to escape the house, however, so they
ripped the screen of a window in their bedroom. They left the house wearing only
their bedclothes and shoes.
Upon leaving the house, the victims ran to a nearby gas station. The
police were called and arrived there a short time later. The victims explained
what had happened to the police officers. As they were doing so, the Defendant
drove by in his truck and the victims pointed him out to the police. Russell Duvall,
an officer with the Shelby County Sheriff’s Department, pursued and stopped the
Defendant. According to Duvall, when he stopped the truck, the Defendant
asked him if he had seen two young men because two individuals staying with
him that weekend had just run away. Police officers then went to the Defendant’s
sister’s home to investigate the matter and discovered that one of the window
screens had been ripped apart. There were no signs of a struggle in the home.
On May 4, 1995, the Defendant was indicted on two counts of sexual
battery in violation of Tennessee Code Annotated section 39-13-505(a). He was
tried from October 2 to October 3, 1995. At the conclusion of the proof, the trial
court granted the Defendant’s motion for judgment of acquittal with respect to the
indicted offenses of sexual battery. The trial court found that there had been
insufficient proof of force or coercion to support charging the jury on sexual
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battery. See Tenn. Code Ann. § 39-13-505(a), -503(a)(1). 3 As a result, the trial
court charged the jury only on the lesser included offense of assault. See Tenn.
Code Ann. § 39-13-101(a)(3). After considering the proof presented at trial, the
jury found the Defendant guilty of two counts of assault.
In his first issue on appeal, the Defendant argues that the trial court erred
in permitting the State to question his character witness about knowledge of his
prior bad acts. The record reflects that the Defendant offered the testimony of
Terrence Tresner as part of his proof at trial. Tresner had been a student at
Henderson High School and had known the Defendant for approximately two
years. He had worked with the Defendant as a member of the Henderson
Historical Society as well. Tresner’s testimony at the Defendant’s trial was
admittedly offered as proof of the Defendant’s good character. On direct
examination, Tresner testified concerning the Defendant’s reputation in the
community as follows:
Q. Are you aware of Mr. Thompson’s reputation in the
community?
A. Yes.
Q. Is that reputation good or bad?
A. Relatively good.
Q. Okay. Have you, are you aware of any information in the
com munity that would lead you to believe that Mr. Thompson was
someone that it would not be safe for you to stay in his home?
...
A. If I hadn’t known him previously and got to know him as a
person and not from rumors, yes. And, there were things that
floated around that were not facts but just rumors, that I would get
the wrong idea about him.
The direct examination of Tresner concluded after two more questions.
3
Becau se the victims we re seventeen years old at the tim e of the offenses , the trial court
con cluded that the use of pa renta l, custo dial or official authority did not qualify as coerc ion. See Tenn.
Code Ann. § 39-13 -501(1).
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The prosecutor began cross-exam ination by asking Tresner what rum ors
he was referring to on direct examination. Tresner stated that there were rumors
that the Defendant “likes to molest boys.” The prosecutor followed this
questioning by asking Tresner if he knew of a newspaper article that detailed
these rumors. Tresner responded affirmatively. The prosecutor asked Tresner
if he was aware that the newspaper article stated that the Defendant had been
convicted of child molestation in California. Tresner responded that, to the best
of his recollection, the article stated that the Defendant had been arrested but not
convicted. The prosecutor then asked Tresner if it would surprise him to know
that the newspaper article contained information about a conviction in California
or if that information would change his opinion of the Defendant’s good character.
Tresner responded that the information would not change his opinion.
At trial, the Defendant objected when the prosecutor began to question
Tresner about a source of the rum ors referred to on direct exam ination, namely
the newspaper article. The trial court conducted a bench conference to discuss
the matter out of the hearing of the jury. After hearing argument from the
prosecutor and defense counsel, the trial court found that the Defendant had
offered Tresner’s testimony as proof of his good character. See Tenn. R. Evid.
404(a)(1); 405(a). Accordingly, the trial court ruled that the prosecutor could
question Tresner about relevant specific instances of conduct to test the extent
of his knowledge of the Defendant’s character. See Tenn. R. Evid. 405(a). On
appeal, the Defendant contends that the trial court erred in permitting the
prosecutor’s questions to Tresner concerning the Defendant’s character.
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W e begin our analysis by noting the well-established principle that
character evidence is generally inadmissible to show conform ity with a certain
trait on a particular occasion. See Tenn. R. Evid. 404(a); Laird v. State, 565
S.W.2d 38, 40 (Tenn. Crim. App. 1978). Yet the defendant may affirmatively
choose to place his or her character at issue. Tenn. R. Evid. 404(a)(1); State v.
W est, 844 S.W.2d 144, 149 (Tenn. 1992). Once the defendant has done so, the
State may confront such evidence in multiple ways. The State has the option of
presenting its own character evidence to rebut the defendant’s evidence. Tenn.
R. Evid. 404(a)(1); W est, 844 S.W .2d at 149 (citing Durham v. State, 128 Tenn.
636, 640, 163 S.W . 447, 448 (1913)).
In addition, the State may also opt to attack the credibility of a character
witness testifying on behalf of the defendant by cross-examination regarding
relevant specific instances of conduct. Tenn. R. Evid. 405(a). Rule 405(a)
provides that, in the event of such cross-examination, the trial court must upon
request hold a hearing outside the presence of the jury to determine that a
reasonable factual basis exists for the inquiry and that the probative value of the
specific instance of conduct on the credibility of the character witness outweighs
its prejudicial effect on substantive issues. Tenn. R. Evid. 405(a)(1) - (3). With
regard to this type of attack, the Advisory Commission Comments to Rule 405
state the following:
The examining lawyer can ask the witness about rumored arrests
and charges concerning the defendant, because the witness’s
knowledge of the rumors might impeach the witness in the eyes of
the jurors. If the witness admits having heard unfavorable rumors,
the jury may decide that the witness’s reputation or opinion
testimony is entitled to little weight. If the witness has not heard the
rumors, the witness’s testimony may likewise be taken with a grain
of salt because the witness is unfamiliar with the accused or the
accused’s community.
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Advisory Commission Comments to Tenn. R. Evid. 405. In the event of such
questioning, the trial judge should instruct the jury that the questions are for the
purpose of testing the credibility of the witness and that the responses of the
witness are not substantive evidence of the defendant’s character. See State v.
Sims, 746 S.W.2d 191, 194 (Tenn. 1988); State v. Chestnut, 643 S.W .2d 343,
348 (Tenn. Crim. App. 1982).
In the case at bar, the Defendant affirmatively chose to put his character
at issue through Tresner’s testimony on direct exam ination. Tresner himself
alluded to unsavory rumors about the Defendant during direct examination. The
prosecutor then cross-examined Tresner concerning his testimony on direct
examination, including his mentioning of rumors about the Defendant’s arrest on
or conviction for child molestation charges. Given the prosecutor’s questions to
Tresner, the trial court instructed the jury as follows:
The Court charges you that when a defendant presents a
character witness to testify on his behalf, such character witness
may be cross-examined about certain alleged charges or rumors of
misconduct by the defendant. Such cross-examination of a
character witness as to his knowledge of any alleged charges or
rumors of misconduct by a defendant is not to be considered as
substantive evidence of said acts, but should be considered by you
only for the purpose of testing the credibility of the character
witness. There is no proof of any kind in this record that such
alleged charges or rumors of misconduct are factual and true, and
reference to such acts was made to test the good faith, information
and accuracy of the character witness. In other words, such
testimony is to be considered by you only for the purpose of
determining what weight, what value you will give to the character
witness’s testimony.
The trial court also gave the jury the pattern instruction concerning evidence of
good character offered on behalf of the defendant. See T.P.I. -- Crim. 42.08.
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Of course, rulings on the admissibility of evidence and the propriety and
form of cross-examination are entrusted to the sound discretion of the trial court.
See, e.g., State v. Hutchison, 898 S.W .2d 161, 172 (Tenn. 1994), cert. denied,
116 S.Ct. 137, 133 L.Ed.2d 84 (1995); State v. Harris, 839 S.W .2d 54, 72 (Tenn.
1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993).
Such rulings will not be reversed on appeal absent an abuse of that discretion.
See State v. Caughron, 855 S.W .2d 526, 541 (Tenn. 1993), cert. denied, 510
U.S. 579, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993). From our review of the record,
we believe that questioning the Defendant’s character witness concerning rumors
of the Defendant’s arrests or convictions stemming from a newspaper article was
permissible under Rule 405(a) of the Tennessee Rules of Evidence. Accordingly,
we cannot conclude that the trial judge erred or abused his discretion in allowing
the challenged questions. This issue is without merit.
In his second issue on appeal, the Defendant argues that the trial court
erred in sentencing him to six months incarceration. The record indicates that the
Defendant was convicted of two counts of assault pursuant to Tennessee Code
Annotated section 39-13-101(a)(3). This offense is a Class B misdemeanor.
Tenn. Code Ann. § 39-13-101(b). The authorized term of imprisonment for a
Class B misdemeanor is a period of time not greater than six months. Tenn.
Code Ann. § 40-35-111(d)(2). The trial court sentenced the Defendant to the
maximum allowable term of imprisonment for each count, with the sentences to
run concurrently. On appeal, the Defendant contends that his sentence is
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excessive and that the trial court should have granted him an alternative
sentence such as probation or judicial diversion.4
W hen an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circum stances." State v. Ashby, 823 S.W .2d
166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement
that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
4
The sentencing alternative comm only known as “judicial diversion” is set forth at Tennessee
Code Annotated section 40-35-313.
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we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Misdemeanor sentencing is controlled by Tennessee Code Annotated
section 40-35-302, which provides in part that the trial court shall impose a
specific sentence consistent with the purposes and principles of the 1989
Criminal Sentencing Reform Act. In misdemeanor sentencing, a separate
sentencing hearing is not mandatory, but the court is required to provide the
Defendant with a reasonable opportunity to be heard as to the length and manner
of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the
authority to place the defendant on probation either immediately or after a time
of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e).
Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike
one convicted of a felony, is not entitled to a presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994 ).
The principles of sentencing reflect that the sentence should be no greater
than that deserved for the offense com mitted and should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed.
Tenn. Code Ann. § 40-35-103(3) - (4).
In determining whether to grant probation, the judge must consider the
nature and circumstances of the offense, the defendant’s criminal record, his
background and social history, his present condition, including his physical and
mental condition, the deterrent effect on other criminal activity, and the likelihood
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that probation is in the best interests of both the public and the defendant. Stiller
v. State, 516 S.W .2d 617, 620 (Tenn. 1974). The burden is on the Defendant to
show that the sentence he received is im proper and that he is entitled to
probation. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The presentence report indicates that the Defendant was approximately
sixty-eight years old at the time of sentencing. He is a widower and has two
adopted children, ages forty-six and forty-eight, who reside in Dallas, Texas. He
also has two sisters, ages eighty-seven and eighty-four, who reside in Memphis,
Tennessee and Silver Springs, Florida respectively. The Defendant is well-
educated, including a graduate degree in the field of music, and has a good
employment history. He reported no history of alcohol or drug abuse. The
presentence report also contained letters of support from the Defendant’s current
employers.
The trial court conducted a sentencing hearing at which the Defendant
testified. The Defendant stated that as a result of his arrest in this case, he lost
his jobs at Henderson High School and at the First Presbyterian Church where
he was an organist. He also lost his home and moved from Henderson, Texas
to Tyler, Texas where he works part-time as an organist for the Emerald Bay
Community Church and part-time for Exchange Data Corporation. The
Defendant testified that he has coronary-artery disease, for which he has
undergone multiple surgical procedures and continues to take medication daily.
He stated that he is willing to comply with whatever restrictions are placed upon
him as a condition of probation.
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After considering all of the evidence and evaluating the Defendant’s
testimony, the trial court specifically noted that the offense “rises to a high level
of seriousness.” The trial court also noted that the Defendant’s offenses would
have a lasting impact on the young victims.5 Given the seriousness of the
offenses and the impact which the Defendant’s behavior had on the victims, the
trial court found that the appropriate punishment was a six-month term of
incarceration.
The trial court is in a much better position to evaluate both the effect of the
offenses upon the victims, as evidenced during the trial testimony, and the
testimony of the Defendant at the sentencing hearing than an appellate court,
which must rely on the written record. Trial judges are traditionally vested with
broad discretionary powers in sentencing matters. This Court should not place
trial judges in a judicial straight-jacket on sentencing matters, and we should be
reluctant to interfere with their traditional discretionary powers. Moten v. State,
559 S.W .2d 770, 773 (Tenn. 1977). From this record, we cannot conclude that
the trial judge erred or abused his discretion in sentencing the Defendant to a
term of confinement rather than an alternative sentence.
The Defendant has failed to carry his burden of demonstrating that the
sentence he received is improper and that he is entitled to an alternative
sentence. Thus, this issue is without merit. For the reasons set forth in the
discussion above, we conclude that the Defendant’s issues on appeal lack merit.
W e therefore affirm the judgment of the trial court.
5
In fact, the transcript of the trial testimony indicates that, upon his return from Mem phis, J.A.
becam e withd rawn and began to have fa m ilial tro ubles. J.A . eventua lly m oved out of his fam ily’s
home, apparently because of embarrassment over the incident in Memphis.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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