State of Tennessee v. Thomas H. Bullington

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 9, 2016
STATE OF TENNESSEE v. THOMAS H. BULLINGTON
Appeal from the Circuit Court for Lincoln County
No. 15-CR-89 Forest A. Durard, Jr., Judge
No. M2016-00215-CCA-R3-CD – Filed September 1, 2016
The Defendant, Thomas H. Bullington, was convicted by a Lincoln County Circuit Court
jury of violation of an order of protection, a Class A misdemeanor. See T.C.A. § 39-13-
113(a)(1) (2014). The Defendant received a sentence of eleven months, twenty-nine
days. On appeal, the Defendant contends that (1) the evidence is insufficient to support
his conviction and (2) the trial court erred by ordering the maximum sentence. We affirm
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and J. ROSS DYER, J. joined.
Robert T. Carter, Tullahoma, Tennessee, for the appellant, Thomas H. Bullington.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Robert J. Carter, District Attorney General; and William Bottoms, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arises from a family dispute between the victim and the Defendant, who
is the victim‟s uncle. At the trial, the victim testified that he was an attorney and that the
Defendant had “continually” made threats against him and his family. The victim said
that he obtained an order of protection against the Defendant around August 2012, when
the Defendant threatened him, the victim‟s grandmother, and the victim‟s children. The
victim stated that the threats were a repeated pattern, which placed him in fear of harm
for himself, his grandmother, his wife, and his children. The victim said that the
Defendant called the victim‟s mother, who was not included in the order of protection,
and wrote her letters in which he threatened the victim. The victim stated that he “just
wanted to be left alone.”
The victim identified an August 30, 2013 order of protection and an August 15,
2014 extension of the order, which was valid until September 11, 2015.1 The order of
protection included a provision which stated, “You . . . must not contact [the victim] . . .
either directly or indirectly[.]” The order also included a provision that the Defendant
“Not abuse or threaten to abuse [the victim] or [the victim‟s] minor children.” The victim
said that the order of protection included the victim, the victim‟s stepson, the victim‟s
son, and the victim‟s daughter. The victim stated that the 2014 extension added his
grandmother. The victim testified that the Defendant violated the order of protection in
May 2015.
The victim testified that he had advised clients on orders of protection “quite
often.” He said that obtaining an order of protection was a serious matter and that he
wanted the Defendant not to contact him or his family. The victim said that the
Defendant threatened the victim‟s life and used the victim‟s mother to antagonize the
victim, including writing her “disturbing” letters. The victim said that the Defendant
drove a dark green Dodge Durango and that the victim worried about what “he could do
with that, if [the victim‟s children were] outside in the yard playing.”
The victim testified that for years, he asked the Defendant to leave him and his
family alone, that the Defendant had left town previously, that the Defendant returned,
and that the threats resumed. The victim said that if he had not felt his family was
threatened or if he had not had “a level of fear and concern,” he would not have obtained
an order of protection.
The victim testified that on May 13, 2015, the victim appeared in court and that
several attorneys and a full gallery were inside the courtroom. The victim said he saw the
Defendant sitting in the front row of the gallery, that the Defendant and the victim did not
speak, and that the victim was concerned. The victim stated that court personnel advised
the judge of the situation, that the judge called the Defendant to the bench and spoke to
him, that the victim did not hear the conversation, and that the Defendant left. The victim
said that the Defendant did not have business in court that day. The victim stated that
although the incident made him uneasy, he did not intend to report the Defendant for
violating the order of protection.
The victim testified that he decided to obtain charges against the Defendant due to
a telephone call the Defendant made the following day to the victim‟s mother. The
1
The victim also said that on September 10, 2015, he filed for a ten-year extension of the order of
protection due to the Defendant‟s repeatedly violating the order and that a hearing was set for two weeks
after the trial.
-2-
victim said that the Defendant threatened the victim‟s children and that the Defendant
said the victim “was digging [his] hole even deeper.” The victim noted that an order of
protection was “just a piece of paper” and that the victim felt safer with the Defendant in
jail.
On cross-examination, the victim testified that he was age forty-four and in good
physical health, that the Defendant was in his sixties, and that the Defendant was
paralyzed on his left side and walked with a limp due to a stroke. The victim said that the
Defendant had abused drugs and alcohol “for some time.” The victim did not know
whether the Defendant was homeless. The victim said that the Defendant had threatened
him for four or five years. The victim stated that he probated the Defendant‟s father‟s
will and that the Defendant did not threaten to sue the victim regarding the will or any
other matter. The victim did not remember whether the Defendant‟s threats started when
the will was probated. The victim said that the Defendant had written letters to the
victim‟s mother in which the Defendant threatened to file a complaint with the Tennessee
Board of Professional Responsibility about the victim. The victim stated that although he
did not appreciate the threat because he had done nothing wrong, he was not angry.
The victim testified that on May 13, 2015, the Defendant sat in the courtroom
gallery, that the Defendant stared at him, and that the victim looked at the Defendant
once and did not look at him again. The victim agreed that the courtroom was crowded.
The victim said that he would not have been surprised if the victim‟s name were not on
the civil docket for that day and that the victim sometimes went to court in order to have
the judge sign agreed orders.
The victim testified that he heard the judge ask the Defendant whether he was
aware an order of protection was in effect. The victim said that the judge told the
Defendant, “You knew there was an order of protection in place. You know that he
works up here every day,” and it would be wise if the Defendant left. The victim stated
that the Defendant left without hesitation or argument.
The victim testified that he did not include in the warrant for the Defendant‟s
arrest that the Defendant left the courtroom. The victim said that other than a court
proceeding on May 20, he had not seen or spoken to the Defendant since May 13. The
victim acknowledged that the Defendant had not been in a position to carry out threats
since May 20, and that at the court proceeding, the victim was the only witness to testify
about the May 13 incident.
Dinah Richardson, the victim‟s mother, testified that the Defendant was her
brother and that the Defendant called her on May 14, 2015. She said that the Defendant
was very upset and angry at the victim because the Defendant had been asked to leave a
courtroom and that the Defendant blamed the victim, although the victim was “not aware
of it.” Ms. Richardson stated that the Defendant instructed her “to tell [the victim] that
-3-
[the Defendant] was going to get him and really get him [t]his time . . . even if he had to
get him through his children.” Ms. Richardson said that although the connection was
poor for a portion of the call, the Defendant mentioned the victim‟s “ -on and -aughter,”
which she knew referred to the victim‟s son and daughter, and the Defendant said it
would hurt the victim more if something happened to his children. Ms. Richardson stated
that the Defendant asked her to persuade the victim‟s grandmother to lend him some
money.
Ms. Richardson testified that since the May 14 telephone call, she had received
several “nasty” and threatening letters from the Defendant. Ms. Richardson said that her
name was not included in the order of protection.
On cross-examination, Ms. Richardson testified that the Defendant had “vented”
to her and had been upset for a long time, that he had made threats previously, and that he
had threatened to have the victim disbarred. Ms. Richardson said the Defendant told her
that he was in contact with “Pablo Esteban,” a Colombian drug lord who had been dead
for twenty-two years, that Mr. Esteban‟s attorney was going to help disbar the victim, and
that the Defendant was working with another attorney to disbar the victim.
Ms. Richardson testified that on May 14, the Defendant called her twice. Ms.
Richardson stated that the Defendant told her the victim was “digging his hole deeper.”
Ms. Richardson acknowledged that the Defendant could have referred to his threats to
have the victim disbarred, although Ms. Richardson noted that the Defendant had
threatened previously to hire a “hit man.” Ms. Richardson denied the Defendant had ever
told her that he was going to tell the victim‟s children about the family dispute when they
were older.
Ms. Richardson testified that on May 14 or 15, she called the victim to tell him
about the Defendant‟s telephone call. Ms. Richardson acknowledged that the arrest
warrant affidavit did not reflect that the Defendant told Ms. Richardson to convey his
threat to the victim. She said, though, that she had been upset and that the Defendant told
her to tell the victim. Ms. Richardson said that the situation was difficult for her because
it involved two people she loved.
On redirect examination, Ms. Richardson read from the arrest warrant affidavit,
which stated that the Defendant told her to tell the victim about the threats. Ms.
Richardson said that the Defendant had previously threatened to harm the victim. She
stated that the Defendant told her during the second telephone call that he wanted her to
understand what he meant in the first call and that he was not backing down.
On recross-examination, Ms. Richardson acknowledged that the affidavit did not
mention the second telephone call. Ms. Richardson said that she felt sorry for the
Defendant because he had many problems and that when he called, she tried to answer.
-4-
Lincoln County Sheriff‟s Deputy Tull Malone testified that that he had known the
victim‟s family for a long time and that he was aware of family problems between the
victim and the Defendant. Deputy Malone said that he received a telephone call at the
police station in May 2015, in which an unidentified man asked whether an arrest warrant
had been issued for the Defendant. Deputy Malone stated he checked the system and
responded affirmatively. Deputy Malone said that before ending the call, the caller told
him, “I guess I can get to John through his kids,” and that the caller said he would turn
himself in to the police. Deputy Malone did not know whether the caller was the
Defendant. Deputy Malone said that the Defendant later turned himself in to the police.
The Defendant testified that he was paralyzed on his left side and walked with a
limp as a result of a stroke and subsequent fall in a rehabilitation hospital. He did not
think his mind had been affected by the stroke. The Defendant stated that he thought the
victim had gone into “a mental institution and had my dad change his will.” The
Defendant said that he had threatened to report the victim to the Tennessee Bar
Association (TBA) but denied that he made any other threats.
The Defendant testified that on May 13, 2015, he had an appointment at a bank to
open an account, that the bank was not yet open, and that he decided to sit at the
courthouse and observe. He said that he arrived in the courtroom before the majority of
people and that the judge called his name and spoke to him about having met the
Defendant‟s father. The Defendant said that the judge asked him whether he knew the
victim had an order of protection against him, that the judge told him the victim was in
the courtroom, and that the Defendant had not seen the victim. The Defendant said that
he told the judge he would leave and that he retrieved his hat and left. The Defendant
said that he told the judge he had no court business and that he was only there to “kill
time.”
The Defendant testified that he had not seen the victim for a long time before May
13 and that he never wanted to see the victim again. The Defendant said that he did not
have a home in Lincoln County and that he could have gone to a restaurant but chose to
go to court instead.
The Defendant testified that he was worried about the courtroom incident and that,
as a result, he called Ms. Richardson and told her what happened. He said that he asked
whether she thought he was in trouble, that Ms. Richardson did not know, that Ms.
Richardson asked him why he went to court and told him he should have known the
victim would be there, and that the Defendant told her the victim could have been in any
number of counties. The Defendant denied threatening the victim or the victim‟s
children. The Defendant acknowledged saying he “was going to try to get to John
through his children” but said he meant he was going to tell the children when they were
adults about the victim‟s having the Defendant arrested and jailed. He said, though, that
he did not think he explained the statement to Ms. Richardson. The Defendant denied
-5-
telling Ms. Richardson to convey anything to the victim but said that “anything I tell her,
she‟s going to tell everybody else in town.” The Defendant stated that the only threat he
made was to contact the TBA and that he wrote a letter to the TBA.
The Defendant testified that the following day, he called the jail and asked
whether a warrant had been issued for his arrest. He said that he identified himself to the
deputy, that the deputy told him there was a warrant for his arrest, that he knew Deputy
Malone very well, but that he did not recognize Deputy Malone‟s voice on the telephone.
The Defendant denied making any threats during the call.
The Defendant testified that it was possible he had threatened the victim
previously but that he was unsure. The Defendant agreed that “bad blood” existed
between him and the victim because the victim changed the Defendant‟s father‟s will
when the Defendant‟s father was mentally incompetent. The Defendant said that after he
spoke to the deputy at the jail, he turned himself in to the police. The Defendant said that
a woman at the jail told him he was being arrested for going to court as a spectator and
that the victim had signed the warrant. The Defendant stated that he was arrested and had
been in jail for 120 days for “sitting in court[.]”
On cross-examination, the Defendant testified that his and the victim‟s
disagreement began about five years before the trial. The Defendant said that in May
2015, he knew that the victim had obtained an order of protection against him and that he
was not supposed to have any contact with the victim, the victim‟s children, or the
victim‟s grandmother. The Defendant denied physically threatening the victim‟s
children. The Defendant acknowledged that he “can‟t stand” the victim and that the
victim made him angry, although he said that he did not hate the victim. The Defendant
acknowledged knowing Ms. Richardson would tell the victim about the telephone call.
He acknowledged writing a letter in which he referred to the victim‟s stepson and stated
that he would visit the victim in 2016 unless the victim was “scared and renew[ed] the
order of protection again.” The Defendant said that he was going to communicate the
situation to the victim‟s children through the victim‟s stepson.
The State elected the May 14 telephone call to the victim‟s mother as the specific
incident to be proven. Upon this evidence, the Defendant was convicted of violating an
order of protection. This appeal followed.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his conviction
because the Defendant did not contact the subject of the order of protection and did not
make a specific threat of violence. The State responds that the evidence is sufficient.
-6-
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). “A crime may be established by
direct evidence, circumstantial evidence, or a combination of the two.” State v. Hall, 976
S.W.2d 121, 140 (Tenn. 1998); see State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005).
“The standard of review „is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
Tennessee Code Annotated section 39-13-113(a)(1) states that it is an offense “to
knowingly violate” an order of protection. In order to constitute a violation of Code
section 39-13-113:
(1) The person must have received notice of the request for an order of
protection or restraining order;
(2) The person must have had an opportunity to appear and be heard in
connection with the order of protection or restraining order; and
(3) The court made specific findings of fact in the order of protection or
restraining order that the person committed domestic abuse[.]
Id. § 39-13-113(f)(1)-(3) (2014). Domestic abuse is defined, in relevant part, as abuse
committed against an adult or minor related to the person by blood or marriage. See id. §
36-3-601(4),(5)(D), (E) (2014). Abuse is defined, in relevant part, as “placing an adult or
minor in fear of physical harm[.]” Id. § 36-3-601(1).
In the light most favorable to the State, the record reflects that on May 14, 2015,
an order of protection was in effect against the Defendant. The order included the victim,
the victim‟s children, and the victim‟s grandmother as persons the Defendant was
prohibited from contacting. The amended order of protection referred to a court hearing
on the matter, in which the Defendant had an opportunity to appear and be heard. The
order of protection stated under “findings of abuse” that the Defendant abused or
threatened to abuse the victim. On May 14, the Defendant called Ms. Richardson and
asked her to tell the victim that he “was digging his hole deeper” and that the Defendant
was “going to get him and really get him [t]his time . . . even if he had to get him
-7-
through his children.” The Defendant told Ms. Richardson to ask the victim‟s
grandmother, who was also the Defendant‟s mother, for money. The Defendant stated
that he knew about the order of protection and that it named both the victim and the
victim‟s grandmother.
The Defendant‟s argument that the order of protection should not have included
indirect communication with the victim is without merit and disregards the plain
language of the order. The order of protection states next to a marked checkbox, “You . .
. must not contact Petitioner . . . either directly or indirectly[.]” A ban on indirect
communication was intended by the issuing court, and the record reflects that the
Defendant violated it.
Relative to the Defendant‟s contention that his threat was not reasonably construed
as one of physical harm, the jury by its verdict discredited the Defendant‟s testimony that
the threat only referred to legal action or eventually speaking to the victim‟s children
after the expiration of the order. The statements that the Defendant was “going to get
him and really get him [t]his time . . . even if he had to get him through his children” and
that it would hurt the victim more if something happened to his children could reasonably
be interpreted by a rational jury as a threat of physical harm against the victim or his
children. The evidence is sufficient to support the Defendant‟s conviction, and the
Defendant is not entitled to relief on this basis.
II
Sentencing
The Defendant contends that the trial court erred by ordering the maximum
sentence, arguing that the sentence was not supported by the evidence. He requests a
reduced sentence of ten days. The State responds that the trial court did not err in
sentencing the Defendant. We agree with the State.
At the sentencing hearing, the trial court noted that it considered the factors
required in felony sentencing as “guiding principles.” The court found that the Defendant
had been convicted of three previous violations of the victim‟s order of protection and
that the Defendant had not been successful on probation. The State‟s pretrial motions
reflect that the Defendant had a sixteen-year-old driving under the influence conviction,
which the trial court did not consider in sentencing, and a 2012 “joyriding” conviction,
for which the Defendant was placed on probation. On May 21, 2013, the Defendant‟s
probation was revoked because he had been convicted of violating the order of
protection.
The trial court found based upon the Defendant‟s criminal history, the appropriate
sentence length was eleven months, twenty-nine days. Relative to the manner of service,
-8-
the court considered whether alternatives to confinement had been successfully applied to
the Defendant, whether probation would depreciate the seriousness of the offense,
whether there were threats of bodily injury, and whether incarceration would deter others
from similar behavior. The court stated that it gave particular weight to whether the
Defendant had successfully completed probation in the past. The court found that
although the Defendant had successfully completed probation in connection with his DUI
conviction, the Defendant‟s probation for the joyriding conviction had been revoked as a
result of his multiple convictions for violating the present order of protection. The court
found that alternatives to confinement had been recently and unsuccessfully applied to
the Defendant.
Relative to the order of protection, the trial court found that the order showed the
Defendant was to have no direct or indirect contact with the victim, that the contact for
which the Defendant was convicted related to the victim, and that the behavior was “a
way to circumvent the order or the spirit and the intent of the order.” The court found
that the Defendant was not a good candidate for alternative sentencing and that the
Defendant had demonstrated he would not follow the court‟s instructions. The court
sentenced the Defendant to eleven months, twenty-nine days at seventy-five percent
service.
Tennessee Code Annotated 40-35-302(b) (2014) governs misdemeanor
sentencing, which requires a trial court to impose a specific sentence consistent with the
purposes and principles of the Sentencing Act. Likewise, if a trial court orders a
defendant to serve a sentence in confinement, the court must fix a percentage of the
sentence a defendant is required to serve. Id. § 40-35-302(d). Although a trial court is
not required to hold a sentencing hearing, the court must permit the parties to address
“the length of any sentence and the manner in which the sentence is to be served.” Id. §
40-35-302(a). Trial courts are granted considerable discretion and flexibility in
misdemeanor sentencing determinations, and defendants convicted of misdemeanors are
not presumed eligible for alternative sentencing. State v. Troutman, 979 S.W.2d 271, 273
(Tenn. 1998); see State v. Combs, 945 S.W.2d 770, 773-74 (Tenn. Crim. App. 1996); see
also State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). Likewise,
defendants convicted of misdemeanors are not “entitled to the presumption of a minimum
sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). In
determining the percentage of service for misdemeanors, a trial court must consider the
purposes and principles of sentencing and the enhancement and mitigating factors and
must not impose arbitrary incarceration. T.C.A. § 40-35-302(d); see Troutman, 979
S.W.2d at 274 (stating that “while the better practice is to make findings on the record
when fixing a percentage of a . . . sentence to be served in incarceration, a . . . court need
only consider the principles of sentencing and enhancement and mitigating factors . . . to
comply with the legislative mandates of the misdemeanor sentencing statute”).
-9-
This court reviews challenges to sentences imposed for felony offenses relative to
the manner of service within an appropriate sentence range “under an abuse of discretion
standard with a „presumption of reasonableness.‟” State v. Bise, 380 S.W.3d 682, 708
(Tenn. 2012). The same standard of review applies to questions related to probation or
any other alternative sentence. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Although our supreme court has not considered whether the abuse of discretion with a
presumption of reasonableness standard applies to misdemeanor sentencing
determinations, it has stated that the standard “applies to all sentencing decisions,” and
this court has previously applied the standard to misdemeanor sentencing. State v. King,
432 S.W.3d 316, 324 (Tenn. 2014); see State v. Sue Ann Christopher, No. E2012-01090-
CCA-R3-CD, 2013 WL 1088341, at *6-8 (Tenn. Crim. App. Mar. 14, 2013), perm. app.
denied (Tenn. June 18, 2013); State v. Christopher Dewayne Henson, No. M2013-01285-
CCA-R3-CD, 2015 WL 3473468, at *5-6 (Tenn. Crim. App. June 2, 2015) perm. app.
denied (Tenn. Sept. 17, 2015); see also T.C.A. § 40-35-401(d) (2014) (stating that all
sentencing issues raised pursuant to Code section 40-35-401(a) are subject to the same
standard of review).
Generally, compliance with the purposes and principles of sentencing requires a
trial court to consider any evidence received at the trial and sentencing hearing, the
presentence report, counsel‟s arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct, any mitigating or statutory enhancement factors,
statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991); see T.C.A. §§ 40-35-103 (2014), -210 (2014); State
v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn.
Crim. App. 1987)); see also T.C.A. § 40-35-102 (2014).
The burden of establishing suitability for probation rests with a defendant, who
must demonstrate that probation will “„subserve the ends of justice and the best interest
of both the public and the defendant.‟” State v. Souder, 105 S.W.3d 602, 607 (Tenn.
Crim. App. 2002) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)); see T.C.A. § 40-35-303(b); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).
The record reflects that the trial court considered the appropriate purposes and
principles of sentencing in imposing a sentence of eleven months, twenty-nine days at
75% service. The Defendant had previously violated the victim‟s order of protection
three times. Alternative sentencing, such as the Defendant‟s probation related to the
joyriding conviction, did not deter the Defendant from disregarding the court‟s
instructions, and his probation was revoked as a result of the second violation of the
order. The trial court did not abuse its discretion in imposing the maximum sentence and
denying probation or an alternative sentence. The Defendant is not entitled to relief on
this basis.
-10-
In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
-11-