State of Tennessee v. John Kelly Gross

07/28/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 9, 2020
STATE OF TENNESSEE v. JOHN KELLY GROSS
Appeal from the Criminal Court for Davidson County
No. 2017-A-212 Jennifer Smith, Judge
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No. M2019-01449-CCA-R3-CD
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John Kelly Gross, Defendant, was convicted following a bench trial of one count of
aggravated burglary and one count of vandalism. As a result, Defendant was sentenced
to an effective sentence of six years. Defendant appealed, arguing that the evidence was
insufficient to support the conviction for aggravated burglary. After a review, we affirm
the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.
Dwight E. Scott, Nashville, Tennessee, for the appellant, John Kelly Gross.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Samantha Dotson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant was indicted in February of 2017 with one count of aggravated burglary
and one count of vandalism for acts that took place during an incident at the home of Lori
Gross on November 11, 2016. Defendant waived a jury trial. At the bench trial, Ms.
Gross testified that Defendant was her ex-husband. The couple was married for twelve
years prior to their divorce in 2009. They had one son. Ms. Gross agreed that the
marriage did not end amicably. She explained that Defendant had visitation with their
son, K.G.,1 after the divorce and the parties “tried to make it work, but they had a bad
visitation and [K.G.] refused to see [Defendant] anymore.” After that “the Judge OK’d
[K.G.] not having to see his father.”
Ms. Gross explained that she did not have a good relationship with Defendant and
that he harassed her and K.G. Defendant was diagnosed with schizophrenia and “became
very irrational” after the diagnosis. Ms. Gross “lived in fear” and tried to “keep
[Defendant] calm” but testified that Defendant would “call sometimes and just yell and
scream.”
On the night of November 11, Defendant called twice, screaming at her each time.
Ms. Gross was in the computer room on the top floor of the split-level house. When she
answered the flip-phone she was using, she “could tell it was [Defendant], but he was just
screaming.” She was unable to make out “any of the words” so she hung up. Defendant
called back a few minutes later. The calls made her “nervous.”
Approximately thirty to forty-five minutes later, Ms. Gross “heard the front door
break down.” She heard “the wood splitting” and heard Defendant “coming up the
stairs.” Defendant kicked the dog. The dog “yelped” and ran away. Defendant came
down the hallway. Ms. Gross “ran out of the office to the bedroom on the right and got
[her] gun” because she knew that it was Defendant and she was “scared.”
Defendant came into the bedroom, and K.G. followed. Defendant tried to talk to
K.G. who was “jumping, up and down, on the bed, yelling shoot him.” Defendant was
also yelling. At one point, Defendant yelled at Ms. Gross to shoot him. Eventually, K.G.
calmed down and started talking to Defendant. Both Defendant and K.G. “sat down on
the bed and were talking, calmly, with each other.” Ms. Gross was “still nervous” and
never put the gun down because she was afraid Defendant would attack her.
After Defendant and K.G. talked for a short while, the two walked to the living
room and continued to talk. Defendant called 911 and told them “he had just located a
missing child.” Ms. Gross explained to the police that K.G. was not missing and that she
had sole custody. When the police arrived, Defendant was arrested.
On cross-examination, Ms. Gross explained that Defendant was not a co-owner of
the home.2 She denied that Defendant assigned her power of attorney when he was
1
According to Defendant, K.G. was born in 2001, so he was approximately eighteen years of age
at the time of trial. We have chosen to identify him by his initials in the event that he was a minor at the
time of his testimony.
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diagnosed with schizophrenia. Ms. Gross admitted that Defendant was not yelling and
screaming when he first entered the house and that Defendant did not threaten or place
his hands on her at any time. In fact, Ms. Gross admitted that she had “very little fear”
because she “was the one with the gun.” On redirect examination, Ms. Gross explained
that the final divorce decree granted her sole possession of the marital home.
K.G. testified at trial. K.G. recalled that he was in the office with his mother on
the night of November 11 prior to the time that Defendant entered the house. Ms. Gross
told K.G. that Defendant called. According to K.G., his mother seemed “nervous.”
About twenty minutes after Defendant called, they “heard a big, loud noise at the front
door.” K.G. and his mother went to the bedroom where Ms. Gross grabbed her handgun.
Defendant came up the stairs to the bedroom. K.G. explained that Defendant was
“[a]gitated” and “overall angry.” K.G. was “scared” of his “mother getting[g] hurt.”
K.G. talked to Defendant, and Defendant calmed down. K.G. got Defendant to go into
the living room before K.G. “went inside to the office to call the police and laid the
phone down” without talking to dispatch. K.G. recalled that Defendant also called the
police. K.G. admitted that Defendant gave him a hug and a kiss after he calmed down.
Defendant also gave his mother’s telephone number to K.G.
Officer William Durham of the Metro Nashville Police Department responded to
the call at Ms. Gross’s home and arrested Defendant.
Defendant testified that he was diagnosed with schizophrenia around the time that
his son was born. Defendant granted his wife power of attorney when he was diagnosed,
“just in case something happened” to him. Defendant claimed that Ms. Gross signed his
name to “[a] refinancing [of the house] with J.P. Chase Morgan.”
Defendant explained that he was at a restaurant on the night of the incident when
an old friend came in and told him he had a “debilitating disease.” Defendant “started
thinking about how short life is” and that he had not seen his son in a long time. He
called his ex-wife because he wanted to talk to his son. Defendant recalled that Ms.
Gross hung up on him so he “called a cab” to take him to the house. Defendant claimed
that he was not certain that Ms. Gross and K.G. still lived at the house because he knew
the “mortgage was going under foreclosure.” Defendant arrived and “knocked on the
neighbor’s door” before he went to Ms. Gross’s house. Defendant explained that he and
the neighbor were not on good terms and that he “wanted to avoid any confrontation.”
2
Counsel for Defendant insisted that he sent a subpoena duces tecum to Ms. Gross to bring
mortgage documents, refinancing documents, foreclosure notice, etc. Ms. Gross denied receiving the
subpoena. Counsel for Defendant eventually conceded that Defendant “was not authorized to be [at the
house] that night” but argued that if Defendant was a co-owner of the house he could “certainly destroy
his own front door.”
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The neighbor was not home. Defendant did not see any lights on at the house where he
thought Ms. Gross and K.G. still lived. He knocked on the door. Defendant admitted
that he kicked in the front door. He saw the dog, a pit bull, at the top of the stairs behind
a gate. Defendant “kicked the gate over” and the dog ran past his leg and outside the
house. Defendant was “determined” to see his son. Defendant was shocked with how
mature his son had gotten. They “sat down on the mattress” and Defendant wrote down
K.G.’s grandmother’s telephone number as well as a cousin’s telephone number. After
talking for a bit, K.G. and Defendant walked outside. Defendant called the police and
told him that he “found a missing child.” Defendant claimed that his purpose in going to
the house was to see his son. Defendant could not recall if he was taking his medication
at the time of the incident.
At the conclusion of the trial, the judge found Defendant guilty on both counts of
the indictment. At a sentencing hearing, Defendant was sentenced to an effective
sentence of six years. Defendant filed a motion for new trial. The trial court denied the
motion and Defendant filed a timely notice of appeal.
Analysis
On appeal, Defendant challenges the sufficiency of the evidence to support his
conviction for aggravated burglary. Defendant does not challenge his vandalism
conviction. Specifically, he claimed that there was “no evidence of felonious intent in the
Defendant’s entrance of the house; he committed no theft or felony after entry; he
possessed no weapon . . . ; there was no personal injury to any of the occupants of the
house; [and] though his ex-wife [ ], may have been frightened, she was not harmed nor
was she assaulted or touched in any way.” Additionally, Defendant claims that the trial
court should have considered a charge of aggravated criminal trespass. The State, on the
other hand, argues that the evidence was sufficient.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of
every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As
such, this Court is precluded from re-weighing or reconsidering the evidence when
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evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions
concerning the credibility of the witnesses and the weight and value to be given to
evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
Accordingly, in a bench trial, the trial judge, as the trier of fact, must resolve all questions
concerning the credibility of witnesses and the weight and value to be given the evidence,
as well as all factual issues raised by the evidence. State v. Ball, 973 S.W.2d 288, 292
(Tenn. Crim. App. 1998). The trial judge’s verdict carries the same weight as a jury
verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). “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)).
Here, Defendant was convicted of aggravated burglary. Aggravated burglary
occurs when, “without the effective consent of the property owner,” a “person enters a
habitation with the intent to commit a felony, theft, or assault.” T.C.A. §§ 39-14-
402(a)(1), -403(a). A house is a “habitation.” T.C.A. § 39-14-401(1)(A). An assault is
committed when a person “[i]ntentionally or knowingly causes another to reasonably fear
imminent bodily injury.” T.C.A. § 39-13-101(a)(2). 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. T.C.A. § 39-
11-302(a). A person acts knowingly with respect to the nature of the conduct or to a
result of the person’s conduct when the person is aware that the conduct is reasonably
certain to cause the result. T.C.A. § 39-11-302(b).
The evidence at trial, in a light most favorable to the State, indicated Defendant
was diagnosed with schizophrenia during his marriage to Ms. Gross. Defendant and Ms.
Gross were divorced. Defendant called Ms. Gross two times prior to coming to her home
on the evening of November 11. Defendant kicked down the front door, entering the
home without her permission, and came up the stairs. Ms. Gross was “afraid” Defendant
would attack her so she grabbed her gun before Defendant entered the room where she
and her son were standing. Defendant testified that he only wanted to see his son.
On appeal, Defendant seems to argue that a conviction for aggravated burglary
required him to commit a felony and that the only assault proven by the State at trial was
simple assault, a misdemeanor. To the contrary, a conviction for aggravated burglary is
proven if a defendant enters a habitation “with intent to commit a felony, theft or
assault.” T.C.A. § 39-14-402(a)(1). Moreover, Defendant’s intent can be established
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through circumstantial evidence. See State v. Reginald Dewayne Terry, No. M2011-
01891-CCA-R3-CD, 2012 WL 5873518, at *10 (Tenn. Crim. App. Nov. 19, 2012) (citing
State v. Burkely, 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990). The trial court heard the
evidence, assessed the credibility of the witnesses, and concluded that Defendant entered
the residence with the intent to commit an assault inside, despite his testimony to the
contrary. As we have noted on many occasions, questions concerning the credibility of
the witnesses and the weight and value to be given to evidence, as well as all factual
issues raised by such evidence, are resolved by the trier of fact and not the appellate
courts. Pruett, 788 S.W.2d at 561. The evidence was sufficient to support the conviction
for aggravated burglary. As the trier of fact, the trial court needed not to consider the
offense of criminal trespass after it determined the proof was sufficient to support a
conviction for aggravated burglary. Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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