Clay County Defendant’s Sentence Upheld

Yesterday, the Tennessee Court of Criminal Appeals upheld Judge David Patterson’s denial of alternative sentencing for a Clay County, Tennessee defendant.  Previously, the defendant had pled nolo contendere to attempted aggravated child neglect, a Class B felony.  As part of her plea agreement, she agreed to serve an eight-year term in the manner imposed by the trial court.

The trial court sentenced the defendant to serve eight-years at thirty percent, noting: (1) The defendant had failed to submit to a drug screen prior to the sentencing hearing; (2) The victim was particularly vulnerable because of his infancy; (3) The victim was “almost dead” and the defendant failed to recognize the problem; (4) The indictment originally charged a Class A felony.

On appeal, the defendant argued that the trial court erred because (1) The defendant did not have a long criminal history; (2) She successfully completed a previous sentence on probation; (3) She complied with the terms of her bail for the instant charge; (4) The trial court failed to properly consider mitigating factors; (5) There was no evidence to suggest that she intentionally or knowingly neglected the victim; (6) She brought the victim to the hospital after being told to do so; (7) There was no evidence of neglect to any of her other five children; (8) She gave birth to two children while on bail prior to her guilty plea, and those children will not be able to raised by their mother; and (9) Her confinement will not act as a deterrence and will not act to prevent the depreciation of the seriousness of the offense.

Despite the above arguments, the court of criminal appeals upheld the trial court’s decision, stating that a trial court’s sentencing decision is reviewed for abuse of discretion, with a presumption of reasonableness granted to within-range sentences reflecting a proper application of the purposes and principles of the Sentencing Act.  In this case, the trial court properly took into account the sentencing considerations in T.C.A. § 40-35-103 and whether any enhancement and mitigating factors existed.  See generally T.C.A. §§ 40-35-113, -114.  The trial court also “look[ed] behind the plea bargain” to see that the defendant was originally charged with aggravated child neglect, a Class A Felony that is ineligible for alternative sentencing.  Taking all of this into account, the court of criminal appeals determined that the trial court did not abuse its discretion and upheld the sentence of confinement.

State v. McLerran, No. M2016-02005-CCA-R3-CD (Tenn. Crim. App. Aug. 8, 2017)

Gainsboro man arrested for allegedly having sex in a bathroom at the Putnam County Fair

The Herald Citizen reports that the Putnam County Sheriff’s Department has arrested a Gainsboro man for having sex in a bathroom at the Putnam County Fair. Reportedly, a deputy told the couple to come out after observing “the feet of a man and a woman beneath one of the stalls.”   Interestingly, the woman was not named in the warrants for the man’s arrest nor is it stated in the story that she was arrested.

Regardless, the man is charged with disorderly conduct and resisting arrest.  Disorderly conduct occurs when:

(a) A person commits an offense who, in a public place and with the intent to cause public annoyance or alarm:

(1) Engages in fighting or in violent or threatening behavior;

(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or

(3) Creates a hazardous or physically offensive condition by an act that serves no legitimate purpose.

(b) A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities. 

T.C.A. § 39-17-305.  Disorderly conduct is a C misdemeanor carrying up to 30 days in jail and a $50 fine.

Based on the fact that the woman wasn’t arrested, I’m guessing the defendant’s disorderly conduct charge is for either “violent behavior,” i.e., recoiling from the deputy, or “threatening behavior,” i.e., repeatedly reach in his pockets.

For fun, let’s assume the State charged him with disorderly conduct for having sex in the fair bathroom.  Did the man want to “cause public annoyance and alarm” or did he have a simpler goal in mind?  Also, could we really say the sex had no legitimate purpose?  As the ACLU loves to remind us, procreation is a fundamental right.  How dare the State tell us that sex is not a legitimate purpose!

Then again, maybe there was “unreasonable noise” that prevented others from “carrying on lawful activities,” such as using the bathroom.  That would be enough to convict him.  However, the witness testimony could get a bit interesting.  “How did the noise affect you?”  “It gave me a severe case of stage fright.”  But wouldn’t loud noises actually help stage fright… This hypothetical has obviously gone on for too long.

Practically speaking, if the guy had just put his clothes on and left the fair, he probably wouldn’t have been charged with anything, at least anything that would stick.

Hindering secured creditor conviction reversed for insufficient evidence

It’s rare to see a conviction overturned for insufficiency of the evidence because the standard is so high, i.e., no rational jury could have found the accused guilty.  Moreover, after a conviction, the presumption of innocence is replaced with the presumption of guilt.  All questions about the credibility of witnesses, the weight of their testimony, and the reconciliation of conflicts, goes in the State’s favor.  The State, and not the defendant, is entitled to the “strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”

Given this high standard, it’s not surprising that when there is a reversal for insufficient evidence, it’s in an area of law that students dread and attorneys avoid – secured transactions.  While secured transactions seems daunting, most people have experience with it, e.g., paying for a car overtime.  To use an example, if you owe your neighbor $100 and tell him, “Keep my lawn mower until I pay you back,” you’ve participated in a secured transaction.  Your lawn mower is security for the payment.  If you don’t pay him, he can keep your mower until you do (or eventually and with the proper notice, sell it).  If you do pay him, you get your lawn mower back.

In criminal law, there is theft and there is hindering a secured creditor.  If you steal your neighbor’s lawn mower, you’ve committed a theft.  If you “steal” your lawn mower back from your neighbor after you’ve told him to keep it until you pay the $100 you owe him, you’ve not committed a theft.  Why?  Because you haven’t stolen his property.  The lawn mower isn’t his.  It’s yours.  However, while you haven’t committed a theft, you have hindered a secured creditor, an E Felony.

Under Tennessee Code Annotated section 39-14-116, hindering a secured creditor occurs when:

(a) A person who claims ownership of or interest in any property which is subject of a security interest, security agreement, deed of trust, mortgage, attachment judgment or other statutory or equitable lien commits an offense who, with intent to hinder enforcement of that interest or lien, destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.

Notably, the intent to hinder enforcement must be present at the same time one “destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.”  If someone lacks this criminal intent, he may be liable for civil damages, but he isn’t guilty of a crime.

In this case,  the defendant bought a car with a loan, listing the alleged victim as the lienholder on the bill of sale.  Then, the defendant obtained a second loan from Tennessee Title Loans, Inc. without telling them about the first loan.  Finally, he registered the vehicle and did not mention the first loan.

The Tennessee Court of Criminal Appeals held that this evidence was insufficient for any rational jury to convict the defendant of hindering a secured creditor.  The court reasoned that, while the defendant was not forthcoming about the first loan, there was nothing else to support an inference that he intended to hinder enforcement when he obtained the second loan.  Unlike previous cases where the evidence was sufficient, at the time the second loan was taken out, the defendant was not trying to avoid repossession of the vehicle nor was the defendant engaged in a fraudulent scheme to sell encumbered vehicles to third parties.  Given there were no additional facts to support an inference of intent and mere knowledge of a first loan when obtaining a second loan is not criminal, the appellate court reversed the judgment of the trial court and vacated the defendant’s conviction.

State v. Carey, No. E2016-01125-CCA-R3-CD (Tenn. Crim. App. Aug. 9, 2017)

Putnam County jury convicts Cookeville man of aggravated robbery and burglary

A Putnam County jury recently convicted a Cookeville man of aggravated robbery and burglary.  Reportedly, the crimes stemmed from a dispute over property that the defendant left at an apartment he previously rented.  The Herald Citizen reports that the landlord told the new tenant he could use the defendant’s property because, since the defendant still owed rent, the items were no longer the defendant’s.  Allegedly, the defendant and his father came to the apartment one evening, held a screwdriver to the victim’s head, and took the defendant’s property and the victim’s property.

A person commits burglary when he, without the effective consent of the property owner:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with the intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

T.C.A. § 39-14-402.  (1)-(3) are Class D felonies.  (4) is a Class E felony.

An aggravated burglary is a burglary of a habitation.  T.C.A. § 39-14-403.  It is a Class C felony.  A “habitation” means:

(A) Means any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons;

(B) Includes a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant; and

(C) Includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle;

T.C.A. § 39-14-401.

Improperly admitted statements lead to new trial

The Tennessee Court of Criminal Appeals reversed a Davidson County child abuse conviction because (1) Statements against the defendant were improperly admitted as excited utterances and (2) The error was not harmless.

An excited utterance is an exception to the hearsay rule that excludes out of court statements offered to prove the truth of the matter asserted.  Tenn. R. Evid. 803(2).  The excited utterance exception applies when (1) There is a startling event or condition that causes the stress of excitement; (2) The statement relates to the startling event or condition; and (3) The statement was made while the declarant was under the stress of excitement.  In determining whether the statement was made while the declarant was under the stress of excitement, a court may consider the interval between the event and the statement; the nature and seriousness of the events; the appearance, behavior, outlook, and circumstances of the declarant; and whether the statement is in response to an inquiry or whether it is self-serving.

The erroneous admission of evidence is subject to harmless error analysis.  The test for harmless error analysis is found in Tennessee Rule of Appellate Procedure 36(b), which states, “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”

In this case, the witnesses testified that the declarant “wasn’t upset” and “calm [though] scared.”  Moreover, his disclosure was “hesitant,” and it came after ten minutes of questioning.  Given the above, the court of criminal appeals concluded that the victim was not under the stress or excitement at the time he made the statements.  In particular, the court noted that the statements lacked “spontaneity.”

Since the admission of the statements was error, the court of criminal appeals then considered whether the error was harmless or reversible.  The court noted that the defendant had accounted for all of the child’s injuries with the statement that the child had fallen from a swing.  Also, the victim testified at trial that he had fallen from a broken swing.  While there was some evidence to support the conviction, the only direct evidence was the improperly admitted statements.  Therefore, the court reversed the conviction and remanded for a new trial.

State v. Bishop, M2015-00314-CCA-R3-CD (Tenn. Crim. App. Dec. 16, 2016)