State of Tennessee v. Tammy Thompson ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 8, 2011 Session
STATE OF TENNESSEE v. TAMMY THOMPSON
Appeal from the Circuit Court for Maury County
No. 17,927 Stella L. Hargrove, Judge
No. M2009-01714-CCA-R3-CD - Filed October 19, 2011
The Defendant, Tammy Thompson, was found guilty by a Maury County Circuit Court jury
of assault, a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. See T.C.A.
§§ 39-13-101 (assault) (Supp. 2008) (amended 2009, 2010), 39-16-602 (resisting arrest)
(2010). She was sentenced to eleven months and twenty-nine days, with sixty days to be
served, for assault, and to six months on probation for resisting arrest. The sentences were
imposed concurrently. On appeal, she contends that (1) the prosecution was barred by the
statute of limitations, (2) the evidence was insufficient to support the resisting arrest
conviction, (3) the trial court erred in admitting evidence of the Defendant’s conduct after
she was taken to the jail, and (4) the trial court erred in failing to give a self-defense jury
instruction. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OSEPH M. T IPTON , P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J R., and N ORMA M CG EE O GLE, JJ., joined.
Sam Patterson, Columbia, Tennessee (at trial) and John E. Herbison, Nashville, Tennessee
(on appeal), for the appellant, Tammy Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Larry Nickell, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
At the trial, Maury County Sheriff’s Deputy Robert Wagonshultz testified that on
April 20, 2006, he heard the dispatcher report a 9-1-1 call about a disturbance on Roy
Dodson Road. He said that shortly thereafter, Sergeant Mike Diaz directed Deputy Sam
Barnes and him to go to Roy Dodson Road to arrest Donnie Thompson. He said Sergeant
Diaz stated that he had an arrest warrant in his hand for Mr. Thompson. He said he did not
know at this point who obtained the warrant.
Deputy Wagonshultz testified that at about 7:08 p.m., he arrived at the address where
they were told to go. He said that as he sat in his car, he saw the Defendant walk toward him.
He said that she inquired whether he had business there and that he told her he had an arrest
warrant for her husband. He denied that he mentioned a search warrant. He said that the
Defendant stated that he had to have an arrest warrant and that he responded that an arrest
warrant was not required but that he would give her a copy of the warrant if she would go
to the sheriff’s department. He said the Defendant claimed to be a lawyer, said she knew the
law, and told him to leave her property. He said the Defendant stated that her husband was
home. He described the Defendant as “very uncooperative” and “very irrational.” He said
that despite his attempts to explain that he did not need a warrant, the Defendant continued
to insist otherwise. He said, “[The Defendant] was standing kind of between me and the
house kind of offset a little bit.”
Deputy Wagonshultz testified that he realized the Defendant was not going to
cooperate and that he decided to knock on the door and arrest Mr. Thompson. He said that
as he walked toward the house, the Defendant kept stepping in front of him and told him to
leave. He said that he tried to go around the Defendant and that she continued to scream at
him. He said he told her that she could be arrested, as well. He said that he knew there was
an assault suspect somewhere on the premises from the earlier incident and that the
Defendant’s behavior was threatening. He said he grabbed the Defendant’s right arm and
advised her that she was under arrest for resisting the arrest of Mr. Thompson. He said the
Defendant pulled away and was “screaming bloody murder” but not screaming words. He
said that he put the Defendant’s arm behind her back and that she tried to straighten it and
reached back with her leg. He said he thought the Defendant was going to kick him. He said
he brought the Defendant to the ground and held her arm behind her back, as he was trained
to do. He said that as he tried to move the Defendant’s left arm from underneath her body,
she kicked the side of his legs several times with her right leg. He said he eventually gained
control of the Defendant’s left arm and handcuffed her. He said the Defendant’s seventeen-
year-old son was in the yard yelling at him during the entire altercation.
-2-
Deputy Wagonshultz testified that Deputy Barnes arrived around the time he
handcuffed the Defendant. He said that he explained the situation to Deputy Barnes and that
the Defendant confirmed that her husband was inside the house. He said that when he and
Deputy Barnes went to the house, the Defendant was handcuffed in the yard and the
Defendant’s son was walking around the yard. He said that after they knocked, Mr.
Thompson answered the door. He said that Mr. Thompson insisted that the officers had to
have an arrest warrant but that he eventually agreed to go with them. He said they did not
search the house. He said that he took the Defendant to the jail and that Deputy Barnes took
Mr. Thompson.
Deputy Wagonshultz testified that the Defendant asked for an ambulance because she
was car sick and allergic to grass but denied that she complained of any other medical issues.
He said that she made a sound as if she were spitting on the back of the seat and that when
they arrived at the police station, there appeared to be saliva on the back of the seat. He said
she continued her “irrational” behavior at the jail. He said she yelled at the magistrate and
Sergeant Diaz. He said the magistrate told her twice that she would be held in contempt if
she did not calm down. He said that while he was completing paperwork and the Defendant
and Mr. Thompson were in cells where they could see each other, they were laughing and
saying they knew who he was and where he lived. He said Mr. Thompson told them that due
to the nature of the allegations, they were not welcome at the Thompson house.
On cross-examination, Deputy Wagonshultz agreed that a sheriff’s department
document stated that at 6:55 p.m., a caller reported that neighbors threatened her at the end
of her driveway. He said the caller’s name was listed at the 9-1-1 center. He agreed that the
document listed him as being en route to the location at 6:57 p.m. and that it showed that
both he and Deputy Barnes arrived around 7:00 p.m.
Deputy Wagonshultz testified that he knew Michael and Diane Duvall, who lived on
Tom Fitzgerald Road. He said that he was twenty-nine years old and that he went to high
school with Mr. Duvall. He said that before coming to the sheriff’s department, he also
worked with Mr. Duvall for a couple of months. He said he remembered a trial regarding
the Defendant’s claim that a member of the Duvall family shot her dog and admitted that he
was a courtroom observer. He said Mr. Duvall sought his advice about problems with a
neighbor, although he claimed not to have known at the time that the Defendant and her
family were the neighbors. He said he spoke with Mr. Thompson about the matter once or
twice about a year before the events in the present case.
Deputy Wagonshultz acknowledged that the Defendant never advanced on him but
said she changed her position. He admitted that Mr. Thompson was not outside during the
altercation and that he did not know at the time whether Mr. Thompson was going to come
-3-
outside. He said the Defendant stated several times she was a lawyer and denied that she said
she was an auditor. He did not recall whether the Defendant asked to speak with a lawyer
while they were in her front yard.
Deputy Wagonshultz testified that he thought the Defendant’s house was the only one
on the road. He denied that he went to the Duvall home before going to the Defendant’s
house. He remembered a car arrived and the people inside asked what was happening, but
he said he and Deputy Barnes instructed the people to leave. He doubted that he would
recognize the people who were in the car. He said he thought the Defendant was under arrest
by the time the car arrived.
Deputy Wagonshultz testified that the criminal charges about shooting a dog involved
Mr. Duvall’s father-in-law. He said the charges against the Defendant’s husband that were
the subject of the arrest warrant he went to execute at the Thompson home on April 20, 2006,
were dismissed at Mr. Duvall’s request.
Deputy Wagonshultz testified that with regard to the struggle during the arrest, he
grabbed the Defendant’s right arm, which was at her side. He said that when he advised her
that she was under arrest, she made a movement with her hand and yelled. He said he
grabbed her wrist and positioned it behind her back in handcuffs. He acknowledged that the
Defendant ended up on the ground. He said he was “beside her and above her” but denied
that he was on top of her. He said he was 5'11" and weighed about 165 pounds at the time
and agreed that the Defendant was a small woman. He said that she kicked him on the side
of his knee with her heel and that he did not seek medical treatment or notice any significant
injury. He said he arrested her for preventing her husband’s arrest. He said that after the
Defendant was arrested, Mr. Thompson came to the door and said he had been in the shower.
He said that they allowed Mr. Thompson to dress and that Deputy Barnes took Mr.
Thompson to the jail.
Deputy Wagonshultz testified that the distance between the Defendant’s house and
the jail was seven or eight miles and acknowledged that one of the roads was curvy. He did
not recall driving above the speed limit on the way to the jail. He acknowledged that the
Defendant complained that she suffered from carsickness and had allergies. He said he heard
a sound that he thought was spitting, not vomiting. He said Magistrates David Potts and John
McGlasson were present when they took the Defendant to the magistrate’s office. He said
the magistrates were changing shifts when they arrived.
Deputy Wagonshultz acknowledged that the Defendant filed a lawsuit in which he and
the sheriff’s department were defendants. He agreed the lawsuit was still pending.
-4-
Deputy Wagonshultz acknowledged that he had video recording equipment in his car.
He said he did not record anything that occurred at the scene or on the way to the jail.
On redirect examination, Deputy Wagonshultz said Mr. Duvall did not want to
prosecute Mr. Thompson after the case reached the grand jury because the Duvalls moved
away from the Defendant’s home. He said the earlier case involved a warrant the Defendant
obtained against Mr. Duvall’s wife and father-in-law. He acknowledged that the earlier case
was dismissed.
Deputy Wagonshultz testified that the document used by the magistrates to record
complaints reflected 6:40 p.m., which he said was about fifteen minutes before he was called
to the scene. He said the allegation was that Mr. Thompson committed simple assault. He
denied that Mr. Duvall called him, said that Mr. Duvall was going to obtain the warrant, and
denied that he was present when it was taken.
On recross-examination, Deputy Wagonshultz identified the dispatch log, which was
received as an exhibit. He agreed the dispatch log noted that at 6:55 p.m., a caller
complained that her neighbor was at the end of her driveway threatening and harrassing her.
He agreed that the magistrate’s log noted at 5:54 p.m. that Mr. Duvall called and reported he
had a video of the Defendant and Mr. Thompson threatening to kill Mr. Duvall. He said he
could not explain why there was a discrepancy in the times on the two documents unless
there were two calls. He said he was not involved and could not verify the information in
the documents.
On further redirect examination, Deputy Wagonshultz testified that he first learned
about the arrest warrant for Mr. Thompson when he was dispatched to respond to the 6:55
p.m. call about a disturbance at the end of a driveway. On further recross-examination, he
identified the dispatch time as 6:57 p.m.
Maury County Sheriff’s Department Supervising Sergeant Mike Diaz testified that on
April 20, 2006, at about 7:00 p.m., he sent Deputy Wagonshultz and Deputy Barnes to the
location of a dispute between neighbors. He said he chose to send Deputy Wagonshultz
because the deputy was working in the zone of the address and denied there was any other
reason. He said that to the best of his memory, they received two calls about the same people
that evening. He said he saw Mr. Duvall taking out a warrant at the magistrate’s office
around 6:00 p.m. or a little later. He said Magistrate Potts wrote the information on the
warrant. Sergeant Diaz said that Deputy Wagonshultz was already on his way to respond to
the complaint when Sergeant Diaz advised him that there was an arrest warrant. He denied
seeing Mr. Duvall talking to Deputy Wagonshultz at the sheriff’s department.
-5-
On cross-examination, Sergeant Diaz testified that he arrived around 6:00 p.m. for his
shift that began at 6:45 p.m. He did not recall exactly when he saw Mr. Duvall in the
magistrate’s office but estimated it was around 7:00 p.m. He said he dispatched officers after
receiving the second complaint around 7:00 p.m. He said there was no record created when
he dispatched officers to a scene using his radio. He thought that Mr. Duvall made the first
9-1-1 call and that Ms. Duvall made the second call while Mr. Duvall was obtaining the
warrant. He acknowledged that he did not speak with Ms. Duvall.
Maury County Sheriff’s Deputy Sam Barnes testified that he was patrolling on April
20, 2006, when he and Deputy Wagonshultz responded to a call involving the Defendant.
He said he arrived as Deputy Wagonshultz handcuffed the Defendant. He said that Deputy
Wagonshultz approached him and that the Defendant remained handcuffed on the ground.
He described the Defendant as very belligerent and said she was yelling and screaming. He
said that the Defendant’s son was behind Deputy Wagonshultz yelling and screaming as the
Defendant was being handcuffed and that he told the Defendant’s son to back away. He said
he tried to calm the Defendant and her son, but the Defendant was “extremely
uncooperative.” He said the Defendant complained that Deputy Wagonshultz had not shown
her a warrant.
Deputy Barnes testified that he took Mr. Thompson to the sheriff’s department and
that Deputy Wagonshultz transported the Defendant. He said he did not see Deputy
Wagonshultz walk the Defendant to the patrol car because he was inside the house with Mr.
Thompson, who was getting dressed. He did not recall seeing the Defendant try to kick
Deputy Wagonshultz.
Deputy Barnes testified that he did not recall the Defendant complaining of any
injuries after they arrived at the jail. He did not recall her requesting an ambulance, either
at the scene or at the jail or hear her asking for a gurney or wheelchair. He remembered her
claiming to be a lawyer and telling everyone they would lose their jobs. He could not recall
whether she threatened litigation.
On cross-examination, Deputy Barnes testified that an officer could not forcibly enter
a home to arrest a person with a misdemeanor warrant. He did not recall whether Mr.
Thompson was charged with a misdemeanor or a felony. He said his understanding from
Deputy Wagonshultz was that the Defendant refused to allow Deputy Wagonshultz inside
the home, refused to step away after being warned to do so, and cursed Deputy Wagonshultz.
He thought a juvenile petition could have been obtained against the Defendant’s son based
upon the son’s actions but acknowledged that her son was not charged.
-6-
Michael Duvall testified that he was a resident of Alabama at the time of the trial but
that he lived in Maury County on April 20, 2006, when he obtained a warrant against Donnie
Thompson for threatening his life. He said he and Mr. Thompson had been involved in prior
litigation. He said that he contacted Magistrate Potts and that the magistrate and an officer
completed the warrant. He acknowledged that he and Deputy Wagonshultz were friends
from school and shared an interest in old cars. He said he did not call Deputy Wagonshultz
before he went to obtain the warrant. He said he called Magistrate Potts, advised that he had
a video recording of the threat, and obtained the warrant. He said he went home after
obtaining the warrant, and he denied talking to Deputy Wagonshultz that day. He
acknowledged that he dropped the prosecution of the warrant, explaining that the Defendant
and her husband had an issue with his wife and father-in-law but that he tired of coming to
court and dealing with the matter. He denied that Deputy Wagonshultz tried to convince him
to continue pursuing the warrant. He admitted talking to Deputy Wagonshultz and asking
for advice related to law enforcement but denied he talked to him about the warrant.
On cross-examination, Mr. Duvall identified a person in the courtroom as his father-
in-law, Robert Wheeler. He said that there had been a jury trial about the prior matter and
that Deputy Wagonshultz was present on one day of the trial.
Mr. Duvall testified that he worked until 6:00 p.m. on the day of the incident that led
to the warrant in this case. He said the incident took place about 6:40 or 6:45 p.m., after he
arrived at home about 6:30 p.m. He said he was unsure about the times. He said his wife
called about 6:55 p.m. to report the harassing neighbors at the end of the driveway.
Mr. Duvall testified that he and Deputy Wagonshultz had known each other since
seventh or eighth grade. He said they were “pretty good friends” in high school. He said that
Deputy Wagonshultz was away in the military for a time after graduation but that they
occasionally saw each other or talked on the telephone. He admitted Deputy Wagonshultz
had been a guest in his home when he lived on Tom Fitzgerald Road. When asked why he
dismissed the charges against the Defendant’s husband, Mr. Duvall said, “[Because] I’m
tired of messing with him.”
Mr. Duvall testified that he spent about twenty or thirty minutes at the sheriff’s
department obtaining the warrant. He identified the officer who filled out the warrant as
Shane Hunter, whose younger brother had been Mr. Duvall’s classmate. He said he spoke
with Deputy Hunter after Magistrate Potts reviewed the video recording. He said the
magistrate requested that Deputy Hunter take his statement. He said Deputy Hunter “called
in the warrant.” Mr. Duvall could not recall the time when he arrived home. He said the
police would not have to come to his home on Tom Fitzgerald Road in order to get to the
Thompson home on Roy Dotson Road. He said he had “not really” talked to Deputy
-7-
Wagonshultz about the present case, other than mentioning that he had been subpoenaed or
that the case had been continued.
Mr. Duvall testified that he did not witness the incident involving the Defendant. He
said he did not really know the Thompsons and had never stopped and spoken to them. He
said that when he arrived home from work on April 20, 2006, the Defendant was parked
across his driveway, blocking the entrance. He said that she left at some point but that Mr.
Thompson arrived about five minutes later and spun his tires in front of the Duvall house.
He said his wife made a video recording of the incident because they were told after making
complaints about prior incidents to the sheriff’s department that they needed proof.
On redirect examination, Mr. Duvall identified his signature on the warrant. He read
from the warrant, which stated that Mr. Thompson threatened to assault and kill him and that
he was in imminent fear for his safety. He identified Magistrate Potts’s signature and denied
that Deputy Wagonshultz signed the warrant, which was received as an exhibit. He said he
was tired of missing work to pursue the warrant and was concerned about his employer’s
tolerance for continued absences.
Robin Walkers testified that she was a correctional officer for the Maury County
Sheriff’s Department. She said she booked the Defendant into the jail on April 20, 2006.
She recalled that the Defendant was loud and belligerent while in a holding cell. She said
that the Defendant’s husband was in another holding cell and that he and the Defendant
talked with each other. She said Mr. Thompson tried to calm the Defendant and told her they
would address her complaints later. She said the Defendant complained of arm pain. She
said that the Defendant was belligerent when she was being moved during the booking
process and that the Defendant hit a door, said she was going to sue everyone, and
complained. She said that the Defendant was eventually released on bond and that the
Defendant later returned with a bondsman for her husband’s release.
On cross-examination, Officer Walkers testified that the Defendant complained about
injuries to her arm. She acknowledged that the “vast majority” of arrestees complain. She
agreed she would be upset if she were arrested wrongfully but said she did not know what
happened between Deputy Wagonshultz and the Defendant.
Maury County Magistrate John McGlasson testified that he encountered the Defendant
at the jail on April 20, 2006. He said he arrived to relieve Magistrate Potts, who was talking
to the Defendant. He said he tried to calm the Defendant after Magistrate Potts left. He said
he advised her that she was in a courtroom and could be held in contempt if she were not
quiet. He said the Defendant complied. He said she was “very belligerent” and not in
control of herself. Magistrate McGlasson said he was an employee of the general sessions
-8-
court, not the sheriff’s department. He said that he did not see anyone mistreat the Defendant
and that the officers and officials were professional.
On cross-examination, Magistrate McGlasson testified that he did not recall the time
he arrived that evening. He said his schedule varied. He identified Magistrate Potts’s
handwriting on a log sheet used by the magistrates and his own handwriting on the second
page. He stated that he recorded the time regarding the Defendant as “8:06.” He said that
arrestees were typically brought before a magistrate when they first arrived at the sheriff’s
department. He said he talked with the Defendant for approximately ten minutes. He did not
recall why he, not Magistrate Potts, issued the warrant against the Defendant, although he
recalled Magistrate Potts’s having to use the restroom. He said he never spoke with Mr.
Duvall and was not present when Mr. Duvall took out the warrant against Mr. Thompson.
On redirect examination, Magistrate McGlasson acknowledged that Magistrate Potts
issued the warrant against Mr. Thompson. He said he did not see Deputy Wagonshultz at the
jail. On recross examination, he acknowledged that Deputy Wagonshultz might have been
at the jail but said he did not recall talking to him “at any length.” He said he spoke with
Deputy Wagonshultz “only enough to understand what I was signing, as the warrant goes.
Just the probable cause presented.” He said he did not receive information about the history
of the matter from Deputy Wagonshultz. On further redirect examination, he testified that
no one told him to be sure to issue a warrant against Mr. Thompson and see that Mr.
Thompson went to jail.
The court received as an exhibit a certified copy of a complaint filed in federal court
by the Defendant, Mr. Thompson, and their son against Deputy Wagonshultz, the sheriff,
employees of Maury County, and the county. The State rested.
The Defendant’s son, Donnie Thompson, Jr., testified that he was seventeen years old
on April 20, 2006. He said that when Deputy Wagonshultz arrived at his home, he went
outside and asked the deputy what right he had to be on the property and if he had a warrant.
He said Deputy Wagonshultz responded that he did not have or need a warrant and asked for
Donnie Thompson. He said that he identified himself as being Donnie Thompson and that
Deputy Wagonshultz said he was there to arrest Donnie Thompson but refused to state the
charges. He said that the deputy walked toward the house and that he walked backwards in
order to talk to the deputy. He said he asked if Deputy Wagonshultz had a warrant to go
inside the house, that the deputy said he did not, and that he told the deputy not to enter
unless he had a warrant. He said that the deputy stepped around him to his right and that he
caught up and stood in front of the deputy again. He said that the Defendant stood behind
him at the stairway to the house during this exchange and that he was closer to the deputy
-9-
than his mother. He identified their respective locations in a photograph that was received
as an exhibit.
Donnie Thompson, Jr., testified that Deputy Wagonshultz threatened to arrest him for
disturbing the peace or interfering with an arrest but did not do so. He said the Defendant
spoke up at this point and told the deputy that Donnie Thompson, Jr., was not eighteen and
that the deputy was not to touch the boy. He said Deputy Wagonshultz “got about three
inches out of her face, and told her that it was none of her concern; that to just basically shut
up and to stay out of it.” He said the Defendant objected on the basis that she had the right
to tell Deputy Wagonshultz to leave him alone. He said that his mother and the deputy
argued and that as he tried to step onto the porch, the deputy told him he could not go inside
the house. He said he wanted to go inside to call Enoch George at the sheriff’s department
because Deputy Wagonshultz was “in [his] mother’s face.” He said that the Defendant tried
to step between Deputy Wagonshultz and the house but that the deputy said she was not
going inside and “threw her into the yard.” He said that he did not know whether the deputy
grabbed the Defendant by the arm but that she landed face down in the yard. He said the
deputy kneeled on her back and handcuffed her. He said that after the deputy handcuffed the
Defendant’s right arm, the Defendant tried to comply with the deputy’s demand to surrender
her left arm but that she could not get it out from under herself because the deputy was
kneeling on her back. He said the deputy grabbed the Defendant’s wrist, pulled her arm
behind her back, and wrestled with her. He said that due to the deputy’s restraint of the
Defendant, she was unable to strike the officer. He said that Deputy Barnes and “Norma and
Ken” arrived during the altercation.
Donnie Thompson, Jr., testified that after Deputy Wagonshultz restrained his mother
on the ground, the deputy walked toward Deputy Barnes and he went to call for help. He
said he stood between the deputies when they went to the door and knocked. He said his
father answered the door wearing jeans or shorts, having just finished bathing. He said his
father asked the officers if they had a warrant and why they were there. He said the officers
stated they were going inside. He said his father asked to be allowed to dress, and the
officers stated they would have to come inside with his father. He said Deputy Barnes went
inside with his father and later brought his father outside and handcuffed him. He said that
the Defendant was still on the ground and that his father told the officers to help the
Defendant get up because she was allergic to grass. He said Deputy Wagonshultz roughly
helped the Defendant to stand. He said that his father was taken away in a patrol car and that
his mother walked toward the road to talk to “Norma and Ken” to ask them to call for help.
He said he had been unable to summon help because the telephone did not work outside. He
said that he never heard the Defendant claim to be a lawyer and that she was an accountant
who worked for the State.
-10-
On cross-examination, Donnie Thompson, Jr., agreed that the incident did not need
to happen. He said he had the right to question a person who tried to enter his home. He said
that neither he nor his mother ever stopped Deputy Wagonshultz from doing his job and that
his mother never stood in Deputy Wagonshultz’s way. He claimed the only time the
Defendant became vocal was when Deputy Wagonshultz was aggressive and threatened to
arrest him.
Donnie Thompson, Sr., the Defendant’s husband, testified that he lived on Roy
Dodson Road. He said that on April 20, 2006, he was working outside when the Defendant
came home in hysterics. He said the Defendant told him that she had been stopped by
neighbors with whom there had been problems. He said he drove to the neighbors’ house
and told them to leave his wife and child alone, returned home, finished working on fences,
and went inside. He said that he smoked a cigarette and took a bath and that after he had
been in the bathtub a couple of minutes, he heard banging on the door. He said he answered
the door and saw two police officers. He saw his wife face down on the yard. He said that
one of the officers, who he thought was Deputy Barnes, said they were there to arrest him.
He said he asked to see a warrant and the officer said he did not have one. He said that he
asked the officer to “tell [him] what this is about” and that despite the officer’s uniform, he
did not know whether the person was a deputy. He said the officer stated only that there was
a warrant at the jail and never answered his inquiries about the nature of the charges. He said
he advised the officer that he did not want to go anywhere without a warrant and the officer
responded, “I could just slam you down.” He said he was wearing only a pair of jeans and
asked the officer to allow him to finish dressing. He said that the officer followed him into
the house and that he told the officer he did not want the officer in his house. He said the
officer insisted that he could enter the home only if the officer were allowed inside. He said
that he again objected but that both officers followed him inside. He said that while they
were inside the house, he told Deputy Barnes to tell Deputy Wagonshultz to get the
Defendant off the ground because the Defendant had allergies. He said Deputy Wagonshultz
left the house.
Donnie Thompson, Sr., testified that when Deputy Barnes escorted him outside, the
Defendant was off the ground. He said Deputy Barnes handcuffed him and placed him in
a patrol car. He said that he heard the Defendant ask for medical treatment, that his son
inquired whether he should call 9-1-1, and that Deputy Wagonshultz said not to worry
because there would be an ambulance waiting for the Defendant at the jail. He said Deputy
Barnes began driving and stated that he was going to take Donnie Thompson, Sr., to the
Duvall home. Mr. Thompson said he objected and told the deputy that if he was under arrest,
the deputy should take him to jail. He said Deputy Barnes took him to jail and did not say
anything else about going to the Duvall home. He said the deputy drove fast and ran off the
-11-
road and he inquired whether they were going to make it to town. He identified Ken and
Norma Fargason as neighbors and said they arrived during the events at his house.
Donnie Thompson, Sr., acknowledged that he and his wife filed a civil rights lawsuit
against the county. He said his attorney selected two-and-one-half million dollars as the
amount of damages sought. He said his criminal charges were dismissed “at the grand jury.”
He denied hearing his wife say that she was an attorney.
On cross-examination, Donnie Thompson, Sr., acknowledged that Deputy
Wagonshultz did not mistreat him. He agreed his son was not arrested. He said Deputy
Barnes’s driving made him uncomfortable when the deputy ran off the road. He said that
although neither officer pulled their guns, they had their hands on them. He said that he did
not give Deputy Barnes any trouble or fight with him but that he asked for an arrest warrant.
He said there was no arrest warrant at the time the officers were on his property because the
magistrate signed the arrest warrant in front of him. He said Deputy Barnes did not “slam
[him] down” but said the deputy told him “y’all have been watching too much tv.”
Ken Fargason testified that he lived on Tom Fitzgerald Road and had known the
Defendant and her family for about eighteen years. He said that on April 20, 2006, he was
in his house and saw sheriff’s deputies on his road. He was concerned for the welfare of his
neighbors, and he and his wife drove to the Thompson home. He said that when they arrived,
he saw an officer bringing the Defendant out the door and down the steps. He said the
Defendant came toward them and asked him to call her lawyer. He said that the officer
walked the Defendant to a patrol car, that the officer held his hand to keep the Defendant
from bumping her head when entering the car, and that the officer shoved her inside. He said
he never heard the Defendant claim to be a lawyer. He denied that the Defendant was
“acting out of control.”
On cross-examination, Mr. Fargason acknowledged that the officer did not prevent
the Defendant from asking him to call her lawyer. He said he did not call the Defendant’s
lawyer. He said that after the Defendant spoke to him, the officer guided the Defendant
toward the patrol car. He denied seeing the Defendant on the ground with an officer
crouching beside her.
Norma Fargason testified that she lived on Tom Fitzgerald Road. She said that on
April 20, 2006, she arrived at the Defendant’s house as an officer was taking the handcuffed
Defendant to a car. She said that the Defendant tried “to slow down a little bit” on the way
to the car in order to ask the Fargasons to call her lawyer and that the Defendant named the
lawyer. She said that she thought the officers were rough with the Defendant and that an
officer shoved the Defendant into the car. She said that the Defendant was upset but that she
-12-
did not see the Defendant try to harm or struggle with the officers. She said that she and her
husband stayed after the officers left to see if the Defendant’s son needed assistance.
On cross-examination, Ms. Fargason acknowledged the officers did not try to prevent
the Defendant from requesting that her lawyer be notified. She said she did not see the
Defendant on the ground and Deputy Wagonshultz kneeling beside her or on top of her. She
said she and her husband were not present at that time.
The Defendant testified that she lived on Roy Dodson Road and was employed by the
State Comptroller as a Medicaid teacher auditor. She said that on April 20, 2006, she arrived
home around 6:30 p.m. but that she was stopped on her way there because Michael and Dot
Duvall blocked the intersection of Tom Fitzgerald Road and Roy Dotson Road with Mr.
Duvall’s car. She said Ms. Duvall pulled her van out of the Duvall driveway and blocked
her from behind, blocking her in place. She said that the Duvalls threatened her and that Ms.
Duvall filmed with a video recorder. She said Ms. Duvall stated she did not shoot the
Defendant’s dog and called the Defendant a liar. The Defendant explained that she had filed
a lawsuit against the Duvalls for killing her dog. She said she was able to leave when Mr.
Duvall moved his car. She said she went home and reported these events to her husband,
who went to the Duvall home.
The Defendant testified that when Deputy Wagonshultz arrived, her husband was in
the shower. She said she and her son went outside, with her son in front. She said that she
asked Deputy Wagonshultz if he had business at her home and that he said he was there to
arrest Donnie Thompson. She said that she advised him she needed to see the arrest warrant
but that he said he did not have or need one. She said that her son identified himself as
Donnie Thompson but that the officer knew he was not looking for her son and walked past
them up the steps to the house. She said her son yelled for him not to go inside the house
without a warrant. The Defendant denied that she physically prevented Deputy Wagonshultz
from entering her house. She said Deputy Wagonshultz came off the steps, pulled her son’s
arm, and struck him with handcuffs. She claimed that she told the deputy to leave her
property and that he grabbed her right arm and put her on the ground. She said that the
deputy was on top of her, that her arms were pinned underneath her body, and that he beat
her with his fists. She said that she screamed for her husband to help and that Deputy
Wagonshultz told her he was going to hit her every time she screamed. She denied that she
tried to kick the deputy. She said she was not able to get her arm out from underneath herself
because the deputy had her pinned to the ground. She said that Deputy Wagonshultz tried to
pull off her shorts and that she told her son to call Enoch George. She said the deputy put
his hand on his revolver and threatened to shoot her son if he made the call. She said the
deputy threatened to kill her son three times. She said that after the deputy stood up, he
stated that he beat her because she was “not a nice person.” She said Deputy Wagonshultz
-13-
called for backup and claimed an officer was being attacked. She said Deputy Barnes arrived
a short time later.
The Defendant testified that after she was handcuffed on the ground, the deputies
went inside to arrest her husband. She said that her son came to her while she was on the
ground and that Deputy Wagonshultz told her son he would be shot if he tried to help her
stand up. She said the deputy unstrapped his holster. She said Deputy Wagonshultz dragged
her to a police car. She said she told Norma and Kenny Fargason to call a lawyer, Bill
Barnes.
The Defendant testified that she was hurt and in severe pain. She said she asked for
medical attention. She said Magistrate Potts and Ms. Walters denied her medical treatment
at the jail. She stated that Magistrate Potts told her she would be held in contempt of court
if she continued to ask for medical treatment and that she went to the emergency room as
soon as she was released from jail on April 21, 2006. She said she was bruised from her
shoulders down her body, in her rib area, and on the back of her leg. From photograph
exhibits, she identified bruises she attributed to the incident. She said that she saw a doctor
“several” times afterwards and that she attended physical therapy for six weeks as a result
of her injuries. She said she had a CAT scan months later because she was having sinus
trouble and difficulty breathing. She said she weighed 100 pounds on the day of the incident.
She said that she previously had the Duvalls arrested and that about three months after the
arrests, in approximately July 2005, Deputy Wagonshultz followed her home from work and
that they “had words.”
The Defendant testified that she identified herself as an auditor for the State. She said
she did not think she resisted arrest or prevented Deputy Wagonshultz from serving an arrest
warrant on her husband. She said she told the deputy he could not go in the house without
a search warrant and asked to see an arrest warrant. She said that she called Enoch George’s
cellular telephone and told him she was assaulted by an officer and that they “played phone
tag” for a few days before they spoke.
On cross-examination, the Defendant said that when Deputy Wagonshultz first
arrived, she asked whether he had an arrest warrant. She said she told him she would go to
the jail to see whether there was an arrest warrant and that when she did so, he said there was
not one. She said she later told Deputy Wagonshultz not to enter her home without a search
warrant. She acknowledged the civil complaint filed on her behalf by an attorney. She said
that after she was followed in July 2005, she had a sheriff’s department officer “run the tag”
and learned that the car was registered to Rob and Jill Wagonshultz. She denied telling
Phillip Bunting that Deputy Wagonshultz set her house on fire or that she told Jerry Williams
that the deputy vandalized her mailbox. She admitted that her mailbox was vandalized and
-14-
said seven fires were set around her home. She did not know who was responsible for these
acts.
The Defendant testified that she went to the District Attorney General’s office,
Magistrate Potts, and Judge Sands about Deputy Wagonshultz but was told she could not
have an arrest warrant for an officer. She said she also requested a protective order because
Deputy Wagonshultz said he would beat her again if she sought medical attention. She later
said that Deputy Wagonshultz told her that if she sought medical treatment, “I will come to
your house and get you again,” but that she did not know what he meant. She said Deputy
Wagonshultz claimed to be a “stud” and stated that everyone would believe him because he
was an officer.
The Defendant testified that she studied law for forty hours per year as a State
employee. She said that she was a certified fraud examiner, that she audited nursing homes,
and that her job was to protect citizens from government entities.
After receiving the proof, the jury found the Defendant guilty of resisting arrest and
assault. The trial court imposed concurrent sentences of eleven months and twenty-nine days
for assault and six months for resisting arrest, with sixty days to be served in jail.
I
The Defendant contends that the prosecution was not commenced within the one-year
statute of limitations. The State contends that the Defendant waived the statute of limitations
issue by failing to raise it before the trial and that in any event, the Defendant appeared
before a general sessions magistrate for a probable cause hearing within the limitations
period. We agree with the State that the Defendant is not entitled to relief.
Before considering either the State’s waiver argument or the merits of the Defendant’s
issue, we begin with a review of the pertinent information from the record. The proof
reflects that the Defendant was taken before a magistrate for charges of resisting arrest and
assault on an officer on the day of the alleged crimes, April 20, 2006. The certificate of the
appellate record signed by the trial court clerk states:
The arrest warrants in this case are not part of the technical
record due to the fact that they were No Billed by the Maury
County Grand Jury on 8-11-06, the Defendant was then indicted
by a new Grand Jury under docket number 16830 which was
then dismissed on 6-17-08, due to a superseding indictment
being filed on 5-21-08. All of the foregoing is referenced in a
-15-
Motion in Limine filed 6-2-08, Order to Amend Indictment and
Dismiss Indictment filed on 6-17-08, Motion to Amend Clerical
Mistake filed 8-28-09 and Agreed Order filed 10-16-09 which
I have attached in my effort to comply with the [Court of
Criminal Appeals’] Order to supplement the technical record .
...
The record contains a copy of the Defendant’s civil rights lawsuit filed in federal court in
2007, in which she alleged that “the charges against her were dismissed.” According to the
trial testimony, Mr. Duvall declined to prosecute when the matter reached the grand jury.
With respect to the commencement of the statute of limitations for a criminal
prosecution, the relevant statute provides:
A prosecution is commenced, within the meaning of this
chapter, by finding an indictment or presentment, the issuing of
a warrant, the issuing of a juvenile petition alleging a delinquent
act, binding over the offender, by the filing of an information as
provided for in chapter 3 of this title, or by making an
appearance in person or through counsel in general sessions or
any municipal court for the purpose of continuing the matter or
any other appearance in either court for any purpose involving
the offense.
T.C.A. § 40-2-102 (2006). The Defendant argues that there is no proof of the specific
offenses alleged in the arrest warrant or for which the magistrate found probable cause. She
also argues that there is no proof of any timely charging instrument alleging the offenses
charged in this case or of the general sessions court proceedings. The Defendant also argues
that even if there is proof she was charged by arrest warrant on April 20, 2006, there is no
proof of the number of charges or the identity of those offenses.
The record reflects that Magistrate McGlasson identified his handwriting on the
magistrate’s log and acknowledged the “8:06” entry contained the Defendant’s name and
charges of resisting arrest and assault on an officer. He also testified that he spoke with
Deputy Wagonshultz in order to determine whether there was probable cause to sign the
warrant. Magistrate McGlasson testified that Magistrate Potts spoke with the Defendant and
that Magistrate Potts warned the Defendant she could be held in contempt of court. The
Defendant also testified about the contempt warning. The evidence of record reflects that
the Defendant was charged by arrest warrant with resisting arrest and assault on an officer
on April 20, 2006. To the extent that the arrest warrant may have charged offenses that were
-16-
the subject of the later indictment and superseding indictment, the prosecution was timely.
See id.
We next consider the Defendant’s argument that the record does not contain proof
from which this court can conclude that the indicted charges correspond to those alleged in
the arrest warrant. The Defendant has waived our consideration of the issue by failing to
provide this court with an adequate record. As the appellant, the Defendant was required to
prepare a record that conveyed a fair, accurate, and complete account of what transpired with
respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855
S.W.2d 557, 560 (Tenn. 1993). Without the arrest warrant, we cannot determine whether its
charges correspond to the indicted charges. To the extent that the Defendant wished to raise
an issue regarding the statute of limitations, she was required to ensure that the relevant
documents or evidence were included in the appellate record.
We likewise reject the Defendant’s argument that she is entitled to relief because the
State failed to present testimony identifying the offenses of which the magistrate found
probable cause. We note that Magistrate McGlasson testified that he issued the arrest
warrant and that he identified the charges listed in the magistrate’s log. Further, the record
fails to reflect that the Defendant raised the statute of limitations challenge in the trial court,
thereby depriving the State of the opportunity to present relevant proof. See T.R.A.P. 36(a)
(“relief may not be granted in contravention of the province of the trier of fact”). We note,
as well, there was no requirement that the indictment allege facts to demonstrate that the
prosecution began within the statute of limitations. State v. Messamore, 937 S.W.2d 916,
919 (Tenn. 1996).
We recognize that if the warrant and the indictment did not charge the same offenses,
the statute of limitations would have had to have been waived knowingly and voluntarily in
order for the prosecution to take place and that waiver cannot be presumed from a silent
record. See State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993). Our treating the issue as
waived, however, is not tantamount to presuming that the Defendant knowingly and
voluntarily consented to an otherwise untimely prosecution because the appellate record does
not contain anything from which this court could conclude that the prosecution was untimely.
Rather, the record as it exists supports the State’s position that a timely prosecution began
with the arrest warrant, that the Defendant was later indicted on the charges alleged in the
warrant, and that the State later obtained a superseding indictment. The Defendant is not
entitled to relief.
II
-17-
The Defendant contends that the evidence is not sufficient to support her resisting
arrest conviction. The State counters that the proof was sufficient. We agree with the State.
Our standard of review when the sufficiency of the evidence is questioned on appeal
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). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997).
Regarding the misdemeanor offense of resisting arrest, Tennessee Code Annotated
provides:
(a) It is an offense for a person to intentionally prevent or
obstruct anyone known to the person to be a law enforcement
officer, or anyone acting in a law enforcement officer’s presence
and at the officer’s direction, from effecting a stop, frisk, halt,
arrest or search of any person, including the defendant, by using
force against the law enforcement officer or another.
(b) Except as provided in § 39-11-611 [the self-defense statute],
it is no defense to prosecution under this section that the stop,
frisk, halt, arrest or search was unlawful.
(c) It is an offense for a person to intentionally prevent or
obstruct an officer of the state or any other person known to be
a civil process server in serving, or attempting to serve or
execute, any legal writ or process.
T.C.A. § 39-16-602(a) - (c) (2010). “‘Force’ means compulsion by the use of physical power
or violence and shall be broadly construed to accomplish the purposes of this title.” T.C.A.
§ 39-11-106(a)(12) (2006) (amended 2009).
The Defendant argues that the indictment charged only that she prevented, not
obstructed, her husband’s arrest and that there is not sufficient proof that she prevented his
arrest because the officers ultimately were able to arrest Mr. Thompson. She claims that at
most, she is guilty of attempted resisting arrest. We note that the Defendant does not claim
-18-
that there was a variance between the allegations in the indictment and the trial proof. See,
e.g., State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984) (holding that when “the allegations
and proof substantially correspond, the variance is not of a character which could have
misled the defendant at trial and is not such as to deprive the accused of his right to be
protected against another prosecution for the same offense”). Rather, her argument is limited
to a challenge to the sufficiency of the evidence.
We begin by addressing the Defendant’s argument that if she is guilty of any offense,
it is attempted resisting arrest. This court has said that attempted resisting arrest is not a
crime in Tennessee because the crime itself is “in the nature of an attempt.” State v. Adams,
238 S.W.3d 313, 326-27 (Tenn. Crim. App. 2005). As Adams indicates,
If . . . the statutory definition of the essence of a crime is the
attempt to do a certain act, the crime is committed regardless of
whether or not the act is performed. . . . So long as the statute
defines the crime as consisting in the attempt, the crime is
committed if the attempt is made, regardless of whether it is
successful and even regardless of whether the objective would
be criminal apart from the attempt.
Id. at 327 (quoting People v Schmidt, 352 N.Y.S.2d 399, 402 (N.Y. Crim. Ct. 1974)). Thus,
the Defendant is either guilty of resisting arrest or no offense.
We consider next the Defendant’s argument that the officers’ eventual arrest of Mr.
Thompson is fatal to the State’s case that the Defendant prevented Mr. Thompson’s arrest.
In this regard:
As defined in Black’s Law Dictionary, 6th edition, to “obstruct”
is to “hinder or prevent from progress.” While our definition of
resisting arrest does not actually include the word “attempt”
within its definition, the crime of resisting arrest is defined in
the nature of an attempt, such that an “attempt to resist arrest”
would amount to an attempt to commit an attempt. The word
“prevent” connotes a completed act such that the crime would
be completed at the instant the law enforcement officer was
actually “prevented” from effecting the arrest. On the other
hand, if a person does not prevent, but obstructs, the crime is
also completed. Therefore, it follows that if you attempt to
prevent, but fail in doing so, you have obstructed a law
enforcement officer from effecting an arrest. Thus, the crime of
-19-
resisting arrest is complete once a defendant has attempted it.
See State v. Russell, 10 S.W.3d 270 (Tenn. Crim. App. 1999)
(holding that evidence was sufficient to sustain a conviction for
resisting arrest where defendant hit the officer who was
attempting to arrest defendant’s brother even when preventing
the arrest was unsuccessful).
Adams, 238 S.W.3d at 327 (emphasis added). The Defendant’s failure to attain the goal of
preventing her husband’s arrest does not exempt her from criminal liability.
We must consider, then, whether there was proof beyond a reasonable doubt that the
Defendant used force to resist her husband’s arrest. In the light most favorable to the State,
the evidence reflects that Deputy Wagonshultz advised the Defendant that he was at her
home to arrest her husband. As the deputy walked toward the Defendant’s house to make
the arrest, the Defendant argued with him and repeatedly stepped in front of him. The deputy
said that he tried to step around her but that she continued to block his path to the house. He
testified that the Defendant’s behavior was threatening. He advised her that she could be
arrested if she persisted. When he tried to restrain her, she pulled away. We conclude that
the evidence is sufficient to support the resisting arrest conviction. Cf. Russell, 10 S.W.3d
at 276 (holding that the evidence was sufficient to support the defendant’s conviction of
resisting arrest of another person where proof showed that the defendant stood between an
officer and the third party and that the defendant lunged forward and slapped the arresting
officer’s back during the arrest of the third person); State v. Tamba Trinise Leke, No.
W2009-02583-CCA-R3-CD, Madison County (Tenn. Crim. App. Oct. 15, 2010) (affirming
resisting arrest conviction where “force” occurred as the defendant pulled away from
officer’s attempts to handcuff her as she was being arrested for disorderly conduct); State v.
Mary Margaret Boyd, No. M2004-00580-CCA-R3-CD, Davidson County (Tenn. Crim. App.
Apr. 15, 2005) (affirming resisting arrest conviction of defendant who became belligerent,
“wallowed all over the ground,” and tried to strike officer with her fist as she was being
handcuffed); State v. Daniel M. Tidwell, No. 01C01-9807-CC-00288, Williamson County
(Tenn. Crim. App. June 30, 1999) (affirming resisting arrest conviction of defendant who
flailed his arms and struggled with arresting officers), app. denied (Tenn. Jan. 3, 2000). The
Defendant is not entitled to relief.
III
The Defendant contends that the trial court erred in admitting evidence of her post-
arrest conduct at the jail. She argues that the evidence was unfairly prejudicial and should
have been excluded under Tennessee Rules of Evidence 403 or 404(b). The State contends
that the Defendant waived any objection to admission of the evidence under Rule 404 by
-20-
failing to state an objection on that basis in the trial court, that the evidence was relevant to
show the Defendant’s continuing resistant behavior during the course of the arrest, and that
the Defendant has not shown plain error. We conclude that the Defendant is not entitled to
relief.
The evidence in question consists of Deputy Wagonshultz’s testimony that the
Defendant yelled and was disruptive and irrational at the jail. The record reflects that trial
counsel objected on the basis that the evidence was not relevant and that the State argued the
evidence “would go to an assault or resisting arrest, or her misbehavior throughout the course
of the night.” The trial court overruled the objection but did not state the basis for its ruling.
Defense counsel also objected to hearsay testimony, and although the trial court did not
address the objection, the prosecutor rephrased his question to avoid testimony about hearsay.
Evidence is relevant if it has “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. However, 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.” Tenn. R. Evid. 403. Prejudicial evidence
is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000)
(citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue
prejudice” has been defined as “‘[a]n undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’” State v. Banks, 564 S.W.2d
947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm’n Notes).
When relevant evidence reflects on the defendant’s character, however, the trial court
must apply the more rigorous standard of Tennessee Rule of Evidence 404(b), rather than
Rule 403. State v. James, 81 S.W.2d 751, 758 (Tenn. 2002); State v. Dubose, 953 S.W.2d
649, 655 (Tenn. 1997). Rule 404(b) prohibits evidence of other crimes, wrongs, or acts
offered to show a character trait in order to prove that a defendant acted in conformity with
that character trait. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or
acts may be admissible for other purposes, such as establishing identity, motive, common
scheme or plan, intent, or absence of mistake. Id.; State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003). The rule lists four requirements that must be satisfied before a
court determines admissibility:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
-21-
request state on the record the material issues, the ruling, and the
reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b)(1)-(4). We review a trial court’s ruling on evidentiary matters under
Rule 404(b) using an abuse of discretion standard, provided the trial court has substantially
complied with the procedural prerequisites of the rule. DuBose, 953 S.W.2d at 652.
The State argues that the Defendant waived any objection to Rule 404(b) admission
of the testimony by failing to object on this basis at the trial. As a general principle, relief
is not available to “a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.” T.R.A.P. 36(a).
Our supreme court has said that “Failure to raise a contemporaneous objection to . . .
testimony as being a prior bad act effectively waives this issue.” State v. Thacker, 164
S.W.3d 208, 239 (Tenn. 2005). Likewise, a party may not assert one basis for excluding
evidence at the trial and a different basis on appeal. State v. Adkisson, 899 S.W.2d 626, 635
(Tenn. Crim. App. 1994). To do so results in waiver. Id. Because the Defendant failed to
make a contemporaneous objection to admission of the evidence on any basis other than its
relevance, he has waived any complaint about the admission of the evidence, subject to its
relevance. See Tenn. R. Evid. 103(a)(1).
Upon review, we conclude that the evidence of the Defendant’s conduct at the police
station bore some relevance to the allegations of criminal conduct at the scene, given that the
Defendant was alleged to have resisted arrest and assaulted an officer while in an agitated
state of mind due to prior incidents involving Mr. Duvall and Deputy Wagonshultz. The
evidence was probative of the Defendant’s hostile demeanor toward law enforcement
officials immediately after she was alleged to have resisted arrest and assaulted an officer.
The conduct was part of the same course of events involving the Defendant and Deputy
Wagonshultz.
The question becomes whether the evidence, though relevant, should have been
excluded under Tennessee Rule of Evidence 404(b). As we have noted, the Defendant
waived this issue by failing to raise it in the trial court. This court may, however, in the
interest of justice, recognize plain error in the record. See T.R.A.P. 36(b). Our supreme
-22-
court has adopted five factors to consider when deciding whether an error constitutes plain
error in the absence of an objection at trial:
(a) the record must clearly establish what occurred in the trial
court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been
adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is necessary
to do substantial justice.
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42).
In order for this court to reverse the judgment of a trial court, the error must be “of such great
magnitude that it probably changed the outcome of the trial,” and “recognition should be
limited to errors that had unfair prejudicial impact which undermined the fundamental
fairness of the trial.” Id. at 642.
Upon review, we conclude that plain error relief is not warranted. We begin by noting
that the Defendant’s complaint on appeal is that the evidence was unfairly prejudicial
because it showed that she committed another crime, contempt of court. As we have stated,
the evidence was relevant and admissible to show the Defendant’s hostile demeanor toward
law enforcement officials immediately after she was alleged to have resisted arrest and
assaulted an officer. The focus of the proof was not whether the Defendant was guilty of
contempt of court and whether this conduct conformed with a character trait that reflected
on her guilt of the present offenses. Rather, the focus was on her anger about Officer
Wagonshultz’s presence at her home due to the situation with the Duvalls and her resistance
to her husband’s arrest. Although not mentioned by the Defendant, we note that Deputy
Barnes, Ms. Walkers, and Magistrate McGlasson also testified about the Defendant’s
uncooperative behavior at the jail. The Defendant has not shown that a clear and
unequivocal rule of law was breached, that a substantial right was adversely affected, or that
consideration of the error is necessary to do substantial justice. We hold that the Defendant
is not entitled to plain error relief.
IV
The Defendant contends that the trial court erred in failing to instruct the jury on self-
defense for the resisting arrest charge. The State argues that the Defendant waived any right
to a self-defense instruction by failing to request it and that in any event, the evidence did not
support the instruction. We hold that the Defendant is not entitled to relief.
-23-
The Defendant acknowledges that trial counsel did not request a self-defense
instruction at the trial, although she notes that the issue was raised in the motion for a new
trial. In criminal cases, regardless of whether a request is made, the trial court has the duty
to charge the jury on all of the law that applies to the facts of the case. See State v. Harris,
839 S.W.2d 54, 73 (Tenn. 1992) (citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975)). The defendant also “has a right to have every issue of fact raised by the evidence and
material to his defense submitted to the jury upon proper instructions by the judge.”
Thompson, 519 S.W.2d at 792; see T.C.A. § 39-11-203(c) (2010) (entitling a defendant to
have the issue of the existence of a defense submitted to the jury when it is fairly raised by
the proof). An erroneous jury instruction may deprive the defendant of the constitutional
right to a jury trial. See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000).
Likewise, an instruction on a defense must be given if fairly raised by the proof
regardless of whether the defense relies on the theory or requests that an instruction be given
as to that theory. See State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001); see also State v. Allen, 69
S.W .3d 181, 187-88 (Tenn. 2002); A lfonzo W illiams v. State, N o.
W2008-00106-CCA-R3-PC, Shelby County, slip op. at 6 (Tenn. Crim. App. July 29, 2009)
(applying the supreme court’s holding in Allen to conclude that an instruction on a defense
must be given if fairly raised by the proof), app. denied (Tenn. Mar. 1, 2010). “In
determining whether a defense is raised by the evidence, the court must examine the evidence
in the light most favorable to the defendant to determine whether there is evidence that
reasonable minds could accept as to that defense.” Sims, 45 S.W.3d at 9 (citing Johnson v.
State, 531 S.W.2d 558, 559 (Tenn. 1975); State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim.
App. 1998)); see also State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).
If evidence has been presented which reasonable minds could accept as a defense, “the
accused is entitled to the appropriate instructions.” Johnson, 531 S.W.2d at 559.
At the time of the Defendant’s crime, the self-defense statute provided:
(a) A person is justified in threatening or using force
against another person when, and to the degree, the person
reasonably believes the force is immediately necessary to protect
against the other’s use or attempted use of unlawful force. The
person must have a reasonable belief that there is an imminent
danger of death or serious bodily injury. The danger creating
the belief of imminent death or serious bodily injury must be
real, or honestly believed to be real at the time, and must be
founded upon reasonable grounds. There is no duty to retreat
before a person threatens or uses force.
-24-
(b) Any person using force intended or likely to cause
death or serious bodily injury within the person’s own residence
is presumed to have held a reasonable fear of imminent peril of
death or serious bodily injury to self, family or a member of the
household when that force is used against another person, not a
member of the family or household, who unlawfully and
forcibly enters or has unlawfully and forcibly entered the
residence, and the person using the force knew or had reason to
believe that an unlawful and forcible entry occurred.
(c) The threat or use of force against another is not
justified if the person consented to the exact force used or
attempted by the other individual.
(d) The threat or use of force against another is not
justified if the person provoked the other individual’s use or
attempted use of unlawful force, unless:
(1) The person abandons the encounter or clearly
communicates to the other the intent to do so; and
(2) The other nevertheless continues or attempts to use
unlawful force against the person.
(e) The threat or use of force against another is not
justified to resist a halt at a roadblock, arrest, search, or stop and
frisk that the person knows is being made by a law enforcement
officer, unless:
(1) The law enforcement officer uses or attempts to use
greater force than necessary to make the arrest, search, stop and
frisk, or halt; and
(2) The person reasonably believes that the force is
immediately necessary to protect against the law enforcement
officer’s use or attempted use of greater force than necessary.
T.C.A. § 39-11-611 (2006) (amended 2007, 2008, 2009).
-25-
We begin by noting that the Defendant was charged with resisting her husband’s
arrest, not her own. Thus, the instruction was required if the proof fairly raised the question
of whether Deputy Wagonshultz used or attempted to use excessive force in his arrest of the
Defendant’s husband and the Defendant reasonably believed that force was required to
protect against the use or attempted use of excessive force. Id. § 39-11-611(e)(1) - (2). The
Defendant argues that Deputy Wagonshultz’s actions when he “was forcibly attempting to
subdue the Defendant . . . raised a jury issue as to the deputy’s use of excessive force.” She
notes her own testimony that the deputy grabbed her arm, forced her to the ground, kneeled
on top of her, beat her with his fists, and tried to remove her shorts. Even if this evidence is
accredited, self-defense was not fairly raised because the Defendant was charged with
resisting her husband’s arrest, not her own. The proof shows that Deputy Wagonshultz came
onto the Defendant’s property and attempted to go to the house to arrest Mr. Thompson and
that the Defendant attempted to intervene, either verbally, by repeatedly stepping in front of
him, or both. Deputy Wagonshultz attempted to arrest the Defendant for resisting her
husband’s arrest, following which point the alleged excessive force and alleged self-defense
took place. At this point, the Defendant was resisting her own arrest. Because the Defendant
was not on trial for resisting her own arrest, self-defense did not apply. The trial court did
not err in failing to give a self-defense instruction, and the Defendant is not entitled to relief.
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
-26-