State of Tennessee v. William Thomas Kelly ( 2021 )

07/20/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 27, 2021 at Knoxville
STATE OF TENNESSEE v. WILLIAM THOMAS KELLY
Appeal from the Circuit Court for Tipton County
No. 9430 Joseph H. Walker, Judge
No. W2020-00733-CCA-R3-CD
The defendant, William Thomas Kelly, appeals his Tipton County Circuit Court Jury
convictions of evading arrest, violating the open container law, violating the financial
responsibility law, and driving on a revoked, cancelled, or suspended license, challenging
the sufficiency of the convicting evidence. Discerning no reversible error, we affirm the
judgments of the trial court. Because we discern possible clerical error in the judgment
form for Count 2, we remand the case for the entry of any appropriate corrected judgment
form for that count.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed; Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.
David S. Stockton, Assistant District Public Defender, for the appellant, William Thomas
Kelly.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Mark Davidson, District Attorney General; and Jason Poyner, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Tipton County Grand Jury charged the defendant with one count of
felony evading arrest; one count of reckless driving; one count of driving while his
privilege to drive was cancelled, suspended, or revoked; one count of violating the financial
responsibility law, and one count of violating the open container law for events that
occurred on August 12, 2017.
At the defendant’s November 6, 2019 trial, Constable James Stroud testified
that he was patrolling in District 6 of Tipton County in the early morning hours of August
12, 2017, when he “observed a white Lincoln Town Car traveling southbound on Quito-
Drummonds Road.” When Constable Stroud “ran the tags through dispatch,” he learned
that the license tag affixed to the Town Car actually belonged to a Nissan Frontier
registered to a Dora Kelly in Millington. Constable Stroud then “attempted to stop the
vehicle on Quito-Drummonds Road near Simmons where the vehicle attempted to flee
from me.” Constable Stroud testified that “[a]s soon as I initiated my emergency
equipment, the vehicle did speed up at a high rate.” He pursued the vehicle, which reached
speeds of “probably 60 miles per hour,” well in excess of the posted speed limit on the
curvy road.
As they drove, a deputy sheriff passed them in the oncoming direction and
then turned around to join the pursuit. Constable Stroud said that the driver briefly lost
control of the vehicle, “driving into a field” before regaining control and “continuing
southbound.” The driver, who was the vehicle’s only occupant and whom Constable
Stroud described as “a white male,” “turned onto Ray Bluff and then immediately onto
Crigger [R]oad,” all the while “traveling in both lanes back and forth.” The vehicle
“traveled into Shelby County,” failing to stop at two different intersections, before finally
turning “onto West Union where the driver appeared to intentionally turn south, running
through a ditch into a cornfield to attempt to elude.”
Constable Stroud testified that deputies attempted to “contain the subject into
that cornfield” but did not drive into the field “due to the height of the corn,” saying,
“Wasn’t sure of who or where the subject would have been. How far into the corn he was.”
As a result, officers were unable to immediately enter the vehicle “[d]ue to the hazard of
the corn.” When the officers finally entered the vehicle, which had traveled “two to three
hundred yards” into the cornfield, the driver was gone. Officers found a hat, which
Constable Stroud identified as the one he had seen being worn by the driver of the Town
Car, lying on the ground just outside the vehicle. Inside the vehicle, officers discovered a
cellular telephone and two open, empty bottles of Budweiser beer. The ashtray contained
a number of cigarette butts. In addition, “[t]here was at least one cigarette that was recently
smoked l[]ying next to the hat on the ground outside of the car.” When officers opened the
cellular telephone, “[i]t did show a picture of” the defendant. Further examination of the
telephone uncovered more pictures of the defendant as well as a Facebook account bearing
the defendant’s name. The Facebook page featured a picture of the defendant wearing the
same hat found lying outside the car.
Constable Stroud asked officers with the Millington Police Department to go
to the residence associated with the license tag on the car, which residence was five or six
miles from the cornfield where the Town Car was abandoned. The officers who went to
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the residence encountered the defendant’s mother, Dora Kelly. Constable Stroud said that
he and Tipton County Sheriff’s Department Deputy Jarred Holloway asked Ms. Kelly for
consent to search the residence. While at the residence, Constable Stroud identified the
defendant as the man he believed to be the driver of the vehicle. He maintained that he
was able to identify the man because “[d]uring the pursuit, the driver of the vehicle turned
several times looking back at myself, which g[a]ve me a visible appearance of his face.”
The man was wearing a shirt that was a different color than the one worn by the driver of
the vehicle, but officers found the “clothing that [the driver] was wearing at the time” in “a
laundry basket in the laundry room.” A pair of shoes found inside the residence were
“covered in wet grass of what appears to be corn stalk.” A pair of denim shorts in the
basket were “covered in dirt,” and a sock from the basket had “corn leaves on it.” All of
the clothing was damp.
Constable Stroud testified that the defendant claimed that he had not been
driving the Town Car and that, indeed, the car had been stolen from him. The defendant
told Constable Stroud “that he had hitchhiked home somehow or walked part of the way
home.” Constable Stroud said that he checked the defendant’s driving history and learned
that his license had been revoked. A certified copy of the defendant’s driving record from
the Tennessee Department of Safety was exhibited to Constable Stroud’s testimony.
Officers found no proof of insurance in the car, and the registration information available
did not indicate that the defendant had insurance.
During cross-examination, Constable Stroud testified that a check of the
vehicle identification number (“VIN”) for the Town Car showed that there “was no current
registration on that vehicle” but that the car was last registered to a Jimmy Moore at a
residence in Halls. He did not attempt to contact Mr. Moore. Constable Stroud
acknowledged that the defendant never actually claimed an ownership interest in the car.
Instead, the defendant said that he had fallen asleep while at a party at the river and that
the vehicle was gone when he woke up.
During redirect-examination, Constable Stroud said that, regardless of who
owned the vehicle, the defendant was the person he had seen driving the Town Car in the
early morning hours of August 12, 2017.
Dora Kelly, the defendant’s mother, testified that the defendant was living
with her in August 2017, when the police came to her house early in the morning looking
for the defendant. The police left when she told them that the defendant was not home.
She said that, at that time, she owned a Nissan Frontier that had been her husband’s but
that “it was in the shop.” She recalled having seen a white Lincoln Town Car parked in
front of her house but denied having seen the defendant drive the vehicle. She could not
identify the car that had been abandoned in the cornfield as the same one she had seen
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parked in front of her house. Ms. Kelly acknowledged that the defendant smoked cigarettes
and said that he smoked “[e]ither Marlboro or the cheapest you can buy most of the time.”
She testified that she thought the defendant drank Budweiser brand beer.
Ms. Kelly testified that the defendant returned home sometime after the
police left and that she “told him they were looking for him. He went straight to the phone
and turned himself in.” She recalled that the defendant looked “[l]ike somebody who’s
been out all night or been to a girlfriend’s or friend’s house.” Ms. Kelly could not
specifically recall what the defendant was wearing that morning but said that he often wore
denim shorts. She agreed that the defendant often wore hats and even collected them, but
she said that she had never seen the hat collected by the police from the cornfield. Ms.
Kelly could not identify the shoes or sock taken from the laundry room in her home as
belonging to the defendant.
Ms. Kelly acknowledged that the defendant was “not supposed to be driving”
in August 2017 and that he had “no insurance” at that time. She said that she did not permit
the defendant to drive any of her vehicles.
During cross-examination, Ms. Kelly testified that she did not see any
cornstalks or other debris on the defendant’s clothing that morning but that he was wet
because it had rained.
Tipton County Sheriff’s Deputy Jarred Holloway testified that he assisted
Constable Stroud on August 12, 2017. He recalled that he was on patrol on Quito-
Drummonds Road when he saw Constable Stroud in pursuit of the white Town Car. He
said that he “just turned around, joined in the pursuit” and that he “[b]egan calling out the
radio traffic over the radio so Constable Stroud can just concentrate on driving and
pursuing the vehicle.” Deputy Holloway participated in the chase until it ended in the
cornfield. He assisted the investigation by taking photographs. Later that morning,
“around daylight,” he went to Ms. Kelly’s residence with Constable Stroud. When Deputy
Holloway arrived at the residence, the defendant was there, but the deputy could not recall
whether the defendant had been taken into custody at that time. He recalled that Constable
Stroud identified the defendant as the person who had been driving the Town Car during
the chase.
Deputy Holloway testified that he asked for and received Ms. Kelly’s
permission to search the residence. He collected the “clothing items that were found in the
laundry room in the residence.” He said that the clothing was “very dirty” and “wet” with
“traces of corn material.”
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Following Deputy Holloway’s testimony, the defendant elected to testify
after a full Momon colloquy.
The defendant testified that the clothing collected by the police belonged to
him but said that the “dirt and grease” on the clothing came from his work. He said that,
after work, he went home and took a shower, placing his dirty work clothes into the hamper
in the laundry room, as was his custom. He then “went to a bar at Morrie’s on Easley in
Millington,” where he “[r]an into a girl” named “Judy” that he knew. The two “[d]ecided
to go have some beers at other places.” The defendant testified that Judy “said she had a
car with no tags,” so he “took the tags off my mother’s TV stand and put the tags on that
car.” The two then “rode around and did some bar hopping here and there.” Later, they
“[w]ent to some people’s house,” where he “dozed off” “out back.” The defendant said
that “when I got up, the people that I was with were gone.” He claimed that he “knocked
on the owner’s door and he g[a]ve me a ride to the gas station at Wilkinsville,” from which
location the defendant began walking. He was “picked up again and was dropped off at
Simmons Road, and then I walked the rest of the way home. And that was the extent of
the night.”
The defendant testified that he arrived home at approximately 6:00 a.m., at
which point Ms. Kelly told him that officers with the Millington Police Department had
been to the residence looking for him. He said that he telephoned the police station and
that “[o]fficers showed up, put me in handcuffs, stuck me in a car.”
The defendant agreed that his driver’s license had been revoked but said that
he did not, at any point, drive the Town Car on August 12, 2017. He also denied having
driven the car with an open container of beer. The defendant acknowledged that the cellular
telephone taken from the Town Car belonged to him but said that the last time he saw the
telephone was when he “plugged it up to the charger and laid it on the front passenger seat
in the car.” He maintained that the cigarettes recovered from the car were not the kind that
he smoked but acknowledged that the hat found on the ground outside belonged to him.
He said that the last time he saw the hat, it was next to his “phone on the front seat.” The
defendant claimed that, while being transported by Constable Stroud to the jail, he asked
the constable for a cigarette and that Constable Stroud “told me if I confessed to driving
the car, he’d let me smoke.”
During cross-examination, the defendant insisted that he smoked Marlboro
Lights and never anything else. He said that none of the hats found inside the car belonged
to him. The defendant testified that he took the tags to put on the Town Car “[b]ecause I
was interested in the girl.” The defendant said that the shoes taken from Ms. Kelly’s
residence did not belong to him and that, in fact, he did not “wear low cut shoes” but only
wore “high tops” because he had “bad ankles.”
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Based upon this evidence, the jury convicted the defendant of evading arrest,
driving on a revoked license, violating the open container law, and violating the financial
responsibility law. As will be discussed more fully below, the jury did not render a verdict
on the charge of reckless driving.
I. Sufficiency
The defendant challenges the sufficiency of the convicting evidence, arguing
that the State failed to establish his identity as the driver of the white Town Car and that,
with regard to the conviction of violating the open container law, that the empty beer bottles
inside the car did not contain beer that was capable of immediately being consumed. The
State asserts that the evidence was sufficient.
Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331
S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of
the witnesses, the weight and value of the evidence, and the factual issues raised by the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.With the exception of the offense of violating the open container law, the
defendant does not challenge the evidence supporting the elements of the offenses, but
instead argues that the State failed to establish his identity as the perpetrator. “The identity
of the perpetrator is an essential element of any crime.” State v. Rice, 184 S.W.3d 646,
662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). Whether
the State has established the defendant as the perpetrator of the charged offenses beyond a
reasonable doubt is “a question of fact for the jury upon its consideration of all competent
proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015) (citing State v. Thomas, 158
S.W.3d 361 app. at 388 (Tenn. 2005)).
Here, Constable Stroud testified that when he learned that the tags affixed to
the Town Car belonged to a different vehicle, he attempted to effectuate a traffic stop.
Instead of stopping, the driver of the Town Car fled. Constable Stroud gave chase, closely
following the Town Car as it reached speeds of 60 miles per hour. He said that he was able
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to clearly see the driver, whom he described as a white male, throughout the chase. After
the driver drove the car into a cornfield and abandoned it, officers found the defendant’s
cellular telephone inside the car and his hat lying in the field next to the car. A search of
Ms. Kelly’s residence, where the defendant lived at the time, revealed the defendant’s
clothing and shoes that were wet, dirty, and soiled with the detritus of the cornfield.
Although the defendant insisted that he had not been driving the Town Car that evening
and that he only affixed the tags that belonged to Ms. Kelly to the Town Car to get into the
good graces of “a girl,” the jury, as the judge of the facts, was free to reject the defendant’s
testimony and accept that offered by Constable Stroud. In our view, this evidence was
sufficient to establish the defendant’s identity as the perpetrator.
In his brief, the defendant, citing, Code section 55-10-416, argues that the
evidence was insufficient to support his conviction of violating the open container law
because the State presented no proof that the beers found inside the Town Car “had recently
been consumed.” That statute, however, provides that “‘[o]pen container’ means any
container containing alcoholic beverages or beer, the contents of which are immediately
capable of being consumed or the seal of which has been broken.” T.C.A. § 55-10-
416(a)(1)(A). Additionally, the statute provides that “[a]n open container is in the
possession of the driver when it is not in the possession of any passenger and is not located
in a closed glove compartment, trunk or other nonpassenger area of the vehicle.” Id. § 55-
10-416(a)(1)(B). Constable Stroud identified the defendant as the driver and only occupant
of the Town Car immediately before the car was driven into the cornfield and abandoned.
Officers found two open, empty or partially empty beer bottles inside the car. From this
evidence, a rational jury could have found that the defendant violated the open container
law.
II. Clerical Error
For reasons not explained in the record, the jury did not return a verdict on
the charge of reckless driving. Indeed, it is unclear from the record on appeal that that
charge was ever actually submitted to the jury. No verdict form for this charge is included
in the record, no verdict for this offense is memorialized in the trial court order approving
the verdicts, and the jury foreman did not mention the offense when rendering the verdict
on the record. Despite this, a judgment form for this count indicates a jury verdict of guilty
and a merger of this offense into the defendant’s conviction of felony evading arrest.
Because it does not appear from the record that the jury actually rendered a guilty verdict
for this offense, we remand the case for the entry of a corrected judgment form reflecting
the correct disposition of this charge if appropriate.
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Conclusion
Based upon the foregoing analysis, we affirm the judgments of the trial court
but remand the case to the trial court for the entry of a corrected judgment form for Count
2.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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