State of Tennessee v. Christopher Calvera ( 2019 )


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  •                                                                                          04/25/2019
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    January 23, 2019 Session
    STATE OF TENNESSEE v. CHRISTOPHER CALVERA
    Appeal from the Circuit Court for Sevier County
    No. 23593-II    James L. Gass, Judge
    No. E2018-00982-CCA-R3-CD
    The Defendant, Christopher Calvera, was indicted for retaliation for past action, a Class E
    felony; and assault, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-13-101,
    -16-510. Following a jury trial, the Defendant was convicted of the retaliation for past
    action charge and acquitted of the assault charge. The trial court later imposed a
    four-year sentence for the retaliation conviction. On appeal, the Defendant contends that
    (1) the evidence was insufficient to sustain his conviction; and (2) the trial court
    committed plain error in denying his motion for a mistrial alleging that the State
    committed prosecutorial misconduct during its closing argument. Following our review,
    we affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
    WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Edward Cantrell Miller, District Public Defender; and Rebecca Vance Lee (on appeal)
    and Aaron Michael Kimsey (at trial), Assistant District Public Defenders, for the
    appellant, Christopher Calvera.
    Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
    Attorney General; James B. Dunn, District Attorney General; and Ronald Crockett
    Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTUAL BACKGROUND
    Sam Swaney testified that he was currently a patrol deputy for the Sevier County
    Sheriff’s Office. On July 14, 2017, Deputy Swaney served as a corporal for the Sevier
    County Sheriff’s Office at the Sevier County jail. Deputy Swaney testified that as a
    corrections officer, it was his job “to watch over the inmates for their wellbeing and keep
    the peace and the security of the facility.” Corrections officers were also responsible for
    transporting inmates. Additionally, corrections officers had discretion to search and
    “investigate inmates for possession of” contraband. Corrections officers also had
    discretion to “write warrants, identify and swear those warrants and take out charges” if
    an inmate committed a crime. Deputy Swaney, in his previous role as a corrections
    officer, took out the arrest warrants against the Defendant. Deputy Swaney testified that
    he believed the Sevier County jail was “a resource to help maintain public order.”
    Deputy Swaney testified that on July 14, 2017, he was addressing several inmates
    in one of the “dorms.” Deputy Swaney described what then happened as follows:
    [The Defendant] stepped up and began speaking for the whole dorm. And
    essentially he implied a threat that we needed to be ready as corrections
    officers to handle whatever . . . that they were going to throw at us. At that
    point I told him I was always ready. And he slammed his hands down on
    the table, took an aggressive posture, and said, “All right then, let’s go.”
    At that point I told him to grab his belongings, that he was going to
    be rehoused. And he did go over and . . . started to grab his belongings, and
    then he stopped. . . . I again instructed him to grab his belongings. And he
    said, “No, you grab them for me.” Once again, for the third time, I
    instructed him to grab his belongings. He said no. At that point, I went
    hands on with [the Defendant] per our policies and procedures.
    ....
    . . . I attempted to place his hands behind his back so that I could
    escort him from the dorm for his noncompliance. And he began to pull
    away. So at that point, I attempted to take him to the ground. We ended up
    in between two bunks. The bedding in the dorms are bunk beds. And we
    were wrestling around. I was attempting to get his hands behind his back.
    I used pressure point techniques, which we were trained to do to bring them
    into compliance. He refused.
    [Corrections] Officer [Jordan] Monday arrived and began to deliver
    what we call a common peroneal strike, which is essentially a strike to the
    nerve in the leg right about four to five inches above the knee on the
    outside of the leg, which causes pain but it also brings compliance. He
    used those strikes. And [the Defendant] still refused to give up his hands,
    at which point Officer Monday and I pulled him from the bunk and got him
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    on the ground, and he was still laying on his arms. . . . He refused to pull
    his arm out and give it back to us so that we could take him out of the
    dorm.
    Deputy Swaney and Officer Monday were eventually able to handcuff the
    Defendant. Deputy Swaney testified that once he and Officer Monday got the Defendant
    on the ground, the Defendant said, “I cannot wait to get out in the streets and kill you and
    your whole family.” Deputy Swaney testified that he understood the Defendant’s
    statement to be a threat. After the Defendant was restrained, he also said to Deputy
    Swaney, “You’ve got something coming,” and “Don’t come at me by yourself.” Deputy
    Swaney testified that he also understood both of these statements to be threats. Officer
    Monday testified that he helped Deputy Swaney restrain the Defendant and recalled that
    the Defendant said to Deputy Swaney, “[W]hen I get out I will kill your whole family.”
    Body camera footage was played for the jury during trial from both Deputy Swaney and
    Officer Monday showing the struggle with the Defendant and his threats.
    During the State’s closing argument, the prosecutor referred to the Defendant’s
    threat to kill Deputy Swaney’s family and asked several questions such as “what’s that do
    to you,” “would you be upset,” and “how hard would that be for you?” Defense counsel
    objected, arguing that the State had committed prosecutorial misconduct by asking the
    jurors to put themselves “in the shoes” of the victim. The trial court overruled the
    objection. Later, defense counsel requested a mistrial based on the statements made by
    the prosecutor during his closing argument. The trial court denied the Defendant’s
    motion for a mistrial.
    ANALYSIS
    I. Sufficiency of the Evidence
    The Defendant contends that the evidence was insufficient to sustain his
    conviction for retaliation for past action. The Defendant argues that Deputy Swaney was
    not a “law enforcement officer” entitled to protection under the retaliation statute. The
    Defendant also argues that his threat “was not in any way connected to the judicial
    process.” The State responds that the evidence was sufficient to sustain the Defendant’s
    conviction.
    An appellate court’s standard of review when the defendant questions the
    sufficiency of the evidence 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). This court does not reweigh the evidence, rather, it presumes that the jury
    has resolved all conflicts in the testimony and drawn all reasonable inferences from the
    -3-
    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 regarding witness
    credibility, conflicts in testimony, and the weight and value to be given to evidence were
    resolved by the jury. See State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997).
    A guilty verdict “removes the presumption of innocence and replaces it with a
    presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
    evidence is insufficient to support the jury’s verdict.” 
    Bland, 958 S.W.2d at 659
    ; State v.
    Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982). A guilty verdict “may not be based solely
    upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 
    736 S.W.2d 125
    , 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
    proof be uncontroverted or perfect.” State v. Williams, 
    657 S.W.2d 405
    , 410 (Tenn.
    1983). As such, the State is not burdened with “an affirmative duty to rule out every
    hypothesis except that of guilt beyond a reasonable doubt.” 
    Jackson, 443 U.S. at 326
    .
    The foregoing standard “applies to findings of guilt based upon direct evidence,
    circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
    State v. Pendergrass, 
    13 S.W.3d 389
    , 392-93 (Tenn. Crim. App. 1999). Both “direct and
    circumstantial evidence should be treated the same when weighing the sufficiency of
    such evidence.” State v. Dorantes, 
    331 S.W.3d 370
    , 381 (Tenn. 2011). The duty of this
    court “on appeal of a conviction is not to contemplate all plausible inferences in the
    [d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
    the State.” State v. Sisk, 
    343 S.W.3d 60
    , 67 (Tenn. 2011).
    As used here, it is a criminal offense when a person “harms or threatens to
    harm . . . a law enforcement officer, . . . or a family member of any such person, by any
    unlawful act in retaliation for anything the . . . law enforcement officer . . . did in an
    official capacity as . . . a law enforcement officer[.]” Tenn. Code Ann. § 39-16-
    510(a)(1). As charged to the jury, a “law enforcement officer” is “an officer, employee
    or agent of government who has a duty imposed by law to . . . [m]aintain public order . . .
    [and] [i]nvestigate the commission or suspected commission of offenses.”1 Tenn. Code
    Ann. § 39-11-106(a)(21).
    There is no dispute that the Defendant threatened to kill Deputy Swaney’s family.
    Instead, the Defendant argues that Deputy Swaney was not a “law enforcement officer”
    because, at the time of the threat, “he was a corrections officer.” As a corrections officer,
    1
    “Law enforcement officer” is also defined as “an officer, employee or agent of government who has a
    duty imposed by law to . . . [m]ake arrests for offenses, whether that duty extends to all offenses or is
    limited to specific offenses . . . [and] [i]nvestigate the commission or suspected commission of offenses.”
    Tenn. Code Ann. § 39-11-106(a)(21). The trial court did not charge the jury with this alternative
    definition.
    -4-
    Deputy Swaney was an employee of the Sevier County Sheriff’s Office. The sheriff of
    the county has the statutory duty to operate the county jail as well as “to ferret out crimes,
    to secure evidence of crimes, and to apprehend and arrest criminals.” Tenn. Code Ann.
    §§ 38-3-102(b), 41-4-101.
    Deputy Swaney testified that he had discretion to search and “investigate inmates
    for possession of” contraband and to “write warrants, identify and swear those warrants
    and take out charges” if an inmate committed a crime. Here, Deputy Swaney took out the
    arrest warrants against the Defendant. Deputy Swaney also had “to watch over the
    inmates for their wellbeing and keep the peace and the security of the facility.” Deputy
    Swaney was responsible for transporting inmates and believed that the Sevier County jail
    was “a resource to help maintain public order.” As such, Deputy Swaney was a “law
    enforcement officer” as defined by the statute. Additionally, the Defendant’s threat was
    in retaliation for Deputy Swaney’s attempt to restrain him, which was done in Deputy
    Swaney’s official capacity as a corrections officer. Accordingly, we conclude that the
    evidence was sufficient to sustain the Defendant’s conviction.
    II. Prosecutorial Misconduct
    The Defendant contends that the trial court committed plain error in denying his
    motion for a mistrial alleging that the State committed prosecutorial misconduct during
    its closing argument. The Defendant argues that the prosecutor improperly “invited the
    jury to view the alleged crime from the victim’s perspective.” The State responds that the
    Defendant has waived plenary review of this issue by failing to file a motion for new trial
    and that plain error review is not warranted.
    The Defendant failed to file a motion for new trial and has waived plenary review
    of this issue. Tenn. R. App. P. 3(e); see also State v. Bough, 
    152 S.W.3d 453
    , 460 (Tenn.
    2004) (stating that failure to file a timely motion for new trial waives plenary review of
    all issues “except for sufficiency of [the] evidence and sentencing”). Nor has the
    Defendant established that plain error review is warranted. Here, consideration of the
    Defendant’s argument is not necessary to do substantial justice given the overwhelming
    evidence of the Defendant’s guilt. State v. Minor, 
    546 S.W.3d 59
    , 67 (Tenn. 2018).
    Accordingly, we conclude that plain error review of this issue is not warranted.
    CONCLUSION
    Upon consideration of the foregoing and the record as a whole, the judgment of
    the trial court is affirmed.
    _________________________________
    D. KELLY THOMAS, JR., JUDGE
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