IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION
FILED
May 27, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9805-CR-00129
Appellee, )
) Shelby County
V. )
) Honorable W. Fred Axley, Judge
)
STANLEY O. ABELL, ) (Disorderly Conduct, Assault)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT L. J. SPENCE, JR. JOHN KNOX WALKUP
KAREN R. CICALA Attorney General & Reporter
67 Madison Avenue, Suite 200
Memphis, TN 38013 PETER M. COUGHLAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
ROSEMARY ANDREWS
Assistant District Attorney General
Criminal Justice Center, Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Stanley O. Abell, was tried by a jury and convicted of
assault and disorderly conduct. The trial court sentenced him to eleven months
and twenty-nine days’ confinement for the assault and to thirty days’ confinement
for the disorderly conduct. The defendant appeals, challenging both his
convictions and sentences. We AFFIRM the judgment of the trial court.
BACKGROUND
On September 3, 1996, the defendant went to the Willow Oaks
Elementary School to pick up his daughter from her fifth-grade class. Despite
signs instructing visitors to sign-in at the office, the defendant went directly to his
daughter’s classroom and demanded that she be allowed to go with him. His
daughter’s teacher, Josephine Leatherwood, advised the defendant that,
because it was prior to the end of classes, school policy required that he get a
dismissal slip from the office before she could let his daughter leave. The
defendant retorted that it was his daughter and that Leatherwood could not stop
him from taking her. Nevertheless, when Leatherwood insisted, the defendant
started toward the office. After a short distance, however, he turned back toward
the classroom. Watching this, and already suspecting trouble, Leatherwood
immediately sent her students, except the defendant’s daughter, to another
room.
When the defendant’s daughter saw him returning, she began to cry. She
told Leatherwood that she was supposed to go to an after-school program, after
which she was to be picked up by her mother. Hearing this, Leatherwood
decided to take the defendant’s daughter to the office and address the situation
there.
Leatherwood put her arm around the defendant’s daughter and started
toward the door of her classroom. At that point, the defendant entered the
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classroom and began yelling that Leatherwood could not stop him from taking his
daughter. Still crying, his daughter dropped her book bag, jumped behind
Leatherwood, and, holding to her waist, began screaming that she was not
supposed to go with the defendant.
Leatherwood testified that the defendant then grabbed her left arm and
dug his fingernails into her. Leatherwood calmly told the defendant that he was
hurting her and told him to remove his hands. Instead, the defendant seized her
left hand and began bending her fingers back, all the while shouting that
Leatherwood could not stop him from taking his daughter. Apparently still
unsatisfied, the defendant then twisted Leatherwood’s arm behind her back and
repeatedly stomped her open-toe shoe and foot.
At that point, another teacher, Barbara McCloskey, and the school
custodian, Anthony Smith, came to assist Leatherwood. When McCloskey
entered the room, the defendant’s daughter ran to her, grabbed her around the
waist, and moved with her into the hall. Smith reminded the defendant, who
continued to behave belligerently, that he was in a school and told him to be
quiet. The defendant retorted that Smith should “mind his own business” and
told him, “I’m a professor, and you can’t tell me what to do . . . . You’re just a
custodian.”
Eventually the defendant gained control of Monique and led her to his car,
which, as further demonstration of his arrogant disregard for the law and others,
he had parked in a handicap spot. During the disturbance, however, the school
principal had called the police. Officers arrived and arrested the defendant
before he could leave.
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SUFFICIENCY OF THE EVIDENCE
The defendant asserts that the evidence at trial was insufficient to support
his conviction of either assault or disorderly conduct. When an accused
challenges the sufficiency of the evidence, this Court must determine whether,
after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of a crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee
is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. See State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978).
The credibility of witnesses, the weight of their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted exclusively to the
trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.
Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state
accredits the testimony of the state’s witnesses and resolves all conflicts in favor
of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Moreover, a guilty verdict removes the presumption of innocence enjoyed by
defendants at trial and replaces it with a presumption of guilt. See State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the
sufficiency of the evidence bears the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. See State v. Freeman, 943
S.W.2d 25, 29 (Tenn. Crim. App. 1996).
The defendant has failed to carry this burden. The disorderly conduct
statute provides, “(a) A person commits an offense who, in a public place and
with intent to cause public annoyance or alarm: (1) Engages in fighting or in
violence or threatening behavior . . . . (b) A person also violates this section who
makes unreasonable noise which prevents others from carrying on lawful
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activities.” Tenn. Code Ann. § 39-17-305(a)(1), (b). The defendant argues that
the state failed to produce evidence of either “intent,” as required by subpart
(a)(1), or “unreasonable noise that prevents others from carrying on lawful
activities,” as required by subpart (b).
We disagree. With regard to the evidence of intent, it is clearly
established that a trier of fact may infer the element of intent from circumstantial
evidence. See, e.g., State v. Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App.
1994). The state presented overwhelming evidence of the defendant’s truculent
behavior, and this evidence was clearly sufficient for a reasonable trier of fact to
infer that the defendant intended to cause public annoyance or alarm. As to
subpart (b), the school custodian testified that he told the defendant to be quiet,
reminding him that he was in a school. And, the state’s proof indicated that at
least six school staff members responded to the disturbance by the defendant.
This evidence was sufficient for the jury to reasonably conclude that the
defendant created “unreasonable noise that prevent[ed] others from carrying on
lawful activities.” Thus, we find the evidence sufficient as to either provision of
the above cited statute.
As to his assault conviction, the defendant does not assert that the state
failed to produce competent evidence of any statutory element. See Tenn. Code
Ann. § 39-13-101(1)-(2). Rather, he merely reassert his version of events--for
example, that he only “gently touched” Ms. Leatherwood’s arm--and argues that
the jury’s verdict was against the weight of the evidence. The defendant thereby
asks this Court to reweigh the evidence presented at trial. This we cannot do.
The credibility of witnesses and the weight to be accorded their testimony are
matters reserved to the trier of fact; the jury was entitled to credit the state’s
proof and discredit that of the defendant. This issue is without merit.
JUDICIAL CONDUCT
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The defendant next argues that certain comments of the trial judge, made
in the presence of the jury, were inappropriate and prejudicial. The defendant
testified at trial but was consistently evasive of the state’s questions on cross-
examination. Because of this evasiveness, the trial judge admonished the
defendant to answer the state’s questions directly. On another occasion, the
court questioned the defendant to clarify contradictory responses. In his brief to
this Court, the defendant quotes these exchanges from the trial transcript. His
entire argument, then, is that “[s]uch statements are detrimental to the defendant
in that it leaves [sic] the jury with the impression that the judge is ruling that the
defendant is not being candid in his testimony. The judge in effect is impeaching
the defendant’s testimony.”
The defendant cites no authority in support of this argument. See Tenn.
R. App. P. 27(a)(7) (requiring citation to relevant authority in appellant brief).
This issue is, therefore, waived. See Tenn. Ct. Crim. App. R. 10(b); State v.
Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987).
Notwithstanding waiver, we have examined the trial transcript, and we find
nothing inappropriate in the trial court’s comments. A trial judge possesses
broad discretion in controlling the course and conduct of trial, as such discretion
is necessary to conduct an orderly proceeding. “[T]he propriety, scope, manner
and control of testimony . . . is within the sound discretion of the trial court, which
will not be reversed absent an abuse of that discretion.” State v. Elroy D.
Kahanek, No. 01C01-9707-CC-00298 (Tenn. Crim. App. filed June 30, 1998, at
Nashville) (citing State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn. 1994)). We
find no abuse of discretion. This issue is without merit.
SENTENCING FACTORS
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The appellant next complains that his sentences are excessive. When an
accused challenges the length or manner of service of a sentence, it is the duty
of this Court to conduct a de novo review on the record “with a presumption that
the determinations made by the court from which the appeal is taken are
correct.” Tenn. Code Ann. § 40-35-401(d). In conducting our review, we must
consider (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) any statutory mitigating or enhancement factors; (6) any statement
made by the accused in his own behalf; and (7) the potential or lack of potential
for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant
carries the burden of showing that his sentence is improper. See Tenn. Code
Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d
391, 395 (Tenn. Crim. App. 1996).
Misdemeanor sentencing is designed to provide the trial court with
continuing jurisdiction and a great deal of flexibility. A misdemeanant is not
entitled to a presumption of minimum sentence. See State v. Seaton, 914
S.W.2d 129, 135 (Tenn. Crim. App. 1995). Further, the trial court is not limited
to consideration of the statutory enhancement and mitigating factors in
determining the appropriate sentence, but should examine misdemeanor
offenses in light of the circumstances of the offense. See State v. Brannon, No.
03C01-9508-CR-00233 (Tenn. Crim. App. filed Apr. 3, 1996, at Knoxville).
Nevertheless, the trial court must consider the statutory enhancement and
mitigating factors and the purposes and principles of the Sentencing Reform Act
when determining the portion of a sentence to be served in confinement. See
Tenn. Code Ann. § 40-35-302; State v. Creasy, 885 S.W.2d 829, 832 (Tenn.
Crim. App. 1994).
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In the present case, two enhancement factors are applicable: The offense
involved more than one victim, see Tenn. Code Ann. § 40-35-114(3); and the
defendant committed the offense while on school property, see Tenn. Code Ann.
§ 40-35-114(17). The trial court recognized no mitigating factors; however, the
defendant proposes that the following apply:
“The defendant’s criminal conduct neither caused nor
threatened serious bodily injury,” Tenn. Code Ann. § 40-34-
113(1);
The defendant’s criminal history is not extensive;
“The defendant, although guilty of the crime, committed the
offense under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the
criminal conduct,” Tenn. Code Ann. § 40-34-113(11); and
The defendant exhibited remorse.
Although we hesitate to characterize Leatherwood’s injuries as “serious,”
the defendant’s actions clearly threatened serious injury to both Leatherwood
and others. Thus, this factor is not applicable.
As for the defendant’s criminal history, we agree with the trial court that
the defendant’s relative minor record may be insufficient to warrant sentence
enhancement. Nevertheless, neither does this record merit mitigation. The
defendant’s presentence report indicates one conviction for driving on a revoked
license and an unprosecuted bad check charge. Of greater significance to this
Court, the defendant’s ex-wife testified at his sentencing hearing regarding
several previous violent encounters with the defendant arising from a custody
dispute between the couple. She stated that on one occasion, police officers
had to remove the defendant from her premises after he attempted to break into
her home. On another occasion, the defendant took the couple’s two children
and barricaded himself in his home until police facilitated the return of the
children to Ms. Abell. Finally, she testified that she had sworn out a complaint
against the defendant for allegedly attempting to run over her with his car.
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These incidents clearly indicate a history of criminal behavior and, therefore,
preclude application of this factor in mitigation of the defendant’s sentence.
Neither do we find that the defendant committed his offenses “under such
unusual circumstances that it is unlikely that a sustained intent to violate the law
motivated the criminal conduct.” The unusual circumstance to which the
defendant would attribute his behavior is his ongoing custody dispute with his ex-
wife. However, as noted above, the record indicates that the defendant has
reacted violently during several previous incidents involving the custody of his
children. The continuing nature of this custody dispute, combined with the
defendant’s consistently aggressive responses, hardly suggests that this
circumstance is unusual in his case. Moreover, the instant offense extended
over a significant period of time and continued through, by all accounts,
remarkably calm responses from Leatherwood and others school staff members.
We cannot conclude that the defendant’s offenses were motivated by anything
other than a sustained intent to terrorize members of the school staff.
Finally here, the defendant asserts that the trial court erred in failing to
recognize his alleged remorse as a mitigating factor. Our examination of the
record reveals no significant expression of remorse by the defendant. To the
contrary, the defendant has never even admitted that his actions were wrongful.
He stated only that he would abide the jury’s decision as to his guilt.
For these reasons, we find none of the proposed mitigating factors
applicable. The trial court did not err in sentencing the defendant to the
maximum punishment for each of his offenses.
ALTERNATIVE SENTENCING
We next examine the defendant’s challenge to the trial court’s denial of
alternative sentencing. We begin by inquiring whether the defendant is entitled
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to be presumed a favorable candidate for alternative sentencing. The defendant
argues that because one convicted of a class C, D, or E felony is presumed a
favorable candidate, see Tenn. Code Ann. § 40-35-102(6), this presumption
should logically extend to one convicted of a misdemeanor. There is case law to
support this argument. See, e.g., State v. Boyd, 925 S.W.2d 237, 245 (Tenn.
Crim. App. 1995). However, there is also case law to the contrary. See State v.
Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995) (“The presumption is
limited in scope to an accused who is convicted of a Class C, D or E felony. It
does not apply to an accused convicted of a misdemeanor.”). Albeit in
parenthetical dicta, the Tennessee Supreme Court recently cited the Williams
holding in State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). Moreover, the
reasoning of Troutman is persuasive. Addressing whether a trial court must
record findings in misdemeanor sentencing, the Troutman Court stated, “[T] he
legislature has indicated the ability to clearly mandate specific findings on the
record in felony sentencing. Had the legislature intended this practice in
misdemeanor sentencing, it could have so stated.” Id. at 274. Similarly, we
conclude, the legislature has indicated the ability to clearly mandate a
presumption of favorable candidacy for alternative sentencing for class C, D, or
E felons. Had the legislature intended this presumption to apply to
misdemeanants, it could have so stated. We therefore read the statute for what
it says, not what might be inferred, and conclude that the defendant is not
entitled to a presumption of favorable candidacy for alternative sentencing.
Moreover, even if the presumption generally applied, we would find it
rebutted in this case. The trial court found that confinement is necessary to
avoid depreciating the seriousness of the offense. See Tenn. Code Ann. §
40-35-103(1)(B). To impose confinement based on the seriousness of the
offense, “‘the circumstances of the offense as committed must be especially
violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree,’ and the nature of the offense must outweigh
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all factors favoring a sentence other than confinement.” State v. Bingham, 910
S.W.2d 448, 454 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818 S.W.2d
370, 374-75 (Tenn. Crim. App. 1991)). Although neither assault nor disorderly
conduct is inherently horrifying, violent, etc., relative to many other offenses, “the
circumstance of the offense[s] as committed” were clearly “especially
reprehensible” and “of an excessive or exaggerated degree.” Further, although
the defendant is entitled to consideration of factors, such as his community
service, that tend to favor alternative sentencing, we conclude that the
seriousness of the defendant’s offenses outweighs all such factors.
Finally here, we consider separately the trial court’s denial of probation, as
that analysis differs from the denial of alternative sentencing generally. While
the defendant is statutorily eligible for probation and must automatically be
considered, "the defendant is not automatically entitled to probation as a matter
of law." Tenn. Code Ann. § 40-35-303(b) sentencing comm’n cmts; see State v.
Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). Rather, the defendant
has the burden of establishing his suitability for probation. See Tenn. Code Ann.
§ 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
In determining whether to grant or deny probation, the trial courts are
directed to consider the circumstances of the offense; the defendant's criminal
record, social history, and present condition; the need for deterrence; and the
best interest of the defendant and the public. See State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The
defendant's credibility, or lack thereof, is also an appropriate consideration and
reflects on a defendant's potential for rehabilitation. See State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994). And, “[i]t is well settled that [a
defendant’s] lack of candor may serve as the sole basis for denying probation.”
State v. James T. Bingham, No. 01C01-9604-CC-00159 (Tenn. Crim. App. filed
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Dec. 15, 1997, at Nashville) (citing State v. Dykes, 803 S.W.2d 250 (Tenn. Crim.
App. 1990)).
The trial court duly considered these factors, and the evidence,
particularly the defendant’s lack of candor and credibility, supports the trial
court’s decision.
CONSECUTIVE SENTENCING
Finally, the defendant argues that the trial court erred in ordering that his
sentences run consecutively. The state correctly concedes that consecutive
sentencing is not warranted in this case, as none of the statutory criteria is
applicable. See Tenn Code Ann. § 40-35-115. Nevertheless, although the trial
court stated at the sentencing hearing that the sentences would run
consecutively, the judgment sheet as ultimately completed imposes concurrent
service. We therefore find no error, but we clarify that the defendant’s
sentences are to be served concurrently.
CONCLUSION
The judgment of the trial court is AFFIRMED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
(SEE CONCURRING OPINION)
GARY R. WADE, Presiding Judge
_____________________________
THOMAS T. W OODALL, Judge
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